The delay in filing an FIR in cases of sexual assault deserves latitude, and medical evidence along with consistent testimony can establish guilt.

Meenakshi Madan Rai, J.

1. The Appellant having been found guilty of the offence under Section 3, punishable under Section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter “POCSO Act”) and under Section 341 and Section 506 Part II of the Indian Penal Code, 1860 (for short “IPC”) by the Court of the learned Special Judge, POCSO, North Sikkim at Mangan, in S.T. (POCSO) Case No. 01 of 2014, vide the impugned Judgment dated 20.11.2014, was convicted and sentenced as follows;

1. To undergo rigorous imprisonment for ten years and to pay a fine of Rs.10,000/- (Rupees ten thousand) only, under Section 4 of the POCSO 2012 with a default clause of imprisonment;

2. Simple Imprisonment for one month under Section 341 of the IPC and

3. Seven years rigorous imprisonment and a fine of Rs.2000/- (Rupees two thousand) only, under Section 506 Part II of the IPC, also with a default stipulation.

The periods of imprisonment were ordered to run concurrently. Dissatisfied and aggrieved by the Conviction and Order on Sentence, the instant Appeal assails both.

2. The primary thrust of the argument of learned Counsel for the Appellant was that Exhibit 1, the FIR, was filed belatedly on 15.5.2014 by the guardian of the Victim, the alleged incident having taken place on 9.5.2014 and the delay remains unexplained. It was next contended that the evidence of PW-8, the Doctor who first examined the Victim, detected only redness in the vaginal area and PW-15, a Gynaecologist, who subsequently examined the Victim found no vulval penetration and therefore does not substantiate the Prosecution case. The Victim’s evidence and statement under Section 164 Cr.P.C. do not inspire confidence. That the case being based entirely on circumstantial evidence, the learned Trial Court failed to appreciate that the Prosecution has not led any reliable evidence against the Appellant to establish the offences with which he is charged. In view of the above infirmities, the impugned Judgment of the learned Trial Court deserves to be set aside.

3. Per contra, learned Assistant Public Prosecutor urged that the delay has clearly been explained by the Victim PW-7, as well as her guardian PW-1 and delay in lodging an FIR in such cases deserve latitude from the Courts in view of the sensitivity of the issue. Reliance was placed on (2009) 1 SCC 42 : State of Himachal Pradesh vs. Prem Singh and (2001) 6 SCC 71 : State of Himachal Pradesh vs. Gian Chand, to drive home this point. That, the evidence of PW-8, indicates that there was redness in the genital area which is therefore, proof of penetration while the evidence given by PW-15, the Gynaecologist, who examined the Victim on 15.5.2014, several days after the incident, on local examination found that the vulva was red and inflamed. PW-10, the Expert at the RFSL, Saramsa found blood on the undergarments of the minor Victim leading to the conclusion that rape had been committed for which attention of this Court was invited to the decision in State of H.P. vs. Asha Ram : (2005) 13 SCC 766 and Madan Gopal Kakkad vs. Naval Dubey and Another : (1992) 3 SCC 204. The Victim’s age has remained undisputed thereby bringing her under the protection of the umbrella of the POCSO Act. Besides, the Victim’s evidence is sufficient to convict the Appellant in terms of Section 29 of the POCSO Act, hence, the Judgment of the learned Trial Court be left undisturbed.

4. The rival contentions of the learned Counsel were heard in extenso and due consideration given thereof. I have also carefully considered the evidence and all documents on record and perused the impugned Judgment and Order on Sentence.

5. The question which is required to be determined is; Whether the Appellant deserved a conviction under the above Sections of Law? In order to appreciate this, it would be essential to briefly advert to the facts of the case.

6. On 15.4.2014, PW-1, the guardian of the Victim, lodged Exhibit 1, informing therein that the Victim, aged