Conviction for penetrative sexual assault requires proof of actual penetration as defined by statute. Absent such evidence, where trial testimony confirms acts toward the commission of such offence, the court may alter charges to an attempt under the relevant penal provisions, provided no prejudice is caused to the accused.

ORDER :

M. Zothankhuma, J.

Heard Mr. D Bhattacharya, learned Legal Aid counsel for the appellant. Also heard Mr. R R Kaushik, learned Additional Public Prosecutor, Assam for the State as well as Ms. R B Bora, learned Legal Aid counsel for the respondent No. 2.

2. The appellant has put to challenge the impugned judgment and order dated 04.02.2023 passed by the learned Special Judge, Goalpara in Special (P) Case No. 42/2021, by which the appellant has been convicted under Sections 448/342 IPC and under Section 4 of the POCSO Act. The appellant has thereafter been sentenced to undergo rigorous imprisonment for 20 (twenty) years with a fine of Rs. 20,000/- (Twenty Thousand) only, in default to undergo simple imprisonment for 4 (four) months under Section 4 of the POCSO Act. The appellant has also been sentenced to undergo rigorous imprisonment for 2 (two) months each under both the Sections 448/342 IPC. The sentences are to run concurrently.

3. The appellant’s counsel submits that there is no evidence adduced by the prosecution witnesses to prove that the appellant’s private parts had penetrated the private parts of the victim. As such, Section 4 of the POCSO Act was not attracted. He also submits that in view of the testimony of the victim (PW-3), who stated that there was pain in her vagina and due to the sexual assault apparently made by the appellant on the victim girl, the appellant could at best have been convicted only under Section 7 of the POCSO Act and punished under Section 8 of the POCSO Act.

4. The learned counsel for the appellant further submits that though the learned Trial Court had also framed charge under Section 427 IPC along with Sections 448/342/376 IPC read with Section 4 of the POCSO Act, there was contradictory evidence given by the mother of the victim (PW-2) and the victim (PW-3), regarding the house of the victim’s mother being damaged due to a fire. As such, it was not safe to rely only upon the evidence of the victim, to convict the appellant under Section 4 of the POCSO Act. He further submits that the age of the victim as 13 year old minor is disputed by the appellant.

5. Mr. R R Kaushik, learned APP, submits that in view of the evidence of the victim which is to the effect that the appellant had attempted to rape her, coupled with the pain she felt on her vagina and the Doctor’s (PW-6) evidence to the effect that the victim’s hymen was torn, proved that the appellant had raped the victim. He accordingly submits that the impugned judgment and order should not be interfered with.

6. Ms. R B Bora, learned Legal Aid counsel for the respondent No. 2 adopts the submissions made by the learned Additional Public Prosecutor.

7. We have heard the learned counsels for the parties and perused the materials available on record.

8. The prosecution case in brief is that an FIR dated 07.04.2021 was submitted by the mother of the victim (PW-2) to the Officer-in-Charge of Matia Police Station, stating that at around 11:30 PM on 06.04.2021, the appellant trespassed into her house with the intention to kill her with a Dao. He demolished her dwelling house and took away household articles. He also took away her 12 year 5 month old daughter to his house and raped her. Pursuant to the FIR, Matia Police Station Case No. 76/2021 under Sections 427/379/366A/376 IPC read with Section 4 of the POCS