JUDGMENT : SANJEEV KUMAR SHARMA, J. 1. Heard Mr. A. Roshid, learned counsel for the accused petitioner and Also heard Mr. D.P. Goswami, learned Additional Public Prosecutor for the State and Mr. K.P. Pathak, learned Amicus Curiae for the respondent No. 2. 2. This Criminal Appeal is directed against the Judgment dated 09.01.2023 and Sentence dated 10.01.2023 passed by the learned Special Judge, Goalpara under the Protection of Children from Sexual Offences Act, 2012 (in short ‘POCSO Act’) sentencing the accused petitioner to suffer Rigorous Imprisonment for a period of 7 years and to pay fine of Rs. 15,000/- only in default, to suffer RI for a period of 6 months under Section 10 of POCSO Act and to suffer RI for a period of 3 years and to pay fine of Rs. 10,000/- only in default, to suffer SI for a period of 3 months under Section 12 of POCSO Act. 3. The prosecution case in brief is that Ms. Rukiya Khatun of village-Khonar Pubpar submitted a written Ejahar on 19.05.2019 alleging inter alia that on 18.05.2019 @ 2:30 pm her 7 years old minor daughter (henceforth referred to as V) who was alone in the house when A1 entered inside and took her to the kitchen where A1 started undressing her by gagging her mouth. In the meantime, the Informant returned home and not finding V started to call her by her name. And V came out by opening the door of the kitchen and reported to her that A1 had tried to commit bad acts with her after making her lie on the ground. The Informant then found A1 underneath her house & A1 came out and fled away therefrom. 4. This written Ejahar was received and registered as Baguan P.S. case No. 64/2019 under Section 10 /12 POCSO Act. On completion of investigation, the charge sheet was submitted against A1 under Section 10 /12 POCSO Act. 5. On appearance of A1, copies of relevant documents were furnished to A1 as required u/s 207 CrPC. After considering the materials submitted by Police u/s 173 CrPC and having heard both sides, charges u/s 10/12 POCSO Act were framed against A1. The charges were then read over and explained to A1 to which he has pleaded not guilty and claimed to be tried. 6. During trial, the prosecution has examined as many as 9 witnesses and exhibited 6 nos. The charges were then read over and explained to A1 to which he has pleaded not guilty and claimed to be tried. 6. During trial, the prosecution has examined as many as 9 witnesses and exhibited 6 nos. of documents to prove its case. The statement of A1 was recorded u/s 313 CrPC. The defense has taken the plea of total denial but it did not adduce any evidence in support of its plea. 7. At this stage, it would be apposite to discuss the evidence on record. 8. The Informant/PW-1 (Rukiya Khatun) has deposed that V is her daughter and she was aged about 7 years at the time of occurrence and she used to study in Noor Jatiya Bidyalaya. A1 happens to be her neighbor and a distant uncle-in-law in relation. The occurrence took place one Saturday on 18th May about one and half to two years ago @ 2.30 pm, V had returned from school. She had gone for shopping and V was playing outside their house. When she returned home she heard some humming sound coming out from inside her house. Immediately V on realizing that she has returned home, came out of the house and hugged her. She asked V as to what has happened to which V replied that A1 had taken her inside the house promising to provide her mangoes. V also told me that A1 undressed her by opening her half pants, gagged her mouth and hugged her. She had seen A1 hiding beneath the kitchen house. She tried to catch A1 but he fled away. However, A1 returned armed with a shovel (sobol) in order to assault her with it. But A1 fled away on seeing the nearby people gathering near her house as a result of the hue and cry. Thereafter, she filed this case. During investigation, the Police recorded her and V's statements, also took V to Baguan PHC for medical examination on that day itself. The Police then produced V before the Magistrate on that day itself for having her statement recorded u/s 164 CrPC. Police also seized the birth certificate of V and prepared a seizure list. Thereafter, the Police gave the custody of the certificate to her. She has brought/produced this original certificate in the court. Ext P-1 is the Ejahar, Ext. P-1(1) is her signature. Ext. P-2 is the Birth Certificate (proved in original). Ext. Police also seized the birth certificate of V and prepared a seizure list. Thereafter, the Police gave the custody of the certificate to her. She has brought/produced this original certificate in the court. Ext P-1 is the Ejahar, Ext. P-1(1) is her signature. Ext. P-2 is the Birth Certificate (proved in original). Ext. P-3 is the seizure list where Ext. P-3(1) is her signature. In cross-examination, she has deposed that she was not present inside her