IMPORTANT POINT
The testimony of a minor victim in sexual assault cases can be sufficient for conviction if it is credible and consistent, even in the absence of corroborative evidence.

JUDGMENT :

MALASRI NANDI, J.

1. Heard Ms.D.Saikia, learned Amicus Curiae for the appellant and Mr. B.Sarma, learned Additional Public Prosecutor for the State/respondent.

2. This appeal has been preferred by the accused appellant against the Judgment and Order dated 28.11.2018 passed by the learned Special Judge, Hailakandi in Special (POCSO T-1) Case No. 04/2017 under Section 4 of POCSO Act, 2012 whereby the appellant was convicted and sentenced to undergo rigorous imprisonment for 7 years and to pay a fine of Rs.2000/- in default, further rigorous imprisonment for 2 months.

3. The brief facts of the case is that on 03.05.2017 an FIR had been lodged by the father of the victim stating inter-alia that the appellant had lured his four years old daughter to his house and thereafter, he tried to commit sexual assault with his daughter by confining her in his room. On hearing her scream, his wife entered inside the house of the accused appellant and found the appellant and her daughter in naked condition. His wife brought back his daughter and informed the matter to the neighbours. As the appellant tried to commit sexual intercourse with his daughter forcibly, she sustained swollen injury in her private parts.

4. On receipt of the complaint, a case was registered vide Ramnathpur PS case No. 115/2017 under Section 4 of POCSO Act and the investigation was initiated. During investigation, the investigating officer visited the place of occurrence, recorded the statement of the witnesses and the victim was sent for medical examination. On collection of medical report of the victim, after completion of the investigation, charge sheet was laid against the appellant under Section 4 of POCSO Act.

5. During trial, charge was framed under Section 4 of POCSO Act which was read over and explained to the accused appellant to which he pleaded not guilty and claimed to be tried.

6. To substantiate the case of the prosecution, nine witnesses were examined and exhibited some documents before the trial court. In support of his case, the accused appellant also adduced two witnesses DW-1 and DW-2. After closure of the trial, the statement of the accused appellant was recorded under Section 313 CrPC on the incriminating materials found in the evidence of the witnesses to which he denied the same. The appellant specifically stated that there is land dispute between him and the informant. He has a 12 years old minor daughter in his house. The informant and his children and other family members used his land for defecation but his daughter closed the gate. Since, then they started quarrelling with him and filed this case which is totally false.

7. After hearing the arguments advanced by the learned counsel for the parties, the appellant was convicted as aforesaid.

8. Learned Amicus Curiae has stressed her argument on the point that the learned trial court has not made any effort to determine the age of the victim girl which is necessary to establish a charge under the POCSO Act. It is further submitted that no birth certificate, or no school certificate was produced and no ossification test was also conducted to prove the age of the victim as per Section 94 of Juvenile Justice (Care and Protection of Children) Act, 2015. As the prosecution has failed to prove the age of the victim as such, the accused appellant cannot be convicted under the provision of POCSO Act.

9. The next limb of argument of the learned Amicus Curiae is that before recording evidence of a minor, it is the duty of judicial officer to ask preliminary questions to him/her with a view to ascertain whether the minor can answer the question put to him/ her and is in a position to give rational answers. Learned Amicus Curiae has pointed out that in the case in hand, the learned Special Judge has not done his duty properly. Only three four questions were put to the minor on the basis of which, the learned Special Judge came to the conclusion that the witness was capable of giving answer to each and eve