Point of Law: Offence of Rape - Conviction Confirmed - Testimony of Victim - Ocular testimony of victim alone can be taken into consideration to convict a person in a case of rape if statement of victim is otherwise convincing and appealing to judicial mind

JUDGMENT :

BIBEK CHAUDHURI, J.

1. Judgment of conviction and order of sentence passed in Special Case No.17 of 2015/ Sessions Trial No.17 of 2015 passed by the learned Special Judge (POCSO), Andaman and Nicobar Islands, Port Blair under section 6 of the Protection of Children from Sexual Offences Act, 2012 is under challenge in the instant appeal.

2. That on 13.01.2015, the victim/prosecutrix made a statement before the On-duty police personnel at Kishori Nagar, Primary Health Centre stating, inter alia, that on the date of making such statement, she was a student of class eighth in Government Middle School, Paschim Sagar within Kalighat P.S. One Swapan Mondal, the husband of her elder sister Purnima Mondal came to their house one day about five months before the date of lodging the complaint and told her that he was going for fishing in the sea and requested her to stay with her elder sister in his house. The prosecutrix stayed with her elder sister during the said night. The accused Swapan Mondal returned home in a drunken condition late at night and forcefully committed rape upon her. Her elder sister objected to such act of her husband but the offender assaulted her and threatened both of them with dire consequences. After the said incident, the abovenamed offender committed aggravated penetrative sexual assault upon the prosecutirx for several times threatening her of dire consequence. As a result, she became pregnant. On 13.01.2015, she went to Kishorinagar Primary Health Centre for medical check up with her elder brother-in-law Kausik Sarkar. The doctor diagnosed her and informed that the prosecutrix was pregnant for five months. On being asked, she disclosed the incident to her mother. On the basis of the said statement made by the prosecutirx, police registered Kalighat P.S. Case No.5 of 2015 dated 30.01.2015 under section 376(2)(i)/506 of the Indian Penal Code and sections 5/6 of the POCSO Act, 2012.

3. The investigation of the above numbered P.S.Case ended with filing of charge sheet against the accused/appellant Swapan Mondal. Since the case was exclusively triable by the Special Court under the POCSO Act, it was committed to the Court of learned Special Judge, POCSO, Andaman and Nicobar Islands at Port Blair for trial.

4. The learned Trial Judge framed charge against the appellant under section 5(j)(ii)(l)(n) /6 of the POCSO Act, 2012 against the accused/appellant. When the charge was read over and explained to him, he pleaded not guilty. Therefore, trial of the case commenced.

5. In order to prove the charge against the accused, the prosecution examined in all ten witnesses. Series of documents were marked as exhibits which we propose to refer subsequently in the body of the judgment.

6. The learned Trial Judge, upon consideration of the evidence on record, found the accused Swapan Mondal guilty for committing offence under section 5(n) of the POCSO Act. Accordingly, he was convicted and sentenced to suffer rigorous imprisonment for ten years and to pay fine of Rs.10,000/-, in default further simple imprisonment for six months for the offence punishable under section 6 of the POSCO Act.

7. The aforesaid judgment and order of conviction is assailed in the instant appeal.

8. During trial, the defacto complainant deposed as PW-1. She stated in her evidence that about five months before she was medically treated at Kishori Nagar Primary Heath Centre, the appellant committed rape upon her in his house at night forcibly. At the time of committing rape, her elder sister Purnima was sitting outside the room. She also stated that her brother-in-law committed rape upon her on several occasions. However, she could not say the dates of commission of such offence.

9. It is found from the evidence of the mother of the prosecutrix (PW-1) that one day, she took her youngest daughter to the Primary Health Centre as she was suffering from fever. After examination, the Doctor told her that her daughter was pregnant. On being asked, she came