IMPORTANT POINT
The judgment established the importance of evidence of penetrative sexual assault and the application of legal provisions to determine the appropriate conviction and sentence.

JUDGMENT

Sanjib Banerjee, CJ. - The issue that arises in this appeal from an order of conviction, inter alia, under the Protection of Children from Sexual Offences Act, 2012 is as to whether there was penetrative sexual assault perpetrated by the appellant.

2. The appellant has been convicted under Section 6 of the Act of 2012 and sentenced to 10 years' rigorous imprisonment with Rs.10,000/-as fine. Upon the appellant failing to tender the fine, he has to undergo a further two months of simple imprisonment. In addition, the appellant has also been convicted under Section 506 of the Indian Penal Code, 1860 and sentenced to seven years' rigorous imprisonment with a further fine of Rs.10,000/-. In default of payment of such further fine, the appellant has to suffer an additional month's simple imprisonment. The sentences on imprisonment are to run concurrently.

3. The first information report was lodged at the Nongstoin Police Station on March 17, 2015 by the mother of the minor victim who was then said to be 10 years and four months old. The FIR claimed that the minor had been raped by the appellant herein at 9 am on the same day. The complaint went on to narrate that the appellant had apparently indulged in raping the victim on several previous occasions, but the victim had not reported the matter as she had been threatened by the appellant to be killed.

4. The victim rendered a statement under Section 164 of the Code of Criminal Procedure, 1973. She claimed that sometime in 2013 when she went to the house of the appellant to play with the appellant's sisters in the usual course, the appellant pulled her and took her to his bedroom where he opened his pants and also opened the victim's pants, but the victim did not remember what the appellant did to her on that occasion. The victim narrated that since that day in 2013, the appellant would often take the victim to his bedroom and 'opened my pants and started rubbing his penis on my vagina.' The victim claimed that such act continued till the mother of the victim found out on March 17, 2015. The victim recounted that the appellant performed the same act that he did on previous occasions and also reported that though he denied having done anything wrong when the victim's mother scolded the then 18-year-old appellant, 'but later he confessed that he did it to me around three to five times only.'

5. In course of the victim's testimony in court she, more or less, reiterated what she had said before the Judicial Magistrate in course of her statement recorded under Section 164 of the Code. As to the incident on March 17, 2015, the victim remembered that she was heading off to the school when the appellant took her to his room 'and committed sexual assault.' Upon the mother of the victim getting suspicious and confronting the victim as to what she was doing with the appellant, the victim narrated the incident.

6. The appellant also made a confessional statement before the Judicial Magistrate. There is no dispute as to the veracity of the appellant's statement and, mercifully, no attempt was made either at the trial court or at this stage to discredit the statement or question the manner in which it was obtained or even wish it away.

7. In course of such statement recorded under Section 164 of the Code, the appellant asserted that 'whatever I did, I did not rape or penetrated (sic) her.' The appellant corroborated the victim's version that he had first committed sexual assault on her in 2013 but the appellant maintained that on the several occasions that he had indulged in the same act, he merely rubbed his penis on the victim's vagina but did not penetrate her. For good measure, he indicated that the victim never screamed or shouted and lay down quietly. In course of the statement, the appellant expressed his deep regret and sought forgiveness.

8. The medical examination that was conducted on the victim immediately after the FIR was made on March 17, 2015 did not reveal any injury. The hymen wa