IMPORTANT POINT
The court established that the testimony of a minor victim in sexual assault cases is crucial and can stand alone for conviction, emphasizing the presumption of guilt under the POCSO Act when the victim is a child.

JUDGMENT :

RAJESH SINGH CHAUHAN, J.

1. Heard Shri Alok Srivastava, learned counsel for the applicant, Shri Rajnish Kumar Verma, learned A.G.A., however, no one has appeared on behalf of the informant/ complainant.

2. As per learned counsel for the applicant, the present applicant is in jail since 31.03.2022 in Case Crime No. 56 of 2022, under Sections 376AB, 506 IPC and Section 5/6 of Ptotection of Children from Sexual Offences (POCSO) Act, 2012, Police Station-Asiwan, District- Unnao.

3. Learned counsel for the applicant has further submitted that the present applicant has been falsely implicated in the case as he has not committed any offence as alleged. As per prosecution story so narrated in the FIR, the present applicant has made oral sex with the daughter of the complainant/informant, who is aged about ten years. As per FIR, the present applicant, who is the neighbour of the informant/complainant, in the evening at 9:30 P.M. when informant/complainant was with her husband, the applicant came and asked that his mother is calling the prosecutrix/victim and after a lapse of time, the complainant along with her husband went for search of their daughter. While searching, they heard some sound coming from kothari of kanda and bhusa. They found that the cloths of the child were not on her body and the applicant was also not wearing cloths. After wearing cloths the child told that the present applicant has made oral sex with her and penetrated the penis in her way of urine.

4. Learned counsel for the applicant has submitted that the entire prosecution story is false and concocted inasmuch as the prosecution story creates doubt as there was no independent eye witness account and last seen evidence.

5. Learned counsel for the applicant has also drawn attention of this Court towards the order dated 18.11.2021 passed by this Court in Criminal Appeal No. 5415 of 2018, Sonu Kushwaha Vs. State of Uttar Pradesh relying upon paras 17 & 21 thereof, which reads as under:-

“17. From the perusal of the provisions of P.O.C.S.O. Act, it is clear that offence committed by appellant neither falls under Section 5/6 of P.O.C.S.O Act nor under Section 9(M) of P.O.C.S.O. Act because there is pentrative sexual assault in the present case as appellant has put his penis into mouth of victim. Putting penis into mouth does not fall in the category of aggravated sexual assault or sexual assault. It comes into category of pentrative sexual assault which is punishable under Section 4 of P.O.C.S.O. Act.

21. The court below has awarded the appellant to undergo 10 years rigorous imprisonment and fine of Rs. 5000/-under Section 6 of P.O.C.S.O. Act and under Section 6 of P.O.C.S.O. Act, minimum sentence is 10 years which may extend to imprisonment for life whereas under Section 4 of P.O.C.S.O. Act minimum sentence is 7 years but which may extend to imprisonment for life also. Learned court below has awarded minimum sentence provided under Section 6 of P.O.C.S.O. Act and accordingly, it would be appropriate to award the sentence to appellant under Section 4 of P.O.C.S.O. Act, seven years of rigorous imprisonment which is minimum provided in that Section and fine of Rs. 5,000/-, in default, three months additional simple imprisonment.”

6. On the basis of aforesaid paras, the learned counsel for the applicant has tried to submit that in the present case, maximum sentence for the alleged offence committed may be seven years and the present applicant has already served about two years and two months in jail, therefore, considering the period of incarceration, the present applicant may be released on bail.

7. Learned counsel for the applicant has further drawn attention of this Court towards Annexure No. 5 of the bail application, which is the statement of the prosecutrix recorded under Section 164 of Cr.P.C., wherein her statement has been recorded under pressure of her family members.

8. Learned counsel for the applicant has reiterated that the present applicant has no previou