Judgment :

JOYMALYA BAGCHI, J.

1. The appeal is directed against judgment and order dated September 29, 2021 passed by the learned Special Judge (POCSO), Andaman and Nicobar Islands, Port Blair in Special Case No. 07 of 2021/ S.T No.21 of 2021 convicting the appellant for commission of offence punishable under section 6 of the POCSO Act and under sections 323 and 506 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for twenty years and pay a fine of Rs.5000/- (Rupees five thousand only) in default to suffer rigorous imprisonment for 05 months for the offence punishable under section 6 of the POCSO, rigorous imprisonment for one year with fine of Rs.1000/- (Rupees one thousand only) in default to suffer rigorous imprisonment for one month for the offence punishable under section 323 of the Indian Penal Code and rigorous imprisonment for seven years with fine of Rs.2000/- (Rupees two thousand only) in default to suffer rigorous imprisonment of 03 months for the offence punishable under section 506 of the Indian Penal Code. Fine amount if realised, shall be paid to the survivor to meet her medical expenses and rehabilitation and all the sentences are to run concurrently.

PROSECUTION CASE:-

2. Prosecution case as alleged against the appellant is as follows:

3. On 08.02.2021, the maternal aunt of the survivor lodged a written complaint against her husband i.e. the appellant alleging since March 2020 the survivor was residing at her residence. On 01.02.2021, the appellant asked the survivor to take off her clothes, touched her breasts, other parts of her body and forcibly penetrated her. He threatened her with dire consequence, if she informed the matter to her aunt. Out of fear, the survivor was unable to disclose the incident to her aunt. Then, on 08.02.2021, again appellant asked her to take off her clothes and when she refused, he bit her lips and threatened to kill her. She informed her cousin about the incident. Her cousin disclosed the matter to his mother i.e. her aunt. Then, she told the entire incident to her aunt. Hearing this, appellant assaulted her with broom stick and pipe. Thereafter, on the plea of going to the barber shop, her aunt took the survivor and her cousin out of the house and reported the matter to police.

4. On the basis of her aunt’s statement, the criminal case was registered against the appellant.

5. The survivor was medically examined and made statement before magistrate. Her aunt’s statement was also recorded before magistrate and charge sheet was filed. Charges were framed under section 6 of the POCSO Act and under sections 376, 323 and 506 of the Indian Penal Code. Appellant pleaded not guilty and claimed to be tried.

6. In course of trial, prosecution examined nine witnesses including the survivor, as PW-1. Defence of the appellant was innocence and false implication. It was his specific defence since he had domestic quarrel with his wife i.e. aunt of the survivor (PW-2) the latter had falsely implicated him through the survivor. During the trial, PW-2 did not support the prosecution case and had been declared hostile.

7. Upon assessing the evidence on record and the documents exhibited during trial including the medical report of the survivor, trial Judge, by the impugned judgement and order, convicted and sentenced the appellant, as aforesaid.

ARGUMENTS AT THE BAR:-

8. Mr. Rakesh Pal Gobind for the appellant contends that the prosecution case is riddled with contradictions and improbabilities. Age of the survivor has not been proved. Registration number of the birth certificate recorded in the seizure memo does not match with the registration number in the birth certificate produced in Court. Most vital witnesses, namely, the cousin to whom the survivor had first disclosed the incident and her friend had not been examined. Parents of the survivor have also not been examined. PW-2, defacto complainant did not support the prosecution case. No CSFL report with regard to the samples