The clear and convincing evidence of the minor victim, corroborated by her parents and others, formed the foundation for the prosecution case, leading to the conviction and sentence of the appellant for the offense of penetrative sexual assault on a minor with special needs.

JUDGMENT

Joymalya Bagchi, J. - A thirteen year old child with special needs and poor eye sight is alleged to have been subjected to penetrative sexual assault by the appellant, a mendicant who promised to cure her poor eye sight by massaging her with oil. P.W.1, father of the child (P.W.4) had met the appellant at the panchayat office. In lieu of Rs.400/- the appellant had promised to cure his daughter's eyesight with medicine. Accordingly, on 13.5.2013, appellant came to the residence of P.W.1 and went into a room with the minor while her parents remained outside. After half an hour, the appellant left the room. Upon entering the room, parents of the child (P.W.1 and P.W.2) found the victim naked and in senseless condition. Subsequently, the child disclosed to her mother (P.W.2) that she had been raped. Other relations and locals were also informed of the incident. The child was in a traumatized stage and was treated by one Dr. Panchamani Ghatak. On 15.6.2013, P.W.1 lodged first information report against the appellant under Sections 420/376(2)(l)/506 of the Indian Penal Code. In conclusion of investigation, charge sheet was filed and charges were framed under Sections 376(2)(l) of the Indian Penal Code and under Section 3(a)/4 of the POCSO Act, 2012. The appellant pleaded not guilty and claimed to be tried.

2. In the course of trial, prosecution examined 14 witnesses including the minor, P.W.4 who was examined with the help of an interpreter, P.W.3. In conclusion of trial, by the impugned judgment and order dated 29.5.2015 and 30.5.2015, the appellant was convicted of the offence punishable under Section 376(2)(i) of the Indian Penal Code and under Section 4 of the POCSO Act and sentenced to suffer rigorous imprisonment for ten years and to pay fine of Rs.5,000/- in default to suffer rigorous imprisonment for five months more.

3. Learned Counsel appearing for the appellant assailed the prosecution case on various counts. Firstly, it is submitted that the charge framed in the instant case is defective. Although it is stated in the charge that the incident occurred in the night of 13th May, 2013, evidence on record shows that the incident occurred between 10/11.00 a.m. of that day. Secondly, no explanation is forthcoming with regard to inordinate delay in lodging the first information report. Thirdly, there is confusion when the child (P.W.4) disclosed the alleged sexual assault upon her to her parents. While her father (P.W.1) stated she disclosed the incident to him two days later, her mother (P.W. 2) stated she narrated the incident to her on the self same day. Dr. Panchamani Ghatak who had treated the victim had not been examined. There is confusion whether the appellant was available immediately after the incident as deposed by the panchayat member, P.W.6. Neither the birth certificate of the victim nor the ossification report has been placed on record to show that she was a minor. Genesis of the prosecution case has not been established and the appellant is entitled to an order of acquittal.

4. Learned Counsel appearing for the State submitted that the version of the victim, P.W.4, a specially challenged minor girl is clear and establishes the prosecution case beyond doubt. She narrated the incident of penetrative sexual assault upon her which is corroborated not only by her parents (P.W.1 and P.W.2) but others as well. The victim was in a traumatized state and her parents were engaged with her treatment. Hence, delay in lodging the first information report is adequately explained. Therefore, the prosecution case has been proved beyond doubt and the appeal is liable to be dismissed.

5. Pw 4 is the victim who was a special child having poor eyesight. She was examined with the help of interpreter PW 3. She deposed on 13.5.2013 a 'sadhu' came to the house and undressed her. He massaged her body with oil. Thereafter he behaved with her like "husband and wife". She made statement before the magistrate. She identified the appel