The court modified the conviction from rape under IPC and aggravated assault under POCSO to lesser charges due to insufficient corroborative evidence, emphasizing the need for proof beyond reasonable doubt.

C A V Judgment

Per Rajani Dubey J.

1. The present appeal is directed against the judgment of conviction and order of sentence dated 28.11.2020 passed by the learned Additional Session Judge, Dongargarh, District Rajnandgaon in Special Criminal Case No.11/2019, whereby the appellant has been convicted under Sections 376AB of IPC and Section 6 of POCSO Act and sentenced to undergo RI for 20 years with default stipulations.

2. The prosecution case, in brief, is that on 13.06.2019 the mother of victim A and big mother of victim B lodged the complaint before the P.S. Dongargarh by alleging that the appellant (her brother-in- law) in between 17.05.2019 to 04.06.2019 committed rape upon her daughter victim A and also committed rape between 06.06.2019 to 13.06.2019 upon her sister-in-law’s (Devrani) daughter victim B, as on 13.06.2019 itself when Victim- A returned to her home, she narrated the entire story to her mother (PW/1) and thereafter Victim B also narrated the about the same. After receiving the said complaint, the concerned police station registered an FIR (Ex-P/2) against the appellant under Section 376 of IPC and Section 6 of POCSO Act and during investigation arrested the appellant. After completion of investigation, charge sheet was filed under Section 376AB two times of IPC and Section 6 of POCSO Act (two times) before the learned Special Court. After appreciating the oral and documentary evidence available on record, the learned trial court convicted the appellant and sentenced him, as mentioned in para 1 of the judgment.

3. Learned counsel for the appellant submits that the judgment of conviction and order of sentence passed by learned trial court is bad in law as well as facts available on record. The learned trial court failed to consider that only on the basis of the evidence adduce by the victims’ parents the learned trial court convicted the appellant. The learned trial court further failed to consider that as per evidence adduced by the mother of the victim-A (PW/1) on the date of incident the other family members were also present in the house of the appellant. She also stated that when the victim A residing in the house of the appellant fallen from the bicycle, due to which she caused injuries in her body parts. Victim A also stated that her sister victim B did not tell about the incident. The learned trial court further failed to consider that the other witnesses are relative witnesses and due to previous enmity the false case was registered against the present appellant. The learned trial court further failed to consider that Dr. Suchita Shrivastava (PW/14) has specifically stated that no any injuries were found in the private part of the victims and no signed of the aggravated penetrative sexual assault in the body of victims was found. The learned Trial Court failed to consider that to bring home the charges U/S 6 of the Protection of Children from Sexual Offences Act, 2012 , prosecution is under an obligation to prove the 'aggravated penetrative assault as defined U/S 5 of the Act of 2012. The learned trial court failed to consider that the date of incident is 17.05.2019 whereas the case has been registered on 13.06.2019 without explaining delay which makes the story of the prosecution suspicious. Therefore, the appeal deserves to be allowed.

4. Per contra, learned State counsel supports the impugned judgment and submits that both the victims categorically stated against the appellant and they remained firm in their cross- examination, medical report as well as FSL report and also supported the prosecution case, as such the learned Trial Court has rightly convicted the appellant and thus the appeal is liable to be dismissed.

5. I have heard learned counsel for the parties and perused the material available on record.

6. It is clear from the record of the learned Trial Court that the learned Trial Court framed charges under Section 376 AB (two times) of IPC and Section 6 of the POCSO (two times) against