Spl. POCSO Case No.

130/2023

IN THE COURT OF ADDL. SESSIONS JUDGE CUM

SPECIAL JUDGE (POCSO) AT BARPETA.

Present :- Sri Debashish Saikia, AJS.

Additional Sessions Judge cum Special
Judge (POCSO), Barpeta.

SPECIAL POCSO CASE NO. 130 OF 2023

(G.R.No.-838/2023 )
Sorbhog P.S. Case No. 60/2023

COMPLAINANT: STATE OF ASSAM

REPRESENTED BY: Learned S.P.P, Smti P. Das

ACCUSED: Kumud Nath

S/O: Lt. Thaneswar Nath
VILL: Sorbhog, Bargaon
P.S.: Sorbhog
DISTRICT: Barpeta
STATE: ASSAM

REPRESENTED BY : Learned Counsel Mr. Himanga

Baishya, LADC, Barpeta

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 Spl. POCSO Case No. 130/2023

Date of Offence Since one year ago prior to filing the

ejaher on 28.05.2023
Date of FIR 28.05.2023
Date of Charge sheet 30.06.2023
Date of Framing of Charge 16.09.2023
Date of Commencement of 29.09.2023
evidence
Date on which judgment is 04.01.2024, 18.01.2024.
reserved
Date of Judgment 30.01.2024.

Accused Details:
Rank Name Date Date Offences Whether Sentence Period of
of of of Relea charged Acquitted or Imposed Detention
the Accuse Arrest se on with convicted undergon
accu d bail e during
sed Trial of
purpose
of Sec.
428
Cr.P.C.
1 Kumud 29.05 u/s 376 Convicted R.I
for From
Nath .23 IPC and 29.05.23
under clause twenty
under to till
clause (j)(ii) of years date.
J(ii) of
section 5 of and also
section 5
of POCSO the POCSO to pay a
Act
Act punishable fine of
punishabl
e u/s 6 of under rupees
POCSO
section 6 of ten
Act
the POCSO thousan
Act. Accused d i/d to
is also S.I for
convicted u/s another
376 IPC. two
However no years.
separate
sentence is
passed under
this section.

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 Spl. POCSO Case No. 130/2023

J U D G M E NT

1) The prosecution case was set in motion with the

lodging of the ezaher by the informant(name withheld) against
accused Kumud Nath on 28.05.2023 wherein the informant
alleged that Kumud Nath since one year prior to lodging the
ejaher was having physical relationship with his minor daughter
as a result of which his daughter became pregnant. Hence the
ejaher.

2) Based on the above ejaher, Sorbhog P.S. case, no

60/2023 u/s 417 IPC r/w section 4 of POCSO Act was registered
and investigated upon. During the course of investigation, the
victim girl was medically examined and her statement was
recorded under section 164 of C.r.P.C. before the Magistrate.
Accused Kumud Nath was arrested on 29.05.2023 and on being
produced before the court he was remanded to judicial custody.
After completion of investigation, charge-sheet was submitted
against accused Kumud Nath under section 6 of POCSO Act.

3) The charge sheet on being laid before the Hon’ble

Special Judge, Barpeta, Special POCSO Case NO. 130/2023 was
registered and the same was thereafter transferred to this court
for disposal. On receipt of the case record, cognizance was taken
and copy of the case was furnished to the accused. After hearing
learned counsels of both sides a formal charge under Section 376
IPC and section 6 of POCSO Act was framed vide order dated
16.09.2023 which on being read over and explained, the accused
pleaded not guilty and claimed to be tried.

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4) During the course of trial, the prosecution side

examined as many as eight witnesses including the M.O and I.O.
The plea of the accused is that of denial. Statement of accused
was recorded u/s 313 CrPC in which the accused reiterated his
defence plea. The accused did not examine any witness in
his defence. Arguments of both sides were heard at length, and
the oral as well as documentary evidence led in the case is
minutely perused.

5) Learned Special P.P. in course of his argument

submitted that the prosecution case has been proved to the hilt
as against accused under section 376 IPC and section 6 of POCSO
Act and as such accused Kumud Nath needs to be punished.
5.1) On the other hand, learned defence counsel in course
of his argument stated that prosecution has failed to bring home
the charge against the accused. Learned defence counsel
advancing his arguments for the accused submitted that the age
of the victim has not been proved in the instant case to establish
that the victim was a child and therefore charge u/s 6 of the
POCSO Act has not been proved in the instant case. It was next
contended that the act of sexual relationship between the victim
and the accused was consensual and therefore, the charge of
rape u/s 376 IPC cannot be said to have been established against
the accused. Learned defence counsel in support of his case
relied upon some decisions of the Honb’le Supreme court and
finally submits that in view of the deficiencies in the prosecution
case the accused deserves the benefit of doubt and therefore
deserves acquittal.

