The main legal point established in the judgment is the requirement for clear, consistent, and reliable evidence in cases involving allegations of sexual assault, especially when determining the guilt of the accused under the POCSO Act.

JUDGMENT :

KALYAN RAI SURANA, J.

1. Heard Mr. B. Prasad, learned Legal Aid Counsel for the appellant and also heard Ms. S. Jahan, learned Additional Public Prosecutor appearing for the State of Assam.

2. As per the office note dated 16.08.2021, as well as order of this Court dated 01.10.2021, none appears on call despite service of notice on the respondent no. 2.

3. On receipt of this jail appeal from the appellant, as provided under Section 383 of the Code of Criminal Procedure, 1973 the present appeal has been registered.

4. By this appeal filed under section 374 Cr.P.C. the appellant-accused has assailed the judgment and sentence dated 30.01.2019 passed by the learned Additional Sessions Judge, Bajali, Pathsala in Special (POCSO) Case No. 4/2018. By the said judgment, the appellant was convicted of committing offence punishable under Section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as “POCSO Act” for short) and he was sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.10,000/- (Rupees Ten thousand only) and in default to suffer further rigorous imprisonment for 6 (six) months.

5. It may be mentioned that in this judgment and order, the name of the appellant- accused, the victim’s mother (complainant) and the minor victim girl have not been disclosed to protect their respective identities. Accordingly, in this judgment and order the appellant- accused, victim’s mother and the minor victim are referred to as ‘X’ or ‘Y’ and ‘Z’ respectively.

6. The prosecution case was set rolling by ‘Y’ who had lodged an FIR before the Officer-in-Charge of Sarupeta Police Outpost on 23.04.2018, inter-alia, alleging that about one year back, ‘X’ her husband (i.e. appellant), had driven her out from her matrimonial home and he was staying in his own house along with ‘Z’ (victim) and that on 22.04.2018, ‘Z’ (victim) had fled to the house of her maternal uncle situated at Pathsala gaon and from her she had come to know that the appellant had been regularly raping her minor daughter ‘Z’ aged 11 years for last 6 months and that she had fled away to save herself. Accordingly, Sarupeta O.P. GDE No. 570 dated 23.04.2018 was registered and forwarded to the jurisdictional police station, wherein Patacharkuchi P.S. Case No. 246/2018 under Section 4 of the POCSO Act, 2012 was registered.

7. In course of the investigation, the Investigating Officer (PW-7) recorded the statement of the victim and other witnesses; sent ‘Z’ (victim) for her medical examination at FAAMCH, Barpeta; had her statement recorded by the learned Sub-Divisional Judicial Magistrate (M), Bajali, Pathsala, under section 164 Cr.P.C. prepared a sketch-map of the place of occurrence; and had arrested the appellant. On completion of the investigation, charge-sheet was submitted on 31.05.2018, bearing charge-sheet no. 107. On receipt of the charge-sheet, cognizance of the offence was taken. After providing copies, charge against the appellant under Section 4 of the POCSO Act, 2012 was read over and explained to the appellant to which he pleaded not guilty and claimed to be tried.

8. In the course of the trial, the prosecution had examined 7 (seven) witnesses, viz. ‘Z’ the victim (PW-1), Md. Kurban Ali (PW-2), Md. Rejjak Ali @ Ejjak Ali @ Ejjak (PW-3), Y, mother of the victim (PW-4), Dr. Anima Boro (PW-5), Smti. Karabi Talukdar (PW-6) and Pradip Kr. Choudhury, Investigating Officer (PW-7). Moreover, the following documentary evidence was exhibited, being the statement of the victim under section 164 Cr.P.C (Ext.1), medical examination report of ‘Z’ (victim) (Ext.2), ejahar (Ext.3), sketch map of the place of occurrence (Ext.4) and charge-sheet (Ext.5).

9. The learned trial Court, by relying on the evidence of ‘Y’ i.e. the mother of the victim girl (PW-1) had held that there was no material from which it could be held that the appellant could not create any doubt at her evidence against the appellant. Moreover, having regard to the s