IMPORTANT POINT
It is not open to a Court to impose a punishment lesser than minimum that is prescribed and only discretion vest is between lesser punishment and maximum punishment.

JUDGMENT

The counsel for the respondent no.2 has invited my attention to the impugned judgment, and in specific the sentence imposed upon the accused, on being found guilty of committing an offence under Sections 4 and 6 of the Protection of Children from Sexual offences Act.

He would submit that on being convicted under Sections 4 and 6 of the Act, even before the Amending Act, 25 of 2019 was introduced in the statute, under Section 4, it was not permissible to impose a punishment less than 7 years and on being convicted for an offence under Section 7, the Judge had no discretion to impose a punishment lesser than 10 years.

The counsel is justified in making the submission, but the question is whether the prosecution had made out the case for penetrative sexual assault and aggravated penetrative sexual assault.

2. On the information received from the mother of the victim girl aged 10 years and 8 days, when she had disclosed about an incident, which had occurred on 21/10/2018, CR No.I-167 of 2018 was registered, which invoked Section 376(1), 376(3), 376-AB of the IPC and Section 4, 6, 8 and 12 of the Protection of Children from Sexual Offences Act. The statement of the victim girl was recorded under Section 164 of the Code of Criminal Procedure and on completion of investigation, the charge-sheet was filed.

3. Charge was framed against the accused for offence punishable under Section 376-1A, 506 of IPC and Section 4 and 6 of the POCSO Act.

During the course of trial, the Special Judge attempted to determine whether the prosecution has proved that the accused committed sexual intercourse with her and committed an offence under Section 376-1A of IPC. He also proceeded to determine whether the prosecution had proved that the accused committed penetrative sexual assault on the minor and committed an offence under Section 4 r/w Section 3 of the POCSO Act and whether the accused had committed aggravated penetrative sexual assault, which amounted to an offence punishable under Section 6 r/w Section 5 of the POCSO Act.

4. During the course of the trial, the victim girl as well as her mother was examined as PW-1 and PW-2. Her 164 statement was also exhibited. PW-6, cousin sister of the victim girl is a relevant witness examined by the prosecution.

On appreciation of the evidence, the Special Judge derived the following inference:—

“True it is that in her statement before police, the victim has alleged that by removing her pant, the accused committed penetrative sexual assault on her. This fact also finds place in the FIR lodged by the informant. However, the victim in her evidence has only stated that the accused initially touched her private organ and then touched his private organ to her private organ. Thus, allegation about penetrative sexual assault on the victim girl is totally absent in her oral evidence”.

Referring to the evidence of PW-5, Gynecologist, who had opined that there was no sign of sexual assault and issued the medical certificate accordingly.

The Special Judge therefore, arrived at a conclusion that from, the evidence of the victim and the medical evidence there is scope to deny the factum of penetrative sexual assault but, there is substantial evidence on record indicative of the fact that there was an attempt to commit penetrative sexual assault on the victim as the allegation in the FIR and the 164 statement, as regards penetrative sexual assault are totally missing in the oral evidence and what has surfaced on record is inappropriate touch of her private part with his hand and touching of his private organ to her private organ.

5. On the basis of the evidence placed before the Court, by drawing the presumption under Section 29 of the Act, the Special Judge concluded as under:—

“Net result of the foregoing discussion is that prosecution has made out that the accused attempted to rape and/or commit aggravated penetrative sexual assault on her. As such, offence under Section 511 of the Indian Penal Code