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6) Now the points for determination before this court are

as follows ---
(i) Whether the accused since one year ago prior to filing the
ejaher i.e. on 28.05.23 within the jurisdiction of Sorbhog PS,
District Barpeta committed rape upon the victim girl, and
thereby committed an offence u/s 376 IPC ?

(ii) Whether the accused since one year ago prior to filing the
ejaher i.e. on 28.05.23 within the jurisdiction of Sorbhog PS,
District Barpeta committed penetrative sexual assault on the
minor victim girl as a result of which she became pregnant,
thereby committing offfence attracting clause J(ii) of section 5 of
POCSO Act punishable u/s 6 of POCSO Act ?

EVIDENCE LED IN THE CASE :

7) The prosecution side examined the informant (name

withheld) as PW1 on 29.09.2023. In his evidence PW1 deposed
that victim is his daughter and is aged about 19 years at present,
her date of birth being 15.10.2004. According to him, a bout
eleven months ago, one day, his daughter (name withheld) had to be
taken to the doctor for illness and the doctor on examining his
daughter confirmed that his daughter was carrying a pregnancy of
seven months. P.W.1 deposed that his wife then enquired from his
daughter as to who was responsible for her pregnancy to which their
daughter disclosed that accused Kumud Nath is responsible for her
pregnancy. P.W.1 deposed that later his daughter gave birth to a baby
boy. PW1 deposed that in connection with the above incident he lodged
the ejaher. P.W.1 deposed that prior to the lodging of the ejaher, a
village “bichar” was held and in the said “bichar” he along with many
villagers and gaonburah Padmadhar Das were present and in the said
“bichar” the accused admitted his guilt. P.W.1 further deposed that

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during the course of investigation, the birth certificate of his daughter

was seized from his wife . P.W.1 identified the ejaher lodged by him as
Ext.P-1 and his signature thereon as Ext.P-1(i).
7.1) In his cross-examination, P.W.1 stated that in his
ejaher, he did not mention any particular date of incident. P.W.1 stated
that at the time of pregnancy, his daughter was below 18 years. P.W.1
stated that the ejaher was lodged during seven months of his
daughter's pregnancy and prior to that, his daughter did not disclose
anything about her sexual intimacy with the accused. P.W.1 stated that
they have visiting terms with the family of the accused. P.W.1 stated
that he did not notice any behavioral change in his daughter during the
seven months of her pregnancy. P.W.1 stated that the ejaher was
lodged after the village “bichar” and that in the village “bichar”, his
daughter was also present. P.W.1 stated that Kandarpa Nath, Hema
Das was also present on the village “bichar”. P.W.1 stated that he had
mentioned before the I.O. about the “bichar” that was held in
connection with the present case. P.W.1 further stated that nothing was
seized by the I.O. from him, but that a birth certificate of his daughter
was seized from his wife. P.W.1 stated that his daughter was taken to
the doctor by her step mother and her aunt namely Pranita Nath. P.W.1
denied that the accused is not responsible for his daughter's
pregnancy.

8) P.W.2 is the victim (name withheld) and she stated in

her evidence that informant is her father and that she knows
accused Kumud Nath. According to her, the incident took place about
two years ago. P.W.2 stated that two years ago, the sister-in-law of the
accused had an operation and the wife of the accused had to stay with
her sister at the hospital and at that time, the daughter of the accused
was with the accused. The wife of the accused asked her to stay at
their house with her daughter who is of her age and she then went to
stay in the house of the accused with his daughter. P.W.2 deposed that
on the first night, she stayed with the daughter of the accused and on
the next night, she was asked to sleep separately in the bed used by

