The conviction for rape of a minor was modified from life imprisonment under IPC to 10 years under POCSO due to evidential shortcomings and the application of unamended statutes relevant at the time of the incident.

JUDGMENT :

RAJANI DUBEY, J.

1. This appeal is preferred under Section 374 (2) of the Code of Criminal Procedure, 1973 against the judgment of conviction and order of sentence dated 20.6.2019 passed by the learned Special Judge (under the Protection of Children from Sexual Offences Act, 2012) Bhanupratappur, District North Bastar-Kanker (C.G.) in Special Criminal (POCSO Act), 18/2018, wherein the said Court convicted the appellant and sentenced him as under:-

2. The case of the prosecution, as unfolded from the impugned judgment and the records of the case, is that the father of the prosecutrix has lodged the first information report stating that on 05.05.2018 at about 2:30 pm, someone enticed away the goat to Hundara from his backyard, in search of goat the prosecutrix along with the accused/appellant Kailash and the appellant’s son Tushar went towards the forest. He further stated that around 3:00 pm his daughter came back home and told him that while going towards the forest, in the midway, the accused/appellant Kailash sent his son back and near four trees, the accused/appellant threw the victim/prosecutrix on the ground, firmly pulled her underwear down and kept that aside and by sliding his underwear, he sat over her and then committed forcible sexual intercourse with her. Then, the prosecutrix took the stick which was laying in her side and inflicted three blows on the accused/appellants’ hands and she pushed him away, as such she recovered herself from the possession of the accused/appellant and by taking her underwear she fled from the spot and reached to her home. Thereafter, the complainant/father of the prosecutrix after having discussions regarding the fateful incident with the village people came to report the said incident to the police station as being suggested by the villagers. The crime was registered against the appellant under Crime No. 56/2018 for the offence punishable under Section 376-AB of IPC and Section 6 of the POCSO Act, 2012.

3. During the course of investigation, the Police Station Bhanupratappur (C.G.) prepared the spot map vide Ex. P/07, Patwari Naksha vide Ex. P/04, Panchanama vide Ex. P/05 were obtained. After obtaining the prior consent of the victim and her guardian vide Ex. P/01 the victim’s private parts medical examination was conducted by the female doctor and its report is Ex. P/15 (M.L.C). In order to prove the actual age of the victim, her dakhil-kharij register showing her date of birth was seized from her school vide Ex. P/18. The true copy of the dakhil-kharij register is attached to the case vide Ex. P/19C. Regarding the age of the victim, the photocopy of the register vide Ex. P/21 was seized from the Anganwadi Centre as per Ex. P/20 and the same is attached to the case. Similarly, as per seizure sheet vide Ex. P/10, birth registration, birth information card and true copy of birth certificate was seized in relation to her age and it is attached to the case as Exs. P/11C, 12C, 13C and 14C respectively. The written statement vide Ex. P/08 of the prosecutrix was recorded before the Judicial Magistrate First Class, Pakhanjure. The medical examination of private parts of the accused/appellant was done vide Ex. P/23. As per seizure sheet Ex. P/02, vaginal slide, underwear of the