IMPORTANT POINT
The main legal point established in the judgment is the requirement for evidence of penetrative sexual assault to prove the offence under Section 6 of the POCSO Act.

JUDGMENT (Oral)

1. Vide Order dated 09.02.2023, the fresh bailable warrant was directed to be issued against the respondent in the sum of Rs. 15,000/- through the SHO concerned.

2. Further, vide Order dated 11.07.2023, the learned Additional Public Prosecutor for the petitioner/State was given adjournment on the ground that pursuant to Order dated 09.02.2023, the SHO concerned has issued the Bailable Warrant through Ministry of External Affairs, Government of India against the respondent, who is the resident of Nepal, and the said Bailable Warrant would take some time for execution.

3. Today, learned Additional Public Prosecutor for the petitioner/State submits that the respondent, being a Nepali citizen, could not be served.

4. An application under Section 378(1) Cr.P.C has been filed for grant of Leave to Appeal against the Judgement dated 28.08.2020 whereby the respondent has been convicted under Section 10 POCSO Act, 2006, but has been acquitted for the offence punishable under Section 376 IPC read with Section 4/6 POCSO Act.

5. The case of the prosecution was that a complaint was made by the prosecutrix Ms. `X' alleging that she was around 14 years old and was residing with her two brothers and father and was studying in a Government school, Hastsal village. The mother of prosecutrix Ms. `X' was working as a house maid and used to reside at her place of employment but used to visit them for a day or two, in a month. The elder brother was staying at Noida, where he was working. The respondent/accused was her father who was working in a factory, while her younger brother was studying in the school. The respondent and the mother of the prosecutrix used to consume liquor and fight with each other. She further stated that her mother was residing separately from the family since last 5-6 years. On 10.03.2014, she was alone at home with the respondent who came from behind and held her. She resisted, but the respondent stated that he loved her as a daughter and asked her to sleep with him. The respondent also threatened her that if she did not do as told, he would leave her with her mother at the house where she was working. Further, one day prior to the registration of FIR, the respondent committed "galat kaam" with her and she also asserted that he had been raping her since last three years.

6. On 11.03.2014 she informed about the incident to her mother on telephone, who came along with the maternal uncle to their house and enquired from the respondent. The FIR under Section 4 POCSO Act and Section 376 and 506 IPC was registered. On completion of investigation, the charge sheet was accordingly filed.

7. The charges under Section 506 IPC and Section 6 POCSO Act were framed on 17.07.2014 to which the respondent pleaded not guilty.

8. The prosecution examined seven witnesses in all. The most material being the prosecutrix Ms. `X' as PW7. The mother of prosecutrix `X' was examined as PW2.

9. The Statement of Accused was recorded under Section 313 Cr.P.C, wherein he pleaded his innocence and claimed that he was falsely implicated as the mother of the prosecutrix had strained relationship with him.

10. Learned Addl. Sessions Judge observed that the prosecutrix in her testimony claimed that the respondent had done "galat kaam", and that the accused used to touch his private part with her private part. She has categorically denied that there was penetrative assault committed upon her. Learned ASJ therefore, convicted the respondent under Section 10 of POCSO Act for sexual harassment, but acquitted the respondent for the offence under Section 6 POCSO Act. The accused was sentenced to Simple Imprisonment for a period of seven years and to pay a fine of Rs.10,000/- for the offence punishable under Section 10 POCSO Act. He was further sentenced to undergo Simple Imprisonment for a period of two years and to pay a fine of Rs.10,000/- and in default of payment of fine to undergo SI for fifteen days for the offence punishable under Section 506 Part I o