Point of Law: Plea of innocence in his statement under Section 313 CrPC, in the absence of any evidence, cannot be relied on.

JUDGMENT :

Heard Mr. SK Barkataki, learned counsel for the appellant as well as Ms. SH Bora, learned Addl. P.P., Assam appearing for the State respondent.

2. This appeal under Section 374 of the Code of Criminal Procedure (‘Cr.P.C.’ for short) is preferred against the Judgment and Order, dated 23.09.2019, passed by the learned Special Judge (POCSO Act), Karbi Anglong in POCSO Case No. 12 of 2018 (Special Case No. 136/2018) corresponding to GR Case No. 303/2018 & Borlangphar PS Case No.14/2018 under Section 363 of the Indian Penal Code 1860, (‘IPC’ for short) read with Section 4 of The Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’ for short) whereby the appellant has been convicted and sentenced to undergo rigorous imprisonment for 6 months under Section 363 of the IPC and rigorous imprisonment for 7 years and fine of Rs.1,000/-in default, simple imprisonment for 2 months under Section 4 of the POCSO Act.

3. The prosecution case is that an FIR was lodged on 24.03.2018, before the Officer –In-Charge of Borlangphar PS by the victim’s father alleging that on 23.03.2018, his daughter, aged about 17 years, went to Lumding for collecting her admit card for examination and since then, she had not returned home. He suspected that the accused/appellant herein might have kidnapped her.

4. Based on the above FIR, Borlangphar PS Case No. 14/2018 under Section 366 A of the IPC was registered and on completion of investigation, the investigating officer laid a charge-sheet under Section 366 A of the IPC read with Section 4 of the POCSO Act against the accused/appellant. Thereafter, the Court of learned Special Judge (POCSO Act), Karbi Anglong, Diphu, after perusal of the materials on record and on being satisfied, framed charges as charge-sheeted. In course of trial of the case, the prosecution examined 06 (six) witnesses. After closing the evidence of the prosecution side, the statement of the appellant was recorded. The defence plea is of total denial and has not examined any witness in defence. Thereafter, on hearing the argument of the learned counsel of both sides and appreciation of evidence on record, the learned trial court convicted and sentenced the appellant as stated above.

5. Mr. SK Barkataki, learned counsel appearing for the accused/appellant, submitted that the impugned Judgment and order is bad in law and facts basically on three grounds. Firstly, Mr. Barkataki contended that the learned trial court over emphasized on the erroneous age factor of the alleged victim girl ignoring the fact that the appellant is an young youth aged about 22 years. According to Mr. Borkataki, learned counsel, in the instant case, the prosecution has suppressed important documents relating to the age proof of the alleged victim girl. Mr. Barkataki contended that although the burden of proof in criminal trial is always on the prosecution, the learned trial court observed that the onus of proof shifted on the accused/appellant herein. It has been further contended that one of the seized school leaving certificates showed the age of the alleged victim girl to be of more than 17 years.

6. Secondly, Mr. Borkataki further contended that the victim in her evidence and statement under Section 164 Cr.P.C. stated that she voluntarily accompanied the accused out of love and affection towards him and moved to Bihar where she stayed with him as wife and husband respectively.

7. Thirdly, Mr. Borkataki, learned counsel for the appellant, contended that while recording the statement under Section 313 CrPC, the learned trial court omitted to seek the appellant’s explanations against all the material incriminating oral and documentary evidence that have been taken into consideration in the impugned judgment causing thereby injustice to him. Mr. Barkataki also contended that the questions were in more complex form being descriptive, which were not understandable to the accused, who is an young youth without any knowledge of the impact of those question