The unchallenged evidence of the victim and other prosecution witnesses, along with the provisions of the POCSO Act, formed the basis for upholding the conviction of the appellant for the commission of the offence under Section 6 of the POCSO Act.

JUDGMENT :

Joymalya Bagchi, J.

1. Lower court records have been received. With the consent of the learned parties, the appeal is disposed of dispensing with preparation of paper books.

2. Appeal is directed against the judgment and order dated 15.06.2018 passed by the learned Additional District and Sessions Judge, 1st Court, Sealdah, South 24 Parganas, in Special Case No.02 of 2018 convicting the appellant for commission of offence punishable under Section 6 of the POCSO Act, thereby sentencing him to suffer imprisonment for 10 years and also to pay a fine of Rs.1,00,000/- out of which 90 per cent, if realised, shall be paid to the victim as compensation under Section 357 of the Code of Criminal Procedure, in default, to suffer rigorous imprisonment for one year more.

3. Prosecution case as alleged against the appellant is to the effect that the victim, a minor aged around 9 years old, used to reside with her aunt (P.W. 2). On 28th December, 2017 the victim complained of burning sensation in her private parts. Her aunt (P.W. 2) ignored such complaint. She again made similar complaint on 31st December, 2017. When her aunt (P.W.2) enquired as to the reason for such pain, the victim disclosed that 3 to 4 days ago the appellant had inserted his finger into her vagina. Victim was admitted and medically treated at N.R.S. Medical College and Hospital and on the complaint of P.W.2 the instant criminal case was registered. In conclusion of investigation, charge-sheet was filed against the appellant. Charges were framed under Section 376(2)(i) of IPC and under Section 6 of the Protection of Children from Sexual Offences Act (in short 'POCSO Act'). The appellant pleaded not guilty and claimed to be tried.

4. In the course of trial, prosecution examined 8 witnesses including the victim (P.W. 1) and exhibited a number of documents.

5. In conclusion of trial, the learned Trial Judge by judgment and order dated 15.06.2018 convicted and sentenced the appellant, as aforesaid.

6. Learned Counsel appearing for the appellant submitted that the version of the victim suffers from contradictions and/or embellishments. She could not specify the exact date of commission of offence. In the medical paper it is alleged that the appellant had tried to penetrate his penis into the private parts of the victim whereas before the learned Magistrate she stated that the appellant had rubbed his finger into her private parts. There is delay in lodging F.I.R. The medical report does not disclose any injury on her private parts contradicting the prosecution case. Hence, the appeal is ought to be allowed.

7. On the other hand, learned Counsel appearing for the State submitted that the victim is a minor girl who was in the custody of her aunt (P.W. 2). Taking advantage of the situation, appellant penetrated his finger into her vagina. Only when the victim complained of pain the incident came to light. Due to delay in medical examination injuries were not noted in her private parts. Hence, prosecution case cannot be discarded on such score and the appeal is liable to be dismissed.

8. Evidence on record particularly that of P.W.1 unequivocally establishes that the victim, a nine year old girl was subjected to penetrative sexual assault by the appellant.

9. P.W.1, the victim deposed that 2/3 months ago at noon, the appellant dragged her into his room. After removing his wearing apparels, he lay down on her and inserted his finger into her vagina. She was admitted in the hospital. She made a statement before the Magistrate under Section 164 of the Code of Criminal Procedure.

10. Her version is corroborated by her aunt, P.W.2 in whose custody, she had been kept. P.W.2, has explained the delay in lodging the first information report. She deposed on 28th December, 2017, the victim complained of burning sensation in her vagina. She did not pay any heed to the complaint. Subsequently, when on 31st December, 2017, the victim again made similar complaint she enquired of the victim and t