Rajeev Ranjan Prasad, J.—The present appeal arises out of the judgment of conviction dated 05.07.2017 and the order of sentence dated 11.07.2017 (hereinafter referred to as ‘the impugned judgment and order’ respectively) passed by learned Special Judge, POCSO Act, Samastipur (in short ‘the learned trial court’) in Sessions Trial No. 528 of 2013 arising out of Mushri Gharari P.S. Case No. 94 of 2013 registered under Section 376 of the Indian Penal Code (in short ‘IPC’) and Section 4 of the Protection of Children from Sexual Offences Act 2012 (hereinafter referred to as the ‘POCSO Act, 2012’).

2. By the impugned judgment and order, the learned trial court has been pleased to convict the appellant for the offences punishable under Section 376 IPC and Section 6 of the POCSO Act, 2012 and awarded a sentence of rigorous life imprisonment with a fine of Rs. 50,000/- for the offences punishable under Section 376 IPC and a rigorous life imprisonment with a fine of Rs. 50,000/- for the offence under Section 6 of the POCSO Act, 2012. In case of non-payment of fine, under both the Sections, the appellant has been ordered to undergo rigorous imprisonment for 6 months each. Both the sentences are to run concurrently.

Prosecution Case

3. The prosecution case is based on a written report dated 24.07.2013 submitted by the mother of the victim (hereinafter the victim would be called as ‘Ms. X’ and the informant who is the mother of the victim would be called as ‘Ms. Y’). The written report submitted by Ms. ‘Y’ addressed to the Superintendent of Police, Samastipur alleged that while she had come to her maika in village Gangapur on the occasion of the marriage of her brother, her minor daughter (Ms. ‘X’) aged about ‘5’ years was allured by this appellant who gave her a biscuit and took her to his house where he committed rape on her. According to the written report, the rape was committed on 14.06.2013 at 11:00 am by the appellant in his own house. It is further alleged that because of the rape committed upon the victim, her private part was torn and it was bleeding. It is alleged that on the screaming of the victim child, the co-villagers caught this appellant and they talked of a Panchayati in the village but the Panchayati was not held, the Sarpanch had taken her thumb impression, but in collusion with the appellant the Panch and the Sarpanch after taking money scolded the informant to go away. The informant claimed that the injury wound on the private part of the daughter is still present. She further alleged that Ramesh Das and Ganesh Das who are the two sons of the appellant were threatening her that in case she would lodge a case then her whole family would be killed and thrown. The written report dated 24.07.2013 resulted in lodging of the First Information Report giving rise to Mushri Gharari P.S. Case No. 94 of 2013 dated 25.07.2013 against the sole accused who is appellant before this Court.

4. After investigation, police submitted a charge-sheet under Section 376/511 IPC and Section 8 of the POCSO Act, 2012. Accordingly, after taking cognizance, the records were submitted to the court of learned Special Judge, POCSO Act where charges were framed on 01.10.2013. The appellant was charged for the offence under Section 376/511 IPC and Section 8 of the POCSO Act, 2012.

5. In course of trial, the prosecution examined as many as ‘9’ witnesses. It, however, appears from the records that after examinations of ‘8’ prosecution witnesses, an application was filed on behalf of the prosecution for alteration of charges. The prosecution submitted that in view of the evidence of the prosecution witnesses, charges be framed under Section 376 IPC and Section 6 of the POCSO Act, 2012. This application of the prosecution was opposed by the defence but vide order dated 09.08.2016, the learned trial Judge allowed the application and directed for alteration of charges. Accordingly, the charges were altered under Section 376 IPC and Section 6 of the POCSO Act, 2