IMPORTANT POINT
In cases involving minors, consent is immaterial, and the accused bears the burden of proof to establish innocence under the POCSO Act.

JUDGMENT :

Budi Habung, J.

Heard Ms. S. V. Darang, learned Amicus Curiae appearing for the appellant. Also heard L. Hage, learned Additional Public Prosecutor for the State of Arunachal Pradesh and N. Danggen, learned Legal Aid Counsel representing the respondent No. 2 (victim).

2. This Criminal Jail Appeal is preferred by the appellant/convict, namely, Shri Hok Hana Chakma, against the judgment and order dated 31.05.2021 passed by the learned Special Judge (POCSO), Tirap, Changlang & Longding at Khonsa, Arunachal Pradesh, in Khonsa Special (POCSO) case No. 32/2020 arising out of Diyun P.S. Case No. 19/2020 under Section 376/366 IPC r/w Section 6 of POCSO Act, whereby, the appellant has been convicted and sentenced to undergo 20(twenty) years rigorous imprisonment with default clause for offence under Section 6 of POCSO Act; and 10(ten) years rigorous imprisonment with default clause for offence of kidnapping or inducing woman to compel her marry under Section 366 IPC.

FACTS OF THE CASE

3. The brief fact of the case leading to the filling of this appeal is that on 28.06.2020, the father of the victim, PW-1 lodged an FIR before the O/C, P.S, Diyun alleging therein that his minor daughter (name withheld ‘Victim’) aged about 15 years has been kidnapped by accused Shri Hok Hana Chakma alias Dhananjoy on 23.06.2020 and raped her. While they were searching for her, the victim on 27.06.2020 was handed over to them by one Shri Sushil Chakma, Gaon Burah of Chokham Chakma Basti (PW-2) and now the victim is behaving like mad. Thus, they suspected that the accused might have done black magic on her.

4. Basing on the above FIR, a case was registered being Diyun P.S. Case No. 19/2020 U/Ss 376/366 IPC r/w Section 6 of POCSO Act and investigated into.

5. During the course of investigation, the I.O examined the victim, got her medical examination conducted, examined and recorded the statement of other relevant witnesses, got her statement recorded u/s 164(5) of Cr.P.C, seized the age proof birth certificate of the victim girl and found her to be minor child and then arrested the accused person. On completion of investigation, the IO laid charge-sheet against accused to face trial for offence punishable U/Ss 366/376(2)(a) R/W sec. 6 of POCSO Act. Charges were explained to the accused to which he pleaded not guilty.

6. To establish its case, the prosecution has examined 9(nine) prosecution witnesses. After completion of evidence of the prosecution witnesses, the accused was examined and his statement recorded u/s 313 of Cr.P.C where the accused had admitted having taken away the victim and committed sexual intercourse on consent. However, the accused/appellant did not produce any witnesses in his defense.

7. On completion of the trial and upon consideration and hearing the parties the learned trial Court by the impugned judgment and order dated 31.05.2021 has convicted the accused and sentenced him to undergo rigorous imprisonment for 20(twenty) years and to pay a fine of Rs. 20,000/-(Rupees Twenty thousand) only for offence U/S 6 of POCSO Act. Further the accused has been convicted and sentenced to undergo rigorous imprisonment for 10(ten) years and to pay a fine of Rs. 10,000/-(Rupees Ten thousand) only for offence under Section 366 IPC with default clauses.

8. It is the said conviction and the order of sentences which has been assailed in this criminal appeal. It is pertinent to note that the appellant has not set out or stated any ground of appeal against the impugned conviction and sentenced order in his appeal memo. However, at the time of hearing, the learned Amicus curiae for the appellant has put forward 4(four) points in support of the appellant for setting aside the impugned judgment and order dated 31.05.2021. The grounds taken by the learned counsel for the appellant are as follows:

(i) That the applicant has not committed any forceful sexual intercourse upon the victim girl and had not kidnapped her. The victim accompanied the accused/appella