IMPORTANT POINT
The court acquitted the appellant due to reasonable doubt regarding the victim's credibility and inconsistencies in her testimony.

JUDGMENT :

(Susmita Phukan Khaund, J.)

Heard Mr N Hasan, learned counsel for the appellant, Ms S Jahan, learned Additional Public Prosecutor for the respondent No. 1/State and Mr J Das, learned Legal Aid Counsel for the respondent No. 2.

2. This appeal is directed against the Judgment and Order dated 25.05.2022, passed by the learned Additional Sessions Judge-cum- Special Judge, POCSO, Tinsukia, in connection with POCSO Case No. 65(T)/2018, convicting Sri Tapan Kachari (hereinafter, referred to as the appellant or the accused) under Section 6 of the POCSO Act, and sentencing him to undergo Rigorous Imprisonment for 10 years and to pay a fine of Rs. 20,000/-, with default stipulation.

3. The genesis of the case was that the appellant has been committing rape on the minor victim-‘X’, who was only 15 years old.

4. It is further alleged that the appellant committed sexual assault on the victim from time to time and impregnated her. When the victim’s elder sister visited her parental home, she noticed the appearance of the victim and confronted her and then it was unearthed that the appellant committed sexual assault on the victim and he threatened her not to disclose the incident, lest she would face dire consequences. An FIR (ejahar) regarding this incident was lodged on 09.12.2018, by the victim’s mother-‘Y’, which was registered as Kakopathar PS Case No. 66/2018, under Section 376 (3) of the Indian Penal Code, 1860 (IPC, for short), read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act, for short).

5. The Investigating Officer (IO, in short) embarked upon the investigation. He forwarded the victim for medical examination and for recording her statement under Section 164 of the Code of Criminal Procedure, 1973 (CrPC, for short). He recorded the statement of the witnesses and on finding sufficient materials against the appellant, submitted charge sheet against him under Sections 376 (3) IPC, read with Section 6 of the POCSO Act.

6. At the commencement of trial, a formal charge under Section 6 of the POCSO Act was framed, read over and explained to the appellant, who abjured his guilt and claimed innocence. To substantiate its stance, the prosecution adduced the evidence of 6 witnesses, including the Medical Officer (MO, for short) and the IO and exhibited several documents. The witnesses were cross-examined in extenso, to refute the charges. The appellant did not tender any evidence in defence. On the incriminating materials projected by the prosecution, several questions were asked to the appellant under Section 313 CrPC. The tone and tenor of the answers of the appellant to the questions under Section 313 CrPC, depicts a plea of total denial.

7. The learned counsel for the appellant laid stress in his argument that the birth certificate was procured few months prior to the incident without following the proper procedure of law and this birth certificate cannot be accepted as evidence. The evidence of the witnesses are contradictory as PW-2 has stated that her daughter has given birth to a girl child, whereas the victim mentioned in her cross-examination that she gave birth to a boy, who was later given in custody of some other person.

8. It is further submitted that the victim was a consenting party and she was not a minor at the time of the incident. The procured birth certificate fails to prove that the victim was a minor at the time of the incident, but the learned trial Court ignored the fact that the victim was a consenting party. The victim kept her entire family in the dark about her relationship with the appellant. Moreover, the appellant has denied his paternity. It is submitted that the appellant is a married man and is related to the victim. It is submitted that the appellant is the first cousin of the victim and the DNA test was a sine qua non as the appellant has denied the paternity of the child. This case is fraught with discrepancies as neither the age of the victim could be ascerta