Satyen Vaidya, Judge

1. By way of instant appeal, appellant has assailed the judgment dated 31.08.2019 and sentence order dated 03.09.2019, passed by learned Special Judge, Kangra at Dharamshala, H.P., in Sessions Trial No. 58 of 2017, whereby, the appellant has been convicted for commission of offence under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short “ The POCSO Act”) and Section 323 of the Indian Penal Code. The appellant has been sentenced to undergo rigorous imprisonment for twenty years and to pay a fine of Rs. 50,000/- for offence under Section 6 of the POCSO Act. In default of payment of fine, appellant has further been ordered to undergo simple imprisonment for a period of six months. In addition, the appellant has been sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1,000/- for offence under Section 323 of the Indian Penal Code. In default of payment of fine, he has further been ordered to undergo simple imprisonment for one month. The substantive sentences have been ordered to run concurrently. Out of fine amount a sum of Rs. 40,000/- has been ordered to be paid to the victim as compensation.

2. The incident relates back to date 09.03.2017. The child victim was aged about six years and seven months at the time of commission of offence. Initially, the case was registered under Section 8 of the POCSO Act. However, during the trial, the charge was amended to be one under Section 6 of the Act, ibid, besides being under Section 323 of the Indian Penal Code.

3. FIR Ext. PW16/D was registered on the basis of the statement of PW-2, Smt. Manju Lata (mother of the child victim) Ext. PW2/A recorded under Section 154 Cr.P.C. It was alleged that the child victim had gone out of the house alongwith her grand- mother to buy sweets. After purchase, the grand- mother, PW-5, Smt. Savitri Devi, went to look out for her cattle, whereas the child victim proceeded towards her house. Just from outside the gate of the house, the appellant forcefully lifted the child victim towards bushes. The child victim was given beatings besides being subjected to sexually indecent behaviour. The child victim could freed herself by seeking help from some elder person of the village, who happened to pass from nearby. On help being sought by the child victim, the appellant had fled away from the scene.

4. The mother and grand-mother of the child victim had started searching for her. They met the child victim outside their house and found her weeping. On inquiry the child victim had disclosed the incident to them.

5. Police was telephonically informed and on arrival of police in the house of the complainant, the matter was reported. SI/SHO, Abhimanyu Sharma, PW-21, prepared the ‘Rukka’ and sent the same to the police station for registration of FIR. The FIR Ext. PW16/D, was accordingly registered and further investigation was carried. A request letter Ext. PW12/A was sent to the Medical Officer for Medico Legal Examination of the victim. PW-12,Dr. Abha Gautam had conducted the Medico Legal Examination of the victim on 09.03.2017 itself and had issued MLC Ext. PW12/B. On the same day, a request was sent to Medical Officer, CHC Jaisinghpur for Medico Legal Examination of the appellant. On his examination, MLC Ext.PW15/B was issued by PW-15 Dr. Vishal Gupta,. The clothes of the victim and appellant were preserved by respective Medical Officers in sealed parcels. The samples were also drawn and preserved. The preserved articles were handed over to the investigating officer of the case and were further sent for scientific examination to RFSL, Dharamshala on 14.03.2017.

6. PW-12 had found following injuries on the person of victim:-

“INJURIES

1. Abrasion present in left leg, 5 centimeter from heel, linear measuring 2 cm. X 02 cm. reddish in colour.

ON LOCAL EXAMINATION- Public hair not developed, Labio Majora/minora not developed. Hymen torn fresh bleed present vulval area on both sides of hymen having abrasion of 1 cm. X 1 cm. On each side with fresh blood present. Vagina not admitting probe of one centimeter diameter.”

7. On 24.04.2017, PW-29, Dr. Harjeet Pal, had collected blood sample of appellant on FTA Card for the purposes of DNA profiling.

8. PW-17, Shri Ajay Sehgal, Scientific Officer, RFSL, Dharamsala, vide his report Ext. PW17/B had reported detection of blood on vaginal swabs and slides of the child victim besides detection of semen on ‘salwar’ and ‘underwear’ of the child victim. PW-28, Dr. Vivek Sahajpal had found the DNA generated from the material collected from the clothes of child victim matching with the blood sample of appellant. PW-27, Dr. Sanjeev Kumar, Assistant Director Physics and Ballistics of RFSL, Dharamshala, had opined that the soil stains found on the ‘salwar’ of child victim and one found on the lower of the appellant were consistent with the controlled sample of soil collected from the site of the incident.

