JUDGMENT :

SUSMITA PHUKAN KHAUND, J.

1. Heard Mr. A. Roshid, learned counsel for the appellant and Mr. P.S. Lahkar, learned Addl. P.P. for respondent No. 1 and Mr. T. Deuri, learned counsel for respondent No. 2.

2. This appeal is preferred u/s 374(2) of the Code of Criminal Procedure, 1973 (Cr.P.C. for short) challenging the judgment and order dated 29.06.2022 passed by the learned Sessions Judge, Goalpara in Sessions Case No. 110/2017 convicting the appellant u/s 448/376 of the Indian Penal Code (IPC for short) and sentencing him to suffer Simple Imprisonment for 6 months for offence u/s 448 IPC and Rigorous Imprisonment for 10 years and to pay fine of Rs. 10,000/- with default stipulation for offence u/s 376 IPC.

3. The brief facts leading to this case are that on 19.07.2017 Mehbul Islam (hereinafter the appellant) trespassed into the informant’s house in absence of the other family members and committed rape on the informant’s daughter (hereinafter referred to as ‘X’ or victim). The informant lodged an FIR which was registered as Krishnai P.S. Case No. 187/2017 u/s 4 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act for short). The Investigating Officer (IO in short) embarked upon the investigation. He forwarded the victim for medical examination and for recording her statement u/s 164 Cr.P.C. He recorded the statement of the witnesses and on completion of trial he submitted the charge-sheet against the appellant u/s 448/376 IPC read with Section 6 of the POCSO Act. On appearance of the appellant, the case was committed for trial. At the commencement of trial, a formal charge u/s 448/376 IPC was framed and read over and explained to the appellant who adjured his guilt and claimed innocence. To connect the appellant to crime the prosecution adduced the evidence of eight (8) witnesses including the Medical Officer (MO for short) and the IO whereas the appellant did not tender any evidence in defence. To the incriminating circumstances arising against him, the statement of the appellant was recorded u/s 313 Cr.P.C. and his responses were recorded. The learned trial Court relied on the sole testimony of the victim and convicted the appellant.

4. It was held by the learned trial Court that law has been laid down by the Hon’ble Apex Court in respect to the test of testimonies of victim of sexual offence. It was held that the evidence of the victim from the inception was consistent and the defence failed to rebut her evidence. The victim’s evidence was also corroborated by the evidence of the other witnesses and the defence therefore did not cross-examine the witnesses. The un-rebuted evidence of the victim was found to be reliable.

5. The learned counsel for the appellant laid stress in his argument that the evidence of the victim’s mother and the evidence of the victim is contradictory. The victim’s mother stated that when the victim raised alarm, the neighbourers came to the place of occurrence whereas the victim stated that the neighbourers did not come to the place of occurrence. The investigation was defective and the victim’s garments were not seized after the offence. It is submitted that this case is replete with contradictions. It is also contended that the incident occurred on 19.07.2017 and the FIR was lodged 20.07.2017 allowing enough opportunity for fabrication of the FIR. The victim stated that the appellant’s house is adjacent to the house whereas the IO stated that the appellant’s house is 2 kms away from the victim’s house. The appellant was convicted on presumption. The victim’s birth certificate also was not exhibited.

6. The learned Addl. P.P. laid stress in his argument that in a case of sexual assault, the evidence of eye-witnesses will not be available. The evidence of the victim is consistent to her statement u/s 164 Cr.P.C. No contradiction could be elicited through the cross-examination of the victim. The learned Addl. P.P. has relied on the decision of Hon’ble the Supreme Court in Phool S