The prosecution failed to establish the elements of penetrative sexual assault under the POCSO Act, leading to the quashing of conviction due to insufficient evidence and unreliable witness testimonies.

JUDGMENT :

Chandra Shekhar Jha, J.

The present appeal preferred by appellant/convict Dipak Thakur @ Dipu Thakur against judgment of conviction dated 18.11.2019 and order of sentence dated 22.11.2019 passed by the learned Additional District & Sessions Judge 1st-cum-Special Judge, Siwan in POCSO Tr. No. 100/2019, CIS Registration No. 19/2018 arising out of Siwan Mahila P.S. Case No. 10/2018 whereby and whereunder the appellant/convict has been convicted and sentenced to undergo R.I. for ten years and fine of Rs. 1,00,000/- (Rupees one lacs only) for the offences under Section 376 of the INDIAN PENAL CODE , 1860 and Section 6 of the POCSO Act and in default of payment of fine, he shall further undergo one year of R.I.

2. The crux of prosecution, as it appears from the written information of the informant/PW-2, namely, Guddu Sharma that on 09.03.2018 at about 11.30 AM, while his wife with her children was at her parental home, his cousin brother-in-law Dipu Thakur (appellant), after taking his child inside, while she was playing with another childrens, committed rape upon her. His child came to home having tears in her eyes and shown to her mother stating that look what Dipu Mama had done. His wife along with his child went to the house of Dipu Thakur to show that what he has done to her child. The two sister-in-laws (bhabhi) of the accused were started crying to know the same but the mother did not believe the same. She only believed when her daughter-in-law told about the occurrence.

3. With aforesaid written information of PW-2/informant, Mahila P.S. Case No. 10/2018 was lodged for the offences under Section 3 76 of INDIAN PENAL CODE , 1860 and under Section 6 of the Protection of Children from Sexual Offences Act, 2012.

4. After investigation, police submitted charge sheet, and thereafter, cognizance was taken by learned Special Court/concerned court.

5. To established its case before the learned trial court, the prosecution altogether examined total of seven witnesses, namely, PW-1 Victim, PW-2 Guddu Sharma (Informant), PW-3 Gudia Devi (mother of the victim), PW-4 Meena Devi (independent witness), PW- 5 Manju Singh (I.O. of this case), PW-6 Dr. Sarika and PW-7 Smt. Anupama (J.M.).

6. The prosecution also exhibited following documents during the trial to substantiate its case which are as:-

7. On the basis of evidences, as surfaced during the trial, the appellant/convict was examined under Section 313 of the Cr.P.C., where he denied all the evidences as surfaced against him during trial and claimed his complete innocence and false implication.

8. No defence witnesses/documents were examined on behalf of accused/appellant during the trial.

9. On the basis of aforesaid evidences, learned trial court convicted the appellant and passed order of sentence, as aforesaid, being aggrieved with, appellant/convict preferred the present appeal.

10. Hence the present appeal.

11. Mr. Neeraj Sanidh, learned counsel appearing on behalf of the appellant/convict challenged the impugned judgment of conviction on several counts but primarily, it was argued that the informant, who is none but the father of the victim turns hostile during trial. It is also submitted that the doctor, who examined victim did not find any injuries in and around private part of victim and