The main legal point established in the judgment is the distinction between rape and sexual assault, emphasizing the need for corroborative evidence and consistency in the victim's statement for a conviction under relevant sections of the IPC and the POCSO Act.

JUDGMENT :

(Chakradhari Sharan Singh, J.)

The appellant has preferred this appeal under Section 374(2) of the Cr.P.C. putting to challenge the judgment of conviction dated 27.04.2019 and the order of sentence dated 30.04.2019, passed by the learned Additional Sessions Judge 1st-cum-Special Judge, Kaimur at Bhabhua, in POCSO Trial No. 46 of 2017 arising out of Bhabhua Mahila Police Station Case No. 71 of 2017, whereby the sole appellant has been convicted and sentenced as under:

2. The victim’s name has been concealed in the present judgment and order.

3. A written report of the informant 04.12.2017, which bears his LTI, is the basis for registration of the concerned Mahila (Bhabhua) Police Station Case No. 71 of 2017 disclosing commission of the offence punishable under Section 376 of the IPC and Section 6 of the POCSO Act. It was his allegation that on 03.12.2017, at 3 PM, his daughter (hereinafter referred to as ‘the victim’) had gone for guarding his potato field. In the meanwhile, the appellant, a co-villager, came and taking advantage of her solitude forcibly took her towards Durgawati river and committed rape on her. After the victim started screaming, the appellant fled away. Thereafter, the victim returned to her house and narrated the entire occurrence in the family. The informant and the informant’s wife had seen blood stains on her leg. The victim was thereafter taken by him to the Sadar Hospital, Mohania, for treatment whereafter they came to the police station to get the case registered.

4. It is worthwhile mentioning here that the statement of the victim was recorded by the learned Magistrate under Section 164 of the Cr.P.C. on 08.12.2017 (Exhibit-9), which has been proved by the learned Magistrate by whom the said statement was recorded. In her statement under Section 164 of the Cr.P.C., the victim stated that she had gone in her agricultural field to uproot radishes, where the appellant too was uprooting radishes. She asserted that the appellant lifted her and forcibly took her to the river, where he put her undergarments (pants), off in course of which he tore off the victim’s undergarment. Thereafter, she had returned to her house and explained the entire occurrence to her grandmother and maternal grandmother. When she explained the incident to her father, he immediately rushed and caught hold of the appellant. The family members of the appellant, however, got him released from the clutches of the victim’s father.

5. The victim was subjected to medical examination. The medical Officer, posted at Sadar Hospital, Bhabhua, recorded following findings:-

“No marks of violence found over her body except external genital area and neighbourhood area. Secondary sexual character not developed. No foreign hair found over any part of her body. Examination of external genital area and neighbourhood area – one lacerated wound, size about ¼ cm x ¼ cm x 1/8 cm. Smeared with blood clot present right side of urethra. One lacerated wound present over perineum size about ½ cm x ¼ cm x 1/8 cm. Smeared with blood clot. Said victim already catheterized some where else.

Internal Examination-First of all vaginal swab is taken and sent for pathological examination report of which shows that no spermatozoa was found either dead or alive, only epithelial and pus cell and RBC are present. Original copy of the report duly signed and attached herewith. Hymen membrane found intact. No internal bleeding found. Ultra-sound of whole abdomen advised and done at Sadar Hospital, Bhabhua. Report of ultra-sound shows that uterus is not visualise and rest are normal. Original copy of the report is attached herewith.

Opinion-Above mentioned injuries are simple in nature caused by har