9. According to the prosecution story, many persons had noticed the presence of appellant in the village of child victim on 09.03.2017. PW-4, Rakesh Kumar, PW-6, Shikha and PW-7, Sahil, were examined as prosecution witnesses to prove such fact. PW-6, Shikha, had even deposed to the extent that the appellant had tried to misbehave with her also.

10. PW-9, Pankaj Sharma, PW-11, Rajeev Mehra and PW-14, Jagdish Singh, were examined to prove the presence of appellant at village Shivnagar after the incident. PW-10, Bhagwant Chand, was examined to prove the involvement of the appellant in a similar kind of incident in the past.

11. PW-13, Kapil Gora and PW-22, Varinder Kumar, proved the date of birth of the child victim by production of School and Panchayat records, respectively.

12. The appellant was examined under Section 313 of Cr.P.C.. He did not lead any evidence in defence. On the basis of material on record, learned Special Judge, found the appellant guilty of offence under Section 6 of the POCSO Act and Section 323 of the IPC and appellant was, accordingly, convicted and sentenced, as noticed above.

13 . We have heard learned counsel for the parties and have also gone through the record of the case carefully.

14. The child victim has been examined as PW-1. She specifically deposed as under:-

“ After taking toffee I went to my house and my grand-mother went to see the cow. When I reached out side my house near the gate, one boy took me near the bushes. The name of said boy was Tomu. On that day it was 9th March, 2017. Said boy teased me and tried to beat me. The boy untied my Pajami and he tried to commit sexual intercourse with me. In the mean time I saw my grand-father coming and I called him by raising alarm. Upon this Tomu ran away.”

It will also be relevant to reproduce an extract from the cross-examination of PW-1, as under:-

“It is correct that I had gone with Tomu on foot.”

15. As per prosecution case, the child victim had disclosed the incident to her mother, PW-2 and grand-mother, PW-5, in the first instance. PW-2 has stated before the Court that as per version narrated by child victim to her the appellant had inflicted beatings on the child victim and had also untied her ‘pajami’. PW-5, the grand-mother of the child victim has also categorically stated in her deposition before the Court that the child victim had disclosed about the attempt made by the appellant to commit sexual intercourse with the child victim besides inflicting blows on her person.

16. Thus, the sequence of events reveal that the child victim had disclosed to her mother and grand-mother about the commission of act by the appellant which according to her was an attempt to commit sexual intercourse. Even during her examination as PW-1 (child victim) had stated that the appellant had tried to commit sexual intercourse on her after untying her ‘pajami’.

17. Learned counsel for the appellant contended that there were material improvements in the version of child victim. He drew our attention to the statement Ext. PW1/A of the child victim recorded under Section 164 of Cr.P.C., wherein the child victim had not disclosed anything with respect to the sexual assault, if any, committed upon her by the appellant. That part of cross-examination of PW-1, wherein she was confronted with the contents of her previous statement Ext. PW1/A has also been brought to our notice. The child victim had explained that she had disclosed to the police as also the Magistrate about the factum of her ‘pajami’ having been untied by the appellant.

18. On perusal of Ext. PW1/A, it transpires that the child victim while making statement under Section 164 of Cr.P.C. before the Judicial Magistrate First Class, Palampur, had not disclosed about the sexual advance, if any, made by appellant towards her, but, in our considered view, the version of the child victim to that effect cannot be doubted only on the basis of the omission of material fact in the statement under Section 164 of Cr.P.C. We cannot loose sight of the fact that the child victim in this case has been less than seven years of age. Her mental agony and predicament can be well imagined. The same equally stands for her mother and grand-mother also. In this background, the aforesaid omission in Ext. PW1/A cannot be given undue weightage.

19. In addition, the version of the child victim finds corroboration from the medical as well as other scientific evidence collected by the investigating agency. PW-12, Dr. Abha Gautam, who had examined the child victim on the date of the incident itself had found the hymen of child victim torn with presence of fresh blood. The vulval area on both sides of hymen was also found abrased with presence of fresh blood. As per expert opinion rendered by PW-12, the sexual assault on the child victim was not ruled out. There is no other explanation for aforesaid injuries. From the trend of cross-examination on PW-1 by defence, the presence of appellant on the spot was not denied, rather, it was suggested that the child victim had gone with the appellant on foot.

20. It is not the case of the appellant that he was ordinarily resident of the village to which child victim belonged. The testimonies of PW-4, Rakesh Kumar, PW-6, Shikha and PW-7, Sahil, to the extent of proving the presence of appellant in the village around the time of incident have remained unshaken. The appellant has not been able to explain the reason for his presence in the village.

