The Court found that the conviction for aggravated sexual assault under Section 9(m) should be rectified to aggravated penetrative sexual assault under Section 5(m), reflecting the severity of the crime.

JUDGMENT :

Meenakshi Madan Rai, J.

1. The Appellant was convicted under Section 9 (m) of the Protection of Children from Sexual Offences Act, 2012 (hereinafter, “POCSO Act”), for committing aggravated sexual assault on a child below twelve years, punishable under Section 10 of the same Act. He was sentenced to undergo simple imprisonment for a period of five years and fined Rs. 5,000/- (Rupees five thousand) only, with a default clause of imprisonment. The Learned Trial Court observed that since Section 9 (m) of the POCSO Act covers the offences punishable under Sections 354 and 354B of the INDIAN PENAL CODE , 1860 (hereinafter, the “IPC”), the Appellant need not be penalised twice for the same offence under different legislations. He was acquitted of the offence under Section 5 (m) of the POCSO Act for which penalty is provided under Section 6 of the same Act. Although charge was framed against the Appellant also under Section 376AB of the IPC, the Learned Trial Court failed to refer to or discuss this Section in the impugned Judgment.

(i) In the impugned Judgment, the Learned Trial Court in Paragraphs 15 and 17 concluded inter alia as follows;

“15. It would be seen that the evidence of PW-5 and 7 and the allegation against the accused of having inserted his finger into the victim’s vagina is corroborated by the medical evidence (supra). ……

……………………………………………………………………………………………….

17. In light of the discussions made above, the question whether on 30^th September, 2018, the accused touched and inserted his finger into the victim’s vagina is answered in affirmative.

[emphasis supplied]

Contrarily in the "ORDER‟, at the conclusion of the impugned Judgment the Learned Trial Court proceeded to hold as follows;

“In the result, I have arrived at a finding that the Prosecution have successfully brought home the charge against the accused under Section 9 (m) punishable under Section 10 of the POCSO Act, 2012 Since this provision covers the offences punishable under Section 354 and Section 354 B of the I.P.C, the accused need not be punished twice for the same offence under two different legislation. However, he stands acquitted from the charge under Section 5 (m)punishable under Section 6 of the POCSO Act, 2012.…………………………………” [emphasis supplied]

Thus, the Appellant was convicted for the offence of “aggravated sexual assault” simpliciter, despite the finding extracted above, that an offence of “aggravated penetrative sexual assault” had been perpetrated by him on the child.

(ii) Aggrieved by the Judgment and Order on Sentence of the Court of the Learned Special Judge (POCSO Act, 2012) Gangtok, Sikkim, dated 30-10-2023 and 31-10-2023 respectively, in S.T (POCSO) Case No.18 of 2019, this Appeal has arisen.

2. The victim is a girl child, aged about three years and two months at the time of the offence. The Prosecution case is that the Appellant had inserted his finger into her vagina and caused injuries therein. PW-5 the victim's mother, lodged Exhibit 2 the FIR, on 02-10-2018 complaining that the victim PW-1 had been indicating to her by pointing at her genital that uncle (accused) had inserted his finger into it. That, PW-5 paid scant attention to what the child was communicating at the relevant time being overwhelmed by the circumstance of the hospitalisation of both her husband and father and she being the caregiver. However, on 01- 10-2018 when the child had the urge to urinate frequently, she checked the genital of t