The court upheld the framing of charges against the applicant for aggravated penetrative sexual assault, emphasizing the sufficiency of prima facie evidence at the charge stage.

Order :

(Arvind Kumar Verma, J.)

1. This criminal revision has been preferred by the applicant under Section 438 read with Section 442 of the BNSS, 2023, being aggrieved by the order dated 01.10.2024 (Annexure A/1) passed by the Special Judge (POCSO Act), Chirmiri, District Koriya (C.G.) in Special Criminal Case No.11/2024, whereby charge was framed against the applicant for the offence punishable under Sections 363, 366, 376(2)(i) of IPC and Section 6 of the POCSO Act, 2012.

2. Brief facts of this case is that on 10/06/2024 at around 03:30 P.M., while the minor victim was playing in front of her house the accused/present applicant took her in the cattle room belonging to one Inderpal in the neighborhood, whereby he undressed her underwear and he was touching the private parts of the minor victim by his hands. Further, when the grandmother of the victim reached there started and shouting, the accused/applicant ran away from the spot.

3. After investigation, police charge sheeted the applicant u/s 363, 366-A, 376-A, 376-B of Indian Penal Code and u/s 6 of the POCSO Act. On 01.10.2024, the charge was framed by the Special Judge, POCSO Act, Chirmiri, District Koriya(C.G.) u/s 363, 366, 376 (2)(i) of Indian Penal Code and u/s 5 (m) of the POCSO Act, punishable u/s 6 of the POCSO Act, hence, this criminal revision against above framing of charges against the applicant.

4. Learned counsel for the applicant contended that the learned court below made an error in appreciating the material collected by the police in the charge sheet and wrongly framed charge 376 (2)(i) of Indian Penal Code and u/s 5 (m) of the POCSO Act, punishable u/s 6 of the POCSO Act. He further contended that the hymen of the victim was intact as per the doctor report and there is no external or internal injury found the body of the victim, therefore, charge is not made out against the applicant and the alleged offence against the applicant/accused does not fall within the definition of rape as provided under section 375 of IPC which is punishable U/s 376(2)(i) (section 376 [3]) as per the amendment of the year 2018). The allegations made against the applicant/accused do not form essential ingredient for attracting Section 376(2)(i). He further contended that it is pertinent to mention that Sub Section (2)(i) of the Section 376 of the IPC has been omitted and replaced by section 376 (3) of the IPC. The offence defined under the said section is as:- "[(3) Whoever, commits rape on a woman under sixteen years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine:" It is further contended that the allegations levelled against the accused/applicant does not form a punishment U/s 6 of the POCSO Act, 2012, that reads as under ;-

"Punishment for aggravated penetrative sexual assault.-(1) Whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person and shall also be liable to fine, or with death.

5. It is therefore prayed that this Court may kindly be pleased to set aside the order dated 01.10.2024 passed by the Special Judge, POCSO Act, Chirmiri, District Koriya (C.G.) in Special Criminal Case No.11/2024, so far as charge U/s 376 (2)(i) (Section 376 (3)) of Indian Penal Code and U/s 5 (m) of the POCSO Act is concerned, in the interest of justice.

6. Per contra, learned counsel for the State opposes the submissions of learned counsel for the applicant and contended that at the time of incident, age of the victim was about 02 years and 09 months and the applicant wrongfully confined the victim child in a room and further attempted to commit penetrative sexual a