JUDGMENT & ORDER : Heard Mr. H. Debbarma, learned counsel appearing for the appellant as well as Mr. B. Choudhury, learned PP appearing for the State. 2. This is an appeal under Section 374(2) of the Cr.P.C. from the judgment dated 22.01.2016 delivered in Special (POSCO) 02 of 2015 by the Special Judge, North Tripura, Dharmanagar. In terms of the said judgment of conviction dated 22.01.2016, the appellant has been sentenced to suffer simple imprisonment for 3(three) years and to pay a fine of Rs.1,000/-, in default, to suffer further simple imprisonment for 3(three) months under Section 8 of the Protection of Children from Sexual Offences (POCSO) Act, 2012. In view of Section 42 of the POSCO Act, 2012 no separate sentence has been awarded under Section 354 of the IPC even though it has been held by the Special Judge that the appellant has outraged the modesty of the victim. 3. The genesis of the prosecution is rooted in the oral ejahar [Exbt.1] filed by one Sadhana Bauri [PW-2] revealing that her daughter, the victim [PW-1] reported her that the appellant had touched her vagina with his penis and pushed it to penetrate. She was hurt and suffered pain. The incident was informed to the Secretary of the Tea Estate as her husband was away from home. As a result, the delay occurred in informing the occurrence to Kadamtala Police Station. In terms of the said ejahar, Kadamtala Police Case No.2014KDL103 was registered under Section 376(1) of the IPC and Section 4 of the POSCO Act, 2012. Having completed the investigation, the final police report charghesheeting the appellant was submitted to the court of the Special Judge, North Tripura, Dharmanagar. Having taken cognizance, the charge was framed against the appellant under Section 376(2)(1) of the IPC and separately under Section 4 of the POSCO Act, 2012 but the appellant pleaded innocence and claimed to be tried. The prosecution in order to prove the said charge, adduced as many as 10 witnesses including the medical officer, who examined the victim and the appellant [PW-8], the informant [PW-2] and other neighbouring witnesses including the reporting officer. The prosecution in order to prove the said charge, adduced as many as 10 witnesses including the medical officer, who examined the victim and the appellant [PW-8], the informant [PW-2] and other neighbouring witnesses including the reporting officer. The prosecution also adduced few documentary evidence [Exbts.1 to 12] including the complaint, the medical examination reports and the statement of the victim girl [PW-1] recorded under Section 164(5) of the Cr.P.C. Thereafter, the appellant was examined under Section 313 of the Cr.P.C. for having his response in respect of the incriminating materials those surfaced in the evidence. The Special Judge on appreciating the evidence returned the said finding of conviction which has been challenged in this appeal. 4. Mr. H. Debbarma, learned legal aid counsel appearing for the appellant has strenuously argued that the prosecution has failed to establish the charge even under Section 8 of the POSCO Act or under Section 354 of the IPC in accordance with the standard of proof. He has categorically submitted that the victim is a girl of tender age. At the time of occurrence, she was a little over 3½ years and the way she stated the transaction of the offence and described the organs creates a serious doubt whether the victim was stating her own or she was placing the tutored version. Mr. Debbarma, learned legal aid counsel has further submitted that the appellant is severely bodily incapacitated and it is probable that he did not do the act in the manner as stated by the victim to PW-2. According to Mr. Debbarma, learned legal aid counsel, from the entire prosecution case it smacks that the neighbourhood was inclined to get rid of the appellant as he was suffering from a severe form of leprosy. Mr. Debbarma, learned legal aid counsel has drawn attention of the medical report [Exbt.6] in respect of the physical condition of the appellant. PW-8, Dr. Mriganka Datta Biswas who prepared the medical report testified in the trial and stated that he examined the appellant and he was found capable of performing the sexual intercourse. He identified the report [Exbt.6]. Mr. Debbarma, learned legal aid counsel has further submitted that the report and the testimony in the trial are in conflict and as such, this court would not place reliance on the version as recorded in the report. He identified the report [Exbt.6]. Mr. Debbarma, learned legal aid counsel has further submitted that the report and the testimony in the trial are in conflict and as such, this court would not place reliance on the version as recorded in the report. The report states “A/P- lower limbs were very weak and unable to stand without any support. RT hand was damaged due to neuropathy. Deep seated gangrene was present on both sole of both leg and discharge was coming out.” Further, Mr. Debbarma, learned legal aid counsel has submitted that on medical examination of the victim [PW-1], the doctor opined that there was no sign of forcible sexual intercourse. Mr. Debbarma, learned legal aid counsel has further submitted that except PW-1, all the witnesses are hearsay witness. However, Mr. Debbarma, learned legal aid counsel has fairly submitted that the statement immediately made to PW-2 may have some probative value as res gestae [section 6 of the Evidence Act]. But according to Mr. Debbarma, learned legal aid counsel appearing for the appellant that on over-all reading of the evidence it would surface that the prosecution’s case has not been established beyond reasonable doubt and as such, the benefit should go to the appellant. 