JUDGMENT :

CHAITALI CHATTERJEE DAS, J.

1. This appeal has been filed under Section 374 (2) of the Code of Criminal Procedure, 1973 against the judgement and order dated December 2, 2019 passed in POCSO case No. 17 of 2018 by the POCSO Court-cum-Additional Sessions Judge, 2nd Court, Cooch Behar convicting the accused/appellant under Section 6 of the said Act and the order dated December 3, 2019 sentencing him to suffer rigorous imprisonment for 15 years.

Fact of the case

2. The prosecution case in a nutshell is that the accused is the father of the victim girl and approximately 10 years ago the wife of accused left him and went to Durgapur. The two sons of the accused are residing at Rajasthan. One day the accused return home in intoxicated condition and tortured the victim physically, even he tried to snatch all the money which victim got under beneficial scheme of Government. Victim informed the wife of de-facto complainant few days back of the date of lodging the complaint, the accused since few months was committing rape forcibly upon whom. On hearing this, the wife of de-facto complainant tried to inform the incident at concerned place but being requested by the victim she did not lodge any complaint. On June 6, 2018 being assaulted by the accused, victim left her house at 12 noon and about 11.30 P.M a phone call was received by the de-facto complainant from a person from NJP that victim was present at NJP .On the following day on June 7, 2018 at about 12 noon de-facto complainant went to NJP Police Station with accused at 8 P.M. Then she along with victim and accused came to Cooch Behar and after reaching that she insisted to go to the house of her aunt and then victim narrated the entire incident to de-facto complainant and thereafter the case was filed.

3. On completion of the investigation the charge-sheet was submitted on June 29, 2018 under Section 6 of POCSO Act of 2012. The learned Special Court framed the charge under Section 6 of POCSO Act of 2012 against the appellant. The contents was read over and explained to the appellant who pleaded not guilty and claimed to be tried.

4. In order to prove the charge 7 witnesses were examined by the prosecution. No defence witness was examined. The Learned Special Court by the judgment and order dated December 2, 2019 found the appellant guilty of the offence charged under Section 6 of the POCSO Act, 2012.

5. Being aggrieved thereby the instant appeal has been filed.

6. The Learned Advocate representing the present appellant submits that it is an ultimate incident where the father of the victim girl has been falsely implicated by the girl when he is absolutely innocent. It is submitted by the Learned Advocate that she was under the custody of her grandparents and none of them was cited as witness in this case. The cousin brother turned hostile during evidence who went to take her back and the de-facto complainant. No injury at her private part can be found from the medical report .Accordingly prays for setting aside the order of conviction.

7. The prosecution on the other hand specifically argued that the allegation was leveled by a girl against none but her own father for commission of such egregious act. She also recorded her statement before the Learned Magistrate. Her evidence could not be impeached during the cross-examination. Therefore the Learned Trial Court rightly pass the order of conviction which should not be set aside. Accordingly prays for dismissal of the appeal.

Submission

8. Heard the submissions .On perusal of the materials on record and considering the submissions advanced by both the Learned Advocates the moot question now falls for consideration as to whether the order of conviction passed by the Learned Trial Court against the present appellant was justified enough and or whether the prosecution was able to prove the case beyond the shadow of all reasonable doubt. In this case the complaint was lodged by one Hillol Roy being the cousin brother of the victim befor