The victim's testimony in sexual assault cases is vital and reliable, and delay in lodging the FIR is not fatal to the prosecution's case.

JUDGMENT

Bivas Pattanayak, J. - This appeal is directed against the judgement dated 16.11.2016 and order dated 17.11.2016 passed by Additional District & Sessions Judge, 2nd Court, Raiganj, Uttar Dinajpur in Sessions trial no. 04(03)15 arising out of POCSO Case No. 43 of 2014, convicting and sentencing the appellant for offence punishable under Section 448 of the Indian Penal Code for simple imprisonment for a term of one year and to pay fine of Rs.1000/- in default to suffer simple imprisonment for two months; for offence punishable under Section 506 (part-II) of the Indian Penal Code to suffer simple imprisonment for a term of seven years and pay fine of Rs.5,000/-in default to suffer simple imprisonment for six months; and to suffer rigorous imprisonment for life and to pay fine of Rs. 10,000/- in default to suffer further rigorous imprisonment for six months for offence punishable under Section 6 of POCSO Act, 2012.

2. The prosecution case in brief is that the appellant used to come to the house of the victim for last 7/8 years and the appellant used to call the victim as 'grand-daughter'. Taking advantage of the absence of other family members namely brother, father and grand-mother of the victim girl, the appellant trespassed into the house of the victim and forcibly committed rape on her repeatedly on different occasions for the last 6-7 months. On the basis of the aforesaid complaint dated 10.06.2014, lodged by the victim herself, Goalpokher PS case no. 292 of 2014 dated 10.06.2014 under Section 376(2)(i) of IPC and Section 4 of Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as POCSO Act, 2012 ), was initiated against the appellant.

3. Upon completion of investigation police submitted charge-sheet against the appellant under Section 376(2)(i) of the Indian Penal Code and Section 6 of the POCSO Act, 2012.

4. Charge under Section 448/376(2)(i)/506 of the Indian Penal Code and Section 6 of POCSO Act, 2012, was framed against the appellant, who stated to be not guilty and claimed to be tried.

5. The prosecution in order to prove its case examined 13 witnesses and proved number of documents. The defence case appearing from answers given by the appellant during his examination under section 313 of CrPC is of falsity due to old animosity and of innocence. The defence adduced the evidence of DW1, Lakh Debi Singha in order to substantiate the fact that the appellant is not the actual perpetrator of the crime rather some other person has committed the crime upon the victim, who used to visit her.

6. Upon considering of materials on record and the evidence led on behalf of the prosecution and the defence the learned trail court convicted and sentenced the appellant as aforesaid.

7. Mr. Chatterjee learned advocate appearing on behalf of the appellant submitted that the grand-mother of the victim girl who has been examined on behalf of the defence as DW 1 is also resident of the same household and she deposed that some other boy used to come to their house to meet the victim girl and has impregnated the victim, which aspect makes the prosecution case against the appellant suspicious and unacceptable.

Further, PW2 Bipin Singha, father of the victim girl deposed before the Court that the family consists of himself, his aged mother, two sons and daughter,

but curious enough in corroboration none of the sons of PW2 has been examined by the prosecution to unearth the truth in the prosecution case.

Moreover, it is submitted that the victim girl who is the complainant herself did not state in her written complaint that she got impregnated due to repeated sexual assault upon her by the appellant and therefore, such fact hit the root of the prosecution case and creates cloud over the same. Moreso, there are material omissions and discrepancies in the statement of the victim, which make the prosecution case improbable.

Furthermore, he drew the attention of the court to the fact that there has been substantial delay in lo