5. While repelling the said submission of Mr. Debbarma, learned legal aid counsel appearing for the appellant, Mr. B. Choudhury, learned P.P. appearing for the State has submitted that there is no reason to disbelieve the version of the victim [PW-1] who has clearly stated that how the sexual assault was made to her. She has stated in the trial pointing to her genital organ that the appellant rubbed his penis on the walls of her vagina. She has testified by stating that she received pain in her genital organ. This part was not confronted by cross-examination. Mr. Choudhury, learned P.P. has submitted that immediately after the occurrence the victim has stated her mother [PW-2] in the similar manner, which is corroborative to demonstrate that such thing had occurred inasmuch as there was no space for infantile imagination of the occurrence. Mr. Choudhury, learned P.P. has strongly criticized the submission made by Mr. Debbarma, learned legal aid counsel appearing for the appellant that there existed a strong possibility of tutoring of PW-1. Mr. Mr. Choudhury, learned P.P. has strongly criticized the submission made by Mr. Debbarma, learned legal aid counsel appearing for the appellant that there existed a strong possibility of tutoring of PW-1. Mr. Choudhury, learned P.P. in this regard has categorically stated that when no cross-examination was carried out in respect of the version of the victim, such plea cannot be raised by the defence at this stage. 6. For purpose of appreciating the submissions made by the learned counsel appearing for the parties, it would be apposite to take a cursory glance at the evidence as recorded in the trial. Since the statement of the victim [PW-1] has already been referred elaborately, it is not required to repeat it. PW-2, Smt. Sadhana Bauri has stated that on a day of December, 2014, the victim came rushing to her and sobbingly stated that the appellant poured oil inside her panty and pained her. When she removed her panty, she found that there was oil all over her genital part. The genital part and panty were stained with semen. Then she called the neighbourers. When all of them went to the appellant, the appellant was standing nearby and was trembling in fear. Later on, the matter was reported to Kadamtala police station. She identified her signature on the oral ejahar and seizure list and [Exbts.1 & 2] respectively. She was also stated that the statement of PW-1 was also recorded under Section 164(5) of the Cr.P.C. There was no effective cross-examination against the statement made by PW-2 in the trial. 7. PW-3, Champa Bauri is a relative who narrated in the same mode what she heard from PW-2. In the cross-examination, she had clarified that she lived in a close proximity of PW-2. Similarly, PW-4, Smt. Anjana Malakar has stated what she heard from PW-2. She is also a relative of PW-2. PW-5, Sri Satyendra Nath, a witness from the neighborhood has stated that PW-2 had shown him the panty of PW-1. He found edible oil and semen on the panty. He was not cross-examined very effectively. PW-6, Sri Narayan Bauri has replicated the version of PW-5. He was also not properly cross-examined to test the veracity of the statement. PW-7, Md. Hussain Ahmed is a seizure witness. He simply identified his signature on the seizure memo. PW-8, Dr. He found edible oil and semen on the panty. He was not cross-examined very effectively. PW-6, Sri Narayan Bauri has replicated the version of PW-5. He was also not properly cross-examined to test the veracity of the statement. PW-7, Md. Hussain Ahmed is a seizure witness. He simply identified his signature on the seizure memo. PW-8, Dr. Mriganka Datta Biswas has stated that he examined both the victim and the appellant. The one part of his statement has already been referred. In the latter part, he has clearly stated that he had carefully examined the victim’s vulva. There was no injury, no bite mark and no erythema on her vulva. He was of the opinion that for the close proximity of the occurrence vis-a-vis the medical examination, if the narrated occurrence was true, the erythema would have been found on her vulva if the appellant rubbed his penis on her vulva. But he did not find erythema, even he did not find any seminal stain either on her wearing apparels or in her genital organ or any part of her body. He identified his medical report [Exbt.7]. PW-9, Jarina Begam is