POCSO Act's Section 42 mandates punishment under the Act or IPC, whichever is greater.

An FIR was filed by PW-2 on September 5, 2020, at 10:00 hours, stating that his five-year-old niece was sexually molested by the Appellant, Krishna Chettri, the previous day.

The Appellant, aged about sixty years, was subsequently charged under Sections 6/10 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) for aggravated penetrative sexual assault.

The Special Judge (POCSO Act), Namchi, Sikkim, framed charges against the Appellant under Section 3(b) punishable under Section 4 of the POCSO Act, Section 5(m) punishable under Section 6 of the POCSO Act, Section 376(1) of the Indian Penal Code, 1860 (IPC), and Section 376(3) of the IPC.

The Appellant pleaded "not guilty".

The prosecution presented fourteen witnesses.

The Learned Trial Court, through a judgment dated June 21, 2023, in Sessions Trial (POCSO) Case No. 28 of 2020, convicted the Appellant under Section 3(b) punishable under Section 4 of the POCSO Act and Section 5(m) punishable under Section 6 of the POCSO Act.

The Appellant was sentenced to twenty years imprisonment via order dated June 22, 2023.

The Appellant challenged the conviction and sentence.

The court primarily applied the provisions of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).

Section 3(b) defines "penetrative sexual assault" as the insertion, to any extent, of any object or part of the body, not being the penis, into the vagina, urethra, or anus of a child.

Section 4 prescribes punishment for penetrative sexual assault.

Section 5(m) defines "aggravated penetrative sexual assault" when committed on a child below twelve years.

Section 6 prescribes punishment for aggravated penetrative sexual assault.

The court also referred to Section 42 of the POCSO Act, which provides for alternate punishment when an act constitutes an offence under both the POCSO Act and the IPC, mandating punishment under the law that provides for a greater degree of punishment.

Section 354 of the Cr.P.C. requires the trial court to specify the section under which imprisonment is imposed and whether sentences run concurrently.

The Court analyzed the evidence of the victim (PW-1), noting her tender age and assessing her testimony with sensitivity.

PW-1 consistently stated that the Appellant inserted his finger into her vagina, causing her pain, which the Court deemed as clear evidence of penetrative sexual assault.

This testimony was corroborated by PW-4, an eyewitness, who saw the Appellant fondling the victim's vagina with his fingers.

Medical evidence from PW-10 indicated a reddish abrasion on the labia minora and a reddish tear in the anal orifice, supporting the occurrence of injury consistent with penetrative sexual assault.

The Court emphasized that Section 3(b) of the POCSO Act does not require full penetration for an act to be considered penetrative sexual assault, as long as insertion occurs to any extent.

Given the victim's age of five years, which was undisputed, the Court found the conviction under Section 5(m) for aggravated penetrative sexual assault on a child below twelve years to be justified.

The Court further affirmed that, in light of Section 42 of the POCSO Act, the absence of separate penalties under Sections 376(1) and 376(3) of the IPC was correct, as punishment under the POCSO Act, which provides for a greater degree of punishment, had been imposed.

Although the Trial Court omitted to explicitly mention the specific sections for the twenty-year imprisonment in its order on sentence, the Appellate Court concluded, based on the judgment, that the sentence was for offences under Section 3(b) punishable under Section 4 and Section 5(m) punishable under Section 6 of the POCSO Act, both of which mandate a minimum of twenty years imprisonment.

The sentence of twenty years imprisonment was upheld and ordered to run concurrently.

The compensation of Rs. 6,00,000/- granted by the Learned Trial Court was also upheld.

The appeal was disposed of accordingly.

The Court also directed that in all POCSO proceedings, the accused be placed behind a one-way mirror to avoid traumatizing the victim during trial.