NANTU NATH Vs. STATE OF ASSAM

JUDGEMENT

(1.) This criminal appeal from Jail is preferred to assail a Judgment dtd. 17/9/2019 and an Order on sentence dtd. 18/9/2019 passed by the Court of learned Special Judge, Nagaon ['the Special Court', for short] in Special [POCSO] Case no. 49/2018. In the trial of Special [POCSO] Case no 49/2018, charges were framed against thee accused persons including the accused-appellant herein. Against the accused-appellant, charge under Sec. 6 of the Protection of Children from Sexual Offences [POCSO] Act, 2012 was framed whereas against the other two accused persons, charge was framed under Sec. 4 of the POCSO Act, 2012. By the Judgment dtd. 17/9/2019, the learned Special Court has convicted only the accused-appellant while acquitting the other two accused persons from the charge under Sec. 4 of the POCSO Act, 2012. Finding the accused-appellant guilty of the offence under Sec. 6 of the POCSO Act, 2012, the accused-appellant has been sentenced to undergo rigorous imprisonment for 15 [fifteen] years and to pay a fine of Rs.5,000.00, in default of payment of fine, to undergo rigorous imprisonment for another 3 [three] months. The learned Special Court in the Judgment dtd. 17/9/2019, has recommended the District Legal Services Authority, Nagaon to pay compensation to the victim after due enquiry.

(2.) The investigation was commenced on institution of a First Information Report [FIR] lodged by the Probation Officer - cum - District Child Protection Officer [DCPO], Nagaon before the Officer In-Charge, Batadrava Police Station, District - Nagaon on 11/12/2017. By lodging the FIR, the informant i.e. the Probation Officer-cum-DCPO, Nagaon brought to the notice of the Officer In-Charge, Batadrava Police Station an incident of alleged sexual assault on a minor girl [hereinafter referred to as 'the prosecutrix', withholding the name]. In the said FIR, the informant had inter alia stated that the prosecutrix, aged about 13 years, was sexually abused by the accused-appellant and also by the other accused, who were residents of the same village as that of the prosecutrix. It was informed that as a result of the sexual abuse, the prosecutrix got pregnant and on 4/12/2017, the prosecutrix gave birth to a girl child in the B.P. Civil Hospital, Nagaon. It was further informed that the District Child Protection Unit, Nagaon and M/s Child-Line, Nagaon were taking initiatives in the case and had produced the prosecutrix and the new born baby before the Child Welfare Committee, Nagaon on 8/12/2017. By lodging the FIR, stated to have been lodged at the instruction of the Child Welfare Committee, Nagaon, the Officer In-Charge, Batadrava Police Station was requested to take necessary action against the three accused persons including the accused-appellant, named therein. On receipt of the said FIR, the Officer In-Charge, Batadrava Police Station registered the same as Batadrava Police Station Case no. 244/2017 for offences under Sec. 376, Indian Penal Code read with Sec. 4 of the POCSO Act. One Sub-Inspector of Police, Maheshwar Saikia [P.W.9] was entrusted to carry out the investigation.

(3.) As part of the investigation, the I.O. [P.W.9] visited the office of the District Child Protection Officer [DCPO], Nagaon and examined the informant [P.W.7]. The I.O. seized a number of documents in connection with the case, on being produced by the Project Officer, Institutional Care from the Institutional Child Protection Officer, O/o the DCPO, Nagaon vide Seizure List [Ext.-1]. As the prosecutrix and the new born baby were in the Nagaon State Home, the I.O. [P.W.9] visited the Nagaon State Home and met the prosecutrix in presence of other official witnesses. The medical examination of the prosecutrix was conducted in the B.P. Civil Hospital, Nagaon on 18/12/2017. The accused- appellant was also produced before the Judicial Magistrate, First Class, Nagaon on 18/12/2017 for recording his confessional statement under Sec. 164, CrPC in connection with Batadrava Police Station Case no. 244/2017. On appearance of the accused-appellant before the Court on 18/12/2017, the accused-appellant was forwarded to the Central Jail for the purpose of giving reflection time with a further direction to the Jail authority that the accused-appellant should be kept away from the influence of other co-inmates. Thereafter, the accused-appellant was produced before the learned Judicial Magistrate, First Class, Nagaon on 19/12/2017 and on that day, the statement of the accused-appellant was recorded under Sec. 164, CrPC by the Judicial Magistrate, First Class, Nagaon. Apart from recording the statements of witnesses under Sec. 161, CrPC, the I.O. [P.W.9] got the statement of the prosecutrix recorded under Sec. 164, CrPC before the Judicial Magistrate, First Class, Nagaon on 19/12/2017. In the course of investigation, the I.O. [P.W.9] also made a prayer before the learned Special Court, Nagaon on 20/1/2018 for collection of blood samples from [i] the prosecutrix; [ii] the new born baby, who were then at the State Home, Nagaon; and [iii] three accused persons including the accused- appellant, who were then in Jail custody, for their DNA profiling. On the prayer being allowed, the blood samples were collected and forwarded to the Directorate of Forensic Science, Assam for DNA profiling. The Directorate of Forensic Science, Assam on receipt of the samples for DNA profiling, carried out the tests of DNA profiling and submitted a Report on 9/5/2018 to the Superintendent of Police, Nagaon. The I.O. [P.W.9] after completing investigation into the case, Batadrava Police Station Case no. 244/2017 [corresponding G.R. Case no. 7016/2017], submitted a charge sheet under Sec. 173[2], CrPC vide Charge Sheet no. 78/2018 on 31/5/2018 finding a prima facie case for the offence under Sec. 4 of the POCSO Act, 2012 well established against the accused-appellant and the other two accused persons, named in the FIR.