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the wife of the accused. On the second night, at about 1:00 a.m. the
accused suddenly came inside the room, gagged her mouth and had
sexual intercourse with her by threatening her. P.W.2 deposed that she
did not disclose the incident to anybody out of fear and that after
about one year, she was again made to stay in the house of the
accused as this time the wife of the brother-in-law of the accused had
to undergo a caesarian operation and on that occasion also, she stayed
with the daughter of the accused on the first night and on the second
night, she was again asked to sleep in a separate bed and that on the
said night at about 12:00/1:00 a.m., the accused committed sexual
intercourse with her by gagging her mouth. P.W.2 deposed that out of
fear she did not disclose the incident to others this time also. P.W.2
testified that seven months after the second incident, her periods
stopped for which her mother took her to a doctor and on the advice of
the doctor an ulltrasound was done and the doctor then detected that
she was carrying a pregnancy of seven months at that time. P.W.2
deposed that her mother inquired as to who was responsible for her
pregnancy and she disclosed that accused Kumud Nath responsible for
her pregnancy. P.W.2 deposed that immediately, a village “Bichar” was
called, but she do not remember the exact date but it was 25 th of a
certain month six months ago and that in the said “Bichar” held at
their village, she was present along with the accused. P.W.2 deposed
that the Gaonburha was also present along with other villagers and
that in the said “Bichar”, the accused was questioned and he admitted
his guilt. P.W.2 deposed that ejahar was lodged in this regard by her
father and that during the course of investigation, she was brought
before the magistrate and she narrated the above incident before the
magistrate. P.W.2 identified her statement recorded u/s 164 CrPC
before the magistrate as ExtP-2 and her signatures thereon as
ExtP-2(i), ExtP-2(ii) & ExtP-2(ii). P.W.2 also testified that during the
course of investigation, she was also medically examined and that on
20.08.23 she gave birth to a baby boy, which was later handed over to
an NGO.

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8.1) In her cross-examination, P.W.2 stated that she

appeared in HSLC examination twice and on both the occasions she
failed to clear HSLC Examination. P.W.2 stated that on 2021 she
appeared for the first time in her HSLC examination and she again
appeared on 2022 and on that occasion also she failed to clear her
examination. P.W.2 stated that prior to that she once failed to clear her
class-IX examination. P.W.2 stated that she studied at
xxxxxxxxxxxx(name of the school withheld) and thereafter she studied
at xxxxxxxxx (name of school withheld) H.S. School. P.W.2 stated that
the daughter of the accused Munmi Nath studied with her initially in
the same class but she went to a different school later. P.W.2 stated
that she never disclosed the incident to the daughter of the accused on
both the occasions. PW2 also stated that she did not disclose the
above incidents to her friends at school. P.W.2 stated that her own
mother died when she was 1 ½ years old and she stays with her
stepmother. P.W.2 stated that she has a younger brother but her
younger brother stays with her grandmother at Kamargaon village
which is a different village. PW2 stated that she did not disclose the
above incidents to her father and her stepmother immediately after the
incident. P.W.2 stated that the ejahar was lodged by her father after her
father came to know about her pregnancy. P.W.2 stated that the first
incident of sexual intercourse took place about two years ago and she
does not remember the date on which her statement was recorded
before the magistrate. P.W.2 stated that she did not state before the
I.O. that accused admitted his guilt in the village “Bichar” that was held
in connection with the above case. P.W.2 stated that she has visiting
terms with the family of the accused even after the first incident of
sexual intercourse. P.W.2 stated that in the village “Bichar” the
Gaonburha made some written proceedings and that in the said written
proceedings, both her signature and the signature of the accused were
taken and that in the said “Bichar” about 40/50 people participated.
P.W.2 stated that the village people present in the “Bichar” later put
pressure on the accused to marry her and she did not object to the
proposal made by the village people asking the accused to marry her.

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P.W.2 stated that accused has a son whose name is Bubul Nath who is
elder than his sister Munmi Nath. P.W.2 stated that the house of the
accused has two rooms and both the rooms are separated by a wall but
there is no door between the two rooms and there is also an other
room which is under construction. P.W.2 denied that the accused had
sexual intercourse with her as per her consent.

9) P.W.3 is Chandana Nath and she deposed in her

evidence that one day, about four months ago, a village “bichar” took
place and she was also present in the said “bichar” in which the
accused and the victim were also present. P.W.3 stated that in the said
“bichar” their gaonburah asked the accused as to whether he was
responsible for the pregnancy of the victim to which the accused
admitted his guilt and that on that day only, she came to know that
victim become pregnant through the accused and the victim was
pregnant of seven months at that time.
9.1) In her cross-examination, P.W.3 stated that she was
called to the village “bichar” by the victim's mother and the village
'bichar” was held at the street of their village. PW3 stated that she did
not give her signature in the written proceedings of the “bichar”. P.W.3
stated that the family members of the informant has visiting terms
with the family of the accused and that about 60/70 people took part in
the “bichar” and that in the said “bichar” gaonburha of Gellapara
village was also present along with the gaonburah of their village.
P.W.3 stated that she herself did not enquire anything from the victim
girl about the incident. P.W.3 admitted that before the I.O. she did not
specifically state that she was present in the village “bichar” and that
accused admitted his guilt as according to her the I.O. did not ask
anything in this regard.

