IMPORTANT POINT
Penetrative sexual assault on girl – Age of victim is a crucial factor in POCSO cases.

JUDGMENT (ORAL)

Vipul M. Pancholi, J.—The present appeal has been filed under Section-374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred as ‘Cr.P.C.’) challenging the common judgment of conviction dated 3rd April, 2023 and order of sentence dated 10-04- 2023 passed by learned Exclusive Special Judge (POCSO Act), Saran at Chapra, in connection with ST POCSO No. 40/2020, (arising out of Kopa P.S. Case No. 117 of 2020) by which the appellant No.1 has been convicted for the offences punishable under Sections 4/6 of the POCSO Act and Sections 376 and 341 of the Indian Penal Code and sentenced to undergo 10 years rigorous imprisonment and fine of Rs. 25,000/- under Section 4 of the POCSO Act, 20 years rigorous imprisonment and fine of Rs.25,000/- under Section 6 of the POCSO Act and simple imprisonment for one month under Section 341 1.P.C. Appellant no.2 has been convicted under sections 4/16, 6 of the POCSO Act and Sections 376/109 and 341 of the Indian Penal Code and sections 67 and 67A of the IT Act and has been sentenced to undergo 10 years rigorous imprisonment and fine of Rs. 25000/- under Section 4/16 of the POCSO Act, 20 years rigorous imprisonment and fine of Rs. 25,000/- under Section 6 of the POCSO Act, simple imprisonment for one month under Section 341 I.P.C., simple imprisonment for one year and fine of Rs. 50,000/- under Section 67 of the IT Act and simple imprisonment for one year and fine of Rs. 50,000/- under section 67A of the IT Act. All the sentences have been directed to run concurrently.

2. Heard Mr. Harshvardhan Shivsundaram, learned Advocate, for the appellants and Mr. Sujit Kumar Singh, learned A.P.P. for the respondent-State.

3. Prosecution story in brief is as under:—

“On 27.05.2020 the victim’s mother had gone to the agricultural field for cutting grass asking her to come after one hour and collect the grass. As per instruction, at about 5:00 p.m., she was going to the field for collecting the grass when accused Ravi Kant Mahto (appellant No.1) and Mani Kumar @ Kaku (appellant No.2) of village-Basdila, P.S. Kopa, surrounded her with oblique motive and accused Ravi Kant Mahto caught hold of her, took her to a nearby pit, pulled off her lower garment (Salwar), tore her Samij, pushed her down into the pit and started doing obscene acts with her body and accused Mani Kumar @ Kaku started capturing the incident in his mobile phone upon which she started raising alarm on which her mother came running and saved her. On seeing her mother at the scene, both the accused ran away. She returned home with her mother. By that time, the video clip prepared by accused Mani Kumar was made viral on Internet. Her mother went to the house of the accused to complain about the act of making the video clip viral when father of accused Ravi Kant, namely Naresh Mahto, Chandreshwar Mahto, Indrajeet Mahto, Rahul Kumar, Lakhan Kumar and Vishnu Kumar, all armed with weapons like Lathi, Danda, Spear etc. chased her away. She somehow managed to reach the house. Again, all the accused came to the doorstep and started beating her family members in which the brothers of the victim, namely Rupesh Kumar, Pawan Kumar, Munna Kumar and the elder aunt of the victim were seriously injured. On hearing commotion, local people assembled at the place and saved them.”

4. After filing of the F.I.R., the investigating agency carried out the investigation and, during the course of investigation, the Investigating Officer recorded the statement of the witnesses and collected the relevant documents and thereafter filed the charge-sheet against the accused. As the case was exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions.

5. Before the Trial Court prosecution examined P.W. 1 Santosh Mahto, father of the victim, P.W. 2 Durgawati Devi, mother of the victim, P.W.3, Dr. Kiran Ojha, the doctor who medically examined the victim, P.W. 4, the victim, P.W. 5 Sunil Kumar Thakur, the Investigating Offi