For a conviction under Section 3 of the POCSO Act (penetrative sexual assault), there must be clear evidence of penetration of the male organ into the victim's body; in the absence of such evidence, the act constitutes 'sexual assault' punishable under Section 7 of the Act.

JUDGMENT

This appeal has been filed under Section 374 of the Code of Criminal Procedure, 1973, hereinafter referred to as “Cr. P.C.”, by the accused/appellant Mikal Bhujel @ Rubeen, challenging the judgment dated 21.08.2018 and the findings of conviction recorded in S.T. (POCSO) Case No.14 of 2016 by the learned Special Judge, Protection of Children from Sexual Offences Act, 2012, hereinafter referred to as “POCSO Act”. The sentence awarded on 22.08.2018 directing the accused to undergo 7 years Rigorous Imprisonment has also been assailed with fine of Rs.5,000/-, in default, three months Rigorous Imprisonment.

2. The case of the prosecution, in brief, is that on 25.05.2016 at 13.30 hrs., a written complaint was submitted by the mother of the minor victim to Rhenock Police Station. It is alleged that on complaining stomach ache by the victim, she consulted the Doctor and found that her minor daughter is pregnant. On enquiring with the victim, she revealed that one Jeewan Bhujel @ John of the same locality had sexually assaulted her on so many occasions since the year 2014. On receiving the complaint of mother of victim, Rhenock Police Station registered FIR No. 04/2016 on the same date, i.e. 25.05.2016, against Jeewan Bhujel @ John under Section 376 of the Indian Penal Code, 1860, hereinafter referred to as “IPC” read with Section 6 of the POCSO Act. Thereafter, it was endorsed for investigation to Sub-Inspector Jigme W. Bhutia. On recording the statement of the victim under Section 161 of the Cr. P.C., it transpired that the son of the accused Jeewan Bhujel, namely, Mikal Bhujel @ Rubeen (appellant), had also sexually assaulted her on 3 to 4 occasions, therefore, the appellant was also made accused. Accused persons and the victim were sent for medical examination to Rhenock PHC, wherefrom she was referred to STNM Hospital, Gangtok for further examination. The Investigating Officer seized the birth certificate of the victim from her stepfather in the presence of two independent witnesses. Both the accused persons were arrested, thereafter sketch-map was prepared. The victim was found pregnant as per the report of the Doctor of STNM Hospital. The radiological report as well the forensic report regarding pregnancy has also been obtained. The statement of the victim was recorded under Section 164 of the Cr. P.C. by the Judicial Magistrate, East Sikkim. The seized articles were sent to the Forensic Science Laboratory, Tripura. Intimation has also been given to the Member Secretary, Sikkim Commission for Protection of Child Rights. With the aforesaid prima facie material the Investigating Officer closed the investigation and filed charge-sheet against both the accused persons Jeewan Bhujel @ John and Mikal Bhujel @ Rubeen (appellant) under Section 376 of the IPC read with Section 6 of the POCSO Act. The victim gave birth to a boy child on 07.01.2017. Thereafter, the blood samples of the suspects were collected along with the blood samples of the victim as well as the newly born child and sent for DNA test. The DNA report has been received on 03.05.2017. As per the said report it was found that the accused no.1 Jeewan Bhujel @ John is the biological father and the victim is the biological mother of the newly born baby (boy). However, supplementary challan has been filed after