High Court
Facts
APEAL-388-24+1.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 388 OF 2024AND CRIMINAL APPLICATION NO. 1527 OF 2024Ravindra Mohan KopargeAge: 32 years, Occu.: Nil,R/o Indiranagar, Tq. Shevgaon,Dist. Ahmednagar..APPELLANTVERSUS1. State of Maharashtra2. XYZ..RESPONDENTSAND CRIMINAL APPEAL NO. 389 OF 2024State of Maharashtra..APPELLANTVERSUSRavindra Mohan Koparge..RESPONDENT....Mr. D.S. Ingole, Advocate for appellant in APEAL/388/2024 and forrespondent in APEAL/389/2024 (appointed by Court)Ms. U.M. Bhosle, A.P.P. for StateMrs. R.S. Kulkarni, Advocate for respondent no.2 (appointed by Court)....CORAM : R.G. AVACHAT AND NEERAJ P. DHOTE, JJ.RESERVED ON : 05th MARCH, 2025PRONOUNCED ON : 01st APRIL, 2025JUDGMENT (PER : R.G. AVACHAT, J.) :1.Both these appeals arise from one ane the same judgment ofconviction and order of consequential sentence dated 23rd March, 2023passed by the Court of Additional Sessions Judge, Ahmednagar (SpecialCourt under POCSO Act, 2012) (‘trial Court’) in Special Case No. 157 of2022. Criminal Appeal No. 388 of 2024 is preferred by the convict and the1 / 19 APEAL-388-24+1.odtanother appeal (389 of 2024) is preferred by the State for enhancement ofsentence.2.The order impugned herein read thus :-“1.Accused Ravindra Mohan Koparge is hereby convicted of theoffence punishable u/s.3(b), 5(m)/4 and 6 of the Protection ofChildren from Sexual Offences Act and is sentenced to suffer R.I.for 10 years and to pay fine Rs.5000/- (five thousand rupeesonly) i/d to suffer S.I. for one year.2.He is also convicted of the offence u/s 376(2)(i)(j), 376(A)(B) ofIndian Penal Code and is sentenced to suffer R.I. for 10 years andto pay fine Rs.5000/- (five thousand rupees only) i/d to suffer S.I.for one year.3.Both sentences shall run concurrently.”3.According to learned A.P.P., the sentence for the offence provedagainst the appellant warrants minimum twenty years of imprisonment andwhich may extend to imprisonment for life, which shall mean life till the end ofnatural life, and therefore, State’s appeal.4.The facts giving rise to the present appeals are as follows :-The appellant was residing in a room at Indira Nagar, Shevgaon.The informant (PW – M), victim’s mother, was residing opposite to the roomof the appellant, but on the other side of the road. She would residealongwith her three minor daughters, her husband and mother-in-law as well.The appellant had good relationship with the family members of the victim.Many a time he was served with meal by the informant at her residence.5.On 01st June, 2022 by 08:00 p.m., the victim (‘X’), a six years oldgirl, was playing outside her house. The appellant called her to his room. He2 / 19 APEAL-388-24+1.odtremoved her knicker and inserted his finger in her private part. The victimcame home crying. She related the incident to her family members, whothen took her to Police Station Shevgaon. The police referred her to PrimaryHealth Center, Shevgaon. She was then referred to Civil Hospital,Ahmednagar. The victim was medically screened. The medical officer foundredness at the victim’s private part. The victim’s mother (informant) lodgedthe F.I.R. (Exh.13).6.A crime vide C.R. No. 353 of 2022 was registered. The appellantcame to be arrested. He too was medically screened. Statements of thepersons acquainted with the facts and circumstances of the case wererecorded. The medical officer, during medical screening of the victim, hadobtained certain samples, such as vaginal swab, etc. Those were submittedto R.F.S.L., Nashik. On completion of investigation, the charge-sheet wasfiled against the appellant.7.The trial Court framed the charge (Exh.5) for various offences viz.under Sections 376(2)(i)(j), 376(A)(B) and 506 of the Indian Penal Code(‘I.P.C.’) and under Sections 3(b), 5(m), 7 and 22(ii) punishable underSections 4, 6, 8 and 12 respectively of the Protection of Children from SexualOffences Act, 2012. The appellant pleaded not guilty. His defence was offalse implication.8.To bring home the charge, the prosecution examined sixwitnesses and adduced in evidence certain documents. On appreciation of3 / 19
Legal Reasoning
