IMPORTANT POINT
The importance of establishing the age of the victim, addressing material contradictions in witness depositions, and the burden of proof in cases involving minors under the POCSO Act.

JUDGMENT :

Nawneet Kumar Pandey, J.

This appeal has been preferred by the appellant under Section 374 (2) of the Code of Criminal Procedure for setting aside the judgment of conviction dated 25.01.2021 and the order of sentence dated 29.01.2021 passed by Sri Motish Kumar Singh, the learned Additional Sessions Judge-I-cum- Special Judge, (POCSO), Saharsa in POCSO Case No. 20 of 2018, arising out of Saharsa Mahila P.S. Case No. 15 of 2018, whereby he has been convicted and sentenced as under:-

2. All sentences have been ordered to run concurrently and benefit of Section 428 of Cr.P.C. has been ordered to be given.

3. The victim (PW-8), who is a minor girl of 12 years of the age (as per prosecution version), has given her Fardbeyan before S.H.O., Simri police station on 01.03.2008 at about 10:30 P.M. stating therein that on 27.02.2018 at about 3:00 P.M., she was scraping grass in the maize filed situated towards western side of her house. Meanwhile, the appellant aged about 28 years came there and he forcibly put off her pant, gagged her mouth, pointed a Kachiya (a sharp edged weapon) on her neck and threatened her to kill, had she raised hue and cry. Thereafter, he committed rape upon her. The victim started writhing due to pain and hearing the sound of writhing, Tetri Devi (PW 7), who was also scraping grass at some distance, rushed there. She tried to save the victim, but the appellant scuffled with P.W. 7 and after twisting her hands, he fled away. The victim also stated further that due to rape committed by the appellant, she started profusely bleeding. P.W. 7 started shouting whereupon the mother of the victim (PW-1), her father (PW-2) and villagers Shashidhar Mandal (PW-4), Varun Mandal (not examined), Siromani Patel (PW-6), Triveni Mandal (not examined) and other villagers rushed there. Having seen the persons coming, the appellant fled away towards eastern direction. The persons, who came there, saw the prosecutrix in nude condition and after changing her clothes (pant and frock), they brought her to Basnahi police station where the written report was given, but the S.H.O., Basnahi police station did not register the FIR. Having no option, the victim along with her parents and villagers went to Mahila police station, Saharsa and thereafter, the F.I.R. was registered.

4. On the basis of Fardbeyan of the victim, Simri (Mahila) P.S. Case No. 15 of 2018 was registered against the appellant, for the commission of offences punishable under Sections 341, 323, 376, 506 of the Indian Penal Code and Section 4 of the POCSO Act.

5. After investigation, the charge-sheet was submitted against the appellant under the same sections and the cognizance was taken on 05.10.2018 under Sections 341, 323, 376, 506 of the Indian Penal Code and Section 4 of the POCSO Act. Thereafter, the charges were framed against the appellant on 28.10.2019 under Sections 376, 323, 341 of the Indian Penal Code and Section 6 read with Section 5 (r) of the POCSO Act.

6. In order to substantiate the charges levelled against the appellant, the prosecution examined ten witnesses, including the Investigating Officer (I.O.). During the investigation, the statement of the victim was recorded under Section 164 of the CrPC, which is Exhibit-3.

7. The prosecution has also adduced the following documentary evidences in support of the charges:-