The credibility of victim testimony can sustain conviction in sexual assault cases, and an accused must prove age under POCSO to avoid liability.

JUDGMENT :

S. DATTA PURKAYASTHA, J.

1. The appeal arises from the judgment of conviction and sentence dated 24.05.2023 passed by Ld. Special Judge (POCSO), North Tripura District, Dharmanagar in Special (POCSO) Case No. 46 of 2019.

2. By the impugned judgment and sentence, the appellant was convicted under Sections 448 and 354 of INDIAN PENAL CODE (for short ‘IPC’) and also under Section 8 of Protection of Children from Sexual Offences Act (for short POCSO Act). Under Section 448 of IPC, he has been sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs.500/- and for both Section 354 of IPC and Section 8 of POCSO Act, he was sentenced to suffer rigorous imprisonment for 5 years and to pay a fine of Rs.500/- each for both the offences and in default of payment of fine, he was further directed to suffer imprisonment for one month on each count of sentences. All the sentences were directed to run concurrently.

3. The prosecution came up with the case that on 14/09/2019 victim (aged about 15 years) was sleeping alone in her house and at that time, the appellant entered there, forcefully laid on her and sexually abused her. Hearing her outcry, one neighbouring lady namely, Smt. Kuiabati Reang [PW-6] and others came there and the appellant also attacked and threatened them.

4. The FIR was lodged with similar allegations by the mother of the victim, Smt. Karanbati Reang [PW-4] which was registered under Section 448 /354 IPC and under Section 12 of POCSO Act, and after investigation the investigating officer (PW.11) laid the charge sheet under Sections 448 , 354, 506 of IPC and under Section 12 of the POCSO Act, 2012. However, the charges were framed by Ld. Trial Court under Sections 448 and 354 of IPC and also under Section 8 of the POCSO Act. The appellant denied the charges and thereafter, total of 11 witnesses were examined by the prosecution. The defence did not adduce any evidence.

5. Ms. R. Guha, learned counsel and Ms. S. Nath, learned counsel for the appellant, argued that by seizure list dated 18.10.2019 the birth certificate and the Aadhaar card of the victim were seized but seizure list was silent about the place of the seizure and even those documents were also not proved into evidence during trial. Next points as were raised by learned counsel were that there was unexplained delay of three days in lodging the FIR which created further doubt about the veracity of the case and that the names of the victim and her mother were reflected in different styles in different places such as in the FIR, in the statement of victim recorded under Section 164 of Cr.P.C. etc. and there were also discrepancies in the evidence of witnesses on material points, more particularly, in the evidences of Smt. Kuiabati Reang [PW-6] and Smt. Bajanbati Reang [PW-8].

6. Learned counsel further argued that the brother of the victim who would reside in the same house was also not examined and when the prosecution came up with the story that just prior to the incident, the minor girl was sleeping in the room, the normal presumption would be that door was locked from inside, but there was no evidence as to how the appellant had entered into said room by opening the door. More so, motive or mens rea of the crime was also not established. Learned counsel also pointed out that no medical examination report was proved into evidence, though according to victim, her medical examination was done by a physician. The last point as was raised by learned counsel for the appellant was that the victim in her evidence named the miscreant to be ‘Ranjit Debroy’ whereas PW.6 stated the name of the miscreant to be ‘Dundu’ but there was no evidence that the appellant Ranjit Debroy was actually Dundu and, therefore, he could not be held responsible for the alleged offence.

6.1 Learned P.P., however, argued that nowhere the appellant had challenged that his name was not Dundu and in the FIR also, it was specifically mentioned that his name was Ranjit Debro