house at that time of the occurrence. She had gone to the shop of Kushum Ali, which is situated about 1½ furlongs away from her house. The Khona River is situated adjacent to the kitchen of her house. There is boundary wall around my house. Anjira Khatun is her aunt and she resides adjacent to her house. The house of Bahar Munchi is situated on the northern side of her house. The house of Bahhar Bunchi and her house is divided by a cluster of bamboo trees. The house of A1 is situated near the house of Bahar Munchi. Her neighbour Anjira Khatun and her husband were present in their house at the time of occurrence. Her kitchen is made of bamboo walls and tin roof. When she reached home, she called for V and V came out of the kitchen with her pants on her knees. The occurrence took place on Saturday @2:30 pm. At the time of the occurrence, nobody was present in the campus of her house. After V had come out of the kitchen she took V to the house of the village secretary - Hasem Ali, situated about 9-10 houses away from her house and reported the matter to him. After 2 days of the occurrence, a village meeting was called but A1 did not appear in that meeting. She has filed this case on the very next morning of the occurrence. She has denied that she had filed this case even before the village meeting was held. Her husband works as a carpenter. She has denied that on 19.05.2019 @ 7 am they had entered the house of A1 and that they had destroyed his house and that they had also robbed all his money and destroyed the crops. She has admitted that A1 had filed this case against her, her husband and some other persons. She does not know why A1 has filed this case against them. She has admitted that A1 had filed this case against her, her husband and some other persons. She does not know why A1 has filed this case against them. She had seen injury marks on the check/mouth and neck of V. On the very day of the occurrence, she had taken V to Ambari PFC for her medical examination. She had reported to the Doctor about the places where V had sustained injuries. After 1 day of the occurrence, she had come to Goalpara for the medical examination of V. The doctors at Ambari Hospital had referred V to Goalpara. She had come to Goalpara for the medical examination of V after 2 days of the occurrence. They had known A1 to be a bad person and that is why they did not have any relationship with him. 9. PW-2 (Victim) has deposed that PW-1 is her mother and A1 is known to her being her neighbor as their houses are adjacent to each other. The occurrence took place about 2 years ago. At that time she was studying in Class-Mukul (Primary section) of Jatiya Bidayala and she was aged about 7 years. On the day of the occurrence @ 2:30 pm, she was playing alone outside her home and PW-1 had gone shopping and her father was also away to Guwahati. At that time A1 came up to her and offered to give her sweet mangoes and took her inside the kitchen of their house. A1 then grabbed her mouth to prevent her from shouting and closed the door and he then undressed her/opened her pants. She was wearing a half pant at that time. At that time she heard PW-1 calling out her name from outside the house. She then, opened the door and came out of the kitchen running and went towards PW-1 and grabbed her. On being asked by PW-1 as to what had happened she had reported to her about the entire above incident. In the meantime, A1 hid himself beneath the chavy (bed). PW-1 then armed with a bamboo stick tried to bring out A1 from beneath the bed but A1 fled away from there. Thereafter, PW-1 filed this case. During investigation Police sent her for medical examination and she was also produced before the Court where she gave her statement. She had put her thumb impression in the statement given before the Court. Thereafter, PW-1 filed this case. During investigation Police sent her for medical examination and she was also produced before the Court where she gave her statement. She had put her thumb impression in the statement given before the Court. In cross-examination, she has deposed that at the time of the occurrence she was not able to write her own name but now she is able to do so. The Police never recorded her statement. She had reported to the doctor who was examining her that she had sustained hurt in her hands. While coming to the court, PW-1 and a woman police had accompanied her. Now she does not remember what she had stated before the Court after the occurrence. She has admitted that after the occurrence @ 12 noon her father had gone to the house of A1 and had destroyed that house. She has denied that whatever she has deposed are all false land that no such occurrence had taken place. She has admitted that that there is a river behind their house and in that river A1 does fishing. She has denied that that she had run away