The main legal point established in the judgment is the correct interpretation and application of the definitions of sexual assault under Section 375 IPC and Section 3/7 of the POCSO Act in determining the appropriate conviction for the appellant.

JUDGMENT :

Pankaj Purohit, J.

This Criminal Appeal is preferred against the judgment and order dated 12/17.07.2018 passed by learned Special Judge, POCSO/FTC, Additional Sessions Judge, Dehradun, in Special Sessions Trial No. 58 of 2016 “State Vs. Noor Hasan”, whereby, the said Court convicted the appellant under Section 376 IPC and under Section 3/4 of POCSO Act, 2012 but sentenced him only under Section 4 of POCSO Act and directed him to undergo rigorous imprisonment for a period of 12 years with a fine of Rs. 40,000/-, and in case of default he was directed to undergo one year’s additional rigorous imprisonment.

2. Facts necessary to decide the controversy, briefly stated, are that as per the case of the prosecution, an FIR was lodged against the appellant-accused in Police Station – Rishikesh, District Dehradun by informant PW2 - Shanti Devi, grandmother of the victim, with the allegations that her granddaughter, who was 10 years old, stayed with her. According to the informant, 10-12 days before 05.04.2013, when her granddaughter was watching television at home, appellant came to her house and tried to sexually assault her granddaughter. On that day, the victim could not tell the story to her grandmother, but, on 05.04.2013, she revealed the entire story to her grandmother. On the basis of aforesaid FIR, chick was registered in Police Station Rishikesh. An FIR No. 09 of 2013 (Ex. Ka-9) was registered under section 376, 511 IPC against the appellant Noor Hasan on 05.04.2013 at 15:30 hours.

3. Investigation ensued; victim was medically examined and her statement under Section 164 Cr.P.C. (Ex.ka-3) was recorded on 12.04.2013 by Judicial Magistrate, Rishikesh. After investigation, the charge-sheet was submitted against the appellant and the cognizance was taken. Charges were framed by learned Special Judge, POCSO against the appellant under Sections 376/511 IPC as well as under Section 3/4 of the POCSO Act. The appellant denied the charges and claimed to be tried.

4. The prosecution, in order to establish the case, has examined as many as six witnesses in order to substantiate its case, namely PW-1 the victim, PW-2 Smt. Shanti Devi grandmother of victim and informant, PW-3 Shri Kalam Singh, scribe of FIR, PW- 4 Dr. Richa Thapliyal, PW-5 S.I. Yogesh Chandra, Investigating Officer and PW-6 Constable 44 Jyoti.

5. After recording the evidence of prosecution witness, statements of the appellant-accused were recorded under section 313 Cr.P.C. In his defence, he stated that he did not commit the crime and he was innocent. In defence evidence, he produced DW-1 Ashok Thapa and DW-2 Harish.

6. The trial Court after examining the evidence of the prosecution witnesses and perusal of the documentary evidence came to the conclusion that the prosecution succeeded in proving the charges against the appellant-accused beyond all reasonable doubt, and convicted and sentenced the appellant as mentioned in para 1 of this judgment.

7. Before proceeding any further, it would be apt to narrate the oral testimony of prosecution witnesses, in brief.

8. The victim, who was examined as PW1 in the Court, was put to test by the court in order to judge her competency. After perusal of reply given by her, the court came to the conclusion that she was competent to testify. Accordingly, her evidence was recorded. PW1 has deposed that the appellant-accused, who was their neighbour, used to often visit their house to meet her grandmother for some work. About three years ago, when she was in Class-III or IV, her grandmother was not at home and her uncle was making tea and she was watching television at home. Appellant came from behind, covered her mouth, held her hands and put his hand inside her underwear. After few days, when he again came to their house, the victim, being enraged, narrated the entire story to her grandmother. Her statement under Section 164 Cr.P.C. was also recorded whereon Ex. Ka-1 was marked.

9. PW2- Shanti Devi is the grandmother of the victim. Acco