The main legal point established in the judgment is the critical appreciation of the victim's testimony in a sexual assault case, the burden of proof on the accused to establish the absence of culpable mental state, and the applicability of legal provisions related to sexual assault and presumption under the POCSO Act.

JUDGMENT :

MALASRI NANDI, J.

Heard Mr M Boje, learned counsel appearing on behalf of the accused/ appellant and Ms L Hage, learned Additional Public Prosecutor for the State of Arunachal Pradesh. Also heard Mr T Toyeng, learned counsel appearing for and on behalf of the informant.

2. This criminal appeal has been preferred under Sec. 374 (2) of the Code of Criminal Procedure, 1973, against the Judgment and Order dtd. 1/10/2019, passed by the Special Judge (POCSO Act), Yupia, Arunachal Pradesh, in POCSO Case No. 46/2015, convicting the accused appellant under Sec. 376(2)(i)/448 IPC, and sentencing the appellant to undergo Rigorous Imprisonment for a term of 12 years, with fine of Rs.10,000.00 in default to undergo further period of 6 months' Rigorous Imprisonment and also convicted the appellant under Sec. 448 IPC and sentenced him to suffer Simple Imprisonment for a period of 6 months with fine of Rs.1,000.00, in default to suffer further period of 1 month Simple Imprisonment. Both the sentences were directed to run concurrently.

3. The brief facts of the case is that on 7/8/2015, one Subonang Taidong lodged a written FIR before the OC, Women PS, Itanagar, stating inter alia that on the same day, the accused appellant had committed rape on her minor daughter, aged about 11 years in her rented house. When she returned back home, her daughter told her about the incident that the accused/appellant forcefully inserted finger inside her private part and also had committed rape on her. It is also alleged that the accused appellant earlier also had tried to commit rape on her.

4. On receipt of the complaint, a case was registered vide Itanagar Women PS Case No. 78/2015, under Sec. 448/376(2)(i) IPC, read with Sec. 4 of the POCSO Act and started investigation. During investigation, the Investigating Officer visited the place of occurrence, recorded the statement of witnesses. The victim was sent for medical examination. Her statement was also recorded by the learned Magistrate, under Sec. 164 Cr.P.C. and some articles were also seized.

5. During the course of investigation of the case, the accused was also arrested and after completion of mandatory period, he was released on bail. After completion of investigation, chargesheet was submitted against the appellant under 448/376(2)(i) IPC read with Sec. 4 of the POCSO Act.

6. On receipt of the chargesheet, the trial was commenced before the learned Special Judge (POCSO Act) Yupia, Arunachal Pradesh and cognizance was taken accordingly. Charge was framed under Ss. 448/376(2)(i) IPC, read with Sec. 4 of the POCSO Act, which was read over and explained to the appellant, to which he pleaded not guilty.

7. During the course of trial, the prosecution had examined as many as 6 (six) witnesses, including the victim and marked 9 (nine) exhibits. On the other hand, in support of his case, the accused appellant adduced 5 (five) defence witnesses. After examining the prosecution witnesses, the incriminating circumstances that culled out from the evidence of the prosecution witnesses, were put before the accused appellant and questioned under Sec. 313 Cr.P.C., wherein he denied all the incriminating circumstances as false. After hearing the learned counsel for both the parties, the accused appellant was convicted as aforesaid. Hence, this appeal.

8. It was urged by the learned counsel for the appellant that the alleged occurrence took place in the rented house of the informant. But except the family members of the victim girl, none of the independent witnesses were examined by the prosecution, even though near the place of occurrence, some other persons used to reside. It is specifically mentioned that owner of the rented house of the informant was not examined. Therefore, non-examination of the independent witnesses is fatal to the prosecution case.

9. It is also the submission of learned counsel for the appellant that the medical records show that there was no external injury found on the body of the victim