Penetrative sexual assault occurs upon the insertion of any body part to any extent into a child's vagina, urethra, or anus; full penetration is not required. Sentencing for overlapping offences of the same incident must be clearly articulated and ordered to run concurrently if multiple sections are invoked.

JUDGMENT :

Meenakshi Madan Rai, J.

1. An FIR was received from the Complainant PW-2 on 05- 09-2020, at 1000 hours, at the concerned Police Station, with the information that his niece (brother’s daughter), aged five years, was sexually molested by the Appellant, on the previous day, at around 1600 hours, near her house. A case was accordingly registered as FIR No. 39/2020, dated 05-09-2020, and endorsed to PW-14, the Sub-Inspector at the Police Station, for investigation. On completion of investigation, having prima facie found that, the Appellant, aged about sixty years, had committed an offence of aggravated penetrative sexual assault, on the minor victim, the Charge-Sheet under Sections 6 /10 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) was submitted against him.

2. The Learned Court of the Special Judge (POCSO Act), Namchi, Sikkim, framed Charge against the Appellant under Section 3(b) punishable under Section 4 of the , for committing penetrative sexual assault on the minor victim and under Section 5(m) punishable under Section 6 of the for sexual assault on a child below twelve years. Charge was also framed under Section 376(1) of the Indian Penal Code, 1860 (IPC), for the offence of rape and Section 376(3) of the for committing rape on a woman under sixteen years of age.

3. The Appellant entered a plea of “not guilty” to the Charges and the Prosecution thereupon examined fourteen witnesses to prove its case beyond a reasonable doubt. On closure of the Prosecution evidence, the Appellant was examined under Section 313 of the Criminal Procedure Code, 1973 (Cr.P.C.), pursuant to which, the Learned Trial Court on consideration of the entire evidence on record, vide the impugned Judgment, dated 21- 06-2023, in Sessions Trial (POCSO) Case No.28 of 2020 (State of Sikkim vs. Krishna Chettri), convicted the Appellant under Section 3(b) punishable under Section 4 of the POCSO Act and Section 5(m) punishable under Section 6 of the . It was observed in the impugned Judgment that, the Appellant was also convicted under Sections 376(1) and 376(3) of the IPC respectively, however in view of Section 4 2 of the , the Appellant having been penalized under Section 6 of the , no penalty under Sections 376(1) and 376(3) of the were required. The Appellant was sentenced to undergo twenty years imprisonment vide the Order on Sentence dated 22-06-2023. Aggrieved with the conviction and order on sentence, the Appellant assails both.

4. It was contended by Learned Counsel for the Appellant that the fact of sexual assault is not being contested herein nor is the age of the victim in contest. The only point with which the Appellant is aggrieved is that there was no penetrative sexual assault committed by the Appellant on the victim, and the medical report also does not support such allegations of the Prosecution. That, the Appellant ought to have been convicted and sentenced only for the offences of sexual assault and not penetrative sexual assault, hence the penalty be reduced to one under Section 8 of the POCSO Act which mandates a penalty of three years imprisonment instead of the twenty years handed out by the Learned Trial Court.

5. Learned Additional Public Prosecutor submits that the Prosecution has duly proved its case beyond all reasonable doubt and the impugned Judgment requires no intervention.

6. Having heard Learned Counsel for the parties, perused the records and given due consideration to both, we find, in the first