IMPORTANT POINT
The court established that while complete penetration is not necessary for a conviction of penetrative sexual assault, there must be sufficient evidence of acts constituting such assault as defined in the POCSO Act.

JUDGMENT :

MRIDUL KUMAR KALITA, J.

1. Heard Ms. B. Sarma, learned Amicus Curiae for the appellant. Also heard Mr. K.K. Parasar, learned Additional Public Prosecutor for the State of Assam as well as Ms. L. Devi, learned Legal Aid Counsel, representing the informant/respondent No. 2.

2. This Jail Appeal was registered on receipt of an appeal petition from the appellant, namely, Shyamal Barman, through the Superintendent District Jail, Barpeta, impugning the judgment dated 08.08.2019 passed by learned Special Judge, Barpeta in Special POCSO Case No. 81/2018, whereby the appellant was convicted under Section 6 of the POCSO Act, 2012 and has been sentenced to undergo rigorous imprisonment for 10 years with a fine of Rs. 1,000/- and in default of payment of fine to undergo further simple imprisonment for 3 months.

3. The facts relevant for consideration of the instant Jail Appeal, in brief, are as follows:

i. On 30.06.2018, the mother of the victim girl lodged an FIR before the Officer-in-Charge of Barpeta Road Police Station, inter-alia, alleging that on that day, at about 11.30 am, during the absence of her husband, when the informant was attending the cloth store of her husband and the minor daughter/victim, aged about 2 years 6 months old, was also with her, while the minor daughter/victim was playing in the shop, the appellant, who was an employee in the nearby shop, under the name and Style of Gungun Dresses, took her daughter to his cloth shop, namely, “Gungun Dresses”, and committed rape on her. It was also alleged in the FIR, that when the victim cried aloud, the informant and the other people present in the market went there and caught the appellant red-handed, when he was committing the bad acts.

ii. On receipt of the aforesaid FIR, Barpeta P.S. Case No. 314/2018 was registered under Section 6 of the POCSO Act, 2012 and investigation was initiated.

iii. The appellant was arrested and the statement of witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973.

iv. The Investigating Officer also seized the jeans pant of the appellant as well as one sky-coloured half pant of the victim girl containing stains of suspected human semen. The victim girl was also medically examined.

v. Ultimately, on completion of the investigation, a charge sheet was laid against the above-named appellant under Section 12 of the POCSO Act, 2012.

vi. On 12.10.2018, the appellant was granted bail by the Trial Court and he was released on bail after furnishing of bail bonds and sureties by him. He faced the trial remaining on bail.

vii. On 08.11.2018, after hearing both the sides and after perusing the materials available on record, the Trial Court framed the charge under Section 6 of the POCSO Act, 2012, against the appellant. When the said charge was read over and explained to him, he pleaded not guilty to the same and claimed to be tried.

viii. To bring home the charge against the appellant, the prosecution side examined as many as twelve (12) prosecution witnesses and exhibited eight (8) documents.

ix. The appellant was examined under Section 313 of the Code of Criminal Procedure, 1973 during which he denied the truthfulness of the testimony of prosecution witnesses and pleaded his innocence. However, he declined to adduce any evidence in defense.

x. The Trial Court framed following point for determination:

a. Whether on 30.06.2018, at about 11.30 am, the accused committed aggravated penetrative sexual assault on the victim girl aged about two-and-a-half years in the clothes store under the name and style “Gungun Dresses”, as alleged?

xi. Ultimately, by the judgment which has been impugned in this appeal, the Trial Court convicted and sentenced the appellant in the manner as already described hereinbefore in Paragraph No. 2 of this judgment.

4. Before considering the rival submissions made by the learned counsel for both the sides, let me go through the evidence available on record.

5. PW-1, who is the mother of the victim girl, has depo