after taking away the chappal (slippers) of A1. She has denied that A1 had never come to their house on the day of the occurrence and that no such incident took place as stated by her. 10. PW-3 (Abdul Halim Sheikh) is the father of V. According to him, he knows A1 as he belongs to his village. The occurrence took place on 18.05.2019 @2 pm. At the time of occurrence, V was aged about 7 years. On that day, he was in Guwahati. PW-1 informed him over telephone that while V being alone in the house A1 took her and tried to rape her. On coming to know about the matter, he returned on the next day. On being asked V reported to him that A1 had taken her to the kitchen while PW-1 was away and by throttling her throat had opened her pants and had tried to commit rape upon her. During investigation the police had seized the Birth Certificate of V and he had put his thumb Impression in the seizure list. In cross-examination, he has deposed that he had returned home @ 9 am. He did not visit the kitchen where the alleged occurrence took place. During investigation the police had seized the Birth Certificate of V and he had put his thumb Impression in the seizure list. In cross-examination, he has deposed that he had returned home @ 9 am. He did not visit the kitchen where the alleged occurrence took place. He has admitted that the son of A1 had filed a police case against them alleging that they had burned down their house. In that case, he along with his uncle (Anowar Hussain) and wife/PW-1 are the accused persons. He did not burn the house of A1 but it was the village public who had done it. The house of A1 was not burned down. He did not see any injury on the private parts of V and on her body also. And he does not have any direct knowledge about the occurrence since he did not witness the occurrence. The house of Pahar Munshi and Anowar Hussain are situated near his house. These persons know about the occurrence. He has denied that V had never disclosed to her that A1 had taken her to the kitchen while PW-1 was away and by throttling her throat had opened her pants and had tried to commit rape upon her. He has denied that that PW- 1 had never disclosed to him over telephone that A1 on the pretext of V being alone in her house took her and had tried to rape her & that neither PW-1 nor V had reported him about the occurrence. 11. PW-4 (Salema Begum) has deposed that she knows PW-1, V and A1 as they stay near her house. On 18.05.2019 @ 2:30 pm she was present at her house. She saw A1 going to the house of PW-1. After sometime, she heard a hue and cry coming from the house of PW-1. She went there and saw PW-1, V and A1 present there. She saw PW-1 assaulting A1 with a bamboo stick. She saw V weeping and on being asked V reported to her that A1 had come to her, tried to strangulate her, tore her cloths, opened her pants and had tried to rape her (The Ld. Defense Counsel has objected to the word "rape" as the witness had only stated "beya kaam"). In cross-examination, she has deposed that she did not witness the occurrence. She did not physically examine the body of V after the occurrence. Defense Counsel has objected to the word "rape" as the witness had only stated "beya kaam"). In cross-examination, she has deposed that she did not witness the occurrence. She did not physically examine the body of V after the occurrence. At the time of occurrence, she was present in her house. A1 resides adjacent to her house and they visit each other's houses. She has denied that V had not reported to her that A1 had come to her or had tried to strangulate her or had torn her cloths or had opened her pants and had tried to rape her. 12. PW-5 (Anjira Khatun) has deposed that PW-1 is her relative and A1 is her neighbor. V is the daughter of PW-1. The occurrence took place about 1 year ago @ 2.30 pm. She was not at home at the time of occurrence. On hearing hue and cry from the house of PW-1, she went there. She found PW-1 and V creating hue and cry. On being asked, PW-1 and V reported to her that A1 had tried to commit rape upon V by opening her pants. She also saw A1 coming from behind the room and she asked A1 as (what had happened) to which A1 replied that he had touched the hands of V (under objection). She also saw PW-1 trying to assault A1 with a bamboo stick. In cross-examination, she has stated that initially when she went to the house of PW-1 she did not find A1 there. After 1 minute, she saw A1 coming out from behind the house of PW-1. She has admitted that there is a pond behind the house of PW-1 and the villagers go there for fishing. She has denied that A1 did not try to rape V by opening her pant & that A1 had come out from behind the house of PW-1 only to inquire like her as to what had happened and that A1 had gone for fishing behind the house of PW-1 and that when she had seen A1 coming out from behind the house A1, was actually coming out of his fishing activity. 