The court ruled that without credible evidence or reliable testimony, suspicion alone cannot support a conviction under the POCSO Act.

JUDGMENT & ORDER :

(Y.Longkumer, J.)

The instant appeal under Section 374 of the Criminal Procedure Code, 1973 has been preferred by the appellant assailing the impugned judgment dated 22.10.2021 passed by the learned Special Judge (FTSC), Dimapur, Nagaland in G.R. 537/2017 arising out of Women P.S Case No.65/2017 by which the appellant was convicted under Section 4 and 12 of the POCSO Act for 15 years with a fine of Rs. 30,000/- and in default to undergo 1 year rigorous imprisonment.

2. I have heard learned counsel for the appellant, Mr. Sentiyanger and learned Public Prosecutor, Ms. S. Mere as well as Mr. Pfosekho Pfotte, learned Amicus Curiae for the respondent No.2.

3. The facts leading to the conviction of the present appellant is that on 01.08.2017 an FIR was lodged by the father of the victim before the women P.S, Dimapur, Nagaland stating that his daughter, 12 years of age had been raped by the appellant. A case was registered under Section 354/376 (2) (i) IPC r/w Section 4 and 12 of the POCSO Act. Thereafter, charge sheet was submitted on 23.09.2017 and charges were framed against the appellant/accused to which he pleaded not guilty. Thereafter, the trial proceeded and after hearing the parties, the learned Special Judge (FTSC), Dimapur, Nagaland convicted the appellant under Section 4 and 12 of the POSCO Act and was sentenced to 15 years rigorous imprisonment with a fine of Rs. 30,000/- and in default to undergo 1 year rigorous imprisonment.

4. Being aggrieved by the impugned judgment dated 22.10.2021 passed in GR 537/2017, the appellant has preferred the present appeal on the ground that no DNA test was conducted in spite of the fact that the victim got pregnant and had delivered a child. Learned counsel for the appellant submits that Section 53A CrPC mandates the DNA profiling of the accused during medical examination. Learned counsel relied on the case of Krishna Kumar Malik Versus State of Haryana reported in 2011 (7) SCC 130 where the Supreme Court had held that after the introduction of Section 53A CrPC, DNA test is mandatory. The prosecution's failure to conduct a DNA test was a significant lapse.

5. It is also submitted by the appellant that the victim/PW-6 in her deposition stated that the accused used a spray on her and that she became unconscious and did not know what the accused did after she became unconscious. In her cross-examination, the PW-6/victim stated that she had not seen the face of the accused person who raped her. It is therefore submitted that the testimony of the victim/PW-6 is not reliable and does not implicate the appellant in any way.

6. It is further submitted that no proper examination of the accused was done under Section 313 CrPC which has caused prejudice to the appellant as the incriminating circumstances were not put to the appellant specifically. Moreover, there is no eye witness and the entire prosecution case is based on conjectures and circumcises.

7. Learned counsel further states that the testimony of the victim regarding the spray which was used by the accused is very doubtful as there is no instant spray known which can make a person unconscious for a long time and moreover, the spray which was allegedly used had never been recovered or exhibited.

8. Another contention of the learned counsel for the appellant is that the I.O/PW-7 in her cross-examination stated that she cannot say whether the victim’s baby belongs to the accused. The other PWs including the father of the victim are all hearsay witnesses. The doctor who examined the victim was examined as PW-5. The doctor in his testimony stated that the victim had conceived in the month of December, 2016. However, sh