IMPORTANT POINT
The court upheld the conviction under Section 354 IPC while setting aside the conviction under Section 10 of the POCSO Act due to lack of evidence regarding the victim's age.

JUDGMENT :

ARUN DEV CHOUDHURY, J.

1. Heard Mr. K.P. Pathak, learned Amicus Curiae for the accused/appellant and Mr. K.K. Das, learned Additional Public Prosecutor, Assam for the respondent No. 1. Also heard Mr. P. Saikia, learned counsel for the respondent No. 2.

2. The present criminal appeal is preferred from jail by the accused/appellant against the judgment dated 25.08.2017 passed by the learned Sessions Judge, Karimganj in Special Sessions Case No. 14/2014, whereby the appellant was convicted under section 354 IPC and was sentenced to undergo Rigorous Imprisonment (RI) for 3 (three) years and to pay a fine of Rs.10,000/- in default of payment of fine, to undergo further RI for 3 (three) months and for the commission of offence under section 10 of the POCSO Act, 2012, the accused/appellant was further sentenced to undergo RI for 5 (five) years and 6 (six) months and to pay a fine of Rs.20,000/- in default of payment of fine, to undergo further RI for 5 (five) months.

3. The persecution story in nutshell is that an FIR was lodged by the mother of the victim inter alia alleging that on the date of incident, i.e. on 29.06.2014 at around 04:00 pm, when she was not at home, the accused/appellant lured her daughter and offered her Rs. 10/- and thereafter, grabbed her and bite on her cheek with ill intention. The victim’s age was stated to be 11 years in the FIR. Accordingly, R.K. Nagar P.S. Case No. 52/2014 under Section 4 of the Protection of Children from Sexual Offences (POCSO) Act, 2012 was registered. The victim‘s statement was recorded under Section 164 Cr.P.C. by the concerned jurisdictional Magistrate. After completion of the investigation, charge sheet under Sections 376/511 IPC read with Section 10 of the POCSO Act, 2012 was filed, which the accused pleaded not guilty and claimed to be tried. Accordingly, the trial was proceeded. The committal Court committed the case to the learned Special Court vide order dated 26.11.2014.

4. During the course of trial, the prosecution has examined as many as 7 (seven) witnesses including the victim to bring home charge against the accused/appellant.

5. Mr. Pathak, learned Amicus Curiae for the accused/appellant has submitted that the prosecution has failed even to lay the fundamental fact regarding the age of the victim in terms of the Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015. Therefore, the accused/appellant could not have been convicted under Section 10 of the POCSO Act, 2015. He further contends that once the prosecution has failed to lay the fundamental fact of the age of the victim, the presumption under Section 29 of the POCSO Act, 2015 could not have been applied in the present case to convict the accused person.

6. As regards the conviction of the accused for the commission of offence under Section 354 IPC, Mr. Pathak, learned Amicus Curiae for the accused/appellant, submits that there is material available to convict the accused under Section 354 IPC inasmuch as the evidence of the victim remained unshaken regarding biting on her cheek by the accused inasmuch as such injuries were corroborated by the Doctor, who examined the witnesses, therefore, the accused in that ground has rightly been convicted.

7. Par contra, Mr. Saikia, learned Legal Aid counsel representing the victim submits that the prosecution had relied on the testimony of the doctor to prove the age of the victim and the doctor testified that the victim was below 14 years. Therefore, the learned Trial Court had not committed any error convicting the accused/appellant under Section 10 of the POCSO Act, 2012, more particularly, when the testimony of the victim remains unshaken and has been corroborated by the doctor.

8. PW-1, the victim and PW-7, Dr. Lipi Deb, who are the vital witnesses of the prosecution.

9. From the materials available on record and the statement of the victim, i.e. PW-1 as recorded herein above, it is established that on the fateful day, when the sister of the vict