APEAL-388-24+1.odtcare of the child.2. Such protective measures should, as appropriate, includeeffective procedures for the establishment of social programmesto provide necessary support for the child and for those whohave the care of the child, as well as for other forms ofprevention and for identification, reporting, referral,investigation, treatment and follow-up of instances of childmaltreatment described heretofore, and, as appropriate, forjudicial involvement.The general comment No. 13 on the Convention specificallydealt with the right of the child to freedom from all forms ofviolence and it has observed that "no violence against children isjustifiable; all violence against children is preventable17.Keeping in mind the aforesaid objects and to achieve what hasbeen provided Under Article 15 and 39 of the Constitution toprotect children from the offences of sexual assault, sexualharassment, the POCSO Act, 2012 has been enacted. Any act ofsexual assault or sexual harassment to the children should beviewed very seriously and all such offences of sexual assault,sexual harassment on the children have to be dealt with in astringent manner and no leniency should be shown to a personwho has committed the offence under the POCSO Act. Byawarding a suitable punishment commensurate with the act ofsexual assault, sexual harassment, a message must be conveyedto the society at large that, if anybody commits any offenceunder the POCSO Act of sexual assault, sexual harassment or useof children for pornographic purposes they shall be punishedsuitably and no leniency shall be shown to them. Cases of sexualassault or sexual harassment on the children are instances ofperverse lust for sex where even innocent children are notspared in pursuit of such debased sexual pleasure.18.Children are precious human resources of our country; they arethe country's future. The hope of tomorrow rests on them. Butunfortunately, in our country, a girl child is in a very vulnerableposition. There are different modes of her exploitation, includingsexual assault and/or sexual abuse. In our view, exploitation ofchildren in such a manner is a crime against humanity and thesociety. Therefore, the children and more particularly the girlchild deserve full protection and need greater care andprotection whether in the urban or rural areas.7 / 19 APEAL-388-24+1.odt19.As observed and held by this Court in the case of State ofRajasthan v. Om Prakash, (2002) 5 SCC 745, children needspecial care and protection and, in such cases, responsibility onthe shoulders of the Courts is more onerous so as to provideproper legal protection to these children. In the case of NipunSaxena v. Union of India, (2019) 2 SCC 703, it is observed bythis Court that a minor who is subjected to sexual abuse needs tobe protected even more than a major victim because a majorvictim being an adult may still be able to withstand the socialostracization and mental harassment meted out by society, but aminor victim will find it difficult to do so. Most crimes againstminor victims are not even reported as very often, theperpetrator of the crime is a member of the family of the victimor a close friend. Therefore, the child needs extra protection.Therefore, no leniency can be shown to an Accused who hascommitted the offences under the POCSO Act, 2012 andparticularly when the same is proved by adequate evidencebefore a court of law.20.In the present case it is to be noted that the Accused was agedapproximately 65 years of age at the time of commission ofoffence. He was a neighbour of the victim girl. He tookadvantage of the absence of her parents, when her mother wentto fetch water and her father had gone to work. He is found tohave committed aggravated penetrative sexual assault (asobserved hereinabove) on a girl child aged four years, whichdemonstrates the mental state or mindset of the Accused. As aneighbour, in fact, it was the duty of the Accused to protect thevictim girl when alone rather than exploiting her innocence andvulnerability. The victim was barely a four years girl. TheAccused-Appellant was the neighbour. The Accused instead ofshowing fatherly love, affection and protection to the childagainst the evils of the society, rather made her the victim oflust. It is a case where trust has been betrayed and social valuesare impaired. Therefore, the Accused as such does not deserveany sympathy and/or any leniency.”14.Now, let