The court emphasized that the prosecution must prove the victim’s age beyond a reasonable doubt to establish the charge of rape, which was not satisfied in this case.

JUDGMENT

T. Amarnath Goud, J. - Heard Mr. R. G. Chakraborty, learned counsel appearing for the convict-appellant. Also heard Mr. Sumit Debnath, learned Addl. Public Prosecutor, appearing for the respondent-State.

2. This criminal appeal has been filed under Section-374 of the Code of Criminal Procedure is directed against the judgment and order of conviction and sentence dated 25.02.2019 passed by the learned Special Judge, Dharmanagar, North Tripura Judicial District in connection with case No. POCSO 05 of 2017, whereby and whereunder, the appellant has been convicted under Sections-447/376(2) of IPC and thereby sentenced him to suffer RI for 3(three) months under Section-447 of IPC and further sentenced to suffer RI for 10(ten) years for the offence punishable under Section-376(2) of IPC and in default, pay fine of Rs.10,000/- with default stipulation. Both the sentences shall run concurrently.

3. The case of the prosecution, in a nutshell, is that on 26.09.2016, one Kamal Ganju, the complainant-father of the victim has appeared at Kadamtla PS and lodged one written ejahar with the O/C PS to the effect that he has only a daughter namely, 'X' (name withheld) who was aged about 15 years old. He leaving his daughter at home for work here and there. His daughter used to address Durjyo Karmakar @ Durju Karmakar, the convict-appellant herein as uncle but, he for last one month did not use to visit their house. He having found his daughter's health deteriorating, some neighbours inquired the matter from his daughter and his daughter, the victim girl uttered them that the convict-appellant in absence of her father, the complainant herein, used to visit their house and continuously raped her for last 9 to 10 months with assurance to marry her and the appellant asked her to keep the matter concealed otherwise he would assault her physically, so she did not disclose the matter to anyone. Subsequently, after medical examination the victim girl was found 8 months pregnant.

4. On the basis of the aforesaid written complaint dated 26.09.2016, police case bearing No.2016 KDL 049 under Sections- 376(2)(i)/447 of IPC and under Section-4 of the POCSO Act was registered against the appellant and the case was endorsed to SI of police for investigation. On conclusion of the investigation, the IO having found prima facie case against the FIR named accused appellant for commission of offence under Sections-376(2)(i)/447 of IPC and under Section-4 of the POCSO Act.

5. To substantiate the charge, the prosecution has adduced as many as 13(thirteen) witnesses. On the closure of prosecution evidence, the appellant was examined under Section-313 of Cr. P.C. for having his response in respect of the incriminating materials those surfaced in the evidence as adduced by the prosecution, to which he strongly denied the incriminating materials brought against him by the prosecution and claimed to be tried.

6. After hearing the arguments made by both sides and on perusal of the material evidence on record, the learned Court below delivered the judgment and order conviction and sentence dated 25.02.2019 against the accused-person. For the purpose of reference, the operative portion of the impugned judgment and order of conviction may be reproduced hereinbelow:

'In the result, I hereby convict the accused Sri Durjyo Karmakar @ Durju Karmakar @ Durja Karmakar for the offence punishable under Sections-447 and 376(2) of the INDIAN PENAL CODE and acquitted him of the charge punishable under Section-4 of the POCSO Act, 2012. Th