In sexual offence cases, the prosecution must prove allegations beyond reasonable doubt, and the victim's testimony must be credible; inconsistencies can lead to acquittal.

JUDGMENT :

Ashutosh Kumar, J.

Heard Mr. Rakesh Kumar Srivastava, learned Advocate for the sole appellant and Mr. Abhimanyu Sharma, learned APP for the State.

2. The appellant has been convicted under Sections 376 (AB) and 341 of the IPC and Section 6 of the POCSO Act vide judgment dated 25.08.2023 passed by the learned Special Judge, POCSO Act, Darbhanga in POCSO G.R. No. 57 of 2018/Registration No. 57/2018, arising out of Kamtaul P.S. Case No. 346 of 2018. By order dated 29.08.2023, he has been sentenced to undergo R.I. for 20 years, to pay a fine of Rs. 10,000/- and in default of payment of fine, to further suffer S.I. for six months for the offence under Sections 376 (AB) of the IPC. For the offence under Section 341 of the IPC, the appellant has been sentenced to undergo S.I. for one month, to pay a fine of Rs. 500/- and in default of payment of fine, to further undergo S.I. for one week. For the offence under Section 6 of the POCSO Act, 2012, the appellant has again been sentenced to undergo R.I. for 20 years, to pay a fine of Rs. 10,000/- and in default of payment of fine, to further suffer S.I. for six months.

3. All the aforenoted sentences have been directed to run concurrently.

4. It may not be out of place here in this context to state that along with the appellant, his mother Kaushalya Devi also was put on Trial but she has been acquitted.

5. The FIR was lodged by the mother of the victim (P.W. 2), who in her written report addressed to the officer-in-charge of Kamtaul Police Station, Darbhanga had alleged that her neighbour viz. the appellant while taking tuition of the victim/her daughter and other pupils on her rooftop in the night of 03.12.2018, tried to outrage the modesty of the victim.

6. It was alleged by her that on some pretext, the other pupils were allowed to go and the victim was asked to stay back. It was then that the appellant sexually misbehaved with the victim. When the victim narrated about the incident to P.W. 2 in the evening, she went to the house of the appellant where she was ill-treated by the appellant and her mother/Kaushalya Devi. She was also assaulted and was told to do whatever they could, as nothing would happen to the appellant.

7. On the basis of the aforenoted written report referred to above Kamtaul P.S. Case No. 346 of 2018 dated 04.12.2018, initially was registered for investigation under Sections 341, 323, 354, 354(B), 504, 506 and 34 of the IPC read with Sections 8 and 12 of the POCSO Act, 2012.

8. The learned Advocate for the appellant has drawn special attention to the aforenoted fact that when the written report was lodged, the only allegation against the appellant was of having made some sexual overtures, bordering on sexual misdemeanor. There was no allegation of any sexual assault, attracting the offences under Sections 4 or 6 of the POCSO Act, 2012. The victim was spoken of by her mother/P.W. 2 as a girl of seven years.

9. The police after investigation submitted chargesheet, whereupon cognizance was taken and the appellant was tried.

10. The Trial Court after having examined eight witnesses on behalf of the prosecution and two on behalf of the defence, convicted the appellant but acquitted his mother of the charges referred above.

11. Out of the eight prosecution witnesses, Kamlesh Das and Ram Sristha Das (P.Ws. 1 and 5) have been declared hostile.

12. It is also worthwhile to mention here that with respect to the occurrence which had taken place in the night of 03.12.2018 and for which the FIR was lodged on 04.12.2018, the victim was taken to the Magistrate on 13.12.2018, when her statement under Section 164 Cr.P.C. was recorded. The victim was subjected to medical examination only on 18.02.2019 i.e. after a delay of 1½ months approximately.

13. It would be appropriate in our estimation to first refer to the medical evidence, even being conscious of the fact that medical testimony would not be the surest test for finding the truthfulness of the allegations.

14. Dr. Sangeeta Singh (