JOYMALYA BAGCHI,J. - (1.) The appeal is directed against the judgment and order dated 9th March/13th March, 2018 passed by the learned Additional Sessions Judge, 2nd Court, Alipore, South 24-Parganas in Special S.T. No. 05 (09) 15 [Special Case No. 153/15] convicting the appellant for commission of offence punishable under Section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as POCSO Act) and under Section 376 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for ten years and to pay fine of Rs.1,00,000/-, in default, to suffer simple imprisonment for one year. Fifty percent of the fine amount, if realised, is directed to be paid to the victim child. No separate sentence was awarded for commission of offence under Section 376 of the Indian Penal Code.
(2.) The prosecution case as alleged against the appellant is to the effect that on 14th May, 2015 at about 4:30 P.M. the victim returned home crying and alleged that the appellant, a neighbour, whom she referred to as Karim chacha had called her to his room and thereafter had taken off her clothes, touched her private parts and ravished her. PW2, mother of the victim took her daughter to the police station and on the statement of P.W.2, Garfa Police Station Case No. 140 of 2015 dated 14th May, 2015 under Sections 4/8 of the POCSO Act and under Section 376 of the Indian Penal Code was registered for investigation. The victim was medically treated and her statement was recorded under Section 164 of the Code of Criminal Procedure. In conclusion of investigation, charge-sheet was filed against the appellant. Charges were framed under Section 4 of the POCSO Act and under Section 376 of the Indian Penal Code. The appellant pleaded not guilty and claimed to be tried. In the course of trial, prosecution examined 8 witnesses and exhibited a number of documents. The defence of the appellant was one of innocence and false implication. He however, did not adduce any evidence to improbabilise the prosecution case or rebut the statutory presumption under Section 29 of the POCSO Act. In conclusion of trial, the trial Judge by the impugned judgement and order dated 9th March/13th March, 2018 convicted and sentenced the appellant, as aforesaid. Mr. Arindam Jana, learned advocate appearing for the appellant argued that the version of the victim suffers from inherent contradictions and/or improbabilities. There are contradictions in the depositions of the victim and her mother with regard to the genesis of the incident. Her brother and father who are vital for the unfolding the prosecution case have not been examined. PW2 deposed that she lodged a written complaint at the police station in the instant case whereas FIR was registered on her oral complaint. It is further argued that there is divergence between the medical reports prepared by PW5 and 7, doctors who treated the victim. PW7 categorically stated that the victim was not subjected to sexual intercourse. Hence, the appeal is liable to be allowed.
(3.) On the other hand, learned advocate appearing for the State submitted that the evidence of PW1 is clear and convincing. Her version had been corroborated by PW2, her mother. Local witnesses namely, PW3 and 4 also corroborate the allegation of forcible rape upon the victim. PW5, doctor who examined the victim immediately after the incident found her hymen was ruptured and tenderness in her private parts. PW7 examined the victim about 3 weeks after the incident and no importance ought to be given to such medical report. Hence, the appeal is liable to be dismissed. PW1 is the victim and the most vital witness in the instant case. She is a girl aged around 11 years. She was a student of Kalikapur Junior High School. She deposed in the evening she was playing with her brother. Karim chacha called her saying that he would give her a toy for her brother. Initially she did not go with him but when he is called her again she went with him. He pulled her hands and she ran away and went to the bathroom. Karim took her from the bathroom to his house. He took off her wearing apparels by showing a knife and raped her. He threatened that he would kill her as well as her mother. She sustained pain in her abdomen. She told the incident to her parents. She also told the incident to the doctor and police. She proved her signature on her statements recorded before the learned Magistrate. ;