10) P.W.4 is Pranita Nath and she stated in her evidence

that one day, about four/five months ago she came to know that the
victim had become pregnant. PW4 deposed that she along with the

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victim and her mother went to a dispensary and that as per the advice
a sonography was done and after the said sonography doctor told
them that the victim was carrying a pregnancy of seven months. P.W.4
deposed that she asked the victim as to who was responsible for her
pregnancy to which the victim disclosed that accused Kumud Nath was
responsible for the same. PW4 deposed that in connection with the
incident, a “bichar” was held at their village and she was also present
there. P.W.4 deposed that the accused admitted his guilt before the
gaonburah.
10.1) In her cross-examination, P.W.4 stated that victim is her
distant relative and the family of the accused has visiting terms with
the family of the informant. P.W.4 stated that she does not remember
whether she stated before the I.O. that accused admitted his guilt
before the gaonburah. P.W.4 denied the defence suggestion that she
was not present in the bichar. P.W.4 further denied that accused did not
admit his guilt before the gaonburah.

11) P.W.5 is Amrit Nath and he stated in his evidence that

one day, on 25th May/2023, the informant's wife came to his house and
asked him to attend a village “bichar” that was to be held on the said
day. P.W.5 stated that he did not attend the said “bichar” and that he
also does not know anything about the case. Prosecution declared
the witness as hostile as he did not support the prosecution
case.

12) P.W.6 is the wife the informant and she stated in her
evidence that victim is her step daughter and she is aged about 19
years at present and her date of birth is 15.10.2004. P.W.6 deposed
that in the month of May/2023 victim was taken to the hospital as her
periods stopped. Doctor told them to do a sonography test and after
the sonography test, the doctor told them that the victim is pregnant of
seven months and on being asked, her victim daughter disclosed that
accused Kumud Nath is responsible for her pregnancy. P.W.6 deposed

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that she narrated the incident to her husband, and in this connection a
village “bichar” was also held in which the accused admitted his guilt
that he was responsible for the victim's pregnancy. PW6 claimed that
she was also present in the said “bichar”. P.W.6 further deposed that
during the course of investigation, police had seized the birth
certificate of their daughter and the same was thereafter given to her
in zimma. P.W.6 identified the seizure list as Ext.P-3 and her signature
thereon as Ext.P-3(i). P.W.6 identified the birth certificate of her
daughter as M.O.1.
12.1) In her cross-examination, P.W.6 stated that police recorded
her statement. According to her, they have good family terms with the
family of the accused. P.W.6 stated that the victim did not disclose her
about the incident earlier. P.W.6 stated that on the day of village
“bichar” one Nabadip Nath assaulted the accused after the incident of
pregnancy came to light. P.W.6 denied that accused did not admit his
guilt before her village goanburah in the village “bichar”.

13) P.W.7 is Dr. Taslima Ahmed and she deposed in her

evidence that on 29.05.2023, she was working as Medical Officer, on
duty Department of Forensic Medicine, Fakhruddin Ali Ahmed Medical
College and Hospital, Barpeta, and on that day, the victim (name
withheld), aged about 18 years, d/o xxxxxxxxxxxx(name withheld) of
Vill: Baregaon, PS: Sorbhog was produced in connection with Sorbhog
PS Case No. 60/23 u/s 417 IPC r/w section 4 of POCSO Act. She was
escorted by WHG Shahar Bhanu. PW 7 deposed that she recorded the
history as follows.
13.1 History:-According to the victim, she went to one of her
neighbour's house on an occasion and stayed there for a night and on
that night, the owner of the house Kumud Nath (42 years) raped her
and threatened her to death.
13.2 Physical Examination:-
Identification marks:- 1. One cut mark over the chin 2 X 3 CM
2. One black mole over the naso-labial fold 3.5 cm from the midline.
Height :- 150 cm,

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Weight:- 50 Kg.
Chest girth at nipple level:- 93 Cm. Abdominal girth at navel level:- 86
Cm.
General built & appearance:- Normal
Voice : Feminine.
Teeth: Total:28
Hairs: Axillary/Body: Normal
Breasts:- Normal.
Puberty(as told by the victim’s mother): 8th Std.
Menstruation(as told by victim’s mother): Regular 5-6 days.
LMP ( as told by victim’s mother): 08.11.2022
Mental Condition: Oriented to time, place and person.
Gait: Normal
Intelligence: Normal
Wearing garments & any suspected stains present: Not found.
Bodily Injuries: Not found.
13.3) Genital Examination:-
Pubic hairs: 1-2 cm in length, blackish.
Vulva(Labia majora & minora):- Healthy.
Hymen: Old tear at 8 O'clock position.
Vagina:- Healthy.
Cervix & Uterus: Healthy, Uterus palpable 24 weeks.
Fourchette & Perineum : Healthy.
Other laboratory investigation advised & result : Velocit kit test done –-
Positive Kit has been handed over to the party.
13.4) Ultrasonography advised & result: Single live infra uterine
pregnancy in cephalic presentation with a gestational period of 28
weeks 03 days.
13.5) PW7 deposed that on the basis of physical (including dental)
examination, laboratory & radiological investigation done on the
victim (name withheld), she gave her opinion to the effect that :
(1) No sign of recent sexual intercourse found on the person of the
victim.
(2) No injury mark seen on her private parts.