us advert to the evidence in the case.PW 1 – X (victim) was six years old girl. The record indicates thatthe trial Court did not put her certain questions so as to ascertain whether8 / 19 APEAL-388-24+1.odtshe was competent to depose. She was examined in question-answer form.Her answers to the questions indicate she understood the questions andgave rational answers. She testified that she was resident of Shevgaon.She would attend Urdu school. She knew the appellant. The appellantwould reside in front of her house. She further testified that when she wasplaying in front of her house, the appellant took her to his room. He removedher underwear, put his finger at her private part. The appellant said her notto tell anybody, else he will cut her head. She came home and told hermother and grand-parents what the appellant did with her. According to her,she was taken to Civil Hospital, Ahmednagar. She identified the appellant.15.During her cross-examination, it has come on record that she wasa student of first standard. She gave the names of her teacher and friendsas well. She testified that the appellant used to visit her house as theappellant was a good person. Her family members would provide him mealmany a time. The victim, however remained firm about what the appellantdid with her. While she was called upon to identify the appellant, the trialCourt recorded as follows :-“After recording above evidence, accused was shown to victim,she identify accused but by seeing victim she afraid and concealedat back side of prosecutor.”Learned A.P.P. and learned counsel for the victim speciallyadverted our attention to this note and submitted that the victim was scaredof the appellant, and therefore, she took refuge behind the prosecutor, in-9 / 19 APEAL-388-24+1.odtcharge of the case. According to them, the same speaks in volumes of thefear of the appellant instituted in the victim’s mind due to the said act.16.PW 2 – M, mother of the victim testified that the victim was bornon 05th November, 2016. She further testified that on 01st June, 2022 by08:00 p.m. the victim returned to the home after playing outside. The victimtold her about pain in her vagina. On further enquiry, she told her theappellant to have inserted his finger in her private part. Thereafter she tookthe victim to Shevgaon Police Station. The police referred her to Sub-Hospital, Shevgaon. The doctor there referred her to Civil Hospital,Ahmednagar. Her statement was recorded. She stated therein what wastold to her by the victim. She then signed her statement. According to her,the police seized the clothes of the victim. A panchanama to that effect wasdrawn (Exh.26).During her cross-examination, it was suggested to her that theappellant resides alone. This suggestion was denied. According to her,appellant’s two sisters would reside with him. The informant admitted thehouse wherein the appellant would reside was his own. She, howeverdenied that a false case has been lodged against him with a view to grab hishouse. She admitted that the vicinity wherein she was residing is mostlypopulated by Muslim community. There were only 2-3 houses of the personsbelonging to Hindu community. She further denied that with a view to driveout the people of Hindu community from that area, a false report was lodged.10 / 19 APEAL-388-24+1.odt17.PW 3 - Ambadas is a witness, who tendered in evidence an entryrelating to the birth of the victim made in the birth register maintained byMunicipality, Pathardi. It is at Exhibit 17.18.PW 4 – Gahininath was a Medical Officer. He medically screenedthe victim on 02nd June, 2022 by 04:50 a.m. According to him, the grand-mother of the victim gave the history that the victim was unable to sit andwhen enquired, the victim told the appellant to have inserted his finger in heranus and vagina as well. After visiting the local hospital, they came to CivilHospital, Ahmednagar. It was further reported to the medical officer that theincident took place three days back. PW 4 further testified that on localexamination he found hymen was intact. There was no local injury. Rednesswas found at both vaginal walls. He advised blood examination and UHBsonography. Vaginal and hymen swab was taken. The patient was admittedfor sonography and pediatric opinion. The