13. PW-7 (Surjeb Ali) has deposed that he knows PW-1, V and A1 as they all belong to the same village. The occurrence took place one day about 2½ years ago. At the time of occurrence, he was at his home. 13. PW-7 (Surjeb Ali) has deposed that he knows PW-1, V and A1 as they all belong to the same village. The occurrence took place one day about 2½ years ago. At the time of occurrence, he was at his home. On hearing a hue and cry @ 2:30 pm coming from the house of PW-1, he went there and found PW-1 and V crying. He did not find A1 there. PW-1 reported to him that A1 had taken V to the kitchen. The defense did not cross-examine this witness. 14. PW-6 is a hearsay witness while PW-8, the Medical Officer deposed that no external injury was seen on the body and no external injury/lesion was seen on genitalia. 15. The learned counsel appearing for the appellant laid stress on the fact that the medical evidence did not support the case of the prosecution but in a case of this nature, where there is no allegation of penetration or violence, as such, there is unlikely to be any medical evidence and therefore, the said contention has no force. In other respects, the appellant is unable to point out any such serious defect in the appreciation of evidence by the learned Trial Court. 16. Upon appreciation of the evidence, the learned Trial Court while having no difficulty in holding that the victim was a child below 12 years of age has correctly relied upon the decision of the Hon’ble Supreme Court in Mangoo Vs. State of Madhya Pradesh , reported in AIR 1995 SC 959 , to hold that while the Court has to carefully determine whether the child has been tutored, which can be ascertained by examining the evidence and from the contents thereof as to whether there are any traces of tutoring and that in the absence of such indication, the evidence of the child witness cannot be discarded merely because the witness is a child of tender years. 17. 17. From the evidence of the victim/PW-2, it transpires that she had quite clearly deposed to the incident that took place inside her own home at the hands of the accused and although the PW-1 did not see the actual incident, the PW-1 had arrived at the very moment when the accused was in the process of committing the act with the victim which led to the interruption and termination of the act of the accused/appellant and immediately, she reported the matter to her mother and therefore, the evidence of the mother/PW-1 assumes great significance as it is to be considered as part of the resgestae and in view of Section 6 of the EVIDENCE ACT , moreover, immediately thereafter, both mother and daughter having raised hue and cry, the neighbours gathered at the place of occurrence and not only that, they trashed the accused which has come in the evidence of the I.O., and the crowd also caused damage to the house of the accused which compel the accused to flee from the village for quite some time. Nothing in the cross-examination of these two vital PWs’ could elicit any material contradiction so as to cast a doubt on the credibility of the persons given by the PW-1 and PW-2 as well as the remaining witnesses whose evidence have been discussed above. 18. The appellant has been convicted under Sections 10 and 12 of the POCSO Act and Sections 9 and 11 are the substantive sections defining the offences of aggravated sexual assault and sexual harassment, respectively. Further, Section 7 defines sexual assault as follows:- “ Section 7 . Sexual Assault. - 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.” 19. Section 9(m) is attracted in the present case as the victim is below 12 years of age. Section 9(m) is attracted in the present case as the victim is below 12 years of age. A perusal of Section 7 of the POCSO Act shows that it consists of two distinct parts where the first part makes punishable certain specific acts that is touching the vagina, penis, anus or breast or makes the child touch the vagina, penis, anus or breast of such person or any other person, the second part deals with any other act which, done with sexual intent involves physical contact without penetration. 20. In the present case, the appellant has been convicted of sexual harassment for his act of pulling down the pants of the victim and for aggravated sexual assault, presumably as he closed the mouth of the victim with his hand. In course of arguments, a question had arisen as to whether the act of the accused in gagging the mouth of the victim to silence her with his hands in order to silence her would be covered by the second part of Section 7 of the POCSO Act that is doing any other act with sexual intent involving physical contact. 