The court held that an act clearly described as attempted penetrative sexual assault, without established penetration, falls under Section 18 of the POCSO Act, with the conviction modified accordingly.

JUDGMENT :

SANJEEV KUMAR SHARMA, J.

1. Heard Mr. A Ahmed, learned counsel for the appellant. Also heard Mr. R.J Baruah, learned Addl. Public Prosecutor for the State of Assam as well as Mr. A Dey, learned counsel for the informant/respondent No. 2.

2. This appeal u/s 389 of the Cr.P.C, 1973 is directed against the Judgment and Order dated 30.11.2021 passed by learned Special Judge (POCSO), Kokrajhar, Assam in Special Case No. 30/2018 convicting the accused/appellant u/s 6 of POCSO Act and sentencing him to undergo R.I for 10 years and also to pay a fine of Rs. 10,000/- i/d imprisonment for 1 year.

3. The case of the prosecution is that xxx, the paternal uncle of the victim, lodged an FIR alleging that on 18.06.2018, at about 3 PM, when the members of the house were away, accused Sowkat Ali gagged the mouth of victim and committed rape on her. After the incident the victim informed the matter to her grand-mother. On receipt of the FIR, a case under Section 376(2)(i)/506 IPC, r/w Section 6 of POCSO Act was registered and after completion of the investigation, a charge sheet was laid against the accused Sowkat Ali for commission of offence U/S 376(2)(i)/506 IPC, r/w Section 6 of POCSO Act. The accused person was summoned and on his appearance, copies of the relevant documents were furnished to him. The case was transferred to Court of learned Special Judge (POCSO), Kokrajhar, Assam for disposal. Upon hearing both sides, charge under Section-6 of POCSO Act was framed against the accused Sowkat Ali to which he pleaded not guilty and claimed trial. In the course of trial, prosecution examined 11 (eleven) witnesses. At the closure of prosecution evidence, the accused person was examined U/S 313 of the Cr.P.C. The defence plea is of total denial and the accused declined to adduce any evidence.

4. Pw-1 is the mother of victim. She deposed that at about 3 PM her mother-in-law came to her house and told that Sowkat Ali had committed rape on her daughter, the victim. Pw1 also deposed that her daughter told her that accused took her to his bedroom, forcibly opened her pant and entered his penis into her vagina. In cross examination, PW1 was suggested that in her statement u/s 161 of Cr.P.C, she had not stated that her daughter told her that the accused took her to his bed room, forcibly opened her pant and entered his penis into her vagina. Pw 1 denied the suggestion.

5. Pw-2, xxx, the victim, aged about 9 years, deposed that accused is her paternal uncle and the incident took place 3 days after Eid. She deposed that while she was playing, accused called her and when she went to his house he took her inside his room, gagged her mouth with his hand, threw her on his bed, opened her churidar and thereafter he tried to enter his penis into her vagina. Pw2 has also deposed that accused repeated the act of entering his penis for 2-3 times. Pw2 has also deposed that at that time the mother of accused came and thereafter the accused left her. Pw 2 has deposed that she reported the matter to her grand-mother. In cross examination, defence suggested that Pw2 had not stated about rape in her statement u/s 161 of CrPC which Pw2 denied.

6. Pw-3 is the paternal uncle of the victim and the informant. He deposed that he heard of the incident from her mother and the victim. He has deposed that he lodged the FIR, Exhibit-2. In cross examination, Pw3 denied that a false case has been lodged against the accused because of previous family dispute.

7. Pw-4 is the mother of informant. She deposed that the victim came from the house of accused and reported that accused committed rape on her. In cross examina