Uncle convicted under POCSO of aggravated penetrative sexual assault on his one-and-a-half-year-old niece, based on eyewitness testimony of the mother and corroborating medical evidence. The High Court upheld the conviction and sentence of 20 years' rigorous imprisonment with fine.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 539 of 2020
---- Appellant
Versus
---- Respondent
(Cause title taken from Case Information System)
For Appellant : Mr. Ravindra Sharma, Advocate For State/Respondent : Mr. Devesh G. Kela, P.L.
Hon'ble Shri Goutam Bhaduri, Judge Hon'ble Smt. Rajani Dubey, Judge Judgment on Board
Per Goutam Bhaduri, Judge
18.06.2024
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Second Fast Track Special Court, Bilaspur (C.G.) in Special Criminal Case (POCSO Act) No. 18/2018 whereby the appellant stands convicted and sentenced as under:-
| Sentence | Conviction |
|---|---|
| Under Section 5(m)/6 of | R.I. for 20 years and fine of |
| Protection of Children | Rs.10,000/-, in default of |
| from Sexual Offences | payment of fine, to undergo |
| Act, 2012 | additional imprisonment for 6 months |
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6 . Per contra , learned State counsel opposes the submission made by learned counsel for the appellant and reads out the statements of mother (P.W.-1) and doctor (P.W.-9.). He would further submit that the abusive act can be assumed from the fact that the mouth of the child was gagged and the appellant tried to commit the offence which is corroborated by the witnesses and the medical evidence. Consequently, the judgment of the trial Court is well merited and
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does not call for any interference by this Court.
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condition. The handkerchief was put into her mouth and blood was oozing out from side of her lip and she was having bleeding from her private part. When she took out the handkerchief, victim started crying. Blood was also coming from her tongue, her face became black. Thereafter, the said incident was disclosed to all the people and her husband was also informed over phone. The accused was identified as her brother-in-law. Thereafter, the report (Ex.P/1) was made. The handkerchief was seized as also the driving licence of the accused which was left at the spot was seized vide Ex.P/4. In the cross-examination of this witness, nothing has been rebutted, on the contrary, the incident has been supported by BND (P.W.-2) & (P.W.-5). They stated that when the door was knocked, the accused/appellant opened the door, thereafter, they went inside and saw the victim completely in naked condition. The appellant fled away.
10. The aforesaid narration has been supported by doctor (P.W.-9) as the victim was immediately examined on the same day and MLC report is Ex.P/13. According to the MLC report, the following injuries were found:-
-contusion on labia left side 5x3 cm (pubis to labia)
-Hymen ruptur at 6 O’ Clock position, 2 slides made from navicular forsa- with the help of tip of finger.
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11. The cross-examination of the doctor (P.W.-9) specifically stated that the appellant tried forcefully to commit the rape.
12. By statements of the aforesaid witnesses, doctor (P.W.-9), Mother (P.W.-1) and other two witnesses who were there immediately on the spot, the prosecution was able to prove this fact that the appellant who was in relation uncle of the victim aged about one and half years, tried to commit the rape and the medical evidence fully supports this fact.
13. Penetrative Sexual Assault has been defined under Section 3 of the POCSO Act which reads as under:-
“3. Penetrative Sexual Assault - A person is said to commit “penetrative sexual assault” if
(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or
(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or
(c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or
(d) he applies his mouth to do so to such person or any other person.”
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14. The aggravated penetrative sexual assault has been defined under Section 5 of the POCSO Act. Reading of Section 5 (n) speaks that whoever being a relative of the child through blood or adoption or marriage or guardianship or in foster care or having a domestic relationship with a parent of the child or who is living in the same or shared household with the child, commits penetrative sexual assault on such child; It would be deemed to be the aggravate penetrative sexual assault.
15. In this case, the penetrative sexual assault has been proved by the statement of doctor and medical evidence and Section 6 of POCSO Act defines the punishment for sexual assault. Though, the incident was committed prior to amendment done on 16.08.2019 as the incident is of 11.01.2018 but considering the age of the victim i.e. about one and half years and the relation inter se of the accused with the victim, the punishment goes to show that the imprisonment may extend further for life. Thus, we are not inclined to interfere in the impugned judgment passed by the trial Court.
16. In the result, the appeal being sans merit is liable to be and is hereby dismissed.
Sd/Sd/- (Goutam Bhaduri) (Rajani Dubey) Judge Judge
Ruchi
2 issues framed by the court
Whether the appellant's conviction for aggravated penetrative sexual assault under Sections 5(m)/6 POCSO was sustainable given the mother's testimony and medical evidence.
Whether the pre-amendment Section 6 POCSO punishment should apply leniently since the incident preceded the 16.08.2019 amendment.
6 provisions across 3 enactments
Devidhan @ Monu Kaushik
State of Chhattisgarh
Goutam Bhaduri
Rajani Dubey
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
