JUDGMENT & ORDER (CAV)

1. Heard Mr. S. Nawaz, learned counsel for the appellant. Also heard Mr. R. R. Kaushik, learned Additional Public Prosecutor, Assam as well as Mr. D. Gogoi, learned Amicus Curiae appearing for the respondent No. 2/informant.

2. This Criminal Appeal has been filed, under Section 374(2) of the Code of Criminal Procedure, 1973, by the appellant, Promud Yadav, impugning the judgment and order dated 14.06.2023 passed by the learned Special Judge (POCSO), Karbi Anglong, Diphu in the POCSO Case No. 08/2022 whereby the appellant was convicted under Section 10 of the POCSO Act, 2012 and was sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.10,000/- and in default of payment of fine to undergo simple imprisonment for two months.

3. The facts relevant for consideration of the instant appeal, in brief, are as follows:-

i. That on 08.11.2021, the father of the victim girl had lodged an FIR before the Officer-in-charge of Bokajan Police Station, inter alia, alleging that on 07.11.2021 at about 8:00 PM, his elder daughter who was aged about seven years at the time of alleged incident informed him that on 06.11.2021 at about 11:00 PM when they were sleeping, the appellant took her away gagging her mouth and committed rape on her thereafter he threatened her not to disclose the matter to anyone else.

ii. On receipt of the said FIR, Bokajan P.S. Case No. 205/2021 was registered under Section 448 of the Indian Penal Code read with Section 6 of the POCSO Act, 2012 and investigation was initiated. After completion of the investigation, charge-sheet was laid against the appellant under Section 448 of the Indian Penal Code read with Section 8 of POCSO Act, 2012.

iii. During the course of investigation, the appellant was arrested and he faced the trial remaining in custody. The Trial Court after considering the materials available on record and after hearing the learned counsel for both the sides, framed charges under Section 448 of the IPC and Section 4 of POCSO Act, 2012 against the appellant. When the said charges were read over and explained to the appellant, he pleaded his innocence and claimed to be tried.

iv. To bring home the charges against the appellant, the prosecution side examined as many as 8 (eight) prosecution witnesses including the informant as well as the victim girl. During his examination under Section 313 of the Code of Criminal Procedure, 1973, the appellant denied the truthfulness of the testimony of the prosecution witnesses. He also adduced two defence evidences in his defence. However, ultimately on culmination of the trial, the appellant was convicted and sentenced, by the impugned judgment, in the manner as already described in paragraph No. 2 hereinabove.

4. Before considering the submissions made by the learned counsel for both the sides, let us go through the evidence of the prosecution witnesses, which is available on record.

5. The PW-1, who is the victim girl herself, has deposed that on the date of deposing before the Trial Court she was aged about 9 years and she was reading in Class-IV. Before recording her testimony, the Trial Court put her some general questions to ascertain her capacity to understand and give rational answers to the questions posed to her and after satisfying with her capacity, the Trial Court recorded her testimony. She has deposed that she knows the appellant and the incident took place on the next day of Diwali and at that time she was eight years old. She has deposed that the incident occurred at night and she came out of her house to attend the call of nature. At that time, her father and younger sister were sleeping inside the house. She has deposed that the appellant suddenly came and gagged her mouth and took her to Verandah to the backside of their house. There was a bed at the Verandah. She deposed that the appellant laid her on the bed and after removing her clothes, pushed his penis into her vagina and raped her for about on