Point of Law : Sections 29 and 30 of the POCSO Act permit the court to draw presumption as to certain offences and also culpable mental state.

JUDGEMENT :

Suman Shyam, J.

Heard Dr. B.N. Gogoi, learned counsel for the appellant in Crl. Appeal No. 79/2020 and Mr. Mrinmoy Dutta, learned amicus curiae appearing for the appellant in Crl. Appeal (J) No. 02/2021. We have also heard Mr. D. Das, learned Addl. P.P. Assam appearing on behalf of the State in both these appeals. Mr. A. Bhattacharyya, learned counsel for the informant/ respondent No. 2 is also present.

2. Both these appeals arise out of the common judgment dated 21-12-2019 passed by the learned Special Judge, Sivasagar in Special (P) Case No. 46/2017. By the impugned judgment, the appellant in Crl. Appeal No. 79/2020, viz.Kumud Chandra Borgohain (A-1) has been convicted under Section 6 of the POCSO Act read with Section 376(2)(n) of the IPC and sentenced to undergo rigorous imprisonment for life and also to pay fine of Rs. 5,000/-with default stipulation. By the impugned judgment, the appellant in Crl. Appeal (J) No. 02/2021 was also convicted under Section 17 read with Section 6 of the POCSO Act and under Section 109 read with Section 376(2)(n) of the IPC and sentenced to undergo rigorous imprisonment for life and also to pay fine of Rs. 5,000/-with default stipulation.

3. At the outset it deserves to be mentioned herein that the two victim girls who have brought the allegation against the appellants are the daughters of one of the appellants Smti. Biju Saikia (A-2). On 30-09-2017 one of the twin daughters of the appellant A-2 who is referred to as ‘D’, in this case had lodged an ejahar before the Officer-in-Charge, Namti Police Station alleging that the A-1, a resident of Namti Chariali, Gohain Gaon had been visiting their house for almost 10/12 years and during that time, he had been indulging in illicit relationship with her mother (A-2). Afterwards the accused A-1 on the pretext of taking her to the hospital, took her to a hotel at Jorhat and sexually assaulted her. That apart, he also took her to Dibrugarh and sexually assaulted her and also tried to assault her at home. In addition to that, by luring her sister ‘J’ saying that he would take her to Guwahati for outing, on two occasions, he had sexually assaulted her also at night. Her mother A-2 has full cooperation in the matter. Therefore, request had been made before the Investigating Officer (I/O) to take necessary action in the matter.

4. Based on the ejahar dated 30-09-2017, Namti P.S. Case No. 21/2017 was registered under Section 4 of the POCSO Act and the matter was taken up for investigation. Upon completion of the investigation, the I/O had submitted charge sheet against both the accused persons. Based on the charge sheet submitted by the I/O the learned Special Judge had framed charge under Section 6 of the POCSO Act read with Section 376(2)(f)(n) of the IPC against A-1. Charge against A-2 was also framed under the aforesaid sections as well as Section 109 IPC for abatement of the main offence. Since the accused persons had denied the charge and claimed innocence, they were subjected to trial.

5. During the course of trial, the victims, viz. ‘D’ and ‘J’ were examined by the prosecution as PW-1 and PW-2 respectively. The prosecution side has also examined eight other witnesses including the father (PW-4) and the brother (PW-3) of the victim girls, the Doctor, who had conducted medical examination of the victims (PW-8) and the I/Os who had conducted the investigation and submitted report as PWs-9 and 10 respectively. Two witnesses, viz.Smti. Queen Dutta and Mr. Farid Islam Hazarika were examined as Court Witness Nos. 1 and 2. After recording the evidence adduced by the prosecution side the statement of the accused persons were recorded under Section 313 Cr.P.C. The case of the defense was one of total denial. The accused (A-1) has also stated that when the demand for money amounting to Rs. 7,00,000/-made by the brother of the victim was turned down, a false case was instituted against him. Based on the evidence available on record, the learned Special Jud