The statement of a deceased victim recorded under Section 164 CrPC is not substantive evidence and cannot solely support a conviction; the prosecution must prove the victim's age and provide corroborative evidence.

JUDGMENT & ORDER :

Mridul Kumar Kalita, J.

1. Heard Mr. A. Ahmed, the learned counsel for the appellant. Also heard Ms. B. Bhuyan, the learned Additional Public Prosecutor appearing for the State of Assam.

2. This Criminal Appeal, under Section 374(2) of the Code of Criminal Procedure, 1973, has been filed by the appellant, Md. Nasir Ali @ Nasiruddin Ahmed impugning the judgment and order dated 31.08.2019 passed by the Court of the learned Special Judge, Nalbari, in the Special (P) Case No. 1/2015, whereby the appellant was convicted under Section 376(2)(i) of the Indian Penal Code and Section 4 of POCSO Act, 2012 and was sentenced to undergo rigorous imprisonment for life under Section 376(2)(i) of the Indian Penal Code only in view of the provision of Section 42 of the POCSO Act, 2012.

3. The facts relevant for the adjudication of the instant appeal, in brief, are as follows:-

(i) On 21.08.2013, the informant Ms. Mina Bibi had lodged an FIR before the Officer-in-charge of the Nalbari Police Station, inter alia, alleging that on 20.08.2013, at about 5:00 PM, when she was transplanting paddy seedlings in the paddy field, the daughter (victim) of the first informant, who was aged about 12 years, was taken away by the appellant, Md. Nasir Ali to nearby “Basti” (homestead) and committed rape on her. When, the informant came home from paddy field, she noticed that her daughter was bleeding from her private part. Thereupon, the victim was taken to Barama and, thereafter, she was taken to Swahid Mukunda Kakoti Civil Hospital, Nalbari where she was admitted.

(ii) On receipt of the said FIR, the Officer-in-charge of Nalbari Police Station registered the Nalbari P.S. Case No. 682/2013 under Sections342/376(2)(h) of the Indian Penal Code and initiated the investigation.

(iii) During the course of investigation, the Investigating Officer visited the place of occurrence, drew sketch map of the place of occurrence and recorded the statements of witnesses. The Investigating Officer also recorded the statement of informant. On being informed that the victim was brought to SMK Civil Hospital, Nalbari, the Investigating Officer visited the said hospital and recorded the statement of the victim. After release of the victim from the hospital, the Investigating Officer also took steps to get the statement of the victim recorded under Section 164 of the Code of Criminal Procedure, 1973 and accordingly, said statement of the victim girl was recorded by the learned Judicial Magistrate First Class, Nalbari on 27.08.2013. Ultimately, after completion of the investigation, the Investigating Officer laid the charge-sheet against the appellant Nasir Ali under Sections 342/376(2)(h) of the Indian Penal Code read with Section 4 of POCSO Act, 2012. It is pertinent to mention herein that the appellant was shown as an absconder in the charge-sheet.

(iv) On 06.08.20016, the appellant surrendered before the Trial Court. He was remanded to custody and on 03.11.2016, he was released on bail. He faced the rest of the trial by remaining on bail.

(v) After considering the materials available on record and after hearing both the sides, the Court of the learned Special Judge, Nalbari framed the charges under Section 376(2)(i) of Indian Penal Code read with Section 4 of the POCSO Act, 2012 against the appellant on 28.09.2016. When the said charges were read over and explained to the appellant, he pleaded not guilty to the said charges and claimed to be tried.

(vi) To bring home the charges, the prosecution side examined as many as eight prosecution witnesses. The appellant was examined under Section 313 of the Code of Criminal Procedure, 1973, during which he denied the truthfulness of the testimony of the prosecution witnesses and pleaded his innocence. He also adduced evidence of three witnesses in his defence.

(vii) However, ultimately by the judgment which has been impugned in this appeal, the appellant was convicted and sentenced in the manner as already described in paragra