In cases of non-penetrative sexual assault, the consistent and cogent testimony of a victim is sufficient for conviction, even without medical evidence, as the criminal intent of the offender is the primary element that defines the offence of outraging modesty rather than the victim's reaction.

JUDGMENT :

PRANJAL DAS, J.

Heard Mr. M.U Mahmud, learned counsel for the convict/appellant. Also heard Mr. B. Sharma, learned Additional Public prosecutor for the State and Ms. T. Parashar, learned Amicus Curiae for the respondent No. 2/informant.

2. The instant criminal appeal has been preferred by the convict/ appellant, Md. Jehirul Islam against the judgment & order dated 03/08/2024 passed by the learned Special Judge (POCSO), Morigaon in POCSO Case No. 15 of 2018, whereby the appellant as accused was convicted under sections 354/341 IPC, read with Section 8 of the POCSO Act 2012. For such conviction, he was sentenced to undergo rigorous imprisonment for 5 years and pay a fine of Rs.5,000/- in default, R.I for 1 month for his conviction under Section 354 ; rigorous imprisonment for 4 years and fine of Rs.5,000/- in default, R.I for 1 month for his conviction under Section 8 of the ; fine of Rs. 500/-, in default imprisonment for 10 days for his conviction under section 341 . The sentences were directed to run concurrently, and he was given the benefit of set-off.

3. Before the learned Trial Court, the prosecution case, in brief was that a verbal information was given by one Tapan Deka on 14/05/2018 at the Nellie Police Outpost with allegation that he had seen one boy pulling and pushing one girl with bad intention in the middle of Mokoria, Salbagan. On the basis of the said information, GDE No. 279 of 2018 dated 14/05/2018 was made at 05:10 PM, and the In-charge of the outpost entrusted ASI Muzammil Hazarika to proceed to the place of occurrence along with staff. Subsequently, on the same day at around 6:30 PM, a formal Ejahar was lodged by the victim herself before the In-charge of Nellie outpost with the allegation that on 14/05/2018 at around 5:00 P.M, while she was on the way from Nellie towards Mokuria by NH 37 on foot, and had reached near Nellie Salbagan, the appellant suddenly restrained her and outraged her modesty by placing his hand on her body, and he tried to forcefully pull her towards the forest, whereupon she raised a hue and cry. Some people came running to her rescue. The FIR was forwarded to the Jagiroad Police Station, whereupon Jagiroad PS Case No.186 of 2018 was registered under Section 341/354 IPC, read with Section 12 of the POCSO Act. Investigation was conducted, and upon completion of the same, police filed a charge-sheet against the appellant under the same sections mentioned above under which the FIR was registered. Subsequently, upon his appearance and the completion of the usual formalities as per criminal procedure, charges were framed against the appellant under Sections 341/354 read with Section 8 of the vide order dated 10/01/2020 the charges, upon being read over and explained to the accused, were denied by him, whereupon the trial commenced.

4. During the trial, the prosecution examined 5 witnesses, including the victim. Thereafter, the appellant was examined under Section 313 Cr.PC. The defense did not adduce any evidence.

5. Mr. M.U Mahmud, the learned counsel for the appellant makes the following submissions;

(i) That, without rescuing the victim girl, the said Tapan Deka went to the Police Station. (ii) That, the testimony of PW-1, the prosecutrix, is not reliable. (iii) That, the boys mentioned in the FIR who supposedly came to the place of occurrence h