JUDGMENT :

RAJEEV RANJAN PRASAD, J.

We have heard learned counsel for the appellant and learned Additional Public Prosecutor for the State.

2. Despite proper service of notice on the legal heir/husband of the informant, no one has entered appearance to oppose the appeal.

3. This appeal has been preferred for setting aside the judgment of conviction dated 22.04.2022 (hereinafter referred to as the ‘impugned judgment’) and the order of sentence dated 28.04.2022 (hereinafter referred to as the ‘impugned order’) passed by learned Additional District & Sessions Judge-VI-cum Special Judge, POCSO Act, Muzaffarpur (hereinafter referred to as the ‘learned trial court’) in POCSO (G.R. No.) 84 of 2018 arising out of Ahiyapur P.S. Case No. 636 of 2018. By the impugned judgment, the appellant has been convicted for the offences punishable under Section 376(2) of the Indian Penal Code (in short ‘IPC’) and Section 6 of the Protection of Children from Sexual Offences Act (in short ‘POCSO Act’) and has been sentenced to undergo twenty years rigorous imprisonment with a fine of Rs.50,000/- under Section 6 of the POCSO Act and in default of payment of fine, he has to further undergo two years simple imprisonment.

Prosecution Case

4. The prosecution case is based on the fardbeyan of the informant (PW-5) who is mother of the victim. In her fardbeyan, the informant has alleged that because of stomachache on 10.06.2018 at about 10:00 PM, she took her minor daughter aged about 11 years to her co-villager Birju Ram @ Birju Baba (the appellant) for ‘totama’. The Baba (appellant) gave five flowers and asked the informant to sit there as he is going to do jhadphuk upon which the informant said that she will accompany him with her daughter on which the accused did jhadphuk in front of her and asked her to come again on 12.06.2018 (Tuesday). It is alleged that on 12.06.2018, the informant did not visit the appellant but the appellant himself came at the darwaza of the informant at 9.00 PM and said that he has come to do ‘totama’ and let her minor daughter go with him, the informant became ready to let her daughter go with the appellant. After one hour, minor victim girl returned back weeping and said that Birju Baba took her in the litchi orchard of Bholi Sharma where he removed her leggings and frock, laid her down on his gamchha on the ground, committed wrong act with her, gave her fifty rupees and asked to purchase snacks and also asked not to tell this to anybody. It is further alleged that the informant told about this occurrence to her husband then her husband took his daughter to medical for treatment. The informant believes that in the name of jhadphuk, the appellant committed rape on her minor daughter.

5. On the basis of this fardbeyan, FIR being Ahiyapur P.S. Case No. 636 of 2018 dated 13.06.2018 was registered under Section 376 IPC, 3/4 of the Prevention of Witch (Daain) Practices Act and 8/10 of the POCSO Act against Birju Ram @ Birju Baba. After investigation, police submitted chargesheet bearing Chargesheet No. 649 of 2018 dated 31.08.2018 under Section 376 IPC, 3/4 of the Prevention of Witch (Daain) Practices Act and Section 4 of the POCSO Act against Birju Ram @ Birju Baba. Learned trial court vide order dated 12.09.2018 took cognizance of the offences punishable under above-mentioned Sections against the appellant.

6. Charges were read over and explained to the appellant in Hindi to which he denied and claimed to be tried, accordingly, vide order dated 03.10.2018 charges were framed under Section 376 IPC and Section 6 of the POCSO Act against the appellant Birju Ram @ Birju Baba.

7. In course of trial, the prosecution has examined altogether seven witnesses and exhibited several documentary evidences. The description of the prosecution witnesses and the exhibits are given hereunder in tabular form:-

List of Prosecution Witnesses

List of Exhibits on behalf of Prosecution

8. Thereafter, the statement of the appellant was recorded under Section 313 of t