Conviction under POCSO Act modified from Section 6 to Section 10 due to evidentiary inconsistencies regarding penetration and charge alteration procedures impacting the defense.

JUDGMENT :

MICHAEL ZOTHANKHUMA, J.

1. Heard Mr. A. Ahmed, learned counsel appearing for the appellant. Also heard Ms. A. Begum, learned Additional Public Prosecutor appearing for the State respondent and Ms. S. Medhi, learned legal Aid Counsel appearing for the informant/respondent No. 2.

2. The appellant has put to challenge the impugned judgment dated 08.04.2022 passed by the court of the Additional Sessions Judge cum Special Judge (POCSO), Barpeta, in Special POCSO Case No. 30/2018, by which the appellant has been convicted under Section 6 of the POCSO Act, 2012, and sentenced to undergo rigorous imprisonment for 12 years with a fine of Rs. 10,000/-, in default, to undergo rigorous imprisonment for another 1 year.

3. The appellant’s case is that the victim, who was 7 years of age, has not named the appellant as the perpetrator of the crime in her statements made under Section 161 and Section 164 Cr.P.C. Further, there is no allegation of penetration of the private parts of the victim by the private parts of the appellant in the above two statements. The further case of the appellant is that charge had initially been framed under Section 8 of the POCSO Act, 2012, against the appellant on 26.11.2018. However, the charge was subsequently altered to Section 6 of the POCSO Act, 2012, on 31.03.2022, i.e., after recording the evidence of the witnesses and examination of the appellant had been undertaken under Section 313 Cr.P.C on 05.03.2021.

4. The appellant’s counsel submits that when a charge has been framed under Section 8 of the POCSO Act, 2012, and all the defences of the appellant have been garnered to meet the charge under Section 8 of the POCSO Act, 2012, the subsequent alteration of charge to a more serious charge under Section 6 of the POCSO Act, 2012, at the time of hearing, prejudices the appellant in terms of Section 216(4) of the Cr.P.C. and the subsequent conviction and sentence of the appellant under Section 6 of the POCSO Act, 2012 becomes unsustainable, as the appellant had not been made aware that his defences against the evidence of the witnesses would have to meet the charge of Section 6 of the POCSO Act, 2012. The learned counsel for the appellant submits that in view of the above, the impugned judgment should be set aside. In the alternative, he submits that the conviction could at best have been made only under Section 8 of the POCSO Act, 2012.

5. Ms. A. Begum, learned Additional Public Prosecutor appearing for the State respondent and Ms. S. Medhi, learned legal Aid Counsel appearing for the informant/respondent No. 2, submit that the appellant had been named as the perpetrator of the crime by the victim in her statement under Section 161 of the Cr.P.C., though the same was not reflected in her statement made under Section 164 of the Cr.P.C. They also submit that though there was nothing in the victim’s statement made under Section 164 Cr.P.C that there was penetration of the private parts of the victim by the private parts of the appellant, the same had been reflected in the victim’s statement made under Section 161 of the Cr.P.C.

6. The learned counsels for the respondents submits that the victim who was 7 years old and her brother who was 5 years old, had narrated the incident of the victim having been raped by the appellant to their mother (P.W.2), who informed her husband/informant (P.W.4). They submit that the medical evidence of the doctor (P