PULAK DEKA Vs. STATE OF ASSAM

JUDGEMENT

(1.) Heard Mr. S. Borthakur, learned Senior Counsel assisted by Mr. S. Dey, learned counsel for the appellant. Also heard Mr. R.R. Kaushik, Additional Public Prosecutor, Assam for the State and Ms. S. Sharma, learned Legal Aid Counsel for the respondent no.2.

(2.) This appeal has put to challenge the conviction of the appellant under Sec. 4 of the POCSO Act, 2012, vide the impugned judgment dtd. 05/07/2023 passed by the Court of the learned Additional Sessions Judge, POCSO, Kamrup (M), Guwahati, in Sessions Case No. 207/2018, arising out of Khetri P.S Case No. 53/2008.

(3.) The appellant's counsel submits that the conviction of the appellant by the learned Trial Court, on the ground of having committed penetrative sexual assault on the victim girl, age 6 years, is liable to be set aside, inasmuch as, the GDE 1044 dtd. 29/03/2018 had been registered on the basis of a mobile call, made by the informant (PW-1), who is the mother of the victim. However, the Police and the Prosecution had taken the written FIR submitted by PW-1 on the same date, i.e. 29/03/2018 to be the FIR, which cannot be done in terms of the Division Bench judgment of this Court in the case of Lal Kalandi and Another vs. State of Assam, reported in (1997) 1 GLR 311. He submits that the GDE 1044 should be treated as the FIR and the contents of the subsequent written FIR submitted by the informant should be treated as a statement made under Sec. 161 Cr.P.C.