JUDGMENT & ORDER : 1. Heard Ms. B. Sharma, learned Amicus Curiae appearing for the appellant and also heard Mr. B. Gogoi, learned Addl. Public Prosecutor appearing on behalf of the State of Assam. 2. Sri Jakariyas Topno, the father of victim girl, lodged Ejahar/FIR before O/C Borbholla Police Station stating inter-alia, that on 07.08.2016 at about 8.00 P.M. while he was absent in his house, the accused came to their house and took his minor daughter towards shop intimating the same to his wife. Thereafter, the accused took her to an isolated place and committed rape upon his daughter. 3. On the basis of said FIR, Borholla P.S. Case No. 69/2016 under Section 376 of IPC read with Section 6 of The Protection of Children From Sexual Offences Act (POCSO), 2012, was registered. The victim was examined medically during the course of investigation and she was also produced before the learned Magistrate to record her statement under Section 164 of CrPC. On completion of investigation, the Police submitted charge-sheet against the accused person, Jems Bangra u/s.376 IPC read with u/s.6 of the POCSO Act, 2012. 4. The learned Sub-Divisonal Magistrate, Titabar Sub-Division, Jorhat,committed the case to the learned Court of the Special Judge, Jorhat for trial. 5. The learned Special Judge on due consideration of the records and after hearing both sides framed charge under Section 376 (1) of IPC r/w Section 6 of the POCSO Act, 2012 and read over and explained to the accused, to which, he pleaded not guilty and claimed to be tried. 6. During the course of the trial, prosecution examined 6(six) witnesses including the victim, the informant, Medical Officer and the I.O. On completion of prosecution evidence, statement of the accused person was recorded u/s. 313 of CrPC, wherein he has stated that the he has been falsely implicated in the case. No witness was adduced by the accused in his defence. 7. At the conclusion of the trial, the learned Court finds and hold the accused guilty u/s. 6 of the POCSO Act and convicted the accused person, Jems Bhangra under 6 of the POCSO Act and sentenced him to go R/I for 10 (ten) years and also to pay fine of Rs.15,000/- (Rupees Fifteen thousand only), in-default of payment of fine, to suffer further rigorous imprisonment for 6(six) months. 8. 8. That apart, the learned Court also directed to award compensation to the victim by the learned Secretary, District Legal Services Authority, Jorhat after holding an enquiry. 9. As against the aforesaid order of conviction and sentence present appeal has been preferred by the accused from the jail. 10. The learned Amicus Curiae Mr. B. Sharma submitted that that the testimony of the victim cannot be wholly relied to rest the conviction as no independent eye witness has been examined by prosecution despite the fact that place of occurrence was a market area. Moreover, there is no conclusive evidence as regards the age of the victim girl and as such, benefit of all these should go in favour of the appellant. Further, it contends that the conviction u/s 6 of the POSCO Act is not maintainable as against the accused person as he is no way related to the informant family as well as the victim, in any capacity. 11. On the other hand, according to the learned Addl. P.P. there is no infirmity in the aforesaid order and conviction and there is no reason to disbelieve the evidence of victim. No any interference in the impugned judgment and order is called for. 12. In her evidence, the victim/P.W-1(name withheld) has stated that on the day of incident while she was watching television in her house then the accused came to their house and asked her to come out in search of her father and as per the direction of her mother, she came out along with accused in search of her father. After taking her to a little distance, the accused committed rape on her near a bamboo groove. She felt pain in her private part and cried out of pain. Thereafter, the accused took her to her house and left her on the road near the residence with threatening not to divulge the matter to anybody. After arriving her house, she reported the matter to her mother. She was taken by Police for medical examination and her statement was recorded before the Court vide Ext. 1 is her statement under Section 164 CrPC. In cross-examination, P.W-1 has stated that her house was situated in the basti and no one would hear anything if somebody shouts from the place of occurrence as it is a bamboo groove. She was taken by Police for medical examination and her statement was recorded before the Court vide Ext. 1 is her statement under Section 164 CrPC. In cross-examination, P.W-1 has stated that her house was situated in the basti and no one would hear anything if somebody shouts from the place of occurrence as it is a bamboo groove. She further stated that there were some houses near the place of occurrence. She also denied all the defence suggestions put to her during cross-examination, more particularly, that accused did not commit rape upon her on the date of incident. 