RANJAN DEKA Vs. STATE OF ASSAM

JUDGEMENT

(1.) Heard Mr. B.M. Deka, learned counsel for the appellant. Also heard Ms. A. Begum, learned Addl. P.P., Assam. No one appears for the respondent No.2, though office note dtd. 18/3/2025 states that service report has been received from the O/c of the Garchuk Police Station, West Guwahati, to the effect that notice had been duly served on the respondent no.2.

(2.) This criminal appeal has been filed under Sec. 374(2) of the Cr.P.C. against the impugned judgment and order dtd. 4/12/2023 (which has been incorrectly mentioned as 4/11/2023), passed by the Court of the learned Addl. Sessions Judge-cum-Special Judge (POCSO), Kamrup(M) in Sessions Case No.300/2017, by which the appellant had been convicted under Sec. 4 of the POCSO Act, 2012 and sentenced to undergo rigorous imprisonment for 25 years and to pay a fine of Rs.10,000.00, in default, to undergo simple imprisonment for 3 months, for raping a 7 year old girl.

(3.) The learned counsel for the appellant submits that the evidence of the victim (PW-2) does not state that the appellant's private parts had been inserted/penetrated the private parts of the victim. Further, there was no evidence given by the victim that the appellant had manipulated any part of the body of the victim to cause penetration into the private parts of the victim. As such, when there was no evidence given by the victim which could attract the provisions of Sec. 3 of the POCSO Act, 2012, the learned Trial Court could not have convicted the appellant for penetrative sexual assault under Sec. 4 of the POCSO Act. He submits that the evidence recorded by the learned Trial Court could have, at best, resulted in the conviction of the appellant under Sec. 10 of the POCSO Act, 2012, inasmuch as, the victim had testified to the effect that the appellant lay on top of the victim. He submits that there was no evidence to show that the appellant and the victim were naked at that time. As the appellant had apparently raised an alarm, the appellant had fled from the place of occurrence.