In sexual assault cases involving minors, the victim's testimony is pivotal, and consent is immaterial; statutory presumptions dictate the burden of proof lies with the accused under POCSO.

ORDER

Date : 27-11-2019

Heard Ms. S.K. Nargis, learned counsel appearing for the appellant/accused as well as Mr. D. Das, learned Addl. P.P., Assam appearing for the State respondent.

2. This appeal has been preferred against the judgment and order dated 03.11.2016, passed by the learned Special Judge, Golaghat, in Special (POCSO) Case No.09/2015, whereby the accused/appellant has been convicted u/s.6 of the POCSO Act and sentenced him to undergo rigorous imprisonment for a period of 10 (ten) years and to pay fine of Rs.5,000/-, in default simple imprisonment for another one month.

3. The prosecution case in nutshell is that on 08.01.2013 at about 2:00 P.M., one Rimpi Begum (actual name withheld), the granddaughter of informant Noorjahan Begum was kidnapped by accused Salman Ali and thereafter she was handed over to accused Dilwar Hussain, who confined her in his house and forcefully committed penetrative sexual assault upon her. She informed her parent over phone and after her recovery grandfather filed the FIR. On receipt of the ejahar, the Officer-in-charge registered the Urimghat P.S. Case No.04/2013, u/s.6 of the Protection of Children from Sexual Offence Act (POCSO Act) and entrusted ASI Phanidhar Basumatary to investigate the case. The I.O. then visited the place of occurrence, examined the witnesses and prepared sketch map of the place of occurrence. Thereafter, the victim girl was recovered from the custody of the accused Dildar Hussain, arrested the accused and forwarded him to the Court and got the victim girl examined by the doctor and collected the report and produced the victim before the Magistrate to record her statement u/s.164 of the CrPC and collected the birth certificate of the victim girl. After conclusion of the investigation, the I.O. submitted charge sheet against accused Dilder Hussain and Salman Ali u/s.366(A)/376 of the IPC, to stand the trial, showing accused Salman Ali absconder.

4. On appearance of the accused Dilder Hussain, charge was framed u/s.6 of the POCSO Act and the same was read over and explained to the accused, to which the accused person pleaded not guilty and claimed to be tried.

5. During the course of trial, the prosecution examined as many as nine witnesses including the Medical Officer and Investigating Officer, in support of the case, whereas the defence examined none. The plea of the defence is of total denial. At the conclusion of the trial, the learned trial Court found and hold the accused guilty and convicted him as aforesaid. Hence the appeal.

6. I have heard the learned counsel for and on behalf of the appellant Ms. S.K. Nargis as well as Mr. D. Das, the learned Addl. P.P., Assam, appearing for the State respondent. None appears for the respondent No.2.

7. Learned counsel for the appellant, Ms. Nargis has put forward her argument contending that the prosecution case is full of infirmities and the accused has been convicted on the basis of inconsistent evidence, coupled with inordinate delay in filing FIR and hence the conviction is not sustainable. Pointing towards the evidence of the victim and the content of the FIR, it has been argued that it does not tally with each other and that apart the medical report also does not support the case of the prosecutrix as no mark of injury and sign of sexual assault was found in private part of the victim. Over and above it is submitted that the conduct of the victim is not natural as she remained with the accused for so many days without protest and no clear picture is made out as to how the victim was recovered.

8. Per contra,