Statements made under Section 164 Cr.P.C. are not substantive evidence and cannot alone support a conviction, especially when retracted by the victim.

JUDGMENT & ORDER (ORAL)

(M. Zothankhuma, J)

Heard Mr. B.J. Talukdar, learned Senior Counsel appearing as Amicus Curiae for the appellant assisted by Mr. P.K. Medhi. Also heard Ms. A. Begum, learned Additional Public Prosecutor, Assam for the State respondent.

2. This appeal is against the impugned judgment dated 21.01.2021 passed by the Special Judge, Udalguri, in Special POCSO Case No.41/2019 arising out of Orang P.S. Case No.70/2019, by which the appellant has been convicted under Section 376 (2)(f) of IPC and sentenced to undergo rigorous imprisonment for life, with a fine of Rs.5,000/-, in default simple imprisonment for 3 (three) months.

3. The appellant’s counsel submits that the appellant has been convicted by the learned Trial Court only on the basis of the statement made by the victim girl in her 164 Cr.P.C statement, which was later retracted by her during her testimony before the learned Trial Court. As there is no evidence adduced against the appellant, the appellant could not have been convicted by the learned Trial Court.

4. Ms. A. Begum, learned Additional Public Prosecutor submits that conviction under the POCSO Act, 2012 can be made on the sole testimony of the victim, provided that the same is trustworthy and inspires the confidence of the Court.

She however does not deny the fact that the statement made by the victim under Section 164 Cr.P.C had been retracted by her during her testimony given before the learned Trial Court.

5. We have heard the learned counsels for the parties.

6. The brief facts of the case is that an FIR dated 29.07.2019 had been submitted by the informant [Prosecution Witness (PW) No.4] to the effect that the appellant had sexually assaulted his younger sister aged 12 years 7 months, due to which the victim was 7 months pregnant. The FIR also stated that in a public meeting dated 28.07.2019, the appellant had confessed that the victim was 7 months pregnant, due to the sexual assault committed on her by the appellant.

7. In view of the FIR, Orang P.S. Case No.70/2019 under Section 376 IPC read with Section 4 of the POCSO Act was registered. The learned Trial Court thereafter framed charge under Section 376 (3) of IPC and Section 4 of the POCSO Act, to which the appellant pleaded not guilty and claimed to be tried.

8. After the investigation was completed, the Investigating Officer submitted a charge-sheet against the appellant, on finding a prima facie case against the appellant under Section 376 (3) of IPC read with Section 4 of the POCSO Act. The learned Trial Court thereafter examined 8 (eight) prosecution witnesses and after examining the appellant under Section 313 Cr.P.C, wherein the appellant pleaded his innocence, the learned Trial Court came to a finding that the appellant had sexually assaulted the victim (appellant’s younger sister) and convicted the appellant therein under Section 376 (2)(f) of IPC and Section 4 of the POCSO Act, on the ground that the victim was a major at the relevant point of time.

9. The learned Trial Court found the appellant guilty only on the basis of retracted statement made by the victim under Section 164 Cr.P.C, in which she had stated that she had been sexually assaulted by the appellant and in view of the evidence of the Medical Officer (PW-1), who had stated that he found the victim girl carrying a pregnancy of 31 weeks and 3 days.

10. As can be seen from the evidence of all the prosecution witnesses, there is nothing stated in the testimonies of the witnesses that the appellant had sexually assaulted the victim or that the appellant had impregnated the victim.

11. Though the statement of the victim under Sec