The use of any object for assault, even if not a body part, can constitute penetrative sexual assault under the POCSO Act, 2012. The victim's consistent testimony, medical evidence, and DNA test results are crucial in establishing guilt.

JUDGMENT :

MICHAEL ZOTHANKHUMA, J.

1. Heard Mr. A. Ahmed, learned Amicus Curiae and Mr. K.K. Das, Additional Public Prosecutor, Assam for the State/respondent No. 1.

2. The present appeal has been filed against the impugned judgment dated 16.08.2018 passed by the learned Sessions Judge-cum-Special Judge, Sivasagar in SPl.(P) Case No. 02/2015, by which the appellant has been convicted under Section 6 of the POCSO Act, 2012 and sentenced to undergo rigorous imprisonment for life with the fine of Rs. 2,000/- (Rupees two thousand), in default, to undergo simple imprisonment for 2(two) months.

3. The prosecution case in brief is that an FIR dated 21.12.2014 was submitted by the father of the victim girl to the Officer-in-Charge of the Sonari Police Station, to the effect that his daughter went missing at around 1 P.M. on 21.12.2014 and after making a search for her, they found her at around 3 P.M., in the jungle in the middle of Sonari Tea Garden. She had been left unconscious after being raped. After bringing her back to the house, she was admitted to Naphuk Garden Hospital and thereafter referred to AMCH, Dibrugarh.

4. Consequent to the FIR submitted by the father of the victim, who is Prosecution Witness-5 (PW-5), Sonari P.S. Case No. 281/2014 under Section 3 of the POCSO Act, 2012 was registered. Investigation of the case was done by the Investigating Officer (PW-20) and examination of the victim girl was done by a doctor. After recording the statement of the victim under Section 164 Cr.P.C. and on conclusion of the investigation, the Investigating Officer submitted the charge-sheet, having found a prima-facie case under Section 6 of POCSO Act, 2012 against the appellant.

5. The learned Trial Court framed charge under Section 6 of the POCSO Act against the appellant, to which he pleaded not guilty and claimed to be tried. Thereafter, the learned Trial Court examined 22 Prosecution Witnesses (PWs) and one Court Witness (CW). Examination of the appellant was done under Section 313 Cr.P.C. and thereafter, the learned Trial Court passed the impugned judgment, having found that the prosecution had proved the guilt of the appellant under Section 6 of the POCSO Act, 2012 beyond all reasonable doubt.

6. Mr. A. Ahmed, learned Amicus Curiae appearing for the appellant has prayed for setting aside the impugned judgment on the ground that the victim girl (PW-2) in her evidence has not stated that the appellant had sexually assaulted her, by using any part of his body on her.

Secondly, the FSL report relied upon by the learned Trial Court did not prove that the blood found on the frock and undergarment of the victim, matched the blood of the appellant, inasmuch as, the letter dated 29.06.2015 issued by the Scientific Officer, DNA Typing Unit of Serology Division, Directorate of Forensic Science, Assam, Kahilipara, which is exhibited as Ext.10, refers to the blood collected from one Shri Bikash Gowala. On the other hand, the appellant’s name as per the examination of the appellant under Section 313 Cr.P.C. is Sri Baisagu Guwala @ Baishak @ Jagat Goala, son of Pradip Goala. Thirdly and in the alternative, as the evidence of the victim girl did not prove that the appellant had sexually assaulted the victim, the learned Trial Court could have at best convicted the appellant under Section 8 of the POCSO Act, 2012 for aggravated sexual assault.

7. Mr. Ahmed, learned Amicus Curiae thus prays that the impugned judgment should be set aside and the appellant should be acquitted from the charge framed against him or in the alternative, convict the appellant under Section 8 of the POCSO Act, 2012.

8. Mr. K.K. Das, learned Additional Public Prosecutor, Assam, on the other hand, submits that the evidence of the victim girl, coupled with the evidence of the Doctor who examined the victim, clearly shows that the appellant had raped the minor girl. He further submits that the seizure list dated 28.01.2015 which has been exhibited as Ext.8 and the Report of the FSL da