A conviction under the POCSO Act requires corroborative evidence beyond mere victim testimony; failure to prove victim's age and the circumstances surrounding the allegation renders the prosecution case insufficient.

JUDGMENT

Meenakshi Madan Rai, ACJ. - The minor victim allegedly aged about 15 years was said to have been sexually assaulted by the Appellant aged about 44 years, in a room of a Lodge, which led to the instant case. The Learned Trial Court convicted the Appellant of the offence under Section 3 (b) of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act, 2012) and under Sections 3 42 /376(2)(i) of the INDIAN PENAL CODE , 1860 (for short, “IPC”), vide the impugned Judgment, dated 18-12-2018 in Sessions Trial (POCSO) Case No.25 of 2017. The Order on Sentence dated 19-12-2018 prescribed the following;

(i) imprisonment for a period of 7 years and to pay a fine of Rs.5,000/- (Rupees five thousand) only, under Section 3 (b) punishable under Section 4 of the POCSO Act, 2012;

(ii) imprisonment for a term of 1 year and to pay a fine of Rs.2,000/- (Rupees two thousand) only, for the offence under Section 342 of the IPC; and

(iii) rigorous imprisonment for a term of 7 years and to pay a fine of Rs.5,000/- (Rupees five thousand) only, under Section 376(2)(i) of the IPC.

The sentences of imprisonment were ordered to run concurrently and the sentences of fine bore default clauses of imprisonment. Set off was granted in terms of Section 428 of the Code of Criminal Procedure, 1973 (for short, “Cr.P.C.”). It was further ordered that the fine, if recovered, was to be made over to the victim as compensation. The Appellant was acquitted of the offence under Section 363 of the IPC.

2. The facts of the Prosecution case is that on 22-05- 2017, Exhibit 2, an FIR was received from P.W.2, the victim’s stepfather stating that on 22-08-2017 at around 10.30 hrs. the Appellant, a labour contractor, had lured the victim (P.W.1) to a Lodge and sexually assaulted her. The FIR was accordingly registered on the same day under Section 3 76 of the IPC read with Section 4 of the POCSO Act, 2012, and investigation endorsed to P.W.20, the Investigating Officer (I.O.). On completion of investigation, Charge-Sheet was submitted against the Appellant under Section 3 76 of the IPC read with Section 4 of the POCSO Act, 2012. The Learned Trial Court on receipt of the Charge-Sheet framed Charge against the Appellant under Sections 3 63 /342 and 376(1) of the IPC and Sections 3 /4 of the POCSO Act, 2012. The Appellant put forth a plea of “not guilty” and the trial commenced with the Prosecution examining 20 (twenty) witnesses in a bid to establish its case, on closure of which, the Appellant was examined under Section 3 13 of the Cr.P.C. to enable him to explain the incriminating circumstances appearing against him. He claimed not to have been involved in the alleged incident. The final arguments were heard and the Learned Trial Court after examining the evidence on record convicted the Appellant, as detailed hereinabove.

3. Learned Senior Counsel for the Appellant contended that the Section 164 Cr.P.C. statement of the victim, P.W.1, before the Learned Trial Court indicates that there was no penetrative sexual assault. As per P.W.1, the Appellant had taken her to a Lodge and then fondled her body parts, no allegation of penetrative sexual assault was put forth by her. P.W.13 the owner of the Lodge where the alleged incident had occurred had seen the victim on the road outside the Lodge’s gate and not inside the room or in the inside premise of the Lodge, raising doubts about the Prosecution case and the veracity of the Appellant’s allegation. That, she complained to P.W.13 that the Appellant had verbally abused her, but made no allegation of sexual assault. P.W.16 the Doctor who examined the victim on the same day, found no signs of use of force or injuries on the person of the victim to reveal sexual assault. The blood group of the Appellant, as per P.W.17, the RFSL Expert, is ‘O’, but the blood group found on the underwear of the victim was of the blood group ‘A’. That, in fact, the victim was a married woman as emanates from the deposition of P.W.2 and