IMPORTANT POINT
The conviction was based on the evidence adduced by the prosecution and the testimony of the survivor, highlighting the importance of corroborative evidence in such cases.

JUDGMENT

Sanjib Banerjee; CJ. - The appellant has been convicted under Section 376(2)(f) of the Penal Code, 1860 together with Section 3(a) of the Protection of Children from Sexual Offences Act, 2012.

2. A minor ground has been raised on the merits of the judgment of conviction, but the major thrust of the argument pertains to the obvious error committed by the trial court in awarding a sentence of 20 years' rigorous imprisonment under Section 376(3) of the Penal Code. The appellant has also been sentenced to 10 years' imprisonment and a fine of Rs.10,000/- under Section 4 of the Act of 2012. The tenure in prison is to run concurrently. In default of the payment of fine, the appellant is to undergo simple imprisonment for a further month.

3. On the merits of the matter, the appellant complains that the ostensible confessional statement was obtained in flagrant disregard to the checks and balances envisaged in Section 164 of the Code of Criminal Procedure, 1973. The appellant asserts that the confession was obtained in a correctional home, in the presence of police officials and not, as it is ordinarily done, in court premises by a Magistrate.

4. Even if what the appellant asserts is accepted and the confession apparently rendered by the appellant is disregarded, the judgment of conviction has enough legs to stand on. The primary ground as evident from the judgment of conviction is the testimony of the minor survivor and the corroboration thereof as noticed by the trial court in the judgment of March 31, 2021. Indeed, paragraph 133 of the judgment of conviction records as follows:

'133. As discussed in the foregoing paragraphs, I do not find any reason not to believe the prosecution contention that the incident of penetrative sexual assault was committed upon the minor victim girl. If the accused had not committed the offence, I find no other explanation as to why the minor victim girl would describe it in such a manner.'

5. Thus, it is evident that what weighed with the trial court was not the confession apparently made by the appellant but the evidence as to the incident as brought forth by the prosecution, including the testimony of the minor survivor. As a matter of fact, there is no reference in the concluding part of the judgment to the confession apparently made by the appellant herein.

6. Further, even though the appellant sought to disown the confession in course of his examination under Section 313 of the Code, his consistent response to the other aspects of the evidence adduced by the prosecution and the testimony of the minor survivor was that he did not know the minor girl before the case had been registered against him. It was a high case to run that the appellant was not acquainted with the survivor when the prosecution adduced evidence that the appellant herein had carried the minor girl on his back to a forest, where he violated her. Indeed, the trial court noticed that it was adequately established in course of the evidence that the appellant had carried the survivor back to her residence. In the backdrop of the evidence adduced, it was completely unbelievable that the appellant did not know the minor girl prior to the case being registered against him. To top it all, the survivor was established to be a relative of the appellant.

7. The appellant's contention, to the effect that the confessional statement of the appellant should be disregarded, makes no difference in the larger context considering that the judgment of conviction is founded more on the evidence adduced by the prosecution and the testimony of the survivor rather than the appellant's confession.

8. As to the sentencing, there appears to be a clear error. At the time of the commission of the offence, Section 376(3) of the Penal Code had not found its place in the statute and Section 4 of the POCSO Act also provided for a minimum punishment of seven years.

9. The discussion on the aspect of sentencing, which is relevant for the present purpose, is found at