A conviction under the POCSO Act cannot stand if the victim's testimony contains significant inconsistencies regarding material facts, undermining the credibility of the prosecution's case.

JUDGMENT :

M. Zothankhuma, J.

1. Heard Mr. L.R. Mazumder, learned counsel for the appellant. Also heard Ms. B. Bhuyan, learned Senior Counsel and Additional Public Prosecutor, Assam for the State and Mr. A. Tiwari, learned Amicus Curiae for the respondent no.2

2. This appeal has been filed against the impugned judgment dated 26.05.2023 passed by the learned Court of the Additional Sessions Judge (Special Judge POCSO), Cachar, Silchar in Special (POCSO) Case no.14/2022, by which the appellant has been convicted under Section 6 of the POCSO Act read with Section 376(3) IPC. The appellant was however acquitted under the charge framed against him under Section 366 IPC. The appellant was thereafter sentenced under Section 6 of the POCSO Act, to undergo rigorous imprisonment for 20 years with a fine of Rs.5,000/-, in default to undergo rigorous imprisonment for 2 months.

3. The facts of the case in brief is that the Prosecution Witness (PW) No.2 submitted an FIR dated 07.11.2021 with the In-charge, Rangirkhari T.O.P stating that on 04.11.2021, her daughter (victim) went to a Pulao shop located at Kathal Road where the appellant was the owner of the shop. The appellant kidnapped her minor daughter and took her somewhere and due to the above, PW-2 could not trace her daughter. Rangirkhari T.O.P registered G.D.E No.184 dated 07.11.2021 and forwarded the same to the O.C. of the Silchar Police Station for registering a case. Thereafter Silchar P.S. Case No.3899/2021 under Section 365 IPC was registered.

4. PW-5 was made the Investigating Officer. PW-5 thereupon took up the investigation and also ensured that the victim’s statement under Section 164 Cr.P.C was recorded, wherein the victim stated that on 02.11.2021 at about 6 p.m, the appellant had asked her to sweep his house and when she went to sweep the house of the appellant, the appellant pushed her on the bed and undressed her. The appellant then opened his trousers and inserted his penis into the private parts of the victim. The appellant had also touched the breasts of the victim. The victim thereafter came crying out of the appellant’s house and when the appellant’s wife saw her, the appellant’s wife asked the victim why she was crying. The victim then narrated the entire incident to the wife of the appellant. The appellant’s wife then asked her to forget about the incident and not to inform anyone about it. In the evening, the victim’s cousin took her to his house and on the next day the appellant’s wife and the victim’s grandmother brought her back home. On 04.11.2021 at about 5 p.m the victim along with the appellant went to the appellant’s sister’s house. The victim informed her grandmother about the same. They resided in the appellant’s sister’s house for 3 days and thereafter the victim returned back home with the appellant.

5. The victim was also produced before the Doctor (PW-4), who conducted a medical examination over the victim, wherein it was stated that the victim’s hymen was wide open and there was no injury on the body of the victim. PW-5 thereafter submitted a charge-sheet, on finding a prima facie case under Section 365 IPC read with Section 4 of the POCSO Act against the appellant.

6. The learned Trial Court thereafter framed three charges against the appellant under Section 366 IPC, 376(3) IPC and Section 6 of the POCSO Act, on the ground that the appellant had kidnapped and raped the victim in his house. The appellant pleaded not guilty to the charges framed against him and claimed to be tried.

7. The learned Trial Court thereafter examined 5 Prosecution Witnesses (PWs) and 2 Defence Witnesses (DWs).