Minor penetration constitutes sexual assault under the POCSO Act, validating the conviction; the court modified the sentence in consideration of prior incarceration.

JUDGMENT :

SARANG V. KOTWAL, J.

1. The Appellant was the original accused in POCSO Case No.490 of 2014. The learned Designated Court under the Protection of Children from Sexual Offences Act (hereinafter referred to as ‘POCSO Act’), Greater Mumbai, vide the Judgment and order dated 26.07.2017 convicted the appellant for commission of the offences punishable under sections 376, 354, 342 and 170 of the I.P.C. along with Sections 4, 10 and 12 of the POCSO Act. Considering the greater degree of sentences provided U/s.376 of the IPC and Section 4 of the POCSO Act than the other offences, the appellant was sentenced to suffer R.I. for 14 years and to pay a fine of Rs.50,000/- and in default of payment of fine to suffer R.I. for six months. Out of the fine amount, Rs.40000/- were directed to be paid to the victim by way of compensation. In addition, since the compensation was not adequate for the victim’s rehabilitation, the District Legal Services Authority was recommended to pay adequate compensation to the victim as per amended Section 357-A, Sub Clause (1) of Cr.P.C. The appellant was in custody from 19.09.2014. He was given set off U/s.428 of the Cr.P.C.

2. The Appellant has challenged this Judgment and order by way of the present appeal.

3. Heard Mr. Pawan Mali, learned appointed advocate for the Appellant, Ms. Ranjana Humane, learned APP for the State/Respondent No.1 and Ms. Prajakta Jagtap, learned appointed advocate for the Respondent No.2.

4. The prosecution case is that the victim was 13 years of age, on the date of the incident i.e. on 09.08.2014. She was present in the house along with her younger brother. Her parents had gone for work. At about 1:30p.m., one unknown person came to her house. Her brother was sent out on some pretext. Thereafter the unknown person told her that he had come at the instance of the victim’s father and that he would help her in getting a job in the police department. For that purpose, he needed to take her measurement. By saying so, he removed her clothes and committed penetrative sexual assault. When the victim raised shouts, he ran away. When the victim’s mother came home, the victim narrated the incident to her; who in turn, informed the victim’s father. The victim and her mother went to the police station and lodged an F.I.R. vide the C.R.No.328 of 2014 at Tilak Nagar police station; at about 2:30p.m. The F.I.R. was registered at 3:30p.m.

5. The Appellant was in custody in connection with some other offence. He was taken in custody in the present case on 19.09.2014. At his instance, his clothes were recovered from his house. The Test Identification Parade (for short ‘T.I.Parade’) was held on 10.10.2014 in which the victim identified the appellant. The victim’s clothes were already recovered after registration of the F.I.R. The articles were sent for chemical analysis examination. The spot panchanama was recorded after registration of the F.I.R. The statements of witnesses were recorded and after completion of the investigation the charge-sheet was filed. The case was tried before the Designated Judge under the POCSO Act as mentioned earlier.

6. During trial, the prosecution examined nine witnesses including the victim, her mother, the Medical Officer, The Naib Tahsildar who conducted the T.I. Parade, the WPSI who recorded the F.I.R., panchas and the Investigating Officer.

7. After recording the evidence and the statement of the accused U/s.313 of the Cr.P.C., arguments were heard and the Appellant was convicted and sentenced; as mentioned earlier.

8. The prosecution case has unfolded through the evidence of the victim herself who is examined as PW-1. At the time of recording of her evidence, she was 15 years of age. The victim’s birth certificate was produced by the Investigating officer at Exhibit-47. Her date of birth was 13.12.2001. The Birth Certificate was collected from the B.M.C. There is no dispute about her date of birth.

9. PW-1 victim has stated that, at the time of the incident, she was