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(3) She is pregnant with a gestational period of 28 weeks 03 days

13.6) P.W.7 deposed that in this connection, she had submitted
her report, which she identified as Ext.P-4 with her signatures
thereon as Ext.P-4 (i), P-4(ii) & P-4(iii).
13.7) In her cross-examination, P.W.7 stated that t he
victim while giving her history before her did not mention specifically
the dates on which the accused had sexual intercourse with her.

14) P.W.8 is the IO WSI Susmita Borah and she stated in

her evidence that on 28.05.2023, she was working as WSI at Sorbhog
PS. and that on that day, an ejahar was received at their PS and
accordingly Sorbhog P.S. case NO. 60/2023 u/s 417 IPC r/w section 4 of
POCSO Act was registered and she was entrusted to investigate the
case. Taking upon the investigation, she examined the informant and
recorded his statement. She also examined the victim and recorded
her statement. PW8 deposed that she then proceeded to the PO and
recorded the statement of witnesses, prepared a rough sketch map of
the PO, and also seized a birth certificate of the victim girl which she
later gave the same in zimma to the victim's mother. P.W.8 deposed
that on 29.05.2023 the victim girl was sent for medical examination at
FAAMCH, Barpeta and her medical examination was done on that day
and that on the same day, she got the statement of the victim
recorded u/s 164 CrPC. PW8 deposed that on the same day, she
arrested accused Kumud Nath and produced him before the court after
which the accused was remanded to jail hajot. P.W.8 stated that on
12.06.2023, she collected blood sample of the accused and the sample
was sent to FSL, Guwahati for preserving the same for future DNA
analysis with the unborn baby of the victim. PW8 deposed that she
collected the medical report of the victim girl during the course of
investigation and finally on 30.06.2023, she submitted part charge-
sheet against the accused Kumud Nath u/s 6 of POCSO Act. P.W.8
deposed that she had examined witness Amrit Nath and recorded his
statement and in his statement witness Amrit Nath stated before her
that “ he came to know from their villagers that the informant's

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daughter had become pregnant. Two days prior to that, the victim was
taken to the hospital by her mother. On doing Sonography, it was
learnt that the victim was pregnant.” P.W8 identified the seizure list
prepared by her as Ext.P-3 and her signature thereon as Ext.P-3(ii).
P.W.8 identified the sketch map prepared by her as Ext.P-5 and her
signature thereon as Ext.P-5 (i). P.W.8 further identified the charge-
sheet submitted by her as Ext.P-6 and her signature there on as
Ext.P-6(i).
14.1) In her cross-examination, P.W.8 stated that she did not ask
the victim the specific dates on which the accused had sexual
intercourse with her. P.W.8 stated that she did not examine the gaon
burah of village Baregaon in the instant case. P.W.8 stated that she did
not seize any written proceeding of the “bichar” that was held in
connection with above incident. P.W.8 stated that she did not
investigate as to whether any written proceeding was made in the
“bichar”. P.W.8 stated that she did not examine Nipan Nath in the
instant case though his house was shown in the sketch map. P.W.8
stated that she did not examine the younger brother of the victim and
grand mother of the victim in the instant case. P.W.8 stated that she
did not made any prayer for recording the confessional statement of
the accused. P.W.8 stated that as per the statement of the victim, a
“bichar” was held on 25.05.23 and that the statement of the victim u/s
164 CrPC statement was recorded on 29.05.2023. P.W.8 denied that
she never recorded the statement of witness Amrit Nath. P.W.8 stated
that she did not examine any witness named Munmi Nath, Kandarpa
Nath and Hima Das in the instant case.

