Indian Kanoon - Search engine for Indian Law

2. Mr. U.P. Sharma, learned Legal Aid Counsel for the Appellant would urge three grounds in the present appeal. Firstly, that the learned Special Judge erred in passing the impugned judgment on the basis of a statement of the minor victim (P.W.1) recorded under Section 164 of the Code of Criminal Procedure, 1973 (Cr.P.C.) (exhibit-6) and the preliminary examination (exhibit-7) of the minor victim as the contents of two are contradictory to her deposition in Court. Secondly, that the learned Special Judge failed to take into consideration the fact that prosecution withheld vital and independent witnesses like the driver, one Simon Rai of the Bolero vehicle from which the friends of the victim had seen the Appellant hugging the victim and another driver-Sudhir Tamang who helped the friends of minor victim rescue her from the Appellant and the juvenile in conflict with law. Finally, Mr. U.P. Sharma would also urge that the learned Special Judge had erred in convicting the Appellant under Section 9(m) of the POCSO Act, 2012 alone when he had been charged under Section 9(m) of the POCSO Raju Prasad v. State of Sikkim Act read with Section 34 of the Indian Penal Code, 1860 (IPC, 1860).

5. The indictment against the Appellant was that on 07.03.2017 at around 1630 hours the Appellant along with another, in furtherance of their common intention with sexual intent made physical contact with the minor victim, aged about 11 years and thereby committed the offence under Section 9(m) of the POCSO Act, 2012 punishable under Section 10 thereof.

Raju Prasad v. State of Sikkim

6. In order to prove the charges the prosecution examined 24 witnesses. The defence did not lead any evidence. An opportunity to explain the circumstances appearing in the evidence against the Appellant was granted to the Appellant by the learned Special Judge on 07.05.2018. Ultimately, the learned Special Judge thought it fit to convict the Appellant under Section 9(m) of the POCSO Act, 2012 only. The prosecution has not assailed the acquittal of the Appellant on the other charges framed by the learned Special Judge. The prosecution having found the other person in the vehicle in which the assault was said to have taken place to be a juvenile filed the present charge sheet only against the present Appellant.

11. The learned Special Judge has examined the provision of Section 7 of the POCSO Act, 2012 which defines "sexual assault". She has come to the conclusion that sexual assault had been committed on the minor victim who was below the age of 12 years by the Appellant and thus he was guilty of having committed "aggravated sexual assault" as defined Raju Prasad v. State of Sikkim under Section 9(m) of the POCSO Act, 2012. The Appellant has been found having himself committed sexual assault on the minor victim. The conviction of the Appellant under Section 9(m) of the POCSO Act, 2012 has been secured through direct evidence of the minor victim as well as other eye witnesses. The commission of the crime by the Appellant has been proved. Although the learned Special Judge had also charged the Appellant under Section 34 of the IPC, 1860 the Appellant has not been convicted under the said section as the learned Special Judge did not find active involvement of the juvenile in conflict with the law in the incident. However, the presence of the juvenile in conflict with the law along with the Appellant has been adequately and convincingly established. In the present case overt act has been attributed and proved against the Appellant and therefore merely because common intention with the juvenile in conflict with law is not proved it cannot be said that the Appellant could not have committed the offence under Section 9(m) of the POCSO Act, 2012.

19. The crucial question is whether forcibly kissing the minor victim a girl child of 11 years of age and hugging her amounts to "aggravated sexual assault" as defined in Section 9(m) of the POCSO Act, 2012. Whoever commits sexual assault on a child below 12 years is said to have committed aggravated sexual assault. "Sexual assault" is defined in Section 7 of the POCSO Act, 2012. Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault. The act of forcibly kissing the minor victim, a child below 12 years of age and hugging her in the back seat of a car in the absence of her guardian by a 27 year old male cannot but be with sexual intent. The act of forcibly kissing and hugging involves physical contact although without penetration. Thus it is cogent that the said act amounts to sexual assault. As the sexual assault was committed on a child below 12 years of age it amounts to aggravated sexual assault as defined under Section 9(m) of the POCSO Act, 2012.