21. Mr. K.P. Pathak, learned Amicus Curiae representing the victim submitted that the accused covered the mouth of the victim with his hand with the intent to commit a sexual act and therefore the said act would be squarely covered by the second part of Section 7 of the POCSO Act. In this regard, the learned Amicus Curiae has placed a reliance on a decision of the Hon’ble Supreme Court in Attorney General for India Vs. Satish & Another , reported in (2022) 5 SCC 545 , wherein the principal of ejusdem generis has been held to be in applicable in interpreting Section 7 of the POCSO Act, the Court held at paragraphs 45 and 46 as follows:- “45. The interpretation of Section 7 at the instance of the High Court on the premise of the principle of "ejusdem generis" is also thoroughly misconceived. It may be noted that the principle of "ejusdem generis” should be applied only as an aid to the construction of the statute. It should not be applied where it would defeat the very legislative intent. It may be noted that the principle of "ejusdem generis” should be applied only as an aid to the construction of the statute. It should not be applied where it would defeat the very legislative intent. As per the settled legal position, if the specific words used in the section exhaust a class, it has to be construed that the legislative intent was to use the general word beyond the class denoted by the specific words. So far as Section 7 of the POCSO Act is concerned, the first part thereof exhausts a class of act of sexual assault using specific words, and the other part uses the general act beyond the class denoted by the specific words. In other words, 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, would be committing an offence of "sexual assault". Similarly, whoever does any other act with sexual intent which involves physical contact without penetration, would also be committing the offence of "sexual assault" under Section 7 of the POCSO Act. In view of the discussion made earlier, the prosecution was not required to prove a "skin-to-skin contact for the purpose of proving the charge of sexual assault under Section 7 of the Act 46. The surrounding circumstances like the accused having taken the victim to his house, the accused having lied to the mother of the victim that the victim was not in his house, the mother having found her daughter in the room on the first floor of the house of the accused and the victim having narrated the incident to her mother, were proved by the prosecution, rather the said facts had remained unchallenged at the instance of the accused. Such basic facts having been proved by the prosecution, the Court was entitled to raise the statutory presumption about the culpable mental state of the accused as permitted to be raised under Section 30 of the said Act. The said presumption has not been rebutted by the accused, by proving that he had no such mental state. The allegation of sexual intent as contemplated under Section 7 of the Act, therefore, had also stood proved by the prosecution. The said presumption has not been rebutted by the accused, by proving that he had no such mental state. The allegation of sexual intent as contemplated under Section 7 of the Act, therefore, had also stood proved by the prosecution. The Court, therefore, is of the opinion that the prosecution had duly proved not only the sexual intent on the part of the accused but had also proved the alleged acts that he had pressed the breast of the victim, attempted to remove her salwar and had also exercised force by pressing her mouth. All these acts were the acts of "sexual assault" as contemplated under Section 7 , punishable under Section 8 of the POCSO Act 47.” 22. From the above, it is seen that the act of pressing the mouth of the victim has been held to be covered by the definition of sexual assault as contemplated under Section 7 of the POCSO Act. 23. In view of the above discussion, I do not find any error in the findings of the learned Trial Court while holding the accused guilty under Sections 10 and 12 of the POCSO Act. 24. With regard to the quantum of punishment imposed by the learned Trial Court, it is noticed that Section 7 provides for a penalty of imprisonment of either description for a term which shall not be less than 5 years but which may extend to 7 years and fine. The learned Trial Court has chosen to impose the maximum penalty permissible under the law. However, having regard to the age of the appellant i.e. 63 years, I am of the view that imposition of a sentence of five years would serve the ends of justice. 25. Accordingly, the sentence stands modified to imprisonment to Rigorous Imprisonment for 5 (five) years instead of 7 years under Section 10 of the POCSO Act. The rest of the sentences shall remain undisturbed. 26. Consequently, the appeal stands partly allowed by way of partial modification of sentence. 27. Send back the Trial Court Record.