medical examination report issuedby him is at Exhibit 21 and the medical certificate is at Exhibit 22. Accordingto him, sexual assault could not be ruled out. Redness at vaginal wall waspossible by insertion of finger.During his cross-examination he testified that the injuries noticedat the private part of the victim may be possible by etching. The said injurymay be possible by infection. He, however clarified that there is no urineinfection. He further testified that in case of constipation there is difficulty inpassing stool.11 / 19 APEAL-388-24+1.odt19.Learned counsel representing the victim would submit that therewas no question of bacterial infection. In such a case etching could occur,and therefore, the defence that redness had occurred due to etching hasbeen ruled out.20.PW 5 – Suresh is a witness to the panchanama relating to theseizure of clothes. His evidence does not further the prosecution case. PW6 – Ashish is the police officer, who did the investigation of the crime. Hisevidence too is of little consequence. What he deposed to is as to the stepshe took during investigation for collection of evidence.21.Let us now appreciate the evidence on record.The F.I.R. (Exh.30) was lodged by the mother of the victim. Shetestified that on 01st June, 2022 by 08:00 p.m. her parents and two daughterswere at her home. They were taking dinner. The victim was her elderdaughter. The victim came to her and told that she experienced pains at herprivate part (in vagina). When she (mother) enquired with the victim, she toldthat the appellant inserted his finger in her vagina. She (mother), therefore,took the victim to Shevgaon Police Station. The police referred them to Sub-Hospital, Shevgaon. The doctor there examined the victim and referred herto Civil Hospital, Ahmednagar. Her statement was recorded by ShevgaonPolice while she was at the hospital.During her cross-examination, she denied to have lodged a falsereport with a view to grab the appellant’s house. It was also suggested that12 / 19 APEAL-388-24+1.odtthe area at which the victim was residing was dominated by muslimpopulation. She denied that the appellant being Hindu and with a view todrive him out of that locality, the F.I.R. was lodged. There is nothing furtherto suggest she had an axe to grind against the appellant. During her cross-examination it has been brought on record that the appellant would be on thevisiting terms with the family of the victim. The victim’s parents would servehim meal occasionally. Then rest of the questions are in the nature of denial.22.The material evidence of the victim reads thus :-“Night hours. He took me to his house. He removed my underwear. Heput finger of his hand at place of Urine (Vagina), he was saying that donot tell to anybody else he will cut the head. I went to the house andtold to my mother and grandfather and grandmother. I was taken toCivil Hospital Ahmednagar, I was also taken to Shevgaon Hospital.”23.PW 3 – Ambadas is a witness, who tendered in evidence an entryin the birth register (Exh.17). There is no dispute that the victim was sixyears of age at the relevant time.24.The material evidence is that of PW 4 – Gahininath, MedicalOfficer. He deposed that on 02nd June, 2022 he examined the victim. Thevictim’s grand-mother gave history. He issued MLC report. On localexamination he found hymen was intact and there was no local injury.Redness was noticed at both the vaginal walls. He advised bloodexamination and UHB sonography. The vaginal and hymen swabs weretaken. The medical examination report is at Exhibit 22. According to the13 / 19 APEAL-388-24+1.odtmedical officer, although the hymen was intact, sexual assault was not ruledout. In his opinion, redness of vaginal walls may be possible if finger isinserted in it.In his cross-examination he admitted that such redness may bedeveloped by etching or by infection. According to him, it is not a case ofurine infection. Learned counsel for the victim would submit unless therewas bacterial infection, there was no reason for the victim to etch at herprivate part.25.Aforesaid is the material witness in the case. The question iswhether the offence of aggravated sexual assault is made out. The F.I.R.