JUDGMENT :

Parthivjyoti Saikia, J.

Heard Mr. B. Prasad, the learned Amicus Curiae representing the appellant and Ms. S. Jahan, the learned Addl. Public Prosecutor, Assam. Also heard Mr. A. Dhar, the learned Amicus Curiae representing the respondent no.2.

2. Challenge in this appeal is to the judgment and order dated 14.11.2019 passed by the learned Sessions Judge, Dibrugarh in POCSO Case No.12 of 2019 (G.R. Case No.2809/2018) whereby the appellant was convicted under Section 4 of the POCSO Act, 2012.

3. The prosecution case, in a nutshell, is that about 10 days prior to filing of the FIR, the appellant allegedly committed penetrative sexual assault upon his own daughter who was about 13 years old at the time of occurrence.

4. On 06.08.2018, the FIR was lodged by the mother of the victim girl narrating the aforesaid fact.

5. On 07.08.2018, the victim girl was examined by the doctor. The doctor’s report goes like this-

On genital examination:

a. Genital organs developed;

b. Vulva: Labia majora covered labia minora and clitoris on abduction of both thighs;

c. Hymen intact and elastic;

d. Uterus not palpable per abdomen;

e. Vagina and cervix healthy;

f. Evidence of venereal diseases not detected clinically;

g. Evidence of injury on her body or private parts not detected;

h. Vaginal smears taken on glass slides for laboratory investigation from around hymenal orifice and lateral fornix.

i. Evidence of struggle and stain not detected;

j. No abnormality detected on mental condition;

k. Intelligence and memory is average. She is co-operative and good;

l. Gait is normal.

Result of laboratory investigation: Microscopic examination of vaginal smears does not show any presence of spermatozoa or gonococcus.

Opinion: On the basis of physical examination, radiological and laboratory investigations done on the victim ‘X’, the MO was of the opinion that:

i. There is no evidence of recent sexual intercourse detected on her person;

ii. There is no evidence of injuries detected on her person; iii. Her age is above fourteen years and below sixteen years.

6. On conclusion of investigation, police filed the charge sheet against the appellant.

7. The trial court framed the charges under Section 376 of the Indian Penal Code and under Section 4 of the POCSO Act. The appellant pleaded total denial and hence the trial followed.

8. During the trial of the case, the prosecution side examined as many as 8(eight) witnesses. The defence plea is of total denial and no evidence has been adduced.

9. The first prosecution witness to be examined is the Medical Officer (PW-1), who examined the victim girl at the hospital. She has narrated the case history as told to her by the victim. The victim girl reportedly told her that after removing her panty, the appellant tried to insert his penis into her vagina but he could not as she pushed him (appellant) aside. Rest of her evidence relates to her report.

10. The second prosecution witness is the victim girl (PW-2). She has stated that the appellant had forcibly gropped her breast and committed rape upon her. On that day, the victim did not inform anyone because the appellant reportedly threatened her of dire consequences. Next morning, she informed her mother, who in turn, informed the mother of the appellant about the aforesaid facts. In this way, the news spread amongst family members. In the meantime, the father of the victim girl ran away and remained absent from the house on several subsequent days. The victim girl has stated that on the advice of the villagers, her mother had informed the police.

11. During cross-examination, the victim girl has stated that at the relevant time of occurrence, her elder brother who is a student of Class-VIII and her younger brother who is a student of Class-III were present in the house. She has stated that her father used to consume alcohol and that is the reason why he was disliked by her mother.

12. The third prosecution witness is the mother (PW-3) of the victim. She has stated in her evidence that one da