JUDGMENT :

1. The present appeal has been preferred against the judgment dated 26.05.2017 passed by the learned Sessions Judge, Nalbari in Special Case No.3/2015 by which the appellant has been convicted under Section 4 of the POCSO Act, 2012.

2. The prosecution case was that an Ejahar was lodged by one Shri Diganta Kalita on 28.11.2014 alleging that on 28.11.2014 at about 1.45 pm while his niece (hereinafter referred to as the Victim/Girl Child), about 10 years was returning home from her school, on the way at the bridge of Tarajan, the appellant accosted her by threatening with a sharp knife and raped her. The victim on reaching her house narrated the incident to her grandmother and to her stepmother. Thereafter, the relatives and neighbours came to know about the incident who informed the father of the accused but as there was no response, a village “Raijmel” (meeting) was held that day but neither the appellant nor his guardian turned up. Thereafter, on the next day an Ejahar was lodged. Based on the said Ejahar, Tihu PS Case No.104/2014 under Section 341/376(i) of IPC read with Section 4 of the POCSO Act was registered. On completion of investigation, charge-sheet was submitted against the appellant under Section 341/376(1) of IPC read with Section 4 of the POCSO Act.

3. The appellant pleaded not guilty and accordingly, he was tried for the aforesaid offences.

4. The prosecution examined as many as 11 witnesses in support of their case. The appellant did not adduce any evidence in defence.

5. Learned Sessions Judge, after considering the oral and documentary evidences convicted the appellant under Section 4 of the POCSO Act and sentenced him to undergo RI for 7 years and also imposed a fine of Rs.1000 and in default of payment of fine, to undergo SI for one month. Compensation under Section 357 CrPC was also directed to be awarded in favour of the victim.

6. In convicting the appellant, learned Sessions Judge mainly relied upon the testimony of the prosecutrix as well as the statement made by her under Section 164 CrPC. Learned Sessions Judge did not find any material inconsistency in the statements made by her before the Court and under Section 164 CrPC and found the testimony of the victim reliable, trustworthy. Learned Sessions Judge ignored certain minor inconsistencies which had crept in her statement made before the court qua the statement made under Section 164 CrPC., keeping into consideration the fact that the prosecutrix had testified before the court after about 10 months of the incident. The trial court did not consider such minor inconsistencies to be of any significance to doubt the veracity of her statement.

7. As regards the defence plea, the Learned Sessions Judge did not consider the deformity in his arm from which the appellant was said to have been suffering from, to be of any material significance to support the plea that he being a person with deformity could not have committed the offence.

8. The trial court also did not believe the plea taken by the appellant that the appellant was falsely accused of committing the aforesaid offence because of certain land dispute with the father of the victim girl child.

9. The trial court, accordingly, held that the prosecution had been able to prove the case against the appellant beyond reasonable doubt and convicted the appellant.

10. In the light of the evidences on record and keeping in mind the relevant law in this regard, this Court has to examine the sustainability of the aforesaid finding of the trial court in convicting the appellant in this appeal.

11. Before embarking upon this exercise, it may be apposite to refer to the relevant law in this regard.

12. The appellant has been charged and convicted under a special penal statute, namely the Protection of Children from Sexual Offences (POCSO) Act, 2012. It has been provided under Section 29 of the Act that when a person is prosecuted for committing any offence under Sections 3, 5, 7 and Section 9 of this Act, the Sp