13. The P.W-2 & PW-3 are parents of the victim girl. Mrs. Kerolina Topno/PW-2 has stated about the fact that the accused on the fateful day on the pretext of searching her husband took PW-1 with him, which she allowed as accused is their neighbour. After about half an hour her daughter returned back home and went backside of the house for washing her feet. The victim narrated the incident to her in crying condition. She noticed the private part of her daughter in torn condition and also notice bleeding injury in the private part of her daughter and she immediately took her daughter to the house of accused person and asked about the incident. The accused confessed his guilt before her. Then she took her daughter before a doctor for medico legal check up at Titabar but not a single doctor was found. On the next day Dr. Marak/PW-6 examined her daughter. She informed about the incident to her husband/P.W-3 and then he lodged the FIR. 14. P.W-3/Jakriyas Topno, father of the victim girl, who is also the informant of the case stated that he came to know about the incident from his wife when he returned back home from the shop. He then lodged ejahar before the Police which he exhibited as Exhibit-2 and his signature as Exh.-2[1]. Police recorded their statement and sent his minor daughter before a doctor for medico legal check-up and thereafter the learned Magistrate has recorded the statement u/s. 164 CrPC. 15. The P.W-4/Medical Officer (Dr. T. K. Marak) stated that on 19.08.2016, he was present in his chamber at Pragati Medical Store which is situated at Borholla Char-ali. At that time, one minor girl accompanied by her mother arrived at his chamber. 15. The P.W-4/Medical Officer (Dr. T. K. Marak) stated that on 19.08.2016, he was present in his chamber at Pragati Medical Store which is situated at Borholla Char-ali. At that time, one minor girl accompanied by her mother arrived at his chamber. The mother of the victim girl state before him that the victim had been sexually exploited. He medically examined the victim and advised them to go to government hospital. 16. As per direction of the PW-4, the victim was taken to the Jorhat Medical College and Hospital and she was examined by Medical Officer/PW-6, Dr. Amrita Nath on 23.8.2016. At the time of examination said victim girl made a disclosure before the Dr. Nath that she was forcibly taken to the road side bushes by one James Bhangra and she was sexually assaulted by him with a threatening not to disclose the same to others. On physical examination and on the basis of radiological report the PW-6 gave the opinion that the age of victim is between 9 (nine) years to 12(twelve) years and there is no evidence of injury on her body and no evidence of recent sexual intercourse, vide Ext. 4 is the medical report. 17. The Investigating Officer, Harikanta Tamuli as P.W-5 has narrated all about the course of the investigation and about the examination of witnesses and the victim girl and about the submission of charge sheet against the accused. 18. The learned trial Court, on the basis of evidence on record hold that the victim girl was minor and the accused/appellant could not rebut the presumption laid under Section 29/30 of POCSO Act and hold the accused person guilty and convicted as aforesaid. 19. I have given due consideration to the rival submissions and perused the evidence on record. So far as the evidence of the victim girl is concerned it is to be noted that the victim as well as her mother has specifically stated that the age of the victim is about 10 years at the time of occurrence which is also supported by the medical evidence. Facts to be noted that the occurrence took place at the night hours at 07 PM in an isolated place for which none having of eye-witness is natural. The testimony of the victim is corroborated all throughout the trial u/s 161 and 164 of the CrPC supported by the other witnesses. Facts to be noted that the occurrence took place at the night hours at 07 PM in an isolated place for which none having of eye-witness is natural. The testimony of the victim is corroborated all throughout the trial u/s 161 and 164 of the CrPC supported by the other witnesses. The evidence of mother of the victim clearly indicates that it was the accused who took the victim from their house and after a little while, on return the victim reported the incident to her mother. Nothing emerges from record for any false implication of the accused person for the offence charged. There was no sort of hostile relation between the parties prior to such incident for which the mother of the victim un-hesitantly sent her daughter with the accused and the accused committed the offence taking advantage of their innocence. Although, as per medical evidence there is no mark of injury on the private parts of the victim but that itself will not negate the allegation. It can very well be noted that the victim girl is of very tender age and in a quick sequence the occurrence took place as the accused has to send back the victim to her house. In the circumstances, it can also be inferred that there may not be full penetration for which there was no injury on the private part of the victim. However, the matter will come within the purview of the definition of penetrative sexual assault punishable u/s 4 of the POCSO Act. There being no any evidence to show any sort of relation of accused with the informant or the victim, the provision of Section 6 (aggravated penetrative sexual assault) of the POCSO Act will not come into play. 20. The evidence of the victim as well as other evidence on record is found clear and convincing and the defence failed to bring anything