Conviction under POCSO Act affirmed based on credible victim testimony despite delay in FIR filing; the defense of impotence was rejected as unsupported.

JUDGMENT :

K. GOSWAMI, J.

Heard Mr. J Kalita, learned counsel for the accused appellant. Also heard Mr. R R Kaushik, learned Additional Public Prosecutor, Assam for the State as well as Mr. A Tewari, learned Amicus Curiae for the respondent No. 2.

2. This appeal is directed against the judgment and order dated 27.03.2023 passed by the learned Special Judge (POCSO), Baksa, Mushalpur in Special POCSO Case No. 7/2021 arising out of Barama P.S. Case No. 39/2021 under Section 376(3) IPC read with Section 6 of the POCSO Act, whereby the accused appellant has been convicted to undergo rigorous imprisonment for life, which shall mean for the remainder of the natural life of the said convict and to pay a fine of Rs. 20,000/-, in default to undergo R.I. for 1 year under of the POCSO Act.

3. The brief facts of the prosecution case are that PW-1 lodged an FIR on 05.05.2021 alleging, inter alia, that around 6-7 months back the accused/appellant forcibly committed rape on his 15 year old daughter, i.e., victim-x, in absence of other members at home, resulting in her pregnancy. It is further alleged by the prosecution that upon learning about the entire incident from the victim-x, he lodged the FIR. Accordingly, a case was registered being Barama P.S. Case No. 39/2021 under Section 376 IPC read with Section 4 of the POCSO Act.

4. Thereafter, the Investigating Officer conducted the investigation, recorded the statement of the victim as well as the statement of the other witnesses and the victim was sent for medical examination. After collection of the medical report and completion of the investigation, charge-sheet was submitted. Thereafter, the Trial Court framed charges under Section 376(3) IPC read with Section 6 of the POCSO Act and thereafter, the trial commenced.

5. During the trial, the prosecution examined 8 prosecution witnesses, including the informant/PW-1, PW-2/victim, PW-3/mother of the victim, PW- 4/neighbor of the victim, PW-5/relative of the victim, PW-6/sister of the victim, PW-7/Medical Officer as well as PW-8/Investigating Officer of the case. After closure of the prosecution witnesses, the accused appellant was examined under Section 313 CrPC, where all the incriminating evidences/circumstances were put to him, which he generally denied and stated that he has been falsely implicated in the case; however, he did not adduce any defense witnesses in support of his defense.

6. After the closure of the evidence and hearing both sides, the Trial Court pronounced the judgment on 27.03.2023 whereby the accused/appellant was convicted and sentenced thereof. Hence, the present appeal.

7. Mr. J Kalita, learned counsel appearing for the appellant, submits that the accused appellant was impotent and did not have the capacity to commit rape and it has emerged in the cross-examination of PW-1, PW-2, PW-3, PW-4 and PW-6 that the accused/appellant did not have children of his own with his wife and so, he could not have impregnated the victim by committing the alleged sexual intercourse. He further submits that the medical examination report does not indicate any evidence of sexual intercourse with the victim. He further submits that the case of the prosecution is shrouded with suspicion, as there is a delay of 6-7 months in lodging the FIR, from the time of the alleged occurrence.

8. Per contra, Mr. R R Kaushik, learned APP submits that the victim-x in her deposition before the Trial Court has clearly narrated the repeated forceful sexual intercourse committed by the accused appellant while she was alone in the house. He further submits that the victim-x has been consist