Point of Law : There was failure on the part of the prosecution to establish the essential foundational facts to attract the provision of POCSO Act.

JUDGMENT :

Heard Mr. S. Islam, learned counsel for the accused-appellant. Also heard Mr. P.S. Lahkar, learned Additional Public Prosecutor for the State/respondent No.1 and Ms. D. Saikia, learned Amicus Curiae for the respondent No.2.

2. This appeal has been preferred by the appellant against the judgment and order dated 23.07.2019 passed by the learned Special Judge, Barpeta in connection with Special POCSO Case No. 20/2018, whereby the appellant was convicted under Section 4 of Protection of Children from Sexual Offenses Act, 2012(herein after referred as POCSO Act) and sentenced to undergo rigorous imprisonment for 7 years and to pay a fine of Rs.2,000/-, in default simple imprisonment for three months.

3. The brief facts of the case is that the informant lodged an FIR on 27.04.2018 before the Officer-in-Charge, Barpeta P.S. stating inter alia that on 20.11.2017, the appellant forcefully took her minor daughter from his house under a death threat to marry her and kept her in his house for four days. According to his daughter, the present appellant committed rape on her on several times during her stay in his house. Knowing about the incident, the informant convened a village bichar (extra judicial settlement). The villagers recovered his daughter from the house of the appellant and bichar was held in presence of the accused/appellant and his family members. It was decided in the bichar that the present appellant had to marry his daughter when she would attain the age of majority. The appellant accepted the said decision taken in the bichar and promised that he would marry his daughter when she would attain the age of majority. Thereafter, the appellant used to visit his house and continued physical relationship with his daughter.

4. It is also alleged in the FIR that the second incident took place on 16.04.2018 when the appellant came to his house and forcefully established physical relationship with his daughter. When his daughter asked the accused to get her married, the appellant left his house. When he told the guardians of the appellant about the matter, they stated that they would get their marriage solemnize. But he came to know that on 20.04.2018, the appellant got married to another girl.

5. On receipt of the complaint, a case was registered vide Barpeta P.S. Case No. 900/2018 under Section 343/417/506/34 IPC r/w Section 4 of POCSO Act and started investigation. During investigation, the investigating officer visited the place of occurrence, examined the witnesses and recorded their statements and the victim was produced before the Magistrate for recording her statement under Section 164 Cr.P.C. After completion of investigation, charge-sheet was submitted against the present appellant under Section 343/417/506 IPC r/w Section 4 of POCSO Act.

6. During trial, charge was framed under Section 4 of POCSO Act which was read over and explained to the appellant to which he pleaded not guilty and claimed to be tried.

7. To prove the guilt of the accused/appellant, the prosecution examined 5(five) witnesses. However, the appellant did not adduce any evidence in support of his defence. After completion of trial, the statement of the appellant was recorded under Section 313 Cr.P.C., wherein the incriminating materials found in the evidence of the witnesses were put to him to which he denied the same and pleaded his innocence.

8. After hearing learned counsel for the parties, the learned Special Judge, Barpeta convicted the appellant as aforesaid. Hence, this appeal.

9. The learned counsel for the petitioner has submitted that the prosecution has failed to prove the age of the victim which is the sole ingredient to proceed with the case for the offence under the provision of POCSO Act. It is also submitted by the learned counsel for the appellant that the victim was not examined by any doctor to prove any sexual assault caused to the victim. There is also no any medical opinion regarding age of the victim. Under such backdrop, the app