IMPORTANT POINT
The conviction for sexual assault under the POCSO Act requires corroborative evidence to support the victim's testimony, especially when medical evidence does not substantiate claims of penetrative sexual assault.

JUDGMENT :

Shailendra Singh, J.

1. Nobody appears on behalf of the appellant despite repeated calls and on the last date it was revealed that Mr. Ajay Kumar Thakur, learned counsel, was engaged in this matter but today it is informed to this court that he has not been engaged in this matter. The instant appeal is an old one hence, learned advocate, Mrs. Vaishnavi Singh is appointed as an Amicus Curiae to assist this court.

2. The present appeal has been filed against the judgement of conviction dated 24.11.2017 and order of sentence dated 30.11.2017 passed by learned Additional Sessions Judge-I-cum-Special Judge, POCSO Act, Muzaffarpur in Trial No. 441/ 2016 in connection with Mahila PS case No. 100/ 2016 whereby and whereunder the appellant has been convicted for the offence punishable under Section 8 of POCSO Act and sentenced him to undergo rigorous imprisonment for three years with a fine of Rs. 2000/-and further the appellant has also been directed to undergo additional imprisonment for two months in case of non payment of fine amount by him.

3. The prosecution’s story, in brief, is that on 10.08.2016 at about 2.45 PM the informant, who is said to be the victim herself, was returning to her home by a bicycle from her school and when she reached near Patahi Middle School then the accused, appellant, came by a four wheeler vehicle and dashed it against her bicycle due to which the bicycle fell into a ditch and thereafter she was forcefully taken inside the said vehicle, after that the accused started teasing her near a Shiv temple and held her hand and thereafter he took her in an orchard and started kissing her and clicked her photographs and thereafter undressed her and raped her and also pot his private part into her mouth and discharged semen in her mouth and thereafter threatened her to not disclose the incidence otherwise she would be killed by him.

4. The so called victim herself lodged the F.I.R. by filing a written application, exhibit-1 written by herself in which she described the allegations on that basis the formal F.I.R. bearing Mahila P.S. case No. 100/ 2016 was lodged for the offences punishable under Sections 376, 377 of the Indian Penal Code (in short IPC) and also for the offences punishable under Sections 4, 8 and 12 of the POCSO Act, which set the criminal law in motion. Here it is important to mention that after the completion of investigation, the police submitted police report concluding the matter having no sufficient evidence and consequently the appellant was not sent up by the police but thereafter the learned concerned Magistrate took cognizance of the alleged offence.

5. The appellant stood charged for the offences punishable under Sections 376, 377 of the IPC and Section 4 of POCSO Act. As the appellant did not plead guilty hence he was put on trial.

6. During trial, altogether nine witnesses were examined by the prosecution and in documentary evidence, the written F.I.R., formal F.I.R., signature of the informant on the written F.I.R. and her statement recorded under Section 164 of Cr. P. C., the victim’s medical examination report and her pathological examination report were proved and marked as exhibit in following manner:-

7. After the completion of prosecution’s evidence the statement of the appellant was recorded in which the main circumstances relevant to the alleged offences appearing against him from the prosecution’s evidences were explained to him, which were denied by him and he claimed himself to be an innocent person and he took the defence that there was a dispute in between him and one Dipu Thakur, a person belonging to the prosecution’s side, regarding purchase of a house, owing to that reason a false case was lodged against him and the