Judgment :

Kumar Mukherjee, J.

1. Being aggrieved by the judgment and order dated 11th February, 2016 passed in Criminal appeal no. 17 of 2015, present Application has been preferred. By the order impugned learned Court below dismissed the aforesaid criminal appeal preferred by the petitioner herein/Appellant and affirmed the judgment of conviction passed by the trial court in G.R. case no. 1320 of 1998, whereby Trial Court sentenced him to suffer a simple imprisonment for a period of six months for committing offence punishable under section 323 IPC and also sentenced to suffer simple imprisonment for a period of seven months for committing offence punishable under section 354 of IPC.

2. The allegations levelled in the FIR interalia is that the petitioner herein being the neighbour of the victim on 17.09.1998 at about 2.30 P.M. entered victim’s house and put his fingers in the private parts of complainants daughter/victim who was then aged about five years and also pressed her breast, causing injuries to the said child and for which complainant’s daughter was admitted at Chinsruah Hospital being sustained injury on her person.

3. Upon conclusion of investigation the investigating authority submitted charge sheet against the petitioner under sections 354/323 of the IPC and the trial court after framing charge in the aforesaid sections at the end of trial, convicted the petitioner and sentenced to imprisonment as above.

4. The petitioner herein preferred criminal appeal before the court below but by the impugned judgment and order learned Court below dismissed the Appeal as stated above.

5. Being aggrieved by the judgment of affirmation passed by the court below, petitioner contended that though prosecution examined as many as eight witnesses but the prosecution failed to prove the charge against the petitioner herein beyond reasonable doubt and there are multiple inconsistencies and contradictions in the testimony of the prosecution witnesses, which makes the prosecution case highly doubtful. Petitioner has attacked the impugned judgment mainly on the following grounds:-

(a) The court below failed to appreciate that the victim who deposed as P.W-3 could not identify the petitioner properly and she could identify the petitioner only after being instructed by her parents.

(b) Learned Courts below also failed to take into consideration the fact that there was existing dispute between the family of the petitioner and the victim, as admitted by P.W-3 which actually is the basis of false implication of the petitioner in the instant case.

(c) Since identification of the petitioner by the alleged victim was prompted by her parents, it has severely undermined the reliability of her testimony and the same has vitiated the trial of the instant case.

(d) Apart from P.W-3 the parents of the victim deposed as P.W-1 and PW4 but their deposition also suffers from grave contradictions and they are also not eye witness to the incident. The courts below failed to appreciate that according to P.W-1 incident occurred at 2.30 P.M., whereas father of the victim as P.W-4 stated that he had reached his house at about 1.30 P.M. and accordingly it is highly improbable that such an incident would have taken place at 2.30 P.M. as stated by the victim.

(e) The courts below did not consider that apart from Pw1, PW3 and PW4 other witnesses being PW2 and PW5 who are neighbour and uncle of the victim have adduced evidence which is hearsay in nature and as such no reliance could be placed upon the evidence adduced by such witnesses.

(f) The courts below did not follow the well settled principle of criminal jurisprudence that the mental condition of the accused person place a crucial role in determining both culpability and sentencing and it is apparent from the deposition of PW1 that the petitioner was an idiot which fact was not properly taken into consideration, while adjudicating the matter particularly with regard to sentencing.

6. For abundant caution petitioner has al