The prosecution failed to establish the charges beyond a reasonable doubt due to inconsistencies in the victim's testimony and lack of corroborating evidence.

JUDGMENT :

SANJEEV NARULA, J.

1. The present appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 , [“CrPC”] is directed against the judgment and order of sentence dated 25^th August, 2022 and 19^th October, 2022 respectively, passed by the Additional Sessions Judge in the case titled State v. Niranjan Tiwari, in pursuance of FIR No. 1138/2015 dated 13^th August, 2015 registered at P.S. Binda Pur, for the offence under Sections 10 and 9(m) of the Protection of Children from Sexual Offences Act, 2012 ., “POCSO Act”.

Factual Background

2. The factual matrix leading to the filing of the present appeal is as follows:

2.1 The victim, an 11-year old girl,, [“Prosecutrix”] at the time of the alleged incident, was attending tuition classes at IGA Institute located at Gali No. 8, F-103, Vishwas Park, Solanki Road. On 12^th August, 2015, the Prosecutrix returned home from the tuition classes, visibly distressed and weeping. Upon inquiry by her mother (PW-2), the Prosecutrix narrated an alleged incident of inappropriate physical contact by the accused Appellant. The Prosecutrix informed her mother that, while her tutor (Baby) had briefly stepped out of the tuition room, the Appellant, Niranjan Tiwari, who is the tutor’s father, sat behind her and touched her on her body, cheeks and thighs. She further disclosed that two days before the said incident, she had noticed the Appellant staring at her inappropriately. The mother of the Prosecutrix subsequently conveyed the incident to her husband, who called the police helpline number (100) to lodge a complaint. A written complaint was also submitted on the same day.

2.2 Based on the complaint, FIR No. 1138/15 was registered at P.S. Binda Pur under Section 10 of the POCSO Act and Section 354 of the Indian Penal Code, 1860 ., [“ IPC ”] The investigation culminated in the filing of a chargesheet, and the Appellant was charged with the offence under Section 10 read with Section 9(m) POCSO Act.

2.3 To establish their case, the Prosecution presented seven witnesses, which included: PW-1 (Prosecutrix): The victim and the primary witness, who narrated the details of the alleged incident; PW-2 (Mother of the Prosecutrix): The first informant who testified to the disclosures made by the Prosecutrix; PW-3 (Father of the Prosecutrix): Corroborated the version of the Prosecutrix and her mother; PW-4 (Constable Sanju); PW-5 (SI Surender); PW-6 (Head Constable Kamal); and PW-7 (SI Sohan Lal): Investigating officers and police officers, who detailed the procedural steps taken during the investigation, including the registration of the FIR and subsequent examination of witnesses.

2.4 In his statement recorded under Section 313 of the CrPC, the Appellant vehemently denied the allegations. He asserted that the Prosecutrix had fabricated the incident to retaliate against him for reprimanding her due to non-payment of tuition fees and disruptive behaviour during class. The Appellant further contended that the narrative presented by the Prosecutrix was completely baseless and emphasized that he had never engaged in any inappropriate conduct. However, the Appellant did not produce any evidence in his defence.

2.5 After the conclusion of trial, the ASJ passed the impugned judgment dated 25^th August, 2022, convicting the Appellant for the offences under Section 10 read with 9(m) of the POCSO Act.

2.6 Thereafter, the order on sentence was passed on 19^th October, 2022, whereby the Appellant was sentenced to undergo rigorous imprisonment for a period of five years with a fine of INR 3,000/-, and further simple imprisonment for a period of three months in case of default in the payment of fine. The Appellant was further directed to pay compensation amounting to INR 40,000/- to the Prosecutrix.

Appellant’s Case

3. Aggrieved by the foregoing, the Appellant has approached this Court, seeking set aside of the impugned judgement as well order on sentence. In this background, Counsel for the Appellant makes the following submis