The need for strong, compelling, and reliable evidence to prove the guilt of the accused in a criminal case, and the distinction between the trial of Sessions case and the trial held before the Judicial Magistrate.

JUDGMENT

Parthivjyoti Saikia, J. - Heard the learned counsel, Mr. S.K. Deori appearing for the appellant. Also heard Mr. K. Dabi, learned counsel appearing for the victim and Mr. U. Bori, learned Additional Public Prosecutor for the State of Arunachal Pradesh.

2. This is an application under Section 374 (2) of the Code of Criminal Procedure, 1973 challenging the judgment and order dated 23.05.2016 passed by the Sessions Judge, Yupia in Session Case POCSO No. 30/YPAL/2014. By the impugned judgment, the trial convicted the appellant under Section 8 of the POCSO Act, 2012 and sentenced him to undergo rigorous imprisonment for 3 years and to pay a fine of Rs.5,000/-.

3. On 22.02.2014, 27 years old informant lady had lodged an FIR before the police alleging that, on that day at about 5.30 pm, the appellant came to her house in her absence and possibly took away the 15 years old victim, who was serving as a maid servant at her house to the nearby jungle and committed rape upon her.

4. Police registered the case under Sections 447/366 (A)/376 (2) (I) of the Indian Penal Code, read with Section 4 of the POCSO Act of 2012.

5. On conclusion of investigation, the police filed the charge-sheet against the appellant under aforesaid sections of the Indian Penal Code and POCSO Act of 2012

6. On appearance, the trial Court formally framed the charge under Sections 447/366 (A)/376 (c) of the Indian Penal Code and a separate charge under Section 4 of the POCSO Act formally framed against the appellant.

7. During the trial of the case, the prosecution side examined as many as 7 witnesses including the Medical Officer and the police Investigating Officer. The witnesses examined by the prosecution are given below-

I. The victim

II. The informant

III. Dr. Posting Beyong

IV. Constable S.P. Gupta

V. Kipa Sopin

VI. Dr. Divakar Phinya

VII. N. Angu, I.O of the case.

8. The accused was examined under Section 313 of the Cr.P.C. After hearing the argument thereafter, the trial Court passed the impugned judgment.

9. I have carefully gone through the judgment passed by the trial Court. Before going into the merits of the case, it must be mentioned here that the trial Court had committed procedural irregularity while conducting the trial of the case.

10. The order dated 08.12.2015, pertains to examination of the appellant under Section 313 of the Cr.P.C and it is quoted as under:

"Accused Nuruj Doley is present along with his l'd defence counsel Mr. S. Patir.

The accused was examined under 313 Cr.P.C and his statement recorded in a separate sheet.

Next date of the case is fixed on 08.02.2016 for final argument."

11. The procedure of trial of Sessions case is different from the trial held by a Magistrate under the Code of Criminal Procedure. It is noticed that after putting the incriminating circumstances to the appellant, the trial Court asked the appellant whether he intends to adduce defence evidence. As the appellant declined to adduce defence evidence, the Court posted the case for argument. So far as Sessions cases are concerned, there is no provision in the Cr.P.C for asking an accused under Section 313 as to whether he intends to adduce defence evidence. For this reason, Sections 232 and 233 of the Cr.P.C may be visited. Sections 232 and 233 of the Cr.P.C reads as under:-

"232. Acquittal.-If, after taking the evidence for the prosecution, examining the accused and hearing the prosecution and the defence on the point, the Judge considers that there is no evidence that the accused committed the offence, the Judge shall record an order of acquittal.

233. Entering upon defence.-(1) Where the accused is not acquitted under section 232 he shall be called upon to enter on his defence and adduce any evidence he may have in support thereof.

(2) If the accused puts in any written statement, the Judge shall file it with the record.

(3) If the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge