The court established that a conviction for penetrative sexual assault requires clear evidence beyond reasonable doubt, which was lacking, leading to a modified sentence for aggravated sexual assault.

JUDGMENT :

1. Heard Anil Kumar Ojha, learned counsel for the appellant, Sri Nagendra Kumar Srivastava, learned A.G.A. for the State and perused the records.

2. The present criminal appeal has arisen from the judgment and order of conviction dated 29.09.2022 passed by Ms. Niharika Chauhan, learned Additional District and Sessions Judge/Special Judge (P.O.C.S.O.), Sonbhadra in Special Trial (P.O.C.S.O. Act 2012) No.37 of 2017 (State Vs. Heera Kol), arising out of Case Crime No.121 of 2017, under Section 376 (2)(i) I.P.C. and Section 5 (m)/6 Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as P.O.C.S.O. Act), Police Station-Ghorawal, District-Sonbhadra, convicting the accused appellant-Heera Kol and sentencing him to undergo life imprisonment with the fine of Rs.50,000/- for the offence under Section 6 P.O.C.S.O. Act and in default of payment the appellant shall undergo additional imprisonment for one year.

3. Prosecution story emerged on the Written Report dated 02.07.2017 (exhibited as Ex.Ka.1 at the trial) lodged by the first informant-’K’ (P.W.-1 at the trial), who is the maternal grand father of the victim ‘P’. In that it was narrated that on 01.07.2017 at about 6.00 p.m. his maternal grand daughter ‘P’ (P.W.-2 at the trial) had gone to a near by hand-pump, to fetch water in a plastic vessel. There, the present appellant was present from before. He took off the underwear of ‘P’ and rubbed her body parts inappropriately (“sehlane laga”), while ‘P’ was working the hand pump. On witnessing the same, children and other persons present at that place of occurrence, raised an alarm. At that, ‘K’ ran up to the place of occurrence. The appellant tried to flee but was apprehended by ‘K’. The police was informed on the Police Helpline number 100. The F.I.R. was registered, the next day, on 02.07.2017 at about 3.55 p.m. It is exhibited as Ex.Ka.3 at the trial. ‘P’ was subjected to Medico Legal Examination (exhibited as Ex.Ka.7 at the trial) conducted at 01.00 p.m. by Dr. Geeta Jaiswar (P.W.-6 at the trial). She stated, no injury whatsoever was noted by her, on ‘P’. After more than a month from the occurrence, the statement of the victim was recorded under Section 164 Cr.P.C. on 18.08.2017. It is exhibited as Ex.Ka.2 at the trial. In that, she narrated that the appellant had removed her underwear; flashed his penis; spoke words expressing his intent to commit “penetrative sexual assault” on ‘P’ and, lifted her in his lap. On being further questioned, she stated, the appellant had flashed his penis at her. No other or further statement was made by her, at that stage to indicate commission of any act amounting to “penetrative sexual assault”, by the appellant.

4. Upon completion of the investigation, the Charge Sheet was submitted on 19.08.2017. It is exhibited as Ex.Ka.6 at the trial. On that the appellant was put up for trial. Initially, two charges were framed on 05.03.2018. Those read as below:

5. On 03.02.2020 (describing as altered charges), two other charges were framed. They read as below:

6. At the trial, besides the above documentary evidence, prosecution led oral evidence of seven witnesses. ‘K’-the first informant was examined as P.W.1. During his examination-in-chief, he proved, when he reached the place of occurrence, he saw the appellant had removed the underwear of ‘P’ and had in appropriately embraced her (in that state of undress) and was rubbing her body parts, inappropriately. On being scolded by ‘K’, the appellant let her go. Then ‘K’ apprehe