IMPORTANT POINT
An act, which is legal at the time of commission cannot be made illegal by way of introduction of new enactment.

JUDGMENT

S. Vaidyanathan, CJ.—This Criminal Appeal is directed against the judgment dated 27.04.2022 and the order of sentence dated 29.04.2022, passed by the Special Judge (POCSO), East Khasi Hills District, Shillong in Special (POCSO) Case No.10/2013 and the accused/Appellant herein was convicted by the Trial Court for the offence under Section 376(2) IPC and sentenced to undergo rigorous imprisonment for twenty five years and to pay a fine of Rs.1,00,000/-, in default to undergo one year imprisonment. The total fine amount awarded as compensation was directed to be paid to the victim girl.

Brief Prosecution Case:

2. An FIR was given by the mother (P.W.1) of the victim girl (P.W.2) on 07.12.2012 before the Officer-in-Charge, Pasture Beat House, Polo, East Khasi Hills District, Shillong, stating that her daughter aged 4 years was raped on 05.12.2012 by one Arup Baruaa, a Juvanile. On receipt of the FIR, the Officer-in-charge of Sadar Police Station registered a case vide Sadar P.S. Case No.217 (12)12 under Section 376(2)(f) IPC. Subsequently, the victim girl (P.W.2) was sent for medical examination and during interaction with the victim girl by her aunt, it was disclosed by her that the accused also involved in the commission of offence and when it was reported to the Police by the family members about the statement made by the victim girl and also the confrontation of the accused herein, the Investigating Officer had informed the complainant that there was no necessity to register one more FIR against the accused, as the subsequent development can be investigated along with the earlier FIR.

3. After investigation, a Charge Sheet No.141/2013 dated 26.08.2013 was laid before the Court of Chief Judicial Magistrate and thereafter, the case was committed to the Special Judge (POCSO) for trial, who framed the charges against the accused under Section 377 and Section 5(m)/6 against the child in conflict with law and under Section 376(2)(f) and Section 5(m)/6 against the accused. The prosecution, in order to substantiate the commission of the offence against the accused, has examined as many as 10 witnesses and marked 7 documents. On the side of the accused, though two witnesses were examined, no document was marked. Statements under Section 164 Cr.P.C. were obtained from P.W.1, the victim girl (P.W.2) and Master Aibanjop Jarian (P.W.10). The accused was questioned under Section 313 Cr.P.C. and he denied the charges levelled against him. The Trial Court, after analyzing the evidence let in by the prosecution, found the accused guilty of the offenceunder Section 3(a)/5(l)(m)/6 of the Act of 2012 and under Section 375(a) falling under 375 (sixthly)/376(2)(j)(n) IPC, 1860 convicted him as stated supra.

4. Learned Legal Aid Counsel for the appellant submitted that there was no corroboration of the depositions of witnesses as also the statement of the victim girl (P.W.2) and the award of sentence was solely on the basis of the evidence of P.W.2 (mother). The victim girl was subjected for medication examination twice on 07.12.2012 and 21.05.2013 respectively and both the results revealed that the hymen of the victim girl was intact. Learned Legal Aid Counsel further submitted that there was no penetrative sexual assault on the victim girl, which is evident from the statement of the victim girl that she did not feel any pain, when the accused attempted to insert his private part into her vagina and thus, the statements of the witnesses were not corroborated with the two medical reports. Moreover, the statement under Section 164 Cr.P.C. was obtained from the witnesses after two years of the alleged incident.

4.1. Learned Legal Aid Counsel also submitted that there was a previous enmity between the families of the victim girl and the accused, which was deposed by the defence witnesses and the same was not taken note of by the Trial Court. The name of the accused was not found mentioned in the FIR initially and his name was subsequently inclu