a police constable who recorded the statement of PW-2 and the victim [PW-1]. PW-10, Sri Sankar Das was a Sub-Inspector of police at the relevant point of time posted in Kadamtala Police Station. In the trial, he has narrated in brief how he carried out the investigation, made seizures, prepared the hand-.sketch map, located the various materials for investigation and recorded the statements of the witnesses. On culmination of the investigation, he found a strong prima-facie case surfaced and he filed the final police report chargesheeting the appellant. In the cross-examination, he has categorically stated that the panty that was seized was soaked by edible oil, but he could not collect any report from the forensic science laboratory. In this regard one of the important statements recorded under Section 164(5) of the Cr.P.C. [Exbt.4] has been placed in the evidence. In the said statement, PW-2 has stated what she heard from PW-1. PW-2 has stated there that the appellant attempted rape but when they met the appellant, the appellant told that he was innocent. 8. In this regard one of the important statements recorded under Section 164(5) of the Cr.P.C. [Exbt.4] has been placed in the evidence. In the said statement, PW-2 has stated what she heard from PW-1. PW-2 has stated there that the appellant attempted rape but when they met the appellant, the appellant told that he was innocent. 8. It surfaces from appreciation of the evidence that there was no penetrative sexual assault within the meaning of Section 3 of the POSCO Act but the statement of PW-1 cannot be doubted in terms of Section 30 of the POSCO Act which enables the court to take presumption of culpable mental state, for any offence under the POSCO Act which requires a culpable mental state on the part of the accused. In such circumstances, the special court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the offence in that prosecution. The defence did not take such initiative. What Mr. Debbarma, learned legal aid counsel has submitted that the appellant was bodily incapacitated by illness and he cannot be expected to indulge in the culpable act. The doctor has categorically stated that the appellant was capable of sexual intercourse. There cannot be different opinion that the appellant had certain incapacity, but it was a case relating to a girl of 3½ years of age. There had been no question of physically overpowering the victim. As such, the act according to the court cannot be disbelived. The prosecution has established the culpable mental state vis-a-vis the episode of confrontation with the accused but the defence has utterly failed to discharge their onus and as such, the presumption of a culpable mental state for such act can be drawn by this court as well. However, having regard to the entire transaction of this offence it appears that the Special Judge did not commit any infirmity but the detention of the appellant that he has suffered during the investigation and in trial has not been set off. As a result, the appellant is still languishing in jail. However, having regard to the entire transaction of this offence it appears that the Special Judge did not commit any infirmity but the detention of the appellant that he has suffered during the investigation and in trial has not been set off. As a result, the appellant is still languishing in jail. This court is of the view that the benefit of Section 428 of the Cr.P.C shall be provided to the appellant by setting off the period of detention that he had suffered during investigation and in the trial. Application of Section 428 of the Cr.P.C. is a rule unless the exception is made by recording the reasons while such exception is made. Section 428 of the Cr.P.C. provides as under: “Where an accused person has, on conviction, been sentenced to imprisonment for a term, not being imprisonment in default of payment of fine, the period of detention, if any, undergone by him during the investigation, inquiry or trial of the same case and before the date of such conviction shall be set off against the term of imprisonment imposed on him on such conviction, and the liability of such person to undergo imprisonment on such conviction shall be restricted to the remainder, if any, of the term of imprisonment imposed on him.” 9. Mr. Debbarma, learned legal aid counsel has submitted that since 08.12.2014 the appellant is in detention or incarceration in terms of the conviction. As such on 07.12.2014, he has completed his sentence without any remission and for non-payment of fine, the imprisonment in default has also been suffered by him, if set off is effected. As such, he is entitled to be released from the jail custody. In the result, the appeal stands allowed subject to what has been observed regarding setting off the period of detention. The appellant be released forthwith as he has suffered the sentence. Send down the LCRs forthwith. A copy of this order be furnished to Mr. H. Debbarma, learned legal aid counsel and Mr. B. Choudhury, learned PP for their doing the needful.