DIPAK NAYAK Vs. STATE OF ASSAM

JUDGEMENT

(1.) Heard Mr. A. Sandilya, Learned Amicus Curiae, appearing for the appellant. Also heard Ms. A. Begum, Learned Addl. P.P. Assam, appearing for the State/respondent No.1 and Dr. P. Agarwal, Learned Legal Aid Counsel, appearing for the respondent No. 2 (informant).

(2.) This appeal has been filed by the appellant against his conviction under Sec. 376AB IPC and Sec. 6 of the POCSO Act, by the learned Sessions Judge, Dibrugarh, in POCSO Case No. 36/2020, arising out of Khowang P.S. Case No.76/2020, vide the impugned Judgment dtd. 11/2/2022. The appellant was subsequently sentenced to undergo rigorous imprisonment for 20 years with a fine of Rs.3000.00, in default, to undergo simple imprisonment for 1 month, under Sec. 6 of the POCSO Act, in view of Sec. 42 of the POCSO Act.

(3.) The appellant's counsel submits that there is a delay in filing the FIR. He also submits that though the victim has stated in her testimony before the Court and under Sec. 161 Cr.P.C., that she had been raped by her uncle (mother's brother) in the house of her uncle, the victim in her Sec. 164 Cr.P.C. statement has stated that she had been raped in her own house. This discrepancy in the place of occurrence puts a question mark on the reliability of the victim as a witness. He however, submits that the victim's Sec. 164 Cr.P.C. statement had not been exhibited during trial, nor was the evidence of the person who recorded the said statement under Sec. 164 Cr.P.C. recorded before the learned Trial Court. He accordingly submits that when conviction has been made on the basis of the sole statement of the victim, the victim's statement has to be truthful and should inspire the confidence of the Court. However, in the present case, the discrepancy in the place of occurrence of the alleged incident not being ascertained by the victim, the entire evidence of the victim girl could not have been the sole basis for convicting the appellant under Sec. 376AB IPC and Sec. 6 of the POCSO Act.