Conviction under POCSO Act requires corroboration of testimony, and sentencing can be reduced based on personal circumstances of the offender.

JUDGMENT

Meenakshi Madan Rai, J. - The Appellant impugns the Judgment and Order on Sentence, both dated 25.02.2021, passed by the Court of the Learned Special Judge, Protection of Children from Sexual Offences Act, 2012 (for short, the 'POCSO Act'), West Sikkim at Gyalshing, in S.T. (POCSO) Case No.01 of 2020, convicting the Appellant of the offence under Section 9 (m) punishable under Section 10 of the POCSO Act and sentencing him to undergo Rigorous Imprisonment for a term of six years and to pay fine of Rs.5,000/- (Rupees five thousand) only, with default clause of Rigorous Imprisonment for one year.

2. The Prosecution case is that on 13.11.2019, the parents of the minor Victim (aged about six years) were at work, leaving her and her infant brother (aged about two years) alone at home. The same day, around 13:00 Hrs, the Appellant took the Victim and her brother to his house. At around 13:30 Hrs when P.W.4, a co-villager, stopped by the Appellant's house to check on the Appellant's wife's health, she allegedly saw the Victim with the lower part of her body naked on the Appellant's bed, in his room. The Appellant covered himself with a quilt. Shocked at the sight, P.W.4 took the minor Victim and her infant brother to her own house where the Victim revealed to her that the Appellant had sexually assaulted her several times for over a month and given her money ranging from Rs.50/- (Rupees fifty) only, to Rs.200/- (Rupees two hundred) only, with threats not to divulge the incident to anyone. Thereafter, P.W.4 informed the Victim's parents upon which P.W.3 the Victim's mother, went to the Appellant's house and brought him over to their house (house of P.W.3). P.W.6 and P.W.13, both co-villagers, also arrived there on being informed of the incident. At 15:30 Hrs of the same day i.e. 13.11.2019, P.W.2 the Victim's father, lodged the FIR, Exhibit 1, before the Officer-in- Charge of the concerned Police Station, narrating the facts reflected therein. On completion of investigation, Charge-Sheet was submitted against the Appellant under Section 376 of the Indian Penal Code, 1860, read with Section 6 of the POCSO Act.

3. The Learned Trial Court framed Charge against the Appellant under Sections 5 (m) and 5(l) of the POCSO Act. He pleaded 'not guilty' to the Charges, hence, trial commenced where 15 (fifteen) Prosecution Witnesses were examined, upon closure of which, the Appellant was examined under Section 313 of the Code of Criminal Procedure, 1973, to enable him to explain the incriminating evidence against him. He claimed that the allegations were false. On hearing the arguments of Learned Counsel for the parties and examining the evidence on record, the Learned Trial Court passed the impugned Judgment and Order on Sentence.

4.(i) It is contended by Learned Counsel for the Appellant that although Charge was framed under Sections 5 (m) and 5(l) of the POCSO Act, both punishable under Section 6 of the Act, on consideration of the evidence on record, the Learned Trial Court reached a finding that there was no proof of the act of penetrative sexual assault on the Victim by the Appellant, to fulfill the ingredients of the offence charged with. That, the Learned Trial Court however found the testimony of the Victim reliable with regard to the offence under Section 9 of the POCSO Act, considering that the Victim had stated that the Appellant had cleaned himself after the act, leading to the conclusion that the Appellant had physical contact with the Victim when he touched her from behind, and he did so with sexual intent and hence the conviction of the Appellant under Section 9 (m) of the POCSO Act punishable under Section 10 of the same Act. It is contended