A conviction under the special protection Act for children requires positive proof of the victim's minority. Where the prosecution fails to provide evidence establishing the age of the victim, and the evidence regarding the occurrence is inherently contradictory, the conviction cannot be sustained.

JUDGMENT :

RAJESH KUMAR, J.

1. Heard Mr. D. K. Chakraverty, learned counsel for the appellant and Mrs. Nehala Sharmin, learned counsel for the State.

2. The present appeal is directed against the Judgment of conviction dated 18.12.2018 and order of sentence dated 20.12.2018, passed by the learned Special Judge POCSO Court, Khunti, in POCSO Case No.16 of 2017, whereby the appellant has been convicted for the offence under Section 4 of the Protection of Children from Sexual Offences Act, 2012 (in short POCSO, Act) and has been sentenced to undergo rigorous imprisonment for seven years with fine of Rs.25,000/- (Twenty-five thousand) and in default of fine, further sentenced to undergo simple imprisonment for one year.

3. The prosecution story, in short, is based on the written application of the informant-cum-victim, aged about 16 years, stating therein that on 07.11.2017 at about 5:00 PM at evening, she had left her house to proceed for Torpa Church and when she reached near the bus stand at State Bank of India, Torpa Road, then his neighbour Babloo Mabto, aged about 30 years, came before her riding blue coloured motorcycle and proposed her to eat gram (chana). Thereafter, he offered her to drop at her destination by his motorcycle. Then the victim had tried to flee away, but he followed her till Sant Mikhails School and had further allured her to provide her a Samosha and when the informant refused to ride over his motorcycle, the accused had threatened her to kill. Then under fear, she had ridden on such motorcycle and as soon as she ride on such motorcycle, accused had suddenly picked up his motorcycle with very high speed and had taken away her to Jurdag forest and there he had compelled her to open her entire dress and on protest of victim, accused had also assaulted her. Thereafter, keeping her under control, he had committed forcibly sexual relationship with her and after that he had threatened her to kill if she will disclose the matter to anyone. Then the accused dropped her back at Karra road near pond, from there she had gone to her home. At her home, she had narrated the entire occurrence to her family members. Informant has further stated that the time of occurrence was in between 6:30 PM to 8:00 PM.

On the basis of above information of the informant, Torpa P.S Case No.181 of 2017 dated 07.11.2017 has been registered under Sections 376 IPC and Sections 3/ 8 of the POCSO Act, against the accused-appellant and the police, after completing the investigation, has submitted the charge-sheet and the trial court has framed the charge on 08.02.2018 under Sections 376 IPC and Sections 4/ 8 of the POCSO Act against the present appellant. Thereafter, the case has been committed to the court of Sessions to which the appellant has pleaded innocence and claimed to be tried and accordingly, the trial has commenced.

4. To substantiate the charges, the prosecution has examined altogether 06 witnesses and their depositions, in short, are as follows:-

5. P.W.-1, Sita Devi, is the mother of the victim and she has supported the prosecution story. She is not an eye witness to the incident. Her daughter has narrated the entire story to her.

In her cross-examination, she has deposed that the area is densely populated having too many shops. There is nearby police station also.

6. P.W.-2, xxxxxx, is the victim -cum- informant herself. She has supported the case.

In para-16 of her cross-examination, she has admitted that scratch mark upon her was due to bushes in the forest area. In para-18, she has stated that injury on her body, back and on her waist area have been caused due to the incident. There was also st