IMPORTANT POINT
The prosecution must establish the victim's age as below 18 years and provide corroborating evidence to prove charges under the POCSO Act.

JUDGMENT :

Heard Mr. S. Rahman, learned counsel for the appellant and Mr. P.S. Lahkar, learned Addl. P.P. for the State respondent.

2. This appeal, under Section 374(2) of the Cr.P.C. is preferred by the appellant, namely, Shri Karan Tamang, against the judgment and order dated 21.01.2023 and 25.01.2023, passed by the learned Special Judge, (POCSO), Biswanath at Biswanath Chariali, in Special (POCSO) Case No. 16/2022.

3. It is to be noted here that vide impugned judgment and order dated 21.01.2023 and 25.01.2023, the learned court below has convicted the appellant under Section 457 IPC read with section 4 of the POCSO Act and sentenced him to suffer rigorous imprisonment for 7 years with fine of Rs. 5,000/-with default stipulation under section 4 of the POCSO Act and also sentenced him to suffer rigorous imprisonment for 1 month with fine of Rs. 100/- with default stipulation, under section 457 IPC.

4. The background facts, leading to filing of the present appeal, are adumbrated herein below:-

“On 04-05-2022, Smt. Aruna Dhanuwar had lodged an ejahar with the In-Charge, Borgang Police Out Post to the effect that on 03-05-2022, while her cousin Smti ‘X’, name withheld, was sleeping at her room alone then at about 12.00 at mid-night, accused Karan Tamang @ Tolke broke open the window of the room, where ‘X’ was sleeping and gagged her mouth and threatened to kill her and thereafter, touched her breast and thereafter, committed sexual intercourse on her.

Upon the said FIR, the In-Charge, Borgang Police Out post had recorded a GDE No.63/2022, dated 04-05-2022, and forwarded the same to the Behali Police Station. The Officer-in-Charge, Behali Police Station then registered a case, being Behali Police Station Case No.34/2022, under Section 457/376(3) of Indian Penal Code read with Section 4 of Protection of Children from Sexual Offences (POCSO) Act and carried out investigation, which culminated in filing of charge sheet against the accused/appellant, namely, Karan Tamang @ Tolke, to stand trial under Section 457/376(3) of the IPC and Section 4 of POCSO Act.

Thereafter, the accused/appellant had appeared before the learned court below and the learned court below had, after hearing learned Advocates of both side, framed charges under Section 457 IPC read with Section 4 of the POCSO Act and on being read and explained over, the accused/appellant pleaded not guilty and claimed to be tried. Thereafter, the prosecution side has examined as many as 10 (ten) witnesses, and after closing the prosecution evidence, the learned court below has examined the accused/appellant under section 313 Cr.P.C. The accused/appellant had denied adducing evidence in defence and thereafter, hearing arguments of both sides, the learned court below had convicted him under section 457 IPC read with section 4 of the POCSO Act and sentenced him as aforesaid.”

5. Being highly aggrieved, the appellant has approached this Court, for setting aside the impugned judgment and order on the following grounds :

[i] That, there are material contradictions in the version of the victim as well as the medical evidence and as per evidence of the victim she got injury on her person, but the medical evidence negates the same.

[ii] That, the evidence of P.W.3 and P.W.7 are also contradictory to the medical evidence as they stated in her evidence that she has seen injury marks on the person of the victim which is negated by medical evidence.

[iii] That, the evidence brought on record by the prosecution side has failed to establish the guilt of the accused conclusively and beyond all reasonable doubt.

[iv] That, the learned court below has overlooked the contradictions in the versions of the prosecution witnesses and recorded conviction of the accused.

6. Mr. Rahman, learned counsel for the appellant, during the argument, has reiterated the grounds mentioned herein above, and further submits that the impugned judgment and order suffers from manifest illegalities. Mr. Rahman, submits that in orde