The court upheld the conviction under POCSO, establishing that the victim's age was proven beyond reasonable doubt despite defense arguments, emphasizing the burden of proof rests with the prosecution.

JUDGMENT AND ORDER (ORAL)

1. This appeal is directed against the judgment and order of conviction and sentence dated 05.07.2019, passed by learned Special Judge, khowai District, Khowai, in connection with case No. Special (POCSO) 08 of 2015 whereby and whereunder the convict-appellant has been convicted under Section 8 of Protection of Children from Sexual Offences (POCSO) Act and sentenced him to suffer R.I. for 3 (three) years along with a fine of Rs.5,000/- with default stipulation.

2. Short facts of the case are that one Rakhi Das, lodged a written complaint before the Officer-in-Charge, Teliamura Police Station stating inter alia that on 08.09.2014, at about 12:30 hours, her minor daughter [name withheld], aged about 10 years, went out a little distance from their house for letting their goats. At that time, Subal Bhowmik, the accused- appellant [here-in-after referred to as the accused] on getting her minor daughter alone grabbed her arms and tried to remove her wearing pant and also pressed her breast. Her minor daughter started to cry loudly and when the complainant moved forward upon hearing cry of her minor daughter, the accused had fled away.

3. On the basis of the said complaint, O.C., Teliamura P.S. had registered an FIR. Investigation was carried on. During investigation, the investigating officer recorded the statements of the victim girl under Section 164(5) of CrPC. The I.O. also recorded the statements of the available witnesses. Thereafter, on being satisfied with the allegations, I.O. submitted charge-sheet against the accused.

4. Learned Special Judge after receipt of the copy of the police report, took cognizance of the same. At the commencement of trial, charge was framed against the accused under Section 8 of the POCSO Act. It was read over to the accused to which he pleaded not guilty.

5. To substantiate the said charge, the prosecution had introduced as many as 13 witnesses. The prosecution also introduced some documents including the birth certificate [Exbt.6] of the victim girl.

6. After conclusion of trial, the accused was examined under Section 313 CrPC to which he denied all the allegations levelled against him and also adduced two defence witnesses as DW-1 and DW-2.

7. Having heard the learned counsels appearing for the parties and on consideration of the evidence and materials on record, learned Special Judge held the accused guilty of committing offence punishable under Section 8 of the POCSO Act and sentenced him as aforestated.

8. Being aggrieved by and dissatisfied with the said judgment and order of conviction and sentence, the appellant has preferred the instant appeal before this court.

9. I have heard Mrs. S. Chakraborty, learned counsel appearing on behalf of the appellant. Also heard Mr. S. Ghosh learned Addl. P.P. appearing on behalf of the State-respondent.

10. Mrs. S. Chakraborty, learned counsel appearing for the appellant submits that the age of the victim girl has not been proved. The mother of the victim deposed that her victim daughter was born at IGM hospital but the certificate issued by the village panchayat reveals that she was born at Maharanipur. Moreover, according to learned counsel for the appellant, there is no explanation as to why delay of one day was caused in lodging the FIR. Mrs. Chakraborty, learned counsel further submits that the learned Special Judge ought to have acquitted the accused since the age of the victim girl has not been proved and conviction under Section 8 of the POCSO Act is not at all maintainable.

11. On the other hand, Mr. S. Ghosh, learned Addl. P.P. appearing for the State-respondent submits that