The court ruled that the prosecution failed to establish foundational aspects of the alleged sexual assault, leading to the acquittal of the appellant.

JUDGMENT :

At the outset, on the request of learned counsel for the appellant, the matter is being taken up for final hearing in view of provision available under Section 374(4) of the Code of Criminal Procedure (hereinafter referred to as ‘the Code’), which has also not been objected by learned APP for the State.

2. This appeal has been preferred by the appellant/convict under Section 374(2) of the Code of Criminal Procedure (hereinafter referred to as ‘the Code’) challenging the judgment of conviction dated 18.05.2022 and order of sentence dated 21.05.2022 passed by learned Additional Sessions Judge, VI cum-Special Judge, POCSO Act, Kaimur at Bhabua in POCSO Case/Registration No. 11 of 2018 (arising out of Mahila Bhabua P.S. Case No. 21 of 2018), whereby the concerned Trial Court has convicted the appellant/convict for the offences punishable under Section 10 of the POCSO (in short Protection of Children from Sexual Offences) Act, where he has been sentenced to undergo rigorous imprisonment for five years alongwith fine of Rs. 5,000/- and in default of payment of fine, further undergo rigorous imprisonment for three months for the aforesaid Section.

3. The case of prosecution in brief is that on 22.03.2018, the five year old daughter of the informant/P.W. 5 X (victim) was playing outside the house, at the time the appellant took informant’s daughter to a nearby dilapidated house and removed her under garment and also took off his clothes. Hearing the loud cries of the X, the informant’s wife Kranti Devi/P.W. 3 reached to said dilapidated house and saw that the accused had taken off his clothes and had also removed the under garment of her daughter. When the informant protested that what dirty thing he was doing, the appellant abused the informant and said that he will kill X/victim and when she raised an alarm, appellant ran away. According to the FIR, appellant’s attempt to do wrong failed when the informant reached there and he also threatened to kill X/victim.

4. On the basis of aforesaid written information, the police registered a case, as Mahila Bhabua P.S. Case No. 21 of 2018 dated 22.03.2018 for the offence punishable under Sections 354-B, 504 and 506 of the IPC and Section 10 of the POCSO Act, where after the investigation, the police submitted charge-sheet.

5. The learned Special Court, after perusal of record and materials collected during the course of investigation, took cognizance for the offences under Sections 354-B, 504 and 506 of the IPC and Section 10 of the POCSO Act.

6. The learned trial court on the basis of materials collected during investigation, framed charges against appellant/convict for the offences under Sections 504 & 506 of the IPC & Section 10 of the POCSO Act, which he pleaded “not guilty” and claimed trial.

7. To substantiate its case, the prosecution has examined altogether seven witnesses. They are:-

Prosecution Witnesses No(s). Names

8. Apart from the oral evidence, the prosecution has also relied upon following documents/exhibits in order to prove the charges:-

9. On the basis of evidence as surfaced during the trial, the learned trial court has examined the appellant/accused under Section 313 of the Code, where he completely denied his involvement by denying the incriminating evidences surfaced during the trial and stated that he was implicated with this case falsely and claimed his complete innocence.

10. Neither any defence witness was examined nor any document in support of defence was brought on record