Submissions of learned counsel

15) The learned counsel for the accused submitted that the
victim was aged more than eighteen years at the time of the
incident and as such offence of POCSO Act is not made out
against the accused. Learned counsel submitted that the

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prosecution in the instant case has failed to establish the age of

the victim girl and since in a prosecution under the POCSO Act
age of the victim is very vital and in the instant case, the
prosecution side has failed to prove the birth certificate of the
victim girl and therefore it cannot be held that the victim was a
“Child” below eighteen years at the time of the incident. Learned
counsel in this connection relied upon the Apex Court decision
Manak Chand @ Mani Vs. the State of Haryana rendered
in Crl. Appeal No. 2276 of 2014 in the Supreme Court of
India. It was next submitted that the evidence of the victim is
contradictory and unbelievable. Learned counsel for the accused
in this connection relied upon the Apex Court decision rendered
in the case of Jasbir Singh @ Javri @ Jabbar Singh Vs. State
of Haryana reported in 2015 (1) Acquittal 454 (SC) and
also relied upon the Apex Court decision of Ganpat Singh Vs.
The State of Madhya Pradesh reported in 2017 (4) Crimes
55 (SC) and submitted that the accused is entitled to benefit of
doubt. Learned counsel for the accused further submitted that
burden of proving a case beyond all reasonable doubt lies in the
prosecution and that it never shifts. It was also submitted that if
two views are possible, one pointing to the guilt of the accused
and the other to his innocence, the view favourable to the
accused should be adopted. In this regard learned counsel relied
upon the decision of Harbeer Singh & Anr Vs. Sheeshpal and
Ors. reported in 2016(4) Crimes 114 (SC).

DISCUSSIONS DECISIONS AND REASONS THEREFOR:

16) In the instant case some vital facts are not in dispute. The
first fact is about the victim girl’s pregnancy which led to the
lodging of the ezaher. The second and most important fact is the

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admission of the accused that he had sexual intercourse with the

victim but then the accused claimed that the sexual intercourse
which he had with the victim was consensual which however is
denied by the victim, and this is apparent from the cross
examination of the victim wherein it was suggested by the
accused that he had sexual intercourse with her as per her
consent which the victim denied. The accused claimed that the
victim was a major girl and as the accused had indulged in
sexual intercourse with the victim his act does not attract any
offence u/s 6 of the POCSO Act and also u/s 376 IPC. The
accused however in course of his statement u/s 313 CrPC only
denied the incriminating materials that surfaced against him and
claimed that he is innocent and that a false case has been lodged
against him. Now in the backdrop of above plea of the accused,
the evidence of the victim has to minutely scrutinized. The
victim PW2 in her evidence claimed that two years ago the sister
in law of the accused had an operation for which the wife of he
accused had to stay with her sister at the hospital and as per the
request of the wife of the accused she went to stay in the house
of the accused along with the daughter of the accused who was
on her age. The victim deposed that on the first night she slept
with the daughter of the accused and on the second night the
accused asked her to sleep on the bed used by his wife and on
the second night the accused during midnight came inside gaged
her mouth and then had sexual intercourse with her by
threatening her. The victim again claimed that one year later she
again had to go the house of the accused to stay there as this
time the wife of the brother in law of the accused had to undergo
a caesarian operation. The victim claimed that on the first night
she slept with the daughter of the accused and on the second
night she was made to sleep in a separate bed and on that night

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at about 12 /1 am the accused again committed sexual inter

course with her, and seven months later her periods stopped for
which she had to do an ultrasonography and in course of the said
ultrasonography it was found that she is pregnant of seven
months. The above claim of the victim is in tune with her
previous statement made before the magistrate which has been
proved in the case as Ext P-2. The victim was cross examined at
length and nothing material could be brought form her to shake
her evidence. The victim reiterated in her cross examination that
the first incident of sexual inter course took place about two
years ago. The assertion of the victim that she had to go to the
house of the accused and stay there as the wife of the accused
had to stay in the hospital as the sister in law of the accused had
to undergo an operation has not been denied by the accused.
Similarly the assertion of the victim that she slept with the
daughter of the accused on the first night and that on the second
night she was made to sleep in the bed used by the wife of the
accused was also not disputed by the accused. The assertion of
the victim that on the second night the accused came and gaged
her mouth and after threatening her had sexual intercourse with
her also has not been disputed by the accused. Again the
assertion of the victim that one year later she had to stay again
at the house of the accused and that on the second night the
accused again had sexual inter course with her is not challenged
by the accused. The assertion of the victim about the detection
of her seven month’s pregnancy after a sonography was done
seven months after the last incident of sexual inter course has
also gone unchallenged from the side of the accused. The
evidence of M.O PW7 that on examining the victim on 29.5.23
the victim was found to be pregnant with gestational period of 28
weeks and 3 days and her medical report Ext P-4 also

