Point of Law: Section 3 of POCSO Act describes penetrative sexual assault.

JUDGMENT :

1. Heard Ms. M. Barman, learned Amicus Curiae for the appellant and Mr. B. Sarma, learned Addl. P.P. for the State of Assam.

2. This is a jail appeal against the judgment & order dated 27.02.2020 passed by the learned Special Judge, Kamrup, Rangia in Special (P) Case No. 18/2018 convicting the appellant under Section 6 of Protection of Children from Sexual Offences Act (POCSO Act for short) and sentencing him to undergo Rigorous Imprisonment for 10 years and to pay a fine of Rs.5,000/- with default stipulation.

3. The genesis of the case was that Nakul Boro (hereinafter referred to as the accused) committed penetrative sexual assault of a 7 year old victim in the absence of her parents on 02.05.2018 at about 4:15 PM. The FIR was lodged by the complainant ‘Y’ which was registered as Changsari P.S. Case No. 133/2018 and the Investigating Officer (IO in short) embarked upon the investigation. Charge-sheet was laid against the accused under Section 4 of the POCSO Act. At the commencement of trial, a formal charge was framed under Section 4 of the POCSO Act and the particulars of offence was read over and explained to him. The accused adjured his guilt and claimed to be tried.

4. To substantiate its stance, the prosecution adduced the evidence of 6 witnesses including the IO and the Medical Officer (MO in short). Several questions were asked regarding the incriminating materials arising in the evidence against the accused and his responses were recorded. The accused did not tender any evidence in defence.

5. The trial Court decided this case on the following points :

“(i) Whether the accused person committed penetrative sexual assault upon the victim minor girl who is less than 12 years age, daughter of the complainant as alleged u/s 4 of the POCSO Act?”

6. I have considered the submissions at the bar with circumspection.

7. It is submitted on behalf of the accused that the evidence in chief of the victim is contradictory to her cross-examination. The accused is a young lad who was only 18 years old at the time of the incident.

8. Per contra, the learned Addl. P.P. has submitted that the accused deserves stringent punishment. This case against the accused has been proved beyond reasonable doubt. There is no scope of acquittal as the evidence is overwhelming against the accused.

9. On the backdrop of the rival submissions I proceed to dispose of the appeal. The question that falls for consideration is :-

“Whether the learned Trial Court erred while convicting the appellant under Section6 of the POCSO Act?”

10. PW-2 is the victim. She was 8 years old when her deposition was recorded in the Court on 14.12.2018. The victim ‘X’ has stated that the accused who is her uncle groped her vagina and tried to insert his penis into her vagina causing pain in her vagina. Her mother saw the incident. She did not scream as she was terrified. The victim has proved her statement under Section 164 Cr.PC as Ext.-2 and Ext.-2(1) and 2(2) as her signatures. In her cross-examination she has stated that her uncle used to treat her affectionately, but he never offered her any chocolates. On the day of the incident, her uncle took her for a stroll out of affection and did not do anything as stated above.

11. The learned counsel for the accused laid stress in his argument that the cross-examination of the victim is contradictory to her evidence-in-chief and this exonerates the accused. This argument can however be ignored because the victim has denied the suggestion of the defence that her uncle did not do anything as stated above.

12. It is held that the evidence of the victim substantiates her statement under Section 164 Cr.PC. In her statement under Section 164 Cr.PC the victim has stated that on 02.03.2018 at about 4:30 PM, her uncle (Khura) Nakul Boro called her and took her to his house to play Ludo. Thereafter her uncle grabbed her and removed her panties and placed his penis in her vagina and some white coloured substance oozed out of his penis. Her mot