The main legal point established is the requirement for unblemished and fully trustworthy evidence to support a conviction based solely on the victim's testimony, and the need to establish primary facts to apply Section 29 of the POCSO Act.

JUDGMENT :

(Chakradhari Sharan Singh, J.)

This appeal has been preferred under Section 374(2) of the Code of Criminal Procedure Code,1973, (Cr.P.C. for short) by the appellant, assailing a judgment of conviction dated 31.08.2017 and an order of sentence dated 11.09.2017 passed by 1st Additional District and Sessions Judge-I-cum-Special-Judge, Madhepura in POCSO Case No. 01 of 2017/CIS No. 01 of 2017, whereby the appellant has been convicted and sentenced as under:

2. The informant’s name, who has been examined at the trial as P.W.-5, is being concealed in the present judgment and order and has been referred to as the 'X' or P.W.-5/the informant.

3. We have heard Mr. Rajesh Kumar Singh, learned Senior Counsel representing the appellant and Ms. Usha Kumari No. 1, learned Special Public Prosecutor for the State.

4. The process server has reported valid service of notice upon the informant (P.W.-5)/the respondent No. 2.

5. A written report of the informant dated 22.10.2015 is the basis for registration of the concerned Kumar Khand PS Case No. 138 of 2015 leveling offences punishable under Sections 376 read with Section 34 of the Indian Penal Code (IPC for brevity) and Section 3(1)(w)(i) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (‘SC/ST Act’ in short). She alleged in the First Information Report (FIR for brevity) that she was aged about 15 years and that she had gone out of her house in the night at 7:00 pm for attending the nature’s call. The appellant and his two full brothers, who were lurking outside, captured her and all of them forcibly took her to a nearby agricultural field. After that, the accused, Chunnu Kumar Singh, committed sexual intercourse with her. When she tried to scream, co-accused Awadhesh Kumar Singh shoved a piece of cloth (Gamchi) in her mouth; after that, he also committed sexual intercourse with her. Thereafter, the appellant told her that he would also be committing rape and, in fact, committed rape. The date and time of occurrence have been mentioned in the written statement as 21.10.2015 at 7:00 pm.

6. Further, all three full brothers, one by one, sexually assaulted her two times each. After the occurrence, she somehow or the other managed to return to her house, and when the mother of the informant, on seeing her soil-stained clothes, inquired from her, she explained to her mother the entire occurrence. Thereafter, the informant’s mother (P.W.-9) and her brother (P.W.-4) and Laxmi Devi (P.W.-7) went to complain to the father of the aforesaid accused. When they complained to the father of the appellant, he, wielding his position as an old Jamindar of the village, abused them, taking their caste name and told them that, in fact, he himself had sent his three sons to rape the informant ('X').

7. Based on the allegation made in the written report as noted above, the appellant, his two brothers, Chunnu Kumar Singh and Awadhesh Kumar Singh and his father, Niranjan Singh, were made accused in Kumarkhand P.S. Case No. 138 of 2015.

8. The informant was examined by a lady doctor on 23.10.2015, who recorded the following finding:-

“Auxillary hair present. Breast developed. Pubic hair present. No bruise or abrasion found on any part of the body including private parts. Labia majora separated. Hymen torn. Vaginal canal admits two finger easily. Spermatozoa not found in vaginal swab test. Pregnancy test negative. Features of intercourse present.”

9. A medical Board was constituted to determine the informant's age. The Board concluded that the informant's age was between 14-16