The importance of providing the accused with sufficient opportunity to deal with the materials during consideration of charge and the significance of the victim's consistent exonerating statements.

JUDGMENT :

JAY SENGUPTA. J.

1. This appeal is directed against the judgment and order dated 17th November, 2022 passed by the Additional Sessions Judge, North and Middle Andaman, Mayabunder –cum-Special Judge under the POCSO Act in Special POCSO Sessions Trial case No.19 of 2022: Special (POCSO) 15 of 2022, thereby convicting the appellant under section 4 of the POCSO Act and sentencing him to suffer rigorous imprisonment for ten years and also to pay a fine of Rs.50,000/-, in default to undergo rigorous imprisonment for six months more.

2. On 15.10.2022, the PW-1 lodged an FIR being Diglipur PS case No.46 dated 15.10.2022 under sections 3 and 4 of the POCSO Act and section 448 of the Indian Penal Code.

3. In the FIR, it was alleged that the de-facto complainant was the Warden of a Girls’ Hostel at Sita Nagar. On 15.10.2022, the brother of a girl student staying at the hostel called him up and informed that a boy had entered into the hostel. The de-facto complainant immediately spoke to the Cook of the Girls Hostel and asked her to check the said room No.11, which was locked from inside. The inmate of the room was asked to open the door and a boy was found inside the room. He was handed over to the police. It was learnt that the boy had come on the previous night and had been there with the victim girl for the whole night and had indulged in physical relation. The victim girl was about 16 years old. Three pieces of condom were allegedly recovered from the room.

4. After completion of purported investigation, a charge sheet was submitted on 14.11.2022 and on the very same date charges were framed.

5. The prosecution examined as many as 15 witnesses to establish its case and the entire trial was concluded within three days.

6. It appears that PW-1 was the de-facto complainant and Warden of the Hostel. PW-2 was the minor victim girl who was declared hostile during trial. PW-3 was the grandmother of the victim, who had no knowledge about the incident. PW-4 was the Cook at the hostel. She got information from the PW-1 and informed the police. She was essentially a post-occurrence witness. PW-5 was the Caretaker of the hostel, who received information from PW-4 and the boy was found hiding under a cot. PW-6 was the hostel in-charge. PW-7 was the brother of another student staying at the hostel, who had informed the Warden over phone. Incidentally, his sister was not examined during the trial. PW-8 was the Protection Officer in whose presence the victim’s statement was recorded. PW-9 was the Doctor, who examined the accused and found him capable of committing a sexual act. PW-10 was the Doctor who examined the victim. PW-11 recorded the statement of PW-1. PW-12 and PW-13 were seizure list witnesses. PW-14 was the Station House Officer who filed the charge sheet. PW-15 was the Investigating Officer of this case.

7. Learned counsel appearing on behalf of the appellant submits as follows. There are several discrepancies in the manner in which the investigation was carried out. From the records it appears that the seizure was made prior to the arrest of the accused. There is no evidence whatsoever that there was any physical relationship between the two. In fact, none of the witnesses deposed in this regard except for the Investigating Officer who could not have been a witness to such incident. The victim had made exonerative statements before the learned Magistrate as well as before the Trial Court. The trial was concluded hurriedly. Prior to that there was no proper opportunity given to the accused at the time of consideration of charge. In spite of this the appellant is languishing in custody for nearly two years.

8. Learned counsel appearing for the State submits as follows. Admittedly, the appellant, aged about 22 years, was apprehended from the place of occurrence and formally arrested at the Police Station. There are numerous witnesses to such arrest. Three pieces of condom were recovered from the room. The victim girl admitting before the