GUWAHATI, India, Sept. 28 -- Gauhati High Court issued the following order on Aug. 28:

1. Heard Mr. M. Dutta, learned Amicus Curiae, appearing for the appellant. Also heard Ms. B.Bhuyan, learned senior counsel and Additional Public Prosecutor, for the State of Assam. No one appears for the respondent no. 2.

2. The appellant has put to challenge the impugned judgement dated 08/08/2019 passed by the learned Special Judge, Nagaon in Special(POCSO) Case No. 35/2018, by which the appellant has been convicted under section 6 of the POCSO Act, for committing aggravated penetrative sexual assault on his daughter of 9 years, for 2 years. The appellant was consequently sentenced to undergo rigorous imprisonment for life with a fine of Rs. 2,000/-, in default, to undergo rigorous imprisonment for 6 months vide sentence order dated 09/08/2019.

3. The prosecution case in brief is that an FIR dated 24/04/2017 was submitted by the Child-Line Counselor (informant), who was also the prosecution witness No. 1(PW-1) to the Officer-in-Charge of Morikolong TOP, Nagaon, to the effect that Sri Gita Baruah and Abanita Saikia (PW-4), both employees of Nagaon Civil Hospital, had made a call to the Nagaon Child-Line informing that a 9 year old girl (victim)/PW-3 had been raped by her father since the age of 7 years, after her mother had died of illness. Further, the victim had not divulged/disclosed the matter to anyone, as her appellant father had threatened to kill her if she disclosed the matter. However, on 24/04/2017, being unable to bear the torture she suffered at the hands of her father, she narrated the incident to the employees of the Nagaon Civil Hospital. On receipt of the information, the victim was rescued with the help and assistance of the employees of Child-line and the hospital. The FIR also states that the father of the victim girl was absconding.

4. Pursuant to the FIR dated 24/04/2017, Nagaon Sadar PS case No. 1007/2017 under section 4 of the POCSO Act was registered on 24/04/2017. The Investigating Officer (IO) thereafter started his investigation and after taking the statements of various witnesses and producing the victim for medical examination, a charge sheet was filed against the appellant, as a prima facie case under section 4 of the POCSO Act was found against the appellant. The learned Trial Court thereafter framed charge under section 6 of the POCSO Act against the appellant, which was denied by the appellant, who claimed to be tried. Consequently, 8 (eight) prosecution witnesses and the appellant as DW-1 were examined as witnesses by the learned Trial Court. The appellant was also examined under section 313 Cr.P.C. The learned trial Court thereafter came to a finding that the appellant was guilty of having committed the offence under section 5(m) of the PCOSO Act, 2012 and accordingly, he was convicted under section 6 of the PCOSO Act.

5. The appellant has thus come in appeal to this Court, challenging the impugned judgement and sentence order, on the ground that though the FIR stated that the victim had narrated that she had been raped by her father to Sri Gita Baruah, Sri Gita Baruah had not been made a prosecution witness, which could lead to a presumption that the prosecution had some evidence to hide. Further, the case was fabricated by the victim, as the appellant had slapped her twice, as she had come home after 9 PM after riding a bicycle.

6. Ms. B. Bhuyan, learned APP, Assam, on the other hand, submits that the evidence of the prosecutrix and the informant had not been shaken by the defence during the trial.

*Rest of the document can be viewed at: (https://hcservices.ecourts.gov.in/ecourtindiaHC/cases/display_pdf.php?filename=U%2BbhtlrLe2adAHN8Tz%2F1d%2F52ytObsy0CKjb3obrYVFLvE%2FE3CYoMQZc3NR1JJxL0&caseno=CRL.A(J)/53/2020&cCode=1&cino=GAHC010097382020&state_code=6&appFlag=)

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