The court ruled that the punishment must align with the law in force at the time of the offence, emphasizing that the minor's inability to consent invalidates any claims of consensual relations.

JUDGMENT :

MICHAEL ZOTHANKHUMA, J.

1. Heard Mr. H.R.A. Choudhury, learned Senior Counsel assisted by Mr. J. Islam, learned counsel for the appellant. Also heard Ms. A. Begum, learned Additional Public Prosecutor, Assam for the State and Mr. H. Talukdar, learned counsel for the respondent no.2.

2. The appellant has put to challenge the impugned judgment dated 13.12.2022 passed by the Court of the learned Additional Sessions-cum-Special Judge (POCSO) at Barpeta in Special POCSO Case no.101/2018, by which the appellant has been convicted under Section 4(2) of the POCSO Act, 2012 and sentenced to undergo rigorous imprisonment for 20 years with a fine of Rs.15,000/-, in default to undergo rigorous imprisonment for another 2 years.

3. The appellant’s counsel submits that the incidents of rape had occurred in between 18.06.2018 till 23.06.2018, when Section 4 of the POCSO Act, 2012 was as follows :

“Punishment for penetrative sexual assault - Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than 7 years but which may extend to imprisonment for life, and shall also be liable to fine.”

4. However, the appellant has been convicted and sentenced under the amended Section 4(2) of the POCSO Act, 2012, after insertion of Section 4(2) by way of Act 25/2019, which came into effect on 06.08.2019. The learned Senior Counsel thus submits that even if the appellant had been convicted under Section 4 of POCSO Act, 2012, he could not have been sentenced under Section 4(2), as the said sub-Section was not a part of the un-amended Section 4 of the POCSO Act, 2012, at the time the incident/offence had occurred.

5. The second ground of challenge to the impugned judgment by the appellant, is that the age of the victim had not been proved by the prosecution, inasmuch as, the original Birth Certificate of the victim had not been produced before the Court. The third ground of challenge to the impugned judgment is that the appellant had not raped the victim. In respect of the third ground of challenge, the alternative submission made by the learned Senior Counsel for the appellant, is to the effect that if at all there was any sexual intercourse between the appellant and the victim, the same was consensual in nature.

6. The learned Additional Public Prosecutor for the State and the learned counsel for the respondent no.2 submit that they have no quarrel with the submission made by the learned Senior Counsel, with respect to the first ground of challenge made to the impugned judgment, insofar as the conviction of the appellant under Section 4 of the POCSO Act, 2012 would have to be in terms of the un-amended section and not the amended section. With regard to the dispute sought to be raised by the appellant as regards the age of the victim at the time of incident, the learned Additional Public Prosecutor has submitted the original Birth Certificate of the victim issued by the Government of Assam, Department of Health Services, which shows that the victim’s Date of Birth was 16.08.2003.

7. The counsels for the respondents further submit that the evidence of the victim (PW-1) shows that she had been subjected to sexual intercourse by the appellant more than once. Further, the testimony of the victim had been corroborated by her statement made under Section 164 Cr.P.C, the Medical Examination Report and evidence adduced by PW-3, who was the Doctor who had examined the victim. They thus submit that even if the se