Point of Law : Prosecution has failed to prove the foundational facts.

JUDGMENT :

1. Heard Mr. D. Chakrabarty, learned counsel for the appellant. Also heard Mr. D. Das, learned Addl. P.P. for respondent No. 1 and Mr. B. Haldar, learned Legal Aid Counsel for respondent No. 2.

2. This appeal is directed against the Judgment and Order dated 28.09.2021 passed by the learned Additional Sessions Judge, FTC, Darrang, Mangaldai in connection with Special (POCSO) Case No. 67/2019 convicting the appellant Gautam Biswas (Seal) u/s 363 of the Indian Penal Code (IPC for short) to undergo Rigorous Imprisonment for 2 years and to pay a fine of Rs. 2,000/-, with default clause; u/s 366 IPC to undergo Rigorous Imprisonment for 3 years and to pay a fine of Rs. 3,000/-with default clause and u/s 4 of the Protection of Children from Sexual Offences Act (POCSO Act for short) to undergo Rigorous Imprisonment for 7 years and to pay a fine of Rs. 5,000/-with default clause. The sentences were ordered to run concurrently. The FIR was lodged by the victim’s mother ‘Y’ (also referred to as the informant).

3. The prosecution case in brief is that the victim was a 16 year old girl and a student of Class-X. On 25.07.2018 at about 4 AM the victim was found missing. On the previous day, i.e. on 24.07.2018, the appellant Gautam Biswas (hereinafter referred to as the accused) visited the informant as a guest in the afternoon and spent a night in the house. The accused-appellant induced the victim to elope with him. The informant along with her father and four or five neighbours went to the accused-person’s house and saw her daughter with the accused. The accused-person’s family members had driven away the informant. The FIR lodged by the informant was registered as Mangaldoi P.S. Case No. 575/2018 u/s 376 IPC.

4. The Investigating Officer (IO in short) embarked upon the investigation. After completion of investigation charge-sheet was laid against the accused u/s 367/376 IPC read with Section 4 of the POCSO Act and Section 10/11 of Child Marriage Act. The other accused named in the FIR were however not forwarded for trial. On appearance of the accused, this case was committed for trial and on commencement of trial, formal charges u/s 366A/376 IPC read with Section 4 of the POCSO Act was framed and read over and explained to the accused, who adjured his guilt and claimed innocence.

5. To connect the accused to the crime, the prosecution adduced the evidence of seven (7) witnesses including the Medical Officer (MO in short) and the IO and the defence cross-examined the witnesses to refute the charges.

6. The trial court formulated the following points for determination:-

“a. Whether on 25.07.2018 in the morning at about 4.00 AM the accused person kidnapped the victim-X, aged about 16 years, by inducing her from her residence at Gerimari under Mangaldai P.S. with intent that the said victim may be or knowing that it is likely that the said victim will be forced or seduced to illicit intercourse with him and thereby committed an offence punishable under Section 366-A of Indian Penal Code?

b. Whether the accused person committed rape upon the victim-X, aged about 16 years, after keeping her in his house at No. 2 Batalimari under Bhuragaon P.S., District-Morigaon and thereby committed an offence punishable under Section 376 of the Indian Penal Code?”

c. Whether the accused person had committed penetrative sexual assault upon the victim-X, aged about 16 years, in his house at No. 2 Batalimari under Bhuragaon P.S., DistrictMorigaon and thereby committed an offence punishable under Section 4 of the POCSO Act?

On the circumstances arising against him the questions under Section 313 Cr.P.C were asked through written memorandum and the accused also gave his reply through his written statement. He denied all the incriminating allegations against him.

7. The informant ‘Y’ testified as PW-1 that the incident occurred about 2 & 2½ years ago. The accused, who is a relative visited their house and stayed overnight. On the next morning the accused eloped wi