(Exh.30) was lodged by the mother of the victim. According to her, the victimhad related her the appellant to have inserted his finger in her vagina. Thevictim, however testified that the appellant had placed his finger at her privatepart. The victim’s police statement was not recorded immediately. It wasonly on 03rd June i.e. two days after the alleged incident, her statement underSection 164 of Cr.P.C. was recorded. A glance at her statement wouldindicate that first eleven questions were general. Question Nos. 12 and 13with the answers thereof are as under :-iz-dz-12 &vkxs vki D;k crkuk pkgrs gks\mRrj &eSa >kM ds uhps [ksy jgh Fkh- milus eq>s mlds ?kjesa cqyk;k- mlusesjh pM~Mh fudkyh vkSj <aqxuesa maxyh Mkyh- vkSj oks cksyk dhfdlhdks crk;k rks eqaMh dkVds ?kjesa j[k nqaxk-iz-dz-13 &mlds ckn D;k gqvk\mRrj &eSa ?kj xbZ vkSj esjh eEeh dks crk;k14 / 19 APEAL-388-24+1.odt26.The mother of the victim was present while the victim’s statementunder Section 164 of the Cr.P.C. was recorded. We do not wish to sayanything, but after reading reply to Question No.13, it appears that the victimdid not wish to say anything more. It appears that up till Question No.13, nocase as propounded in the F.I.R. was there. Question No.14 appears tohave been put to the victim. The same alongwith its answer is as under :-iz-dz-14 &vkidks vkSj D;k crkuk gS\mRrj &ugha- mlus eq>s isVis csyuls ekjk- mlus rhu ckj maxyh Mkyh Fkh-fi<sls ,d ckj vkSj vkxsls nks ckj Mkyh Fkh-27.We are conscious of the fact that the statement under Section 164of the Cr.P.C. is not the substantive piece of evidence. The offence isserious one. It invites severe punishment of not less than twenty years. TheState has preferred appeal for enhancement of sentence. True, if theoffence is proved, it warrants minimum twenty years of imprisonment. Thetrial Court held the offence to have been proved. It has, howeverinadvertently sentenced the appellant to imprisonment for ten years.Needless to mention, serious is the offence, clinching should be theevidence.28.Marathi version of the victim’s evidence reads thus :-iz’u &rh osG dks.krh gksrh\mRrj &jk=hph gksrh] rks eyk R;kps ?kjh ?ksmu xsyk- R;kus ek>h pM~Mhdk<yh R;kus R;kps cksV ek>s lw dj.;kps tkxsoj Vkdys- rks eykEg.kkyk dh] rsjs nknkdks cksyk rks eqa<h dkV Mkyqaxk o R;kuarjR;kus eyk lksMwu fnys o R;kuarj eh ?kjh vkys o nknk nknhyk ovkEehyk lkafxrys o eyk cMs nok[kkU;kr ?ksmu xsys- eyk‘ksoxkops nok[kkU;kr usys gksrs-15 / 19 APEAL-388-24+1.odt29.From the testimony of the victim it is just difficult for us to infer theappellant to have inserted his finger in her private part. More so, when themedical evidence does not reinforce the same. True, the medical officer,who had medically screened the victim testified that redness at the vaginalwalls could be possible by insertion of finger. In our view, this is hisimproved version over the medical examination report of the victim issued byhim immediately after the medical examination. The said report finds placeat Exhibit 21. The report is in requisite format. Item No.VII of Clause 15-Apertains to history. It was given by grand-mother of the victim. The historygiven was as under :-is’kaV dks ugkrs Vkbe cSB.kk ugh vk jgk Fkk- blfy;s eSus iqNk rks mlus crk;kdh jO;k us iWaV fudkyk vkSj /kedk;k- yMdh dks fi’kkc vkSj ‘kh djus dksrdfyQ gks jgh Fkh blfy, yksdy MkWDVj dks fn[kk;k rks mUgksus ljdkjhgkWLihVy esa fn[kkus dks crk;k-30.Then there is clause 15-F. It speaks of opinion regardingpenetration. The said clause is blank. The said clause is under thesignature of PW 4 – Gahininath. No active bleeding was noticed nor wasthere sign of inflammation. For better appreciation, we reproduce the saidcolumn as under :-PENETRATIONEmission of SemenOrifice ofVictimBy PenisBy Body part of self orassailant or third party(finger, tongue or any other)By ObjectYesNoDon’t KnowGenitalia(Vaginaand/orurethra)AnusMouth16 / 19 APEAL-388-24+1.odt31.Had the appellant inserted finger in vagina of victim, there wouldhave been local injury, since the victim was just six years of age. TheMedical Officer would have noted the same in the aforesaid column.Learned counsel representing the victim was right in submitting thatpenetration however small, constitutes the offence. In our view, howeverconsidering the age of the victim, had there been insertion of finger, therewould have been local