The court clarified that the appellant's actions constituted sexual assault under the POCSO Act, not attempted penetrative sexual assault, correcting the trial court's misapplication of the law.

CAV JUDGMENT

1. This criminal appeal has been preferred against judgment of conviction and order of sentence dated 03.6.2022 passed by Upper Sessions Judge, First Fast Track Court, Special Judge, under the Protection of Children from Sexual Offences Act, 2012 (for short ‘POCSO Act’), Durg Distt. Durg (CG) in Special Session Trial (POCSO) No.20/2019, whereby the learned Special Judge, after holding the appellant guilty, convicted and sentenced him in the following manner:-

2. The case of the prosecution, in brief, is that, the complainant, who is mother of the victim boy, aged about 11 years, filed written report on 28-1- 2019 at Police Chowki Vaishali Nagar, PS Supela, District Durg to the effect that, on 27-1-2019 she went to Laxmi Nagar to attend a family wedding with her husband and two children. At around 11:30 pm, on the way when the marriage procession was reaching near Ramnagar, a person named Dinesh (appellant/accused), taking advantage of the crowd of the wedding procession, was trying to commit a criminal act on her younger child/victim. The accused threatened to kill the victim, when the victim told that he will disclose this fact to his parents. Based on the above written complaint (Ex. P-3), FIR (Ex. P-4) was registered for offence under Section 11(i)/12 of POCSO Act against the appellant/ accused. Statements of the complainant and witnesses were recorded. Statement of victim under Section 164 of the Cr.P.C. (Ex. P-1) was recorded before the Judicial Magistrate First Class, Durg. Spot maps Ex. P-5 and Ex. P-6 were prepared by the Police and the Patwari respectively. Birth certificate (Ex. P-9-C) of victim was seized vide seizure memo Ex. P-8. Victim was got examined by the doctor. Appellant/accused was arrested vide arrest memo (Ex-P-7). Dakhil Kharij register (Ex. P-16-C) was seized vide seizure memo (Ex. P-12). After usual investigation, charge sheet under Section 294 , 506 of the IPC and Section 11(i)/12 of the POCSO Act was filed before the Special Judge.

3. Learned Special Judge framed charges under Section 377/511 , 294 (two times) and Section 506 part II of the IPC and Section 4/18 of the POCSO Act , which were read over and explained to the appellant/accused, who denied the charges and claimed trial.

4. In order to bring home the guilt of the appellant/accused, the prosecution has examined as many as 07 witnesses and exhibited 15 documents. After completion of prosecution evidence, examination of appellant/accused under Section 313 of the Cr.P.C. was recorded, in which he pleaded his innocence and false implication. He examined one witness namely, Smt. Phulmati Yadav (DW-1), who is his wife.

5. The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 3-6-2022, finding evidence adduced by the prosecution trustworthy, convicted and sentenced the appellant/accused as mentioned in the opening paragraph, against which, this appeal has been filed by him.

6. Learned counsel for the appellant submits that the appellant is not disputing the proven fact that at the time of the incident, the victim boy w