JUDGMENT

Subhasis Dasgupta, J. - This appeal is against the order of conviction and sentence. Learned Additional District & Session Judge, 2nd Court, Tamluk Purba Midinipur in Sessions Trial No. 04(03)2015 arising out of Sessions Case No. 02(01)2015 convicted the appellant under Sections 376(2)(i) of the Indian Penal Code, read with Section 6 of POCSO Act and sentenced him to suffer ten years rigorous imprisonment with fine of Rs.10,000/-(ten thousand) in default S.I for another 2 (two and half) years under Section 376(2) of Indian Penal Code, being of higher magnitude compared to offence under Section 6 of the POCSO Act, though established in this case.

2. Facts established during trial may be mentioned as follows for perfectly addressing the issues raised in this appeal.

3. A 7 (seven) year old girl pursuing study in class II of a primary school and addressing accused/appellant, as Dadu, a 55 (fifty five) year old man, suffered aggravated penetrative sexual assault by such accused/appellant. The victim girl, while playing on 14.11.2014 at 11.30 AM in front of her house, was taken away by accused/appellant (a van rickshaw puller) on the pretext of visiting nearby, and thus allured her to ride on his van rickshaw. Ultimately she was taken to a nearby bush, when accused/appellant committed physical violation upon victim leaving biting mark on her cheek. The victim girl returned home crying after the incident, and narrated everything to her mother. Police intervened into the matter after receipt of a complaint from mother/complainant, put up the victim for her medical examination. Statement of victim was recorded under Section 164 Cr.P.C.. Ultimately police submitted charge sheet against the accused person under Section 376(2)(i) of I.P.C read with Section 6 of the POCSO Act.

4. After framing charge against the accused person, the trial court concluded the trial collecting as many as 12 (twelve) witnesses. The Trial Court held the accused person to be guilty of offence under Section 376(2)(i) of I.P.C and read with Section 6 of the POCSO Act, and sentenced him accordingly mentioned hereinabove.

5. Precisely Trial Court based conviction relying on the evidence of PW-4 (a lady constable interrogating the victim as per instruction of her superior after the incident), PW-5 (doctor medically examining the victim girl), scribe/PW-10, and the Investigating Officer of this case (PW-12), where not only the mother, near relatives of the victim turned hostile to prosecution, but some other witnesses also being the neighbors of the complainant having transpired nothing favorable to the purpose of prosecution. The victim, however, surprisingly portrayed a case in her evidence not only making strong aberration, departure from her own statement recorded under Section 164 Cr.P.C (Exbt. 1/1), but also building up a new story, contrary to the version depicted in F.I.R.

6. The prosecution version simpliciter is a case of causing physical violation to victim of seven (7) year old girl by accused/appellant, and consequently leaving hymeneal wound to victim girl. Victim girl (PW-1) in her own testimony stated that she had fallen down from a van rickshaw of accused/appellant, and sustained injury on her person.

7. Learned advocate for the appellant submitted that when neither victim herself, nor her mother as well as near relatives of victim transpired nothing against the accused/appellant, and when the victim herself made out a case of having sustained injury on her person by reason of falling down from van rickshaw, pulled by accused/appellant, the Trial Court ought not to have held accused/appellant convicted relying only upon the testimony of the doctor read with scribe/PW-10, and lady constable /PW-4. It was contended by the appellant that the Trial Court after being emotionally charged with proceeded to attract the presumption available in POCSO Act under Section 29 of the POCSO Act, adopting an hyper technical approach in the absence of proof of