IMPORTANT POINT
Penetrative sexual assault on minor girl – Conviction and sentence – Minor discrepancy pointed out between victim’s statement and her deposition can be attributed to her tender age.

JUDGMENT

Bhaskar Raj Pradhan, J.—The appellant has been convicted having committed the offence of aggravated penetrative sexual assault on a child below twelve years under section 5(m) and repeatedly under section 5(l) under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and sentenced to twenty years rigorous imprisonment with fine of Rs.30,000/- (Rupees thirty thousand only) for each of the offences. He was also convicted under sections 376AB, 375(a) and 354B of the Indian Penal Code, 1860 (IPC). However, in view of section 42 of the POCSO Act, the appellant was not sentenced under sections 376AB and 375(a) IPC. The appellant was acquitted of the offence of criminal intimidation under section 506 IPC. The period of imprisonment was to run concurrently and the imprisonment already undergone was to be set off. The total amount of fine recovered was to be applied in payment of compensation to the minor survivor. Rs.5,00,000/- (Rupees five lakhs only) was also awarded to the minor victim out of the Victim Compensation Fund.

2. The appellant challenges the opinion of the learned Trial Court on the ground that the prosecution had failed to establish penetrative sexual assault. The minority of the victim successfully established by the prosecution during the trial is not questioned.

3. Mr. Jorgay Namka, learned Senior Advocate for the appellant, has taken this Court through the evidence led by the prosecution and submitted that the prosecution witnesses failed to establish that the appellant had committed aggravated sexual assault upon the victim. He pointed out to the contradictions in the statement of the victim recorded under section 164 of the Code of Criminal Procedure, 1973 (Cr.P.C.) (victim’s statement) and her deposition in Court. He also pointed out to the variance between the victim’s deposition and the medical evidence. He fairly conceded that the prosecution had been able to establish the minority of the victim.

4. Mr. Thinlay Dorjee Bhutia, learned Additional Public Prosecutor, submitted that the deposition of the victim is consistent with her statements. The deposition of the victim is truthful and cogent and the defence has not been able to demolish the same. The victim’s mother (PW-11) was an eye witness to the last incident which has been proved by the prosecution. The seizure of the victim’s underwear (M.O.-I) nearby the house by the Investigating Officer (PW-16) through seizure memo (exhibit-19) corroborates the deposition of the victim’s mother (PW-11). The victim’s deposition is also corroborated by the deposition of the complainant (PW-10) and the Childline Centre Co-ordinator (PW-13).

5. The first information report (FIR) (exhibit-13) was lodged by the Counsellor at the Childline of the district (PW-10) on 12.06.2022, stating that the victim had been sexually assaulted seven times by the appellant at different places, i.e, paternal aunt’s house, paternal uncle’s house, in a village (name redacted), their newly constructed building and their own residence. It was also stated that on 04.06.2022 at around 7:00 – 7:30 a.m. when the victim was being sexually assaulted at her residence, the victim’s mother (PW-11) witnessed it and the appellant left home after a couple of days. After the case was registered, charge-sheet dated 29.08.2022 was filed. The learned Special Judge framed six charges against the appellant under section 5(l) and 5(m) of the POCSO Act, 376AB, 376(2)(n), 354B and 503 of the IPC on 24.11.2022. During the trial, sixteen witnesses were examined by the prosecution including the Investigating Officer (PW-16). Dr. Archana Chettri, Clinical Psychologist (CW-1), was examined as a Court witness who examined the appellant and gave her opinion that he was found to have average normal intelligence. During the appellant’s examination under section 313 Cr.P.C., he took a stand that he did not know anything. To a specific question regarding the incident of 04.06.2022 when the victim’s m