injury in the vagina of the victim. The victim, howevercould not be disbelieved, in its entirety. She has no reason to name theappellant. Considering her age, she could not have described the incident.Suffice it to say, her evidence indicates that the appellant put his hand at herprivate part. Redness of walls of hymen could be the result of an attempt topenetrate the finger. In our view, therefore, the offence proved against theappellant is of attempt to commit aggravated sexual assault punishableunder Section 18 of the POCSO. The same reads thus :-“18. Punishment for attempt to commit an offence. - Whoeverattempts to commit any offence punishable under this Act or to causesuch an offence to be committed, and in such attempt, does any acttowards the commission of the offence, shall be punished withimprisonment of any description provided for the offence, for a termwhich may extend to one-half of the imprisonment for life or, as thecase may be, one-half of the longest term of imprisonment provided forthat offence or with fine or with both.”The aforesaid phraseology gives the Court discretion insentencing the appellant. True, considering the nature of offence andobservation in the authority relied on by learned counsel for the victim, suchacts must be dealt with iron hand.17 / 19 APEAL-388-24+1.odt32.The appellant is a labour. He is behind the bars since the date ofhis arrest. In our view, sentence of rigorous imprisonment for five yearswould meet the ends of justice in the facts and circumstances of the case. Inthe result we proceed to dispose of both the appeals in terms of followingorder :-ORDER(I)Criminal Appeal No. 388 of 2024 is partly allowed.(II)Impugned judgment and order dated 23rd March, 2023passed by the Court of Additional Sessions Judge,Ahmednagar (Special Court under POCSO Act, 2012) inSpecial Case No. 157 of 2022 convicting the appellant forthe offence punishable under Sections 3(b), 5(m)/4 and 6 ofProtection of Children from Sexual Offences Act, 2012 andunder Sections 376(2)(i)(j), 376(A)(B) of the Indian PenalCode, is hereby set aside. He stands acquitted thereof.Instead, the appellant is convicted for the offencepunishable under Section 8 read with Section 18 of theProtection of Children from Sexual Offences Act, 2012 andis sentenced to suffer rigorous imprisonment for five yearsand to pay fine of Rs.5,000/- (Rupees Five Thousand), indefault to suffer rigorous imprisonment for ten days.(III)Criminal Appeal No.389 of 2024 is dismissed.(IV)In view of disposal of Criminal Appeal No. 388 of 2024,nothing survives in Criminal Application No. 1527 of 2024.Same stands disposed of accordingly.18 / 19 APEAL-388-24+1.odt(V)Fees of Mr.D.S. Ingole, learned counsel appointed torepresent the appellant is quantified to Rs.10,000/- (RupeesTen Thousand)(VI)Fees of Mrs. R.S. Kulkarni, learned counsel appointed toRespondent No.2 – victim is quantified to Rs.15,000/-(Rupees Fifteen Thousand). She expressed her desire topay her fees to the victim.(VII)Fees of the appointed counsel be paid by High Court LegalServices Sub-Committee, Aurangabad, which shall do theneedful to pay the fees of Mrs. Kulkarni, learned counsel tothe victim.( NEERAJ P. DHOTE, J. )( R.G. AVACHAT, J. ) SSD19 / 19
Arguments
APEAL-388-24+1.odtthe same, the appellant was convicted and sentenced as stated above.9.Since the incident took place on 01st June, 2022, the minimumsentence for the offence of aggravated penetrative sexual assault wasrigorous imprisonment for twenty years. Section 42 of the POCSO readsthus :-“Alternate punishment. - Where an act or omission constitutes anoffence punishable under this Act and also under Sections 166-A,354-A, 354-B, 354-C, 354-D, 370, 370-A, 375, 376, 376-A, 376-C,376-D, 376-E or Section 509 of the Indian Penal Code (45 of1860), then, notwithstanding anything contained in any law forthe time being in force, the offender found guilty of such offenceshall be liable to punishment under this Act or under the IndianPenal Code as provides for punishment which is greater in degree.”10.The trial Court, therefore, ought to have convicted the appellant,since according to it the offence was proved, for the sentence which wassevere one and not under both the sections viz. Section 376(2)(i)(j) of I.P.C.and Section 8 of