The court held that even if bodies are touched, it amounts to penetrative sexual assault under POCSO when the victim is under twelve, establishing strong grounds for conviction.

JUDGMENT :

Ritu Bahri, C.J.

The present Reference has been sent by the Court of Additional Sessions Judge / FTC / Special Judge (POCSO), Udham Singh Nagar, under Section 366 of the Code of Criminal Procedure, 1973, for affirmation of the sentence of death awarded by said court against the convict Harswroop under Section 302 IPC. Aforesaid convict has been further convicted under Section 364 IPC and sentenced to rigorous imprisonment for a period of seven years and also directed to pay fine of Rs. 5,000/-. He was also convicted under Section 201 IPC, and sentenced to rigorous imprisonment for a period of six years and directed to pay fine of Rs. 5,000/-. The convict was further sentenced under Section 6 of the POCO Act, and sentenced to imprisonment for life along with a fine of Rs.10,000/-. Convicts Pappu and Roopwati were, however, acquitted of the charge of offence punishable under Section 16 /17 POCSO Act. Convict Pappu and Roopwati were both convicted under Section 201 IPC, and sentenced to rigorous imprisonment for a period of four years and three years, respectively, along with a fine of Rs. 5,000/- each, vide judgment and order dated 06.03.2021, passed by Additional Sessions Judge / FTC / Special Judge (POCSO), Udham Singh Nagar, in Special Sessions Trial No. 104 of 2019. Against said order, criminal jail appeals have also been filed by all the three convicts.

2. Prosecution story, in brief, is that a complaint (Ext. A-1) was made on 21.02.2019, at 1.20 hours, by the father of the victim to the In-charge Police Station, Transit Camp, District Udham Singh Nagar, stating therein that on 19.02.2019, at about 05:00 hours, his son was playing on the roof. After sometime, when his wife went to bring him he was not there. Victim was searched at all probable places but could not be located. Thereafter, an FIR (Ext. A-10) to this effect was registered against unknown person in the police station under Section 365 IPC.

3. Investigation was given to S.I. Jitender Kumar, and during investigation an application (Ext. A-2) was given to the In-charge Police Station, Transit Camp by father of the victim stating therein that he and his family members were searching their missing child whose missing report is lodged in the police station. Father of the victim, his relatives and the neighbours were searching, but their neighbour Harswroop, Pappu, Pawan and Roopwati were not cooperating in the search. In the night there was a noise on the roof and when he and his relatives went there they found Harswroop near the water tank and trying to open the tank. When they tried to catch Harswroop, he pushed them and ran into his house. When they called him and tried to get his door open, he did not come out and his family started hurling abuses. It is further stated in the application that if strict inquiry be conducted against them, then information about his missing son could be received.

4. During investigation the dead body of the missing child was found from the house of accused Harswroop, and the three accused persons namely, Harswroop, Pappu and Roopwati were arrested and arrest memos (Ext. A-15, Ext. A-16 and Ext. A-17) were prepared. The recovery of the body of victim was made and recovery memo of dead body (Ext. A-14) was also prepared. The clothes of the child were also recovered and recovery memo (Ext. A-18) thereof was prepared. Panchayatnama (Ext. A-5), photo lash (Ext. A-6) were prepared and the body was sent for postmortem examination, and police form No. 13 (Ext. A-7) was prepared thereof. Sample of seal (Ext. A-8) was prepared, and samples prepared and handed over by the Medical Officer were sent to F.S.L. Dehradun. The postmortem report (Ext. A-3) was collected and the body of