The court affirmed the victim's testimony in sexual offense cases, establishing age determination as crucial in assessing culpability while allowing for a more lenient sentence under the POCSO Act post-amendment.

JUDGMENT :

SUSMITA PHUKAN KHAUND, J.

1. Heard learned counsel Mr. S. Das for the appellant Ananda Kheruar who has filed this appeal challenging the Judgment and Order dated 12.07.2019, passed by the learned Special Judge, Udalguri, Assam in connection with Special POCSO Case No. 16/2018, convicting the appellant under Section 365 of the INDIAN PENAL CODE (IPC for short) and sentencing him to undergo rigorous imprisonment for 4 years and to pay a fine of Rs. 2000/- with default stipulation and further convicting him under Section 4 of the Protection of Children from Sexual Offenses Act, (POSCO Act for short) and sentencing him to undergo rigorous imprisonment 10 years and to pay a fine of Rs. 4000/- with default stipulation.

2. Heard Mr. B. Sarma, learned Additional Public Prosecutor for the respondent State and learned Amicus Curiae, Dr. P. Agarwal for the informant.

3. The genesis of the case was that the victim, 'X', a student of Class-X left her home at about 7 a.m. on 05.02.2018 and did not return. It is alleged that the appellant kidnapped the victim and committed penetrative sexual assault on the victim. An FIR was lodged which was registered as Harisinga P.S. Case No. 05/2018 under Section 365 of the IPC. Investigation commenced. The Investigating Officer (I.O. for short) embarked upon the investigation. He recorded the statements of the witnesses, prepared the sketch map and recovered the victim along with the appellant and brought them to the police station. The victim was then forwarded to the Magistrate, who recorded her statement under Section 164 of the Cr.PC and was forwarded to the Medical Officer for examination. On conclusion of investigation, charge-sheet was laid against the appellant under Section 365 of the IPC read with Section 4 of the POCSO Act. At the commencement of trial, a formal charge under Section 365 of the IPC read with Section 4 of the POCSO Act was framed against the appellant who abjured his guilt and claimed innocence. To substantiate it's stance, the prosecution adduced the evidence of 8 witnesses including the victim, the Medical Officer (M.O. for short) and the I.O. On the incriminating materials projected by the prosecution through the evidence, several questions were asked to the appellant under Section 313 Cr.PC and his plea was of total denial.

4. Learned counsel for the appellant laid stress in his argument that the victim cannot be considered to be a sterling witness as she has given a false age. The learned Trial Court ought to have held an enquiry as per Section 34 of the POCSO Act to ascertain the age of the victim. As the victim's age was not ascertained vide a proper enquiry, the appellant is entitled to benefit of doubt, more so, when the medico-legal report marked as Exhibit-7 clearly reveals that the victim's age was between 18-19 years implicating that the victim was a major at the time of the incident.

5. Learned counsel for the appellant has also relied on the decision of this Court in Manirul Islam @Manirul Zaman Vs. The State of Assam and Ors in connection with Crl.A. No. 64/2020, whereby vide order dated 09.04.2021, it has been observed that :-

28. A Birth Certificate issued by the Health Department of the State Government is a part of the public record. Section 35 of the EVIDENCE ACT , 1872 deals with relevancy of entry in public record which reads as follows :-

"35. Relevancy of entry in public record [or an electronic record], made in performance of duty. An entry in any public or other official book, register or record [or an electronic rec