Victim testimony in sexual assault cases must be credible and consistent; considerable contradictions undermine prosecution's case under the POCSO Act.

JUDGMENT :

SOURENDRA PANDEY, J.

Heard learned counsel for the appellant and the learned Additional Public Prosecutor for the State.

2. Though the informant-victim has entered her appearance by filing Vakalatanama and the names of two Advocates are appearing in the daily cause list but no one appeared to oppose the appeal on her behalf.

3. The present appeal arises out of the judgment of conviction dated 19.12.2022 (hereinafter referred to as the ‘impugned judgment’) and the order of sentence dated 21.12.2022 (in short referred to as the ‘impugned order’) passed by the learned Sessions Court, A.S.J. 7^th-cum- Spl. Judge POCSO Act, (W) Muzaffarpur (hereinafter called the ‘learned trial court’) in Mahila P.S. Case No. 135 of 2016, G.R. Case No.04 of 2018.

4. By the impugned judgment the appellant has been convicted for the offences under Section 376(2) of the INDIAN PENAL CODE (in short ‘IPC’) and Section 4 of the POCSO Act and has been sentenced to undergo 20 years of rigorous imprisonment for the offences under Section 376(2) IPC as well as of the Protection of Children from Sexual Offences Act, 2012, with a fine of Rs. 50,000/- and in default of payment of fine to further undergo imprisonment of two years.

Prosecution Case

5. The prosecution case is based on the written application given by the informant/victim (P.W. 5). In her written report she has alleged that on 20.12.2016 at about 10.00 P.M. in the night while she was returning to her house after attending tuition classes, the appellant Ajay Sharma surrounded her and forcefully tried to commit wrong act with her. On her screaming neighbours came then everybody fled away. The informant/victim has further stated that she is a handicap girl and is studying in class 6. Appellant Ajay Sharma has committed rape with her three times in past giving threats to kill her. Her father was staying out of station to earn his livelihood and she was residing with her mother therefore she did not tell about the incident out of fear. She disclosed this to her mother that the appellant has made forcible sexual intercourse with her. Since appellant is a rich person and due to his high status, she did not disclose about the incident to anybody. She has further alleged that in April, 2016 appellant forcibly committed sexual intercourse with her. Again on 20.12.2016, when the appellant was forcefully taking the girl into the cattle fold (Bathan) her mother came and started shouting, on which the appellant fled away. Her mother called the elder uncle, her father also came from Delhi and then she along with her family members submitted the written application to the police.

6. On the basis of this written application, Mahila P.S. Case No. 135 of 2016 dated 28.12.2016 was registered for the offences punishable under Sections 376 and 354B of the IPC and under Sections 4 and 18 of the POCSO Act.

7. After completion of investigation of the case, the S.H.O. Sunita Kumari (P.W. 10) submitted charge sheet against the sole named accused vide Chargesheet No. 63 of 2017 dated 31.12.2017 under Sections 376 and 354B of the INDIAN PENAL CODE and under Section 4 of the POCSO Act upon which the learned Trial Court took cognizance vide order dated 18.01.2018 under the aforesaid Sections.

8. Charges were read over and explained to the appellant in Hindi to which he pleaded not guilty and claimed to be tried. Accordingly, vide order dated 18.06.2018, charges were framed under Sections 376 and 354B of the IPC and under Section 4 of the POCSO Act.

9. In course of