The conviction under the POCSO Act cannot stand due to significant inconsistencies and lack of corroboration in the victim's testimony and other prosecution witnesses, raising doubts about the appellant's guilt.

JUDGMENT :

M. Zothankhuma, J.

Heard Mr. Z. Alam, learned counsel for the appellant. Also heard Ms. A. Begum, learned Additional Public Prosecutor for the State and Mr. M.H. Rajbarbhuiyan, learned counsel for the respondent No. 2.

2. This appeal is against the impugned judgment dated 07-04-2022, passed by the learned Special Judge, Hailakandi in Special (POCSO) Case No. 12 of 2018, arising out of Lala P.S. Case No. 212 of 2018, by which the appellant has been convicted under Section 4 of POCSO Act 2012, r/w Section 377 IPC , for having committed an offence of penetrative sexual assault upon the victim boy, aged 11 years.

3. The learned counsel for the appellant submits that the evidence of the victim (PW- 1) is not corroborated by the evidence of his two friends (PW- 3 and PW- 5). He also submits that the evidence of the Doctor (PW- 4) is to the effect that semen had been found in the anal orifice of the victim, which was not sent to the FSL for examining whether it was human semen or otherwise. In any event, the evidence of PW- 1 is to the effect that the appellant had put his penis into the mouth of PW- 1 and had inserted his finger into the anus of PW-1. As only the finger of the appellant had been inserted into the anus of PW-1, there was no explanation as to how semen could have been found in the anus of the victim (PW- 1). He also submits that the statement of the victim (PW-1) made under section 164 CrPC has not corroborated the testimony of the victim made before the learned Trial Court. He accordingly submits that due to the above reasons, the learned Trial Court erred in convicting the appellant under section 4 of the POCSO Act, read with section 377 IPC .

4. Ms. A. Begum, the learner Additional Public Prosecutor, on the other hand submits that the testimony of the victim has been corroborated by his statement made under section 164 CrPC. Further, the evidence of the medical doctor (PW- 4), shows that he found semen stain and blood stain in the anal orifice of the victim. There was also tenderness in the external genitalia. Further, on examining the oral cavity, he found oral stain of semen. The same was, however, not sent for clinical examination. She also submits that the evidence of DW- 3, who stated that the father of the appellant had paid Rs. 5000/- to the informant (PW-2) as compensation, in respect of expenses incurred by the informant for filing the case, implied that the payment had been made for closing the present criminal case filed by the informant. This proved the guilt of the appellant. She accordingly submits that there is no infirmity with the decision of the learned Trial Court and the same should not be interfered with.

5. Mr. M.H. Rajbarbhuiyan, learned counsel for the respond No. 2, reiterates the submission made by the learned Additional Public Prosecutor.

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

7. The brief facts of the case is that an FIR dated 05-06-2018 was submitted by the victim's father (PW-2), stating that around 5.30 p.m., his son (PW-1) aged 11 years, was playing with his two friends in the college playground, when the appellant dragged his son to the old toilet of the college. In the toilet the appellant bit the cheek of the victim and inserted his penis into his anus. After making an extensive search for his son and hearing his scream, the informant (PW-2) rescued the victim.

8. Pursuant to the