IMPORTANT POINT
Conviction under POCSO Act cannot be sustained on the basis of unreliable witness testimonies, especially when witnesses turn hostile and fail to corroborate the prosecution's case.

JUDGMENT :

ARUN DEV CHOUDHURY, J.

1. Heard Mr. D. Panging, learned counsel for the appellant. Also heard Mr. J. Tsering, learned Public Prosecutor for the State of Arunachal Pradesh and Mr. K. Loya, learned counsel for the respondent No. 2.

2. The present appeal is filed under Section 374 (2) of the Code of Criminal Procedure, 1973 assailing the Judgment and Order dated 22.12.2023 passed by the learned Special Judge (POCSO), Pasighat, East Siang District in PSG SC (POCSO) Case No. 12/2020, whereby, the accused/appellant is convicted under Section 10 and 18 of the POCSO Act and sentenced him to undergo imprisonment for a period of 5 (five) years with a fine of Rs. 5,000/- for offences under Section 10 of the POCSO Act and also sentenced him to undergo imprisonment for a period of 2 (two) years and 6 (six) months with a fine of Rs. 5,000/- for offences under Section 18 of the POCSO Act and further in default to pay the fine, to serve another period of three months.

3. The prosecution case as unfolded from the materials available on record is to the effect that the appellant had sexually assaulted five years old daughter of the informant, who was living with her elder sister in her in-laws house at Mirku village for schooling purpose by trying to penetrate his penis into his daughter mouth several times wherever appellant found her alone. It was also alleged that the appellant had been sneaking into her bedroom at night. It was further alleged that the appellant frequently forced the victim to sit over his penis and crotch areas on the pretext of massaging appellant chest and body. Accordingly, PSG PS case No. 218/19 under Section 376(2)(f) IPC read with Section 6/8 of POCSO Act was registered and investigation was initiated.

4. Upon completion of the investigation, the investigating officer had submitted charge-sheet under Section 354A (1)(i) IPC read with Section 6/8/10/12/18 of POCSO Act on 25.11.2019 against the accused/appellant namely Onik Osik.

5. Based on the charge sheet submitted by the Investigating Officer, charges were framed against the accused/appellant under Section 354A (1)(i) IPC read with Section 6/8/10/12/18 of POCSO Act. The charges were read out and explained to the accused/ appellant but the accused had pleaded not guilty and claimed to be tried. Hence, the matter went up to trial.

6. In order to bring home the charges, the prosecution had examined as many as 5 (five) witnesses, who were cross examined by defence. The statement of the accused/appellant was recorded under Section 313 Cr.P.C. The defence did not adduce any evidence, however, the Court had examined one witness as CW-1. After conclusion of the trial, the learned trial court convicted the accused as recorded hereinabove.

7. Mr. Panging, learned counsel for the appellant, submits that the present case is a case of no evidence inasmuch as none of the witnesses except the I.O., had supported the prosecution case and therefore, in the aforesaid factual backdrop, the accused appellant could not have been convicted relying on the statement of the victim recorded under Section 164 of the Cr.P.C. more particularly, when neither the Magistrate who recorded such statement was examined nor the victim who became hostile was confronted with her statement recorded under Section 161 of Cr.P.C. and Section 164 of Cr.P.C. during cross-examination by the prosecution.

8. Per contra Mr. J. Tsering, the learned Additional Public Prosecutor has argued that though most of the witnesses had become hostile, testimony of such witnesses cannot be discarded altogether and a person can be convicted on the basis of the testimonies of such hostile witnesses inasmuch as the defence failed to create any doubt about the statement of the witnesses recorded under Section 161 of Cr.P.C. or Section 164 of Cr.P.C. by challenging the same during their cross-examination and therefore, the learned trial Court has rightly convicted the accused person.

9. This Court has given anxious consideration