IMPORTANT POINT
The central legal point established in the judgment is the reliance on the survivor's trustworthy statement and the medical examiner's opinion to uphold the conviction for penetrative sexual assault.

JUDGMENT

Sanjib Banerjee, CJ. - The appeal arises out of a judgment of conviction of April 15, 2021 and the resultant sentence under which the appellant herein has been condemned to rigorous imprisonment for a period of 10 years under Section 5(m) and (n) of the Protection of Children from Sexual Offences Act, 2012 read with Section 6 thereof. The appellant has also been fined Rs.10,000/- and, in default, to undergo simple imprisonment for a further year. At the time that the appellant was sentenced, he had already undergone nearly three years and three months of detention.

2. The appellant claims that there is no evidence of penetrative sexual assault and even the survivor asserted that the appellant did not insert his penis into her vagina. The appellant refers to the inconclusive forensic science laboratory report and the absence of any firm opinion in the report of the medical expert who conducted an examination on the survivor immediately upon the first information report being lodged. The appellant also contends that at least two key witnesses were not examined by the prosecution and, as such, the real truth did not come out. These two persons who were not examined were the mother of the appellant and a sister of the appellant.

3. The appellant seeks to suggest that the survivor contradicted herself in the two statements that she rendered, first under Section 164 of the Code of Criminal Procedure, 1973 and, next, in her deposition at the trial. The appellant points out that while the survivor initially said that the appellant invited the survivor to join a dance programme in the village, in her testimony at the trial she did not refer to such invitation and made out a case that the appellant followed the survivor when the survivor was going from her cousin's place to her aunt's.

4. The appellant next refers to the apparent confusion as to the place of occurrence. In the FIR lodged by the mother of the survivor, the complainant claimed that the incident took place in a forest near the complainant's sister's house. In the statement rendered by the survivor under Section 164 of the Code, she referred to the incident taking place in a garden of a relative. Finally, in her deposition at the trial, the survivor maintained that the incident took place in a forest near her aunt's house. According to the appellant, if the place of occurrence could not be appropriately indicated, the rest of the statement of the survivor had to be seen in such light and not accepted as a gospel truth. The appellant also indicates that in her initial statement, the survivor had referred to the appellant noticing the appellant's mother being in the vicinity and stopping the assault, but there was no reference to such aspect in the deposition at the time of the trial.

5. The appellant places the categorical statement of the survivor that was recorded under Section 164 of the Code to the effect that the appellant merely rubbed his penis on her vagina but did not insert the same in her vagina. In the survivor's testimony at the trial, she referred to the appellant coming on top of her and doing 'bad things' to her. The appellant contends that since penetration was not even alleged in either statement by the survivor, no case of penetrative sexual assault could have been found to have been made out.

6. As to the place of occurrence, there is no doubt that the incident took place in rustic surroundings and whether the same was a wood or a forest or a garden or someone's backyard makes little difference. The investigating officer, who was presented as PW7, was cross-examined on this aspect on behalf of the appellant. The officer maintained that the place of occurrence was at an area surrounded by pine trees. Since it was a specific answer to a direct question put in such regard, such description of the place of occurrence has to be seen in the light of how it was referred to by the complainant in the FIR and by the survivor in her two statements. Considering th