POCSO. The State has rightly preferred the appeal sincethe trial Court has not imposed even minimum sentence provided for the saidoffence, though it found the offence to have been proved. Be that as it may.11.Learned counsel for the appellant (appointed by Court) wouldsubmit that the victim’s statement, under Section 164 of the Code of CriminalProcedure (‘Cr.P.C.’), was recorded four days after the incident. The motherof the victim lodged the F.I.R. two days after the incident. History to themedical officer was given by the grand-mother of the victim, who has notbeen examined. The medical examination rules out the penetrative sexual4 / 19 APEAL-388-24+1.odtassault. He took us through the evidence on record to ultimately urge foracquittal of the appellant and in the alternative urged for converting thesentence to a lesser offence viz. offence of sexual assault punishable underSection 7 of the POCSO.12.Learned A.P.P. and learned counsel appointed to represent thevictim would, on the other hand, submit it to be a heinous offence. Strongreliance was placed on the judgment in the case of Nawabuddin Vs. Stateof Uttarakhand, (2022) 5 SCC 419. According to them, the appellant waslike a maternal uncle of the victim. He should not have been shown leniency.The trial Court committed mistake in imposing less than the minimumprescribed sentence. Both the learned counsel took us through the evidenceof the victim. They would submit that the victim had immediately related theincident to her mother. The same reinforces the prosecution case. Ourattention was adverted to paragraph no. 6 of the judgment of the trial Courtwhich observes that the delay in lodging of the F.I.R. was duly explained.According to learned counsel appointed to represent the victim, penetrationhowever slight, is sufficient to constitute the offence of rape. The victim wassix years of age. The offence thus become aggravated penetrative sexualassault, being punishable with minimum sentence of twenty years. Sections29 and 30 of the POCSO have also been referred to. It was submitted thatthe appellant did not rebut the presumption. Both the learned counsel urgedfor dismissal of the appeal of the convict and urged for allowing the State’sappeal.5 / 19 APEAL-388-24+1.odt13.Considered the submissions advanced. Perused the judgmentimpugned herein. If we agree with the findings recorded by the trial Court,the appellant need to be sentenced to minimum term of imprisonment oftwenty years. Before adverting to the evidence on record, let us remindourselves of the observations made by the Apex Court in the case ofNawabuddin (supra), which read as under :-“14.At this stage, it is required to be noted that the POCSO Act hasbeen enacted keeping in mind Article 15 and 39 of theConstitution of India. Article 15 of the Constitution, inter alia,confers upon the State powers to make special provision forchildren. Article 39, inter alia, provides that the State shall inparticular direct its policy towards securing that the tender ageof children are not abused and their childhood and youth areprotected against exploitation and they are given facilities todevelop in a healthy manner and in conditions of freedom anddignity. To achieve the goal as per Article 15 and 39 of theConstitution, the legislature has enacted the Protection ofChildren from Sexual Offences Act, 2012.15.As noted in the Statement of objects and reasons, as per theUnited Nations Convention on the Rights of Children, to whichIndia is a signatory to the treaty, the State Parties to undertakeall appropriate national, bilateral and multilateral measures toprevent :(a) the inducement or coercion of a child to engage in anyunlawful sexual activity;(b) the exploitative use of children in prostitution or otherunlawful sexual practices; and(c) the exploitative use of children in pornographic performancesand materials.16.Article 19 of the Convention states the following:1. States Parties shall take all appropriate legislative,administrative, social and educational measures to protect thechild from all form/s of physical or mental violence, injury orabuse, neglect or negligent treatment, maltreatment orexploitation, including sexual abuse, while in the care ofparent(s), legal guardian(s) or any other person who has the6 / 19