IMPORTANT POINT
The minimum sentence for aggravated penetrative sexual assault under the POCSO Act was 10 years at the time of the offence, which must be adhered to despite subsequent amendments increasing the minimum sentence.

JUDGMENT :

Sanjay Kumar Jaiswal, J.

1. This criminal appeal under Section 374(2) of the CrPC preferred by the appellant-accused herein against the impugned judgment of conviction and order of sentence dated 08.11.2019 passed by the learned Additional Sessions Judge (FTC), Durg, District – Durg (C.G.) in Special Criminal Case No. 165/2016 by which the appellant has been convicted and sentenced as under:-

[However, punished only U/s 376 (2)(F) of IPC, as the same is higher in degree to that of S.06 of POCSO, as provided U/s 42 of POCSO Act, 2012] Rigorous imprisonment for life till death with fine of Rs. 5,000/-, in default of payment of fine amount additional R.I. for 06 months.

2. The case of the prosecution, in brief, is that complainant Aarti Mishra, W/o Shri Gyandutt Mishra, on 29.10.2016 lodged a written report in Bhilai JRP police station against the accused/appellant Phoolchand to the effect that her daughter/victim, aged about 8 years, is studying in Kendriya Vidyalaya B.M.Y. Charoda since 1st standard. On 18.10.2016, her daughter was shown to Dr. Manju Shukla for the problem of vomiting. When her daughter was asked what she eats, her daughter told with fear that the school's headmaster, Phoolchand Sir calls her from the ground during the game period and puts his penis in her mouth and makes her suck it. On refusing, he presses her head. After going in the mouth, it becomes bigger and a foul smell comes out of the mouth, due to which she vomits. On the applicant asked her daughter as to when this has been happening, she said that she did it for the first time during the F.A.One Sessions of 2nd standard which was in July, and since then till date 26.10.2016, she has been doing it continuously during the game period. On the basis of written complaint vide Ex.P-1, FIR was registered vide Ex.P-2. The statement of the victim under Section 164 of Cr.P.C. was recorded vide Ex.P-16. The victim was subjected to medical examination in which it came to know that the victim was raped. The Birth Certificate and certificate and copy of admission register of victim was seized vide Ex. P-5 & Ex.P-9C, respectively. As per Birth Certificate (Ex.P-5) and copy of admission register (Ex.P-9C) the date of birth of the minor victim is 14.11.2008, meaning thereby, she was aged about 8 years, 1 month & 12 days at the time of the incident. Minor victim (PW-9) was medically examined by Dr. Manju Rathore (PW- 3) and medical report was obtained vide Ex.P-7. In the medical report (Ex.P-7) doctor opined that no definite opinion could be given and no internal or external injuries were found in or around the mouth of the victim.

3. After due investigation, appellant was charge-sheeted for the aforesaid offence and the case was committed to the Court of Sessions Judge for trial in accordance with law. The appellant/accused abjured his guilt and entered into defence.

4. In order to bring home the offence, prosecution has examined as many as 9 witnesses and exhibited 20 documents. The statement of the appellant was taken under Section 313 of CrPC in which he denied the circumstances appearing against him in the evidence brought on record by the prosecution, pleaded innocence and false implication. However, 4 witnesses (DW-1 to DW-4), 2 documents and 7 Articles have been exhibited by the appellant in his defence.

5. The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellant for the offence as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred by the appellant herein questioning th