The main legal point established in the judgment is the importance of considering the victim's testimony, corroborative evidence, and the accused's failure to rebut the statutory presumptions under the POCSO Act in cases of sexual assault on minors.

JUDGMENT :

Rumi Kumari Phukan, J.

Heard Mr. A. Dasputa, learned counsel appearing for the appellant/accused as well as Mr. D. Das, learned Addl. P.P., Assam appearing on and behalf of the State respondent.

2. This appeal is preferred against the judgment and order, dated 03.10.2015 passed by the learned Sessions Judge, Dibrugarh in PCSO Case No. 5/2013 arising out of G.R. Case No.1417/2013, whereby the appellant/accused has been convicted u/s. 6 of the POCSO Act and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.5,000/-, in default, simple imprisonment for another 6 weeks.

3. The prosecution case, in a nutshell, is that on 02.05.2013 at about 3:00 PM, the accused person lured the victim, who was a student of Class-II studying at Milanpur Jatiya Vidalaya, wherein the accused was working as Chowkidar in the school, and asked the victim to stay for a while after the school is over and thereafter, accused made penetrative sexual assault upon the victim by laying her down on a bench. The victim stayed with her grand-mother and there is no other male member in the family. She reported the matter to her grand-mother after the occurrence but only after arrival of the elder son of grand-mother i.e. uncle of the victim, an FIR was lodged on 14.05.2013 against the accused person. On the basis of the FIR, a case was registered and victim was examined medically and her statement was also recorded u/s 164 CrPC, her wearing clothes were also examined and sent for forensic examination. After completion of the investigation, police submitted charge-sheet against the accused under Section 6 of the POCSO Act.

4. The accused person faced the trial and denied the charge framed against him and claimed to be tried. Prosecution examined as many as 10 witnesses in support of the prosecution case but the defence examined none. Plea of defence was of total denial.

5. On conclusion of trial, learned trial court found the accused guilty u/s 6 of the POCSO Act and sentenced him, as indicated above, with further direction that fine amount should be provided to the victim. Assailing the said order of conviction, the present appeal has been preferred.

6. The learned counsel for the appellant has urged before this Court that the case is bad for violation of certain provisions of POCSO Act viz. Section 33, 35 and 36 of the Act as the learned trial court has not recorded the statement of the victim as mandated u/s 33 of the Act nor her statement was recorded in terms of Section 35 of the Act i.e. within a period of 30 days from taking cognizance of the offence. It has further pointed out that the charge-sheet was submitted on 20.03.2013 and the cognizance of offence has been taken on 18.11.2013 and the victim was examined on 01.05.2014, which is against the mandate of Section 35 of the POCSO Act. It has also been contended that there is also violation of Section 36 of the Act as the record does not reflect that the court has followed such procedure at the time of recording the evidence of the victim. On the next, it has been contended that there is delay in filing the FIR, after the incident and conduct of the victim is also not proper as she did not report the matter to other attending staff of the school as well as the nearby peoples of the school, situated near the school. On the other hand, medical evidence is also assailed on the ground that it bears no such specific evidence about the penetrative sexual assault upon the victim nor there was any such serious injury on her private parts. Learned counsel for the appellant has led this Court through the evidence recorded in course of investigation and submitted that for the delay in filing FIR, coupled with the fact that nobody was reported by the victim immediately after the incident, the statement of victim cannot be relied upon and the accused is entitled to get the benefit of doubt.

7. Per contra, learned Additional Public Prosecutor, Mr. D. Das has, however, vehemently opposed the