Victim's consistent testimony can uphold a conviction for penetrative sexual assault despite contradictions in prior statements and the absence of DNA evidence.

ORDER :

I.A. No.12652 of 2024

This instant interlocutory application has been filed under Section 430 of BNSS for suspension of sentence, against the Judgment of conviction dated 13.06.2024 and order of sentence dated 21.06.2024 passed by learned A.J.C.-IVcum Special Judge-POCSO, Ranchi, in connection with POCSO Case No.32 of 2021, arising out of Jagarnathpur P.S. Case No.456 of 2020, whereby and whereunder the appellant has been convicted for the offence u/s 376(D) of Indian Penal Code & under Section 6 of POCSO Act and sentenced to undergo R.I. for 20 years and fine Rs.10,000/- and in default of fine, S.I. for six months for the offence under Section 6 of the POCSO Act. There is no separate sentence u/s 376 (D) of Indian Penal Code in light of section 42 of POCSO Act.

2. Mr. Anil Kr. Ganjhu, learned counsel appearing for the appellant has contended that it is case where the prosecution has miserably failed in establishing the charge beyond all reasonable doubt. The basis for making such submission is that if the testimony of the victim will be taken into consideration, she has not supported the prosecution version, particularly while recording the statement under Section 164 of Cr.P.C., where she has stated that she was not subjected to any penetration and hence the contention has been raised that there cannot be conviction under Section 6 of the POCSO Act.

3. It has further been contended that even the DNA profile has not matched, since, the DNA has not been generated of the sample which is sent to the FSL.

4. Based upon such submissions, learned counsel appearing for appellant has submitted that it is fit a case for suspension of sentence.

5.While on the other hand, Mr. Rajneesh Vardhan, learned Additional Public Prosecutor appearing for State has vehemently opposed the prayer for suspension of sentence.

6.It has been contended by learned State counsel by referring the testimony of PW-1, victim, who has fully supported the prosecution version. It has been submitted that it cannot be said that the DNA profile does not support the prosecution version, rather the DNA profile could not be generated. The ground therefore has been raised that due to non-generation of the DNA profile, the testimony of PW-1, victim, cannot be said to be washed away.

7.Learned State counsel based upon the aforesaid submissions submitted that it is not a fit case for suspension of sentence.

8.We have heard the learned counsel for the parties and gone across the findings recorded by the learned trial court in the impugned Judgment and the testimony as available in the lower court records and the other material exhibits available therein.

9.This Court has gone through the testimony of PW-1, victim, who has fully supported the prosecution version. However, the statement as recorded under Section 164 of Cr.P.C., it has been stated by her that there was no penetration, but in the matter of POCSO, the issue of penetration is to be taken into consideration in the broader aspect.

10.Section 3(c) of the POCSO Act states that a person is said to commit "penetrative sexual assault" if he manipulates any part of the child’s body so as to cause penetration into the vagina, urethra, anus or any other body part or makes the child to do so with him or any other person. Section 3 of the POCSO Act is reproduced below :

3. Penetrative sexual assault.—A person is said to commit “penetrative sexual assault” if—

(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or

(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or

(c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or

(d) he applies his mouth to