DEBI PRASAD DEY,J. - (1.)This is an application for bail under Section 374(2) of the Code of Criminal Procedure. The appellant has filed this application for bail on the ground that learned trial Court has erroneously convicted the appellant and there is every possibility of success in the appeal. Learned Advocate appearing on behalf of the appellant contended that the appellant was charged for the offences under Section 376(2)(i) of the Indian Penal Code alternatively under Section 4 of the Protection of Children from Sexual Offence Act, 2012 and learned trial Court did not find any evidence to convict the appellant for the aforesaid sections. However, learned trial Court erroneously convicted the appellant for the offence under Section 8 of the POCSO Act being lesser offence under Section 4 of the POCSO Act and sentenced the appellant for a period of 5 years and to pay a fine of Rs. 5,000/-. Learned Advocate appearing on behalf of the State however raised objections to the prayer for bail on the ground that there should be statutory presumption against the appellant and learned trial Court was justified in convicting the appellant for the offence under Section 8 of the POCSO Act. Mr. Bose further contended that the appellant should not be released on bail at this stage instead the appeal may be heard out and decided on merit.
(2.)The case of the prosecution, as it transpires from the materials on record that on 22nd November, 2015 at about 12.30 p.m. the appellant allured the victim with Biscuit and took her beside the football ground of their village and raped her gagging her mouth. The case ultimately ended in charge sheet and charge under Section 376(2) (i) of Indian Penal Code alternatively under Section 4 of the Protection of Children from Sexual Offences Act was framed against the appellant. Learned trial Court after considering the facts and circumstances of this case as well the report of the doctor(exhibit 2) specifically held as follows:-
"In view of the medical evidence and the statement of the victim before this Court and the statement before the Ld. Magistrate, it is well established that the accused has committed the offence of sexual assault and no concrete evidence is found with regard to 376(2)(i) of Indian Penal Code and Section 4 of POCSO Act."

(3.)It is therefore apparent that the prosecution could not prove the charge under Section 376(2)(i) of the Indian Penal Code and Section 4 of the POCSO Act. Simultaneously, it has been observed by learned trial Court that the appellant has committed the offence of sexual assault on the basis of the statement of the victim aged about 8 years only.