The central legal point established in the judgment is the interpretation and application of the definition of 'Aggravated Sexual Assault' under the POCSO Act, based on the evidence and legal provisions presented in the case.

JUDGMENT :

Pankaj Purohit, J.

This is an appeal preferred by the appellant from jail challenging his conviction and sentence, as recorded by learned FTC/Special Judge, POCSO/Additional Sessions Judge, Dehradun in Special Sessions Trial No. 41 of 2017, State Vs. Rahul Pal, whereby, the said Court has convicted the appellant under Sections 376 IPC as well as under Section 5(m)/6 of the Prevention of Children from Sexual Offences Act, 2012 (hereinafter referred to as the “POCSO Act”), but, has sentenced the appellant only under Section 6 of the POCSO Act, for a period to undergo 12 years rigorous imprisonment with a fine of Rs. 20,000/- and in case of default in payment of fine, the accused was directed to undergo one year’s additional rigorous imprisonment.

2. Facts of the case, in brief are that:-

PW1 – father of the victim lodged a report Ex. Ka-1 with Police Station Doiwala, District Dehradun with the averments that on 31.03.2017, at about 05:30 p.m., he sent his daughter aged about 8 years to bring some rissole (samosa) from a nearby shop, who came after 10-15 minutes and was very frightened and trembling with shock. When he inquired the reason from his daughter, she informed him and his wife that the shopkeeper made her sit in a chair, removed her trouser and underwear, sat over her and touched her private parts and urinated upon her. When the informant saw the trouser and underwear of his daughter, semen were found therein. Thereafter, the informant went to the said shop and his wife also came there meanwhile, and then, the appellant tried to ran away, who was caught and thereafter the informant came to lodge the report. Thereafter, the matter was investigated.

3. PW-7 S.I. Meena Arya and PW-8 S.I. Simran conducted investigation of the case, recorded the statement of the witnesses, arrested the accused, prepared the arrest memo as well as information memo, investigated the place of occurrence and prepared the site plan and on completion of investigation, submitted a charge sheet, which is Ex. Ka-10 against the accused in the Court.

4. On 29.07.2017, learned Special Judge, POCSO, Dehradun framed the charges against the appellant under Section 376 IPC and Section 5(m)/6 of the POCSO Act. The accused denied the charges and claimed to be tried.

5. The prosecution in order to prove its case produced as many as eight witnesses, namely, PW1 Vinod Prasad Tiwari, PW2 Victim, PW3 Shiv Ram, PW4 Smt. Shama, PW5 Smt. Shobha, PW6 Mamta Negi, PW7 S.I. Meena Arya and PW8 S.I. Simran.

6. Thereafter, the statement of accused was recorded under Section 313 of the Cr.P.C., in which, he stated that he has been falsely implicated. In his defence, he produced 3 witnesses, namely, DW1 Manish Pal and DW2 Samay Singh.

7. On completion of trial, the Trial Court proceeded to convict and sentence the accused, as mentioned in paragraph no. 1 of this judgment. Feeling aggrieved, the present appeal has been preferred.

8. PW1 Vinod Prasad Tiwari is the father of the victim. He stated that the victim was his daughter, whose, date of birth was 09.01.2010. The occurrence was of 31.03.2017 at about 05:30 p.m. He had sent his daughter in Durga Sweet Shop to get rissole. The victim came after 10-15 minutes. She was extremely scared and was trembling. When he and his wife inquired the victim, she told that the shopkeeper made her sit on a chair, removed her trouser and underwear, touched her private parts and urinated upon her. Then, PW1 Vinod Prasad Tiwari noticed marks of semen on her cloths. Thereafter, PW1 Vinod Prasad Tiwari went to Durga Sweet Shop, where the person, who gave rissole to her daughter, was there, who was trembling. Meanwhile his wife and daughter also reached on the spot, where the victim identified that he was the same person, who committed misdeed with her. The accused tried to run away from the spot, but, he was caught and thereafter, he was brought at the Police Station, where the FIR was lodged by this witness, which is Ex.Ka-1.

9. PW2 is the vict