on record to discredit their evidence. Equally, defence also failed to rebut the statutory presumption as mandated under the law. 20. The evidence of the victim as well as other evidence on record is found clear and convincing and the defence failed to bring anything on record to discredit their evidence. Equally, defence also failed to rebut the statutory presumption as mandated under the law. As per the provision of Section 29 & 30 of the POCSO Act, the accused person is to rebut the presumptions which discussed below: Section 29 of the Act provides that where a person is prosecuted in committing the offence u/s 3,5,7 & 9 of the Act, the Special Court shall presume that such person has committed or abetted or attempted to commit the offence as the case may be, unless contrary is proved. Further, Section 30 of the POCSO Act provide for culpable mental state of the accused which read as follows- “Presumption of culpable mental state – (1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, 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 act charged as an offence in that prosecution. (2) For the purpose of this Section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability. 21. As has been discussed above, the defence failed to rebut the above presumption. On the other hand, the prosecution has been able to prove the charge against the accused person. The victim girl herein is a 10 years old small girl having no idea of sex and there appears no any reason for false implication of the accused. The evidence of victim girl is found convincing and inspiring and does not suffer from any sort of exaggeration, manipulation, contradiction etc. and supported by other facts and circumstances. 22. It is settled position of law that in a case of an offence of rape, conviction can be based upon the sole testimony of the victim if found reliable and convincing. The Hon’ble Apex Court in State of Punjab Vs. and supported by other facts and circumstances. 22. It is settled position of law that in a case of an offence of rape, conviction can be based upon the sole testimony of the victim if found reliable and convincing. The Hon’ble Apex Court in State of Punjab Vs. Gurmeet Singh, 1996 (2) SCC 384 has categorically dealt with that the testimony of victim of sexual assault is vital and unless there are compelling reasons which necessitates looking for corroboration over statement, the court should not find difficulty in acting on the testimony of victim of sexual assault alone to convict an accused based on her testimony if it inspires confidence and found to be reliable. Seeking corroboration of such statement as a rule in such cases amounts to insult to the injury. 23. On the next, a child of tender age can be allowed to testify if he or she has intellectual capacity to understand the question and give rational answers and a child witness is also a competent to give evidence and the credibility thereof would depend upon the circumstances on each case as has been held in 2008 (16) SCC 582 , Virendra Vs. State of U.P., Dattu Ram Rao Sakhare Vs. State of Maharashtra, 1997 (5) SCC 341 , Ratansinh Dalsukbhahai Nayak Vs. State of Gujarat, 2004 (1) SCC. 24. In the touchstone of the above legal proposition when we consider the testimony of the victim it would reveal that she has given a clear and convincing evidence as to how she had been subjected to sexual conduct by the accused by persuading her to go with him and thereafter committed the offence. Her conduct is also found to be natural as she immediately reported the matter to her mother and her parents. The defence could not bring out any candid contradiction in her statement in order to disbelieve her deposition. The trial court has also elaborately dealt with her witnesses and has found that her version is fully supported by the other witnesses. Defence has failed to disprove the factum of minority of the victim as well. 25. In such circumstances this court is of the considered opinion that the trial court has rightly found and held the accused guilty of the offence of penetrative sexual assault. As discussed above offence u/s 4 POCSO Act is found to have proved. 26. Defence has failed to disprove the factum of minority of the victim as well. 25. In such circumstances this court is of the considered opinion that the trial court has rightly found and held the accused guilty of the offence of penetrative sexual assault. As discussed above offence u/s 4 POCSO Act is found to have proved. 26. Learned amicus curiae, however, has drawn the attention of this Court to the aspect that the accused was a young boy of 26 years at the time of occurrence so he should be accordingly dealt with. 27. Perusal of record reveals that the accused was 26 years old at the time of his arrest and he has family to maintain. No earlier criminal antecedent is proved against him. 28. Having regard to all the matters on record, converting the conviction u/s 4 of the POCSO Act, the sentence is reduced to seven years and a fine amount of Rs 10,000/-, in default R/I for 2 months. 29. The appeal stands disposed of with the modification as indicated above. Return the LCR. 30. For the assistance rendered by the learned amicus curiae, a sum of Rs. 7,500/- (Rupees seven thousand, and five hundred) be paid to Mr. B. Sharma, Amicus Curiae by the State Legal Services Authority.