The judgment established the distinction between sexual assault and penetrative sexual assault under the POCSO Act, emphasizing the requirement of evidence of penetration for the latter.

JUDGMENT :

Pankaj Purohit, J.

This appeal is preferred by the appellant from Jail assailing the judgment and order dated 07/08.05.2019 passed by FTC/Additional District and Sessions Judge/Special Judge (POCSO), Haldwani, District Nainital in Special Sessions Trial No.29 of 2017, State vs. Suresh Kumar @ Kana, whereby the said court, after conclusion of the trial, convicted the appellant under Section 376 (2)(i) IPC and Section 5 (m)/6 of the Protection of Children from Sexual Offences Act, 2012, (hereinafter to be referred to “the POCSO Act”), but in view of Section 42 of the POCSO Act, sentenced the appellant only under Section 376 (2)(i) IPC and directed him to undergo 12 years’ rigorous imprisonment with fine of Rs.50,000/- and in case of not making the payment of fine, he shall undergo additional simple imprisonment for a period of six months.

2. The prosecution story as unfolded during trial is that the informant gave a typed report (Ext.Ka-1) at Police Station Lalkuan to the effect that when on 17.04.2017 at about 1:00 p.m., she had gone along with her husband to search for a rented house; her daughter aged about 8 years and three children were there in the house. When at about 02:30 p.m., they came back home, the door was bolted from inside. When she called her daughter, appellant opened the door of the house and ran away. When she and her husband tried to caught hold the appellant, he pushed them and ran away towards jungle. When they went inside the house, her daughter was crying. On being asked the reason of crying, the victim told that the appellant committed forcible rape upon her. With these averments, the FIR was lodged.

3. On the basis of the above report, the chick FIR was lodged on 17.04.2017 at about 16:52 hours at Police Station Lalkuan, which is Ext.Ka-4. The matter was investigated. The Investigating Officer recorded the statements of witnesses and got the victim medically examined. On the pointing out of victim, the investigating officer inspected the place of occurrence and prepared the site plan (Ext.Ka-10). From the spot, a cream colour piece of cloth and a piece of mattress cover violet in colour were taken in possession. The appellant was arrested. The clothes and specimen taken and were sent for examination at Forensic Science Laboratory, Dehradun. The victim statement under Section 164 Cr.P.C. was also recorded on 15.12.2017 by Additional Civil Judge (Junior Division) Nainital.

4. On completion of investigation, the investigating officer submitted a charge-sheet (Ext.Ka-12) under Sections 376 (2)(h) IPC and Section 5/6 of the POCSO Act, whereupon the cognizance was taken by the court on 21.06.2017. The learned Special Sessions Judge (POCSO) framed charges against the appellant on 03.11.2017 under Section 376(2)(i) IPC and under Section 5 (m) read with Section 6 of the POCSO Act. The appellant was read over the charges to which the pleaded not guilty and claimed for trial.

5. The prosecution examined as many as ten witnesses to prove its case. PW1-mother of the victim and informant, PW2-victim, PW3-father of the victim, PW4-Constable Anand Kumar, PW5-uncle of the victim, PW6-Dr.Alpana Mishra, PW7-S.I. Suresh Kamboj, PW8-S.I. Sonika Joshi, PW9-Yogesh Kumar and PW10-Dr. Manoj Aggrawal.

6. Thereafter, the statement of appellant was recorded under Section 313 Cr.P.C. in which he stated that he has falsely been implicated in the crime and he was innocent. No defence evidence was led by the appellant in his defence.

7. The trial court after hearing the learned counsel for the parties and perusal of the entire evidence led by the prosecution and the statement of appellant under Section 313 Cr.P.C., proceeded to convict and sentence the appellant as mentioned in paragraph no.1 of this judgment. Feeling aggrieved, the present jail appeal has been preferred by the appellant.

8. Before proceeding any further, we would like to advert to the evidence of prosecution witnesses. In this case, the victim, who was a minor chi