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corroborates the claim of the victim that she was carrying a

pregnancy of seven months. Thus the evidence of the victim PW2
clearly implicates the accused of his being responsible for her
pregnancy. The victim in her evidence claimed that she did not
disclose any of the incidents of sexual intercourse which the
accused had with her to anybody as the accused had threatened
her not to disclose the same to anybody and this part of the
evidence of the victim also could not be demolished by the
defence. The learned defence counsel in course of the argument
failed to point out anything in the evidence of the victim to show
that the sexual intercourse which the accused had with the
victim was consensual. The victim on the other hand in fact
during her cross examination denied a suggestion put to her by
the accused. In such circumstances when the victim had denied
that she did not consent to the sexual intercourse which the
accused had with her, the court shall presume that the victim did
not consent and the burden thus would be upon the accused to
rebut the same and prove that the said act was consensual. The
accused in the present case has failed to show that the act of
sexual intercourse was consensual.
16.1) Moving further it again appears that there is nothing in
the cross examination of the victim from which it could be
inferred that the victim was tutored to depose falsely against the
accused. There is also nothing in the evidence of the victim to
show that the victim had deposed falsely against the accused out
of grudge. The evidence of the victim PW2therefore appears to
be cogent and trustworthy to be relied upon and as such her
evidence is accepted.

17) In the instant case the father of the victim is the

informant and he had lodged the ezaher Ext P-1. He had deposed

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in tune with his victim daughter and has spoken about the
detection of his daughter’s pregnancy after a sonography was
done. PW3, PW4 and PW6 also had deposed in tune with the
informant PW1 and has supported the prosecution case. The
above witnesses had also spoken about a village “bichar” that
was held in connection with the incident. They have also claimed
that in the said “bichar” the victim had admitted his guilt. In the
face of the above evidence it has been convincingly established
that the accused had sexual intercourse with the victim on more
than one occasion and this resulted in the victim becoming
pregnant. The citations on which the Learned defence counsel
has relied upon is also considered in the perspective of the
present case. The said judgments were rendered on the peculiar
facts of those cases and as such the same in my measured view
cannot be applied in the facts of the present case.

AGE OF THE VICTIM:

18) The next question that needs determination is the age

of the victim girl. In this connection the informant PW1 who is the
father and PW6 who is the step mother of the victim girl claimed
that their daughter’s date of birth is 15.10.2004. In this regard
the PW6 had produced the birth certificate of their daughter and
had identified the same as M.O1. The M.O1 is a birth certificate
issued by the Department of Health Services Govt of Assam
bearing registration no 370/2004 with date of registration as
28.10.2004. The date of birth is mentioned as 15.10.2004. The
assertion of PW1 and PW6 about the date of birth of their
daughter was not disputed by the accused. Similarly M.O 1 was
admitted without any objection. Though the M.O 1 was not
formally proved the same is admissible u/s 35 of the Evidence

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Act, and the evidentiary value of M.O 1 cannot be discarded as

the same at least corroborates the claim of the informant PW1
and witness PW6 about the date of birth of their daughter and
who happens to be the parents of the victim girl. In the instant
case the accused had also not led any contra evidence to show a
different date of birth of the victim girl then the one spoken off
by her parents, and supported by the M.O1. Ld counsel for the
accused had submitted that the date of birth of the victim girl
was not proved and as such no reliance can be placed upon
M.O1. The submission of the learned counsel cannot be accepted
in view of the undisputed oral assertion of both the parents of the
victim girl viz PW1 and PW6 about the date of birth of their
daughter supported by the date of birth certificate M.O1. Thus in
the aforesaid circumstances the date of birth of the victim girl i;e
15.10.2004 is accepted as the correct date of birth of the victim
girl. In the instant case the victim girl was examined by the M.O
on 29.5.23 and she was found to be pregnant of 28 weeks and
three days i;e of little above seven months. The victim in her
evidence deposed that the accused first had sexual intercourse
with her about two years ago and later after one year the
accused had sexual inter course with her. Thus calculating the
age of the victim girl taking into account her date of birth of as
15.10.2004, she was aged about 18 years 7 months and 14 days
on 29.5.23 when the she was examined by the M.O and found to
be pregnant with gestational period of 28 weeks and 3 days
roughly a little above seven months. Thus taking into account the
gestational period of the victim as a little above seven months,
the act of sexual intercourse which made the victim pregnant has
to be more than seven months prior to the date of her
examination in which case the victim would be aged a little
below 18 years of age. More over there is also the undisputed

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evidence of the victimPW2 that the first act of sexual intercourse

took place about two years ago which would mean that the
incident took place two years to her adducing evidence before
the court on 29.9.23. The victim was therefore held to be a
“child” during the period on which incidents of sexual intercourse
took place.