21. There also is no material on record suggestive of the fact that the implication of the appellant in the case was on false grounds. There is no reason to assume that the child victim or her guardians would go to the extent of making false and wild allegations against the appellant for no reason whatsoever.

22. We have no hesitation in observing that the investigation has been fair. In fact, the investigating officer had shown due promptitude in registration of the case and commencement of the investigation. The child victim and the appellant both were got medically examined on the same day, which provided the opportunity for preservation of material evidence. The clothes worn by the child victim at the time of incident were preserved and sealed by PW-12. She had also collected finger nails from the hands of the child victim. Vulval and vaginal swabs and slides were also prepared. The sealed packets containing aforesaid articles were handed over to the investigating officer and were deposited on the next day i.e. 10.03.2017 in the ‘Malkhana’ of police station. PW-16, MHC of the Police Station has proved such facts Corroboration can also be found from the entries to that effect made in ‘Malkhana’ register proved on record as Ext. PW16/A. There is nothing to suggest that any tampering with the collected evidence was made till it remained in the safe custody of ‘Malkhana’. On 14.03.2017, all the aforesaid articles were sent to RFSL, Dharamshala, through PW-20, HHC Bhupinder Kumar No. 1208. The RFSL report, Ext. PW-17/B reveals that the case property was received in the laboratory with all the seals intact.

23. PW-17, Ajay Sehgal, Scientific Officer, RFSL, Dharamshala, had made a specific report, vide Ext. PW17/B that blood was detected from the vulval swabs and slides of the child victim. Such finding further corroborated the finding recorded by PW-12, Dr. Abha Gautam, with respect to the fresh blood found around the torn hymen of the child victim. Further, PW-17 had also been able to detect the semen on the ‘underwear’ of the child victim as also that of the appellant. The appellant has not disputed the fact that his blood sample was taken by PW-29, Dr. Harjeet Pal on 24.04.2017 on FTA Card. On scientific analysis, PW-28, Dr. Vivek Sehajpal, has given definite finding that the DNA extracted from the ‘underwear’ and ‘salwar’ of the child victim matched with the DNA extracted from the blood sample of the appellant. Thus, there is unimpeached evidence to hold that the child victim was subjected to sexual assault by the appellant.

24. Learned counsel for the appellant further contended that the appellant could not be convicted for offence under Section 6 of the POCSO Act, as the material on record did not sufficiently prove commission of aggravated penetrative sexual assault. We have no hesitation in rejecting the contention so raised. Penetrative sexual assault has been defined in Section 3 of the Protection of Children from the Sexual Offences Act, 2012, 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 the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person”.

25. Clause (m) of Section 5 of the Act, defines aggravated penetrative sexual assault as under:-

“(m) Whoever commits penetrative sexual assault on a child below twelve year.”

26. Sub-clause (i) of Clause (u) of the Section 5 of the Act, further reads as under:-

“(u)(i) Commits penetrative sexual assault causing grievous hurt or causing injury to the sexual organs of the child.”

27. No doubt, there is no direct evidence as to the commission of penetrative sexual assault. However, the injuries noticed inside the vagina of child victim could not have appeared without penetration or insertion or manipulation of any part of the body or any other object in such part. It will not be inappropriate to notice again that the child victim had specifically alleged an attempt of sexual intercourse by the appellant. Keeping in view the tender age of the child victim, it can be assumed that at such age she in all probabilities would not be knowing the exact meaning of sexual intercourse or its attempt. The traces of semen found on the ‘underwear’ of child victim and its match with the blood sample of the appellant further makes the things clear. In this view of the matter, penetrative sexual assault against the child victim has been duly proved and child victim being under twelve years of age it amounts to aggravated penetrative sexual assault and punishable under Section 6 of the POCSO Act.

28. The age of the child victim has duly been proved to be under seven years on the date of commission of offence. It is recorded as 12.08.2010 in the school records as also in records maintained by Gram Panchayat. The birth certificate Ext. PW22/A of the child victim issued by Gram Panchayat, Kotlu and certificate Ext. PW13/B issued on the basis of school record, have duly been proved by PW-22 and PW-13, respectively.

29. In light of above discussion, we have found no infirmity or illegality in the impugned judgment and the same is, accordingly, affirmed. The sentence imposed also cannot be said to be excessive keeping in view the facts and circumstances of the case.

30. In result, the appeal fails and is, accordingly, dismissed.

31. Pending miscellaneous application, if any, shall also stand disposed of.