Indian Penal Code, 1860
Section 376(2)(f)(n) read with Section 34 and Sections 4, 6 & 8 of the POCSO Act—Aggravated penetrative sexual assault—Proof—Huge gap between alleged incidences and medical examination—On comparing both versions of victim i.e. given in substantive evidence before the court and while giving statement under Section 164 of the CrPC, there is variance to the extent of putting male organ in her urinal place, which is finding place in her statement under Section 164 of the CrPC, but is apparently missing at the time of recording her testimony before trial court—Law is fairly settled that it is the substantive evidence that would prevail and not statement under Section 164 of the CrPC—For attracting charge under Section 376(2)(f)(n) of the IPC, first and foremost it is expected of prosecution to establish rape—Testimony of witness is not about penetration or insertion—Penetration is sine qua non for constituting offence of rape—Though partial, it is essential that there has to be penetration or insertion—In her substantive evidence, the victim has deposed about accused persons touching her private parts and chest with their hands and they sleeping over her person—When such is her testimony, neither penetrative sexual assault nor aggravated penetrative sexual assault can be said to be established—Neither charge of Section 376(2)(f)(n) of IPC nor Sections 4 and 6 of the POCSO Act can be said to be getting attracted—Evidence of victim clearly shows that there was sexual assault with sexual intent—Offence of Section 7 read with Section 8 of the POCSO Act is attracted and made out—Conviction for offence punishable under Section 376(2)(f)(n) read with Section 34 of IPC and Sections 4, 6 and 8 of the POCSO stands set aside and appellants convicted for offence under Section 7 read with Section 8 of the POCSO Act—Appeal allowed in part.
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