IMPORTANT POINT
The central legal point established in the judgment is the conclusive evidence of penetrative sexual assault on a minor victim below the age of 12 years, leading to the conviction under relevant sections of IPC and POCSO Act.

JUDGMENT ON BOARD :

Goutam Bhaduri, J.

1. The challenge in this appeal is to the judgment of conviction and order of sentence dated 08.01.2021 passed by the learned Additional Sessions Judge, 3rd Fast Track Special Court (POCSO Act), Durg, Distt. Durg Chhattisgarh in Special Criminal Case No.156/2017 whereby the appellant has been convicted and sentenced as follows:

2. The case of the prosecution, in brief, is that on 12.09.2017 at 5.p.m, the brother of the victim when came back from his job, he could not find the victim at the house. Having enquired about the whereabouts from a lady who was at the water-tap, she told that she has seen the victim in the house of the appellant. On which, he went to the house of the appellant and having seen the victim there without any clothes, he had beaten the accused asking “what have you done to his sister, the accused ran away from the spot. Further enquiry reveals that the appellant prior to 2-3 days of the said incident had committed similar act thereby the appellant was also involved in past antecedent of similar nature. As the accused had slept over the victim and committed sexual overt acts, FIR was lodged vide Ex.P-4 wherein the offence was registered. The victim was subjected to medical examination and after collecting the evidence, the charge sheet was filed. The appellant during the trial abjured the guilt and claimed to be tried.

3. The prosecution on its behalf has examined as many as 12 witnesses and the statement of victim was also recorded u/s 164 of Cr.P.C. After evaluating the statements and other documents, the learned Sessions Judge convicted the accused as aforesaid. Hence this appeal.

4. Learned counsel for the appellant would submit that statement of victim in this case would apparently show that no aggravated penetrative sexual assault was committed by the appellant and the statement of P.W.3 SP would show that due to some quarrel between him and accused, a false report has been made. He would submit that in the like nature of case when the medical report does not support the fact about the penetrative sexual assault, the conviction of accused on mere statement of like nature would lead to injustice and the Court should have considered the fact in the back-drop of the fact that the appellant has falsely been charged. Therefore, the finding arrived at by the learned Sessions Judge needs to be interfered with.

5. Per contra, learned State counsel supports the finding of the learned Sessions Judge. He submits that a perusal of the statement of Doctor P.W.12 along-with the medical report Ex.P-29 would show that the penetrative sexual assault has been committed and that evidence has not been negated, which stood firm by the statement of victim (P.W.1). Under the circumstances, the order of the Court below is well merited which do not call for any interference.

6. We have heard learned counsel for the parties and have also perused the evidence. According to the prosecution, on 12.09.2017, the appellant knowing fully aware that the victim is a minor girl of below the age of 12 years took out her entire clothes and committed aggravated penetrative sexual assault. The statement of the mother of victim P.W.4, the brother of victim P.W.3 and the statement of victim itself (P.W.1) would unanimously show that the age of victim was below 7 years old. In the cross examination of mother of victim (P.W.4), she stated the age of her daughter to be six years and her oral statement as also the statement made by victim which was adduced before the Court would unanimously show that the age of the victim was below 12 years in either case. Therefore, the charges framed u/s 5(l) and 5(m) of the POCSO Act which speaks that if the per