IMPORTANT POINT
The testimony of a child victim in sexual offence cases can be sufficient for conviction if it is credible and corroborated by medical evidence, and the presumption of guilt under the POCSO Act applies unless successfully rebutted by the defence.

JUDGMENT :

ARUN DEV CHOUDHURY, J.

1. Heard Mr. S.P Deka, learned counsel for the appellant and Mr. K.K. Deka, learned Addl. PP, appearing for the State of Assam.

2. The challenge:

The present appeal is directed against the judgment and order dated 13.06.2019 passed by the learned Special Judge, Tinsukia in POCSO Case No.37(M)/2015, convicting the appellant under section 6 of the POCSO Act, 2012 and sentencing him to undergo rigorous imprisonment for 10 (ten) years and to pay a fine of Rs.50,000/-and in default, to pay the fine, to undergo imprisonment for 6 (six) months.

3. The Prosecution Story:

I. The prosecution case was launched on the basis of an FIR lodged by the informant i.e., the father of the victim on 27.10.2015 alleging that on 26.10.2015 when the informant was out of his senses after consuming liquor and were somewhere outside his house, the accused in the pretext of dropping him at the house came to the house of the informant in the night at about 9.30 pm and raped the adopted daughter of the informant who was aged about 7 years at that time.

II. On receipt of the said FIR, Lekhapani PS case No.155/2015 under section 376 IPC read with section 6 of the Protection of Children from Sexual Offences Act, 2012 was registered. Accordingly, investigation was started and thereafter, charge sheet was filed under section 376 IPC read with section 6 of the POCSO Act against the accused appellant.

III. Thereafter, the committal court committed the matter to the learned Sessions Judge, Tinsukia to try the case. Charges were framed on 31.08.2016 against the appellant and the charge was read over and explained to the accused, to which the accused pleaded not guilty and claimed to be tried. Accordingly, the trial commenced.

6. The Prosecution witness :

A. To bring home the charges, the prosecution side examined as many as 11 witnesses including the victim as PW-2 and the doctor as PW-1 who examined the victim. The accused also led evidence as DW-1.

B. Before determining the legality and validity of the judgment impugned, let this court first analyze the depositions of the witnesses who were examined to bring home the charges against the appellant.

I. PW-1, Dr. Mouchumi Gogoi who examined the victim deposed that on 27.10.2015 she was working as M&H.O .1 at Tirap Gate State Dispensary. On that day at about 1.10 pm she examined the victim in connection with Lekhapani PS Case No.155/2015. She examined the victim and found that there are injuries in her genital area. There were Vuvlal injury, vagina was swollen and ecchymosis and bleeding were seen. Labia majora swollen and tender on touch. Hymen tear was seen at 6’o clock which indicates that the victim had sexual intercourse. Radiological examination was done to ascertain the victim’s age. PW-1 in her evidence deposed that as per radiological examination the victim’s age is above 12 years and below 14 years. On laboratory examination, vaginal smear does not show any presence of human spermatozoa at Tinsukia Civil Hospital, but vaginal smear collected at Assam Medical College Hospital, Dibrugarh shows presence of intact spermatozoa. The PW-1 in her evidence further testified that on the basis of radiological physical and laboratory examination it is evident that the victim had recent sexual intercourse and her age is above 12 years and below 14 years. PW-1 in her cross examination stated that it is not a fact that the victim did not utter the name of the accused before informing about the incident.

II. PW-2 is the victim of this case. As she was a minor at that point of time the learned Special Judge asked her some questions and on being satisfied with the rational answers given by her, her evidence was recorded without administering oath in camera. The victim in her evidence deposed that on the fateful day the accused knocked the door and asked her to open the same as he said that he left his mobile in their house. As soon as the victim opened the door the accused caught hold of her and gagged h