The court affirmed conviction under the POCSO Act for aggravated penetrative sexual assault based on corroborative medical evidence despite minor inconsistencies in the victim's testimony.

JUDGMENT :

Satyen Vaidya, J.

By way of instant appeal, appellant has assailed the judgment dated 31.08.2019 and sentence order dated 03.09.2019, passed by learned Special Judge, Kangra at Dharamshala, H.P., in Sessions Trial No. 58 of 2017, whereby, the appellant has been convicted for commission of offence under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short “The POCSO Act”) and Section 323 of the INDIAN PENAL CODE . The appellant has been sentenced to undergo rigorous imprisonment for twenty years and to pay a fine of Rs. 50,000/- for offence under Section 6 of the POCSO Act. In default of payment of fine, appellant has further been ordered to undergo simple imprisonment for a period of six months. In addition, the appellant has been sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1,000/- for offence under Section 323 of the INDIAN PENAL CODE . In default of payment of fine, he has further been ordered to undergo simple imprisonment for one month. The substantive sentences have been ordered to run concurrently. Out of fine amount a sum of Rs. 40,000/- has been ordered to be paid to the victim as compensation.

2. The incident relates back to date 09.03.2017. The child victim was aged about six years and seven months at the time of commission of offence. Initially, the case was registered under Section 8 of the POCSO Act. However, during the trial, the charge was amended to be one under Section 6 of the Act, ibid, besides being under Section 323 of the INDIAN PENAL CODE .

3. FIR Ext. PW16/D was registered on the basis of the statement of PW-2, Smt. Manju Lata (mother of the child victim) Ext. PW2/A recorded under Section 154 Cr.P.C. It was alleged that the child victim had gone out of the house alongwith her grandmother to buy sweets. After purchase, the grandmother, PW-5, Smt. Savitri Devi, went to look out for her cattle, whereas the child victim proceeded towards her house. Just from outside the gate of the house, the appellant forcefully lifted the child victim towards bushes. The child victim was given beatings besides being subjected to sexually indecent behaviour. The child victim could freed herself by seeking help from some elder person of the village, who happened to pass from nearby. On help being sought by the child victim, the appellant had fled away from the scene.

4. The mother and grand-mother of the child victim had started searching for her. They met the child victim outside their house and found her weeping. On inquiry the child victim had disclosed the incident to them.

5. Police was telephonically informed and on arrival of police in the house of the complainant, the matter was reported. SI/SHO, Abhimanyu Sharma, PW-21, prepared the ‘Rukka’ and sent the same to the police station for registration of FIR. The FIR Ext. PW16/D, was accordingly registered and further investigation was carried. A request letter Ext. PW12/A was sent to the Medical Officer for Medico Legal Examination of the victim. PW-12,Dr. Abha Gautam had conducted the Medico Legal Examination of the victim on 09.03.2017 itself and had issued MLC Ext. PW12/B. On the same day, a request was sent to Medical Officer, CHC Jaisinghpur for Medico Legal Examination of the appellant. On his examination, MLC Ext.PW15/B was issued by PW-15 Dr. Vishal Gupta,. The clothes of the victim and appellant were preserved by respective Medical Officers in sealed parcels. The samples were also drawn and preserved. The preserved articles were handed over to the investigating officer of the case and were further sent for scientific examination to RFSL, Dharamshala on 14.03.2017.

6. PW-12 had found following injuries on the person of victim :

“INJURIES
1. Abrasion present in left leg, 5 centimeter from heel, linear measuring 2 cm. X 02 cm. reddish in colour.
ON LOCAL EXAMINATION- Public hair not developed, Labio Majora/minora not developed. Hymen torn fresh bleed present vulval area on both sides of hy