The judgment establishes that sexual assault on a child under 18 years is defined as rape, and the POCSO Act applies to continuing offenses.

JUDGMENT :

SATISH K. AGNIHOTRI, J.

1. Impugning the correctness of the finding, conviction and sentencing vide Judgment and Order dated December 15, 2014, wherein the appellant was convicted under provisions of Section 5 (c) read with Sections 5 (j) (ii) and 5 (l) punishable under Section 6 of the Protection of Children from Sexual Offences (POCSO) Act, 2012 (hereinafter referred to as “POCSO Act”) and also under Section 376 (2) (i) of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”), the appellant has preferred the instant appeal under provisions of Section 374 (2) of the Code of Criminal Procedure, 1973.

2. On having been found guilty under the aforestated provisions, the appellant was convicted to undergo Rigorous Imprisonment (RI) for a period of 10 (ten) years and pay a fine of Rs.5,000/- under Section 5 (c) punishable under Section 6 of the POCSO Act. In default of payment of fine, the appellant was to further undergo two months RI. The appellant was also convicted to undergo RI for 10 (ten) years and pay a fine of Rs.5,000/- under Section 5 (j) (ii) punishable under Section 6 of the POCSO Act. In default of payment of fine, the appellant was ordered to further undergo two months RI. Further, under Section 5 (l) punishable under Section 6 of the POCSO Act, he was convicted to suffer the RI for a period of 10 (ten) years and pay a fine of Rs.5,000/-. In default of payment of fine, to further undergo RI for two months. Under provision of Section 376 (2) (i) of the IPC, he was punished to undergo RI for a period of 10 (ten) years and pay a fine of Rs.5,000/-. In default of payment of fine, to serve further RI for two months. All the sentences were directed to run concurrently.

3. On August 23, 2013, the father of the victim lodged First Information Report in Ranipool Police Station stating that his elder daughter, aged about 15 years, on admission to the S.T.N.M. Hospital due to excessive bleeding gave birth of a female child. On inquiry, he was informed that the appellant herein, who happened to be a teacher in Nimthang School, had sexual intercourse with her. Taking notice of the said FIR, investigation began on the same date. After inquiry and investigation, a charge-sheet was filed on October 22, 2013, which was amended subsequently in the Special Court under POCSO Act against the appellant. The appellant was charge-sheeted for having committed aggravated penetrative sexual assault on the minor victim on several occasions at her residence. Thus, committed an offence under Section 5(c) punishable under Section 6 of the POCSO Act. The appellant was also charge-sheeted for making the minor victim pregnant by penetrative sexual assault as defined in Section 5 (j) (ii) and Section 5 (l) punishable under Section 6 of the POCSO Act. The appellant was further charge-sheeted under provisions of Section 376 (2) (i) of the IPC for having committed rape on the minor victim of under 16 years of age.

4. During the investigation, the blood samples of the accused, minor victim and newly born baby was collected for DNA profile to examine paternity. DNA report, vide Exhibit-16, confirms that allele DNA profile of blood sample of newly born baby matches with the allele DNA profile of blood sample of minor victim and blood sample of the appellant holding that the newly born baby was the daughter of the minor victim and the appellant. The victim in her statement, Exhibit-7, recorded under Section 164 clearly stated that during November 2012 and thereafter on several occasions the appellant, taking advantage of absence of her father, came to her house and had sexual intercourse. On August 21, 2013 she felt severe pain on her stomach and was taken to the hospital, wherein she delivered a baby girl on August 22, 2013. She further stated that there is no doubt about the paternity of the baby, i.e. the appellant.

5. The appellant tendered apology in presence of senior citizens of the village, Zilla Panchayat, Panchayats of Upper and Lowe