The credibility of a victim's testimony and the application of statutory provisions for setting off detention periods.

Heard Mr. H. Debbarma, learned counsel appearing for the appellant as well as Mr. B. Choudhury, learned PP appearing for the State.

2. This is an appeal under Section 374(2) of the Cr.P.C. from the judgment dated 22.01.2016 delivered in Special (POSCO) 02 of 2015 by the Special Judge, North Tripura, Dharmanagar. In terms of the said judgment of conviction dated 22.01.2016, the appellant has been sentenced to suffer simple imprisonment for 3(three) years and to pay a fine of Rs.1,000/-, in default, to suffer further simple imprisonment for 3(three) months under Section 8 of the Protection of Children from Sexual Offences (POCSO) Act, 2012. In view of Section 42 of the POSCO Act, 2012 no separate sentence has been awarded under Section 354 of the IPC even though it has been held by the Special Judge that the appellant has outraged the modesty of the victim.

3. The genesis of the prosecution is rooted in the oral ejahar [Exbt.1] filed by one Sadhana Bauri [PW-2] revealing that her daughter, the victim [PW-1] reported her that the appellant had touched her vagina with his penis and pushed it to penetrate. She was hurt and suffered pain. The incident was informed to the Secretary of the Tea Estate as her husband was away from home. As a result, the delay occurred in informing the occurrence to Kadamtala Police Station. In terms of the said ejahar, Kadamtala Police Case No.2014KDL103 was registered under Section 376(1) of the IPC and Section 4 of the POSCO Act, 2012. Having completed the investigation, the final police report charghesheeting the appellant was submitted to the court of the Special Judge, North Tripura, Dharmanagar. Having taken cognizance, the charge was framed against the appellant under Section 376(2)(1) of the IPC and separately under Section 4 of the POSCO Act, 2012 but the appellant pleaded innocence and claimed to be tried. The prosecution in order to prove the said charge, adduced as many as 10 witnesses including the medical officer, who examined the victim and the appellant [PW-8], the informant [PW-2] and other neighbouring witnesses including the reporting officer. The prosecution also adduced few documentary evidence [Exbts.1 to 12] including the complaint, the medical examination reports and the statement of the victim girl [PW-1] recorded under Section 164(5) of the Cr.P.C. Thereafter, the appellant was examined under Section 313 of the Cr.P.C. for having his response in respect of the incriminating materials those surfaced in the evidence. The Special Judge on appreciating the evidence returned the said finding of conviction which has been challenged in this appeal.

4. Mr. H. Debbarma, learned legal aid counsel appearing for the appellant has strenuously argued that the prosecution has failed to establish the charge even under Section 8 of the POSCO Act or under Section 354 of the IPC in accordance with the standard of proof. He has categorically submitted that the victim is a girl of tender age. At the time of occurrence, she was a little over 3½ years and the way she stated the transaction of the offence and described the organs creates a serious doubt whether the victim was stating her own or she was placing the tutored version. Mr. Debbarma, learned legal aid counsel has further submitted that the appellant is severely bodily incapacitated and it is probable that he did not do the act in the manner as stated by the victim to PW-2. According to Mr. Debbarma, learned legal aid counsel, from the entire prosecution case it smacks that the neighbourhood was inclined to get rid of the appellant as he was suffering from a severe form of leprosy. Mr. Debbarma, learned legal aid counsel has drawn attention of the medical report [Exbt.6] in respect of the physical condition of the appellant. PW-8, Dr. Mriganka Datta Biswas who prepared the medical report testified in the trial and stated that he examined the appellant and he was found capable of performing the sexual intercourse. He identified