PRESUMPTION U/S 29 of the ACT:

19) In a prosecution under the POCSO Act the court required

to presume that an accused has committed, or abetted or
attempted to commit the offence as the case may be once he is
prosecuted for committing or abetting, or attempting to commit
any offence u/s 3,5,7 and sec 9 of the Act unless the contrary is
proved. The Honble Gauhati High Court in the decision rendered
in Bhupen Kalita Vs State of Assam has held that the
aforesaid presumption gets triggered against the accused once
the prosecution establishes the foundational facts of the offence
on the basis of preponderance of probability and the burden then
shifts upon the accused to rebut the same and prove that he is
innocent. In the instant case the prosecution has succeeded in
establishing that the victim was a child below 18 years at the
time of alleged occurrence and that the accused had also
committed penetrative sexual assault upon the victim girl
resulting in her pregnancy. Clause j (ii) of sec 5 of the POCSO Act
punishable u/s 6 of the Act clearly stands established against the
accused. The accused had failed to rebut the presumption and
therefore he is held guilty under the aforesaid provision.

20) The accused was also charged u/s 376 IPC and the
evidence led in the case also establishes beyond all reasonable

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doubt that the accused had raped the victim and therefore
charge u/s 376 IPC also stands established against the accused
and he is accordingly held guilty u/s 376 IPC as well.

Hearing on sentence:

21) As the accused is found guilty under the POCSO Act

and a such he is not entitled to the beneficial provisions of the
Probation of Offenders Act. Accused is heard on the question of
sentence. Accused submits that he has a family consisting of wife
and two minor children to look after and that he being the only
earning member of his family, it would cause severe hardship to
his family and therefore, he be dealt with leniently. I have
considered the plea of the accused. No previous conviction has
been proved against the accused. Considering all the facts and
circumstances into account I am of the view that the minimum
sentence of twenty years as provided u/s 6 of the POCSO Act
would suffice.

Victim Compensation

22) In view of provisions of the POCSO act regarding

providing compensation to a victim of an offence under the
POCSO Act and the the need to rehabilitate such a victim with a
view to ameliorate her sufferings, compensation to the victim
finds justification in the present case. In the facts and
circumstances that had emerged a sum of Rs.3,00,000/- (three
hundred thousand) is awarded as compensation to the victim for
her rehabilitation.

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ORDER

23) Accused Kumud Nath is convicted under clause (j)

(ii) of section 5 of the POCSO Act punishable under section 6
of the POCSO Act and is sentenced to R.I for twenty years
and also to pay a fine of rupees ten thousand i/d to S.I for
another two years.
Accused is also convicted u/s 376 IPC. However no separate
sentence is passed under this section.
Furnish free copy of judgment to the convict.
Period of detention already undergone shall be set off as per
provisions of sec 428 CrPC.
Fine if realized shall be paid to the victim.
A sum of Rupees three hundred thousand of Rs300,000/- be
given as compensation to the victim.
Convict is apprised of his right to appeal against the order and
judgment passed against him.
A copy of the judgment be sent to the District Magistrate in view
of the requirement of Section 365 of CrPC.
A copy of judgment also be forwarded to DLSA Barpeta for doing
the needful.
Necessary jail warrant be issued against the convict.
Given under my hand and seal of this court on the 30th
day of January/2024 at Barpeta.

Addl. Sessions Judge cum Special

Judge (POCSO), Barpeta.

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A P P E N D I X

(A) Prosecution witnesses:

RANK NAME NATURE OF
EVIDENCE
P.W.1 Informant (name withheld) Informant
P.W.2 Victim (name withheld) Victim
P.W.3 Chandana Nath
P.W.4 Pranita Nath
P.W.5 Amirt Nath
P.W.6 Informant's wife
P.W.7 Dr. Taslima Ahmed Medical Witness
P.W.8 WSI Susmita Borah I.O.

(B) Defence witnesses: Nil.

(C) Court witness: Nil.

LIST OF PROSECUTION/DEFENCE/COURT EXHIBITS

A. Prosecution :
Srl. Exhibit Number Description
No.
1 Exhibit P-1/PW1 Ejaher
2 Exhibit P-2/PW2 Statement of the victim recorded
u/s 164 CrPC.
3 Exhibit P-3 Seizure list
4 Exhibit P-4 Medical report.
5 Exhibit P-5 Sketch map
6 Exhibit P-6 Charge-sheet

B. Defence Exhibits: Nil

C. Court Exhibits: Nil
D. Material Objects:

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Srl. Exhibit Number Description

No.
1 M.O.1 Birth certificate of victim

Addl. Sessions Judge cum Special

Judge (POCSO), Barpeta.

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