Point of Law : Mere fact that the victim girl was not examined under Section 164 of the Code, presumably due to her tender age, is no ground to question of her credibility as a witness during trial.

JUDGMENT :

JAY SENGUPTA, J.

1. This appeal is directed against a judgment and order for conviction dated 20.10.2020 and sentence dated 21.10.2020, thereby convicting the appellant under Section 10 of the POCSO act and directing him to suffer a sentence of rigorous imprisonment for five years and to pay a fine of Rs. 5000/-, in default of such fine to suffer further simple imprisonment for one month.

2. On 12.03.2015 at about 11:00 hours, PW3 the mother of the minor victim girl lodged an information with the Havelock Police Station, which was treated as a First Information Report under Section 354 of the Penal Code read with Section 10 of the POCSO Act. The crux of the allegations made by PW3 was that on 12.03.2015 she was going to take her five years old daughter to school by STS bus. At about 7:45 hours when the bus reached near their house and she was going to board the bus with her daughter, on seeing the bus, her daughter refused to go to school and ran towards home. Upon inquiry, the child cried and disclosed that the person who used to give tickets in the bus would make her sit on his lap and by indication, she further said that after making her sit on the lap the said ‘uncle’ would put his hand on her private part. On 11.03.2015 the said person did the same thing with her and told her not to disclose anything to anyone. The conductor who used to be there in the bus on those dates was Kalyan, the present appellant.

3. During investigation the Investigating Officer had the minor victim girl medically examined. However, no statement of the victim could be recorded under Section 164 of the Code. After completion of the investigation, a charge sheet dated 20.04.2015 was submitted under Section 354 of the Penal Code and Section 10 of the POCSO Act.

4. On 15.09.2015 a charge was framed against the accused/appellant under Section 10 of the POCSO Act. The appellant pleaded innocence and claimed to be tried.

5. During trial the prosecution examined 13 witnesses. As would be evident from the trend of cross-examination and the examination of the accused under Section 313 of the Code, the case of the defence was that of a plain denial of the prosecution case.

6. After scanning the evidence on record, it appears that PW1 was a neighbour who gave out a hearsay account. PW2 was tendered in evidence. PW3 was the mother of the victim girl and the defacto complainant of the case. She fully corroborated her statement made before the police that was treated as First Information Report. PW4 was the five years old victim girl herself. First, she was examined on the question of competence. In her evidence, PW4 fully supported the prosecution case and gave a clear account of the incidents that happened. She identified the appellant bus conductor in the dock. PWs 5, 6, 7 and 9 were students of higher classes of school who used to travel in the same bus. They deposed that they did not know anything about the incident and were declared hostile. PW8 was the Checking Inspector, in-charge of STS Unit, Havelock. He issued a certificate. PW10 was the doctor who examined the victim girl. She proved the medical report which stated that an abrasion was found in the private part of the victim girl. PW11 was the bus driver. He too confirmed that the appellant was acting as the conductor of the bus on the particular day. PW12 was the Police Officer who recorded the First Information and PW13 was the Investigating Officer of the case. PW13 had the victim girl medically examined and collected the report thereafter. He arrested the accused and interrogated some students who availed of the same bus service. During his examination under Section 313 of the Code, the appellant simply denied the charges.

7. Mr. K.Sabir, learned counsel appearing for the appellant, submitted as follows. The charge-sheet was the result of a biased investigation. From nowhere, the Investigating Officer used the term ‘twirl’ his hand at the private part to describe the offence allegedly committ