A conviction for penetrative sexual assault requires clear and corroborative evidence of penetration, which was not established in this case; however, the appellant was guilty of sexual harassment under the POCSO Act.

Headnote:(A) POCSO Act, 2012 - Sections 4, 8, 11 and 12 - Penal Code, 1860 - Section 354 - Appeal against conviction for sexual assault - Appellant convicted for offences under Sections 4, 8, and 11 of the POCSO Act and Section 354 IPC - Conviction under Section 4 and 8 is quashed due to lack of evidence of penetrative sexual assault - Conviction under Section 11(i) is upheld as the appellant suggested sexual activity with the victim. (Paras 2, 18, 31)

(B) Legal Standards - The testimony of the victim must provide clear evidence of the offence, and mere suggestion or simple contact does not constitute penetrative assault under the POCSO Act - Importance of complete testimony of the child victim for establishing charges. (Paras 18, 30)

Facts of the case:
The appellant was accused of sexually assaulting a 5-year-old girl, leading to charges under the POCSO Act and IPC. The trial court found the appellant guilty based on the victim's testimony and medical evidence; however, the evidence was deemed insufficient to uphold parts of the conviction. (Paras 2-4)

Findings of Court:
The evidence presented did not sufficiently demonstrate that the offence of penetrative sexual assault occurred, as there were no eyewitness accounts or definitive proof of penetration. Conviction for sexual harassment (Section 11(i)) was confirmed. (Paras 31)

Issues: Whether the evidence presented supports a finding of penetrative sexual assault under the POCSO Act, and whether the appellant's actions constituted the relevant offences charged. (Paras 17, 30)

Ratio Decidendi: The court reiterated that convictions must be grounded in robust evidence; mere suggestion of sexual activity does not suffice for charges of penetrative assault. The requirement for conclusive evidence is critical in cases of sexual offences against minors. (Paras 20, 31)

Result: Appeal allowed; conviction under Sections 4 and 8 of the POCSO Act set aside. (Paras 31)

JUDGMENT :

M. Zothankhuma, J.

Heard Mr. A. Zho, learned counsel for the appellant. Also heard Mr. Veto V. Zhimomi, learned Public Prosecutor (P.P.), Nagaland, and Ms. Lhousino Sale, learned Legal Aid counsel for the respondent No. 2.

2. This is an appeal against the impugned Judgment & Order dated 06.09.2022 passed by the learned Special Judge, POCSO, Phek, Nagaland, in GR No. 31/2021 arising out of Women P.S. Phek Case No. 01/2021, by which the appellant has been found guilty of having committed penetrative sexual assault, sexual assault and sexual harassment under Section 4, 8 and 11 of the POCSO Act and also under Section 354 IPC. The learned Trial Court thereafter sentenced the appellant to undergo rigorous imprisonment for a period of 20 (twenty) years with a fine of Rs. 5,000/- (Rupees Five Thousand), in default to undergo simple imprisonment for the term of one year under Section 4 of the POCSO Act. The appellant was also sentenced to undergo rigorous imprisonment for 3 (three) years with a fine of Rs. 1,000/- (Rupees One Thousand), in default simple imprisonment for 6 (six) months under Section 8 of the POCSO Act. The appellant was also sentenced to undergo imprisonment for a term of 6 (six) months with a fine of Rs. 500/- (Rupees Five hundred), in default simple imprisonment for one month under Section 12 of the POCSO Act. He was also sentenced to undergo simple imprisonment for a period of 6 (six) months with a fine of Rs. 500/- (Rupees Five hundred), in default simple imprisonment for one month under Section 354 IPC. The sentences were to run concurrently. However, out of the total fine amount of Rs.7,000/-, Rs. 5,000/- (Rupees Five Thousand) was to be paid to victim and the period already undergone as a UTP was also to be set off.

3. The learned counsel for the appellant submits that there is no evidence to show that the appellant had committed any offence under the POCSO Act or the IPC. He submits that a case of penetrative sexual assault has not been made out, as can be seen from the Medical Report and evidence of the Medical Officer, i.e. PW-6 and the evidence of the victim.

4. The learned P.P. submits that the statement of the victim under Section 164 CrPC corroborates the evidence of the victim and proves that the appellant had raped the victim girl. He also submits that just because the medical examination of the victim showed that her hymen was intact does not mean that the victim was not raped. Further, there was a small bruise on the left inguinal area of the victim. He, thus, submits that the impugned judgment should not be interfered with.

5. Ms. Lhousino Sale, learned Legal Aid counsel for the respondent No. 2 submits that the victim had clearly stated in her evidence that the appellant was bad and had suggested that they should have sex. Then the victim started crying. This could only be relatable to the penetrative sexual assault committed on the victim by the appellant, which is corroborated by the evidence of the Doctor, which shows that there was a small bruise on the left inguinal area of the victim. She also submits that the statement of the victim under Section 164 CrPC clearly proves that the appellant had raped the victim.

6. We have heard the learned counsels for the parties.

7. The prosecution case in brief is that an FIR dated 01.08.2021 was submitted by the mother of the victim (PW-1), to the effect that her daughter had told her on 28.07.2021 that the appellant had inserted his private parts into her private parts and that the appellant had allowed her to play with his private parts. Pursuant to the FIR, Women P.S. Phek Case No. 01/2021 was registered. After the Investigating Officer (I.O) completed the investigation, the I.O filed a chargesheet, on finding a prima facie case under Section 376(2)(i)/354 IPC read with Section 4, 8 and 11 of the POCSO Act established against the appellant, inasmuch as, the victim was 5 (five and a half) years old at the time of the incident.

8. The learned Trial Cou