Prosecution must prove guilt beyond reasonable doubt; inconsistencies in witness testimonies and absence of corroborating evidence challenge the conviction in sexual assault cases under POCSO.

JUDGMENT & ORDER (CAV)

Heard Mr. R. Bora, learned counsel for the appellant. Also heard Mr. P.Borthakur, learned Additional Public Prosecutor for the State respondent No. 1 and Mr. A. Phukan, learned Amicus Curiae for the respondent No. 2.

2. This is an appeal under Section 374(2) read with Section 4 82 of the Code of Criminal Procedure, 1973 against the impugned judgment and order dated 29.08.2023, passed by the learned Special Judge, Bilasipara, Dhubri in Special (POCSO) Case No. 38/2019, whereby the appellant has been convicted under Section 4 of the POCSO Act, 2012 and sentenced to undergo Rigorous Imprisonment for 8 (eight) years and also to pay a fine of Rs. 10,000/- (Rupees ten thousand), in default, to suffer Simple Imprisonment for 2 (two) months and also convicted under Section 376 of the IPC.

3. The prosecution case, in brief, is that on 13.02.2019, one Sorbesh Ali lodged an F.I.R. before the Chapar Police Station alleging that on 07.02.2019, at about 02.00 a.m. (late night), while his minor daughter, i.e. the alleged victim, was washing her hand and feet at the tube well after answering nature’s call, the appellant herein, Ahsraful Islam, all of a sudden, hold her from backside, dragged her to the backside of their house by gagging her mouth and committed rape upon her. Thereafter, the victim, on being free herself from the grip of the appellant, made hue and cry and hearing such hue and cry, some neighboring people rushed to the place of occurrence and they also identified the appellant while he was running away. The other accused persons named in the F.I.R. gave assurance to the complainant that they will settle the matter at the village meeting, but on 12.02.2019, the appellant did not agree with the village bichar and gave threatening to the family member of the complainant following which the F.I.R. was lodged against the appellant. Upon receipt of the said F.I.R., the Officer-In-Charge, Chapar Police Station, registered a case, being Chapar P.S. Case No. 47/2019, under Section 4 of POCSO Act and Section 376 of the IPC, and started investigation. During investigation, the I.O. visited the place of occurrence, recorded the statement of the witnesses, seized the birth certificate of the victim, sent the victim to Dhubri Civil Hospital for medical examination and produced the victim before the jurisdictional magistrate and recorded her statement under Section 164 Cr.P.C.

4. Thereafter, on completion of investigation, the I.O. laid Charge-Sheet against the present accused/appellant before the learned Special Judge, Bilasipara, Dhubri, under Section 376 of IPC read with Section 4 of POCSO Act, 2012. Accordingly, the learned Special Judge, Bilasipara, Dhubri, after considering the materials available on record and also finding prima facie case, framed charge against the present accused/appellant under the aforesaid Sections. The charges were read over and explained to the accused/appellant, to which he pleaded not guilty and claimed to be tried.

5. During the trial of the case, the prosecution examined as many as 10 (ten)numbers of witnesses including the victim, who was examined as CW-1, the Medical Officer and the Investigating Officer and few exhibits. The accused/appellant was also examined under Section 313 Cr.P.C., wherein he took the plea of total denial and declined to adduce any evidenc