IMPORTANT POINT
The prosecution must establish charges beyond reasonable doubt, and in cases under the POCSO Act, it is crucial to prove the victim's age to determine the applicability of relevant provisions.

JUDGMENT :

Heard Mr. N. Uddin, learned counsel for the appellant; Mr. D. Sarma, learned Additional Public Prosecutor for the State respondent No. 1; and Ms. D. Saikia, learned Amicus Curie for the respondent No. 2.

2. In this appeal, under Section 374 of the Cr.P.C., the appellant has put to challenge the correctness or otherwise of the judgment and order dated 28.06.2022 & 29.06.2022, passed by the learned Special Judge, POCSO, Goalpara, in Special Case No. 13/2019.

3. It to be noted here that vide impugned judgment and order, dated 28.06.2022 & 29.06.2022, the learned trial court has convicted the appellant under Section 6 read with Section 18 of the POCSO Act and sentenced him to suffer rigorous imprisonment for 5 years and to pay a fine of Rs. 10,000/-with default stipulation and further convicted him under Section 10 of the POCSO Act and sentenced him to suffer rigorous imprisonment for 5 years and to pay a fine of Rs. 10,000/-with default stipulation and also convicted him under Section 341 of the IPC and to pay a fine of Rs. 500/- with default stipulation.

4. The background fact leading to filing of this appeal is adumbrated herein below:-

“On 05.09.2018, at about 4:00 pm, while the victim namely Shri ‘X’ (name withheld), aged 8 years, was enjoying football match in the field of Makribari L.P. School, one Noor Hussain, aged 20 years, forcefully took him near the water tank situated behind the school and tied his hand and leg and subjected him to sexual harassment. Then the grandmother of the victim had witnessed the said occurrence and raised alarm and then the accused fled away from the scene. Thereafter, the victim reported the matter to his father and then his father lodged the FIR with the Officer In-Charge (O.C.) of Krishnai Police Station. Upon the said FIR, the O.C. had registered a case, being Krishnai P.S. Case No. 244/2018, under Section 341 of the IPC read with Sections 4/8 of the POCSO Act and endorsed Sub-Inspector (S.I.) Tugal Boro to the investigate the same. Thereafter, the Investigating Officer (I.O.) had visited the place of occurrence and examined the witnesses, prepared the sketch map (Exhibit-4) of the place of occurrence and got the victim examined by the Doctor and collected the report and also got his statement, under section 164 Cr.P.C., recorded in the court and thereafter, on completion of the investigation, he laid charge sheet, being charge sheet No. 07/2019, against the appellant, to stand trial in the court under Section 4/8 of the POCSO Act read with Section 341 of the IPC, by showing the appellant as absconder. Upon the said charge sheet, the learned trial court had taken cognizance of the offences i.e. under Section 4/8 of the POCSO Act with Section 341 of the IPC and issued summon to the accused/appellant. Upon his appearance, the learned trial court had complied with the provision of Section 207 Cr.P.C. Thereafter, hearing both the parties, had framed charges against the appellant under Section 341 of the IPC read with Sections 4/8 of the POCSO Act and on being read and explained over the same to the appellant, he pleaded not guilty and claimed to the tried.

The prosecution side, thereafter, had examined as many as 6 witnesses and also exhibited 5 documents, in order to establish the charges against the appellant and after closing the prosecution evidence the learned trial court below had examined the appellant under Section 313 of the Cr.P.C. The appellant declined to adduce evidence in his defence. Thereafter, on 08.06.2022, the learned court below has altered the charges against the accused/appellant and framed charges under Section 6 read with Section 18 of the POCSO Act and also under Section 10 of the POCSO Act. Then on being read and explained over the same to the accused/appellant, he had pleaded not guilty. Though opportunity to recall the witnesses to examine and cross-examine them was afforded to the parties, they have denied the same. Thereafter, hearing arguments of both the pa