The reliability of the victim's testimony, absence of medical evidence not being fatal, and the failure to conclusively establish an alibi defense were the main legal points established in the judgment.

JUDGMENT

Debangsu Basak, J. - The appellant has assailed the judgement and order of conviction dated December 18, 2019 and the order of sentence dated December 19, 2019 passed in Sessions Trial No. 3 (12)/2015 Special POCSO case No. 44 of 2015 passed by the learned Additional District and Sessions Judge Bench -II, City Sessions Court, Kolkata.

2. By the impugned judgement and order of conviction dated December 18, 2019, the appellant has been found guilty under Sections 4/8/12 of the Protection of Children from Sexual Offences Act, 2012 and under Section 506 of the Indian Penal Code, 1860. By the impugned order of sentence dated December 19, 2019, the appellant has been sentenced to suffer rigorous imprisonments for varying periods for the offences he has been found guilty of. He has also been directed to pay fines of various amounts and in default to undergo rigorous imprisonment. All the sentences had been directed to run concurrently. The victim boy had been awarded compensation in final form of Rs. 50,000 under Section 357 (2) of the Criminal Procedure Code and the State Legal Services Authority, Government of West Bengal had been directed to pay the compensation amount to the victim boy.

3. The prosecution had approached the trial court with a case that, the prosecution witness No. 2 had filed a written complaint with the Park Street police station on September 19, 2015 alleging that on such date at about 2 PM, his son, the victim herein, aged about 11 years, came home. At that time the victim was mentally disturbed and was crying. The victim boy had narrated an incident happening with him and stated that on such date, when the victim was coming home from the saloon, the appellant, residing at the third floor of the same premises, took the victim to the flat of the appellant. The appellant had motivated the victim to be naked and act in a bad sense. The appellant had kissed the victim boy made the victim boy naked and sexually abused the victim. The appellant had committed unnatural intercourse with the victim at his rectum. Thereafter, the appellant had threatened the victim by stating that if the victim disclosed the incident to anybody else, the appellant would kill him.

4. That, the officer in charge of Park Street police station, on receipt of such written complaint, had started Park Street police station case No.354 dated September 19, 2015 under sections 4/8/12 of the Protection of Children from Sexual Offences Act, 2012 read with Section 506 of the Indian Penal Code, 1860. Such case had been endorsed to the sub- inspector Nirmal Das for investigation. The investigating officer upon completion of the investigation had submitted a charge sheet against the appellant under Section 506 of the Indian Penal Code, 1860 read with Sections 4/8/12 of the Protection of Children from Sexual Offences Act, 2012.

5. The jurisdictional court had framed charges against the appellant on December 16, 2015 under Section 506 of the Indian Penal Code, 1860 and under Section 4/8/12 of the Protection of Children from Sexual Offences Act, 2012. The appellant had pleaded not guilty and claimed to be tried.

6. At the trial, the prosecution had examined five witnesses.

The prosecution had also relied upon various documents which had been marked as exhibits 1 to 7. The appellant had denied the allegations under Section 313 of the Criminal Procedure Code. The appellant had produced one defence witness who was examined and cross examined.

7. Mr. Fazlur Rahman, learned advocate appearing for the appellant has submitted that, the prosecution failed to establish primary facts constituting the offence. He has contended that, out of the five witnesses that the prosecution had examined, only the victim boy was the eyewitness. None of the other prosecution witnesses were eyewitnesses. He has pointed out that, prosecution witness No. 2 is the father of the victim, prosecution witness No. 3 is the mother of the victim and the prosecution witness No. 5 is the fri