The court affirmed the conviction under the POCSO Act, ruling that the trial court properly assessed the competency of the child witness, whose consistent testimony supported the prosecution's case.

JUDGMENT :

I.A. No. 13108 of 2024

1. The instant interlocutory application has been filed under Section 430(1) of BNSS, 2023 for keeping the sentence in abeyance in connection with the judgment of conviction dated 06.09.2024 and order of sentence dated 12.09.2024 passed by the learned Special Judge, POCSO Act , Khunti in connection with POCSO Case No. 32 of 2022 arising out of Rania P.S. Case No. 53 of 2022, whereby and whereunder, the appellant have been convicted and sentenced with Rigorous Imprisonment for twenty years for the offence punishable under Section 6 of POCSO Act along with fine of Rs. 50,000/- and in default of payment of fine, the appellant has further been directed to undergo SI for six months.

2. It has been contended by the learned counsel appearing for the appellant that it is a case where conviction is passed solely based upon the testimony of PW 3, the child having the age of 5 years.

3. It has further been contended that the parameters as provided under Section 118 of the Evidence Act read with Section 4 of the Oaths Act regarding the assessment of the child to tender her testimony has not been properly taken into consideration.

4. Further, the learned counsel has submitted that it is a case of false implication as there is a land dispute going on between the two families.

5. Learned counsel appearing for the appellant, based upon the aforesaid ground, has submitted that therefore it is a fit case for suspension of sentence while the appeal is pending.

6. While, on the other hand, Mr. Anup Pawan Topno, learned Additional Public Prosecutor appearing for the State has vehemently opposed the prayer for suspension of sentence.

7. It has been submitted that there is no immaterial irregularity in taking the testimony of the PW 3 (the victim-child), since the procedure as has been laid down under Section 118 of the Evidence Act read with Section 4 of the Oaths Act has fully been followed.

8. It has further been submitted that the victim-child has fully supported the prosecution version as would be evident from the statement recorded under Section 164 of the Cr.P.C. and she remained consistent in the examination-in-chief/cross-examination.

9. This Court has heard the learned counsel for the parties, gone across the finding recorded by the learned trial court in the impugned order as also the testimony and other material exhibits available therein.

10.We have considered the statutory provision in order to appreciate the arguments advanced by the learned counsel appearing on behalf of the appellant to the effect that the procedure as has been laid down under Section 118 of the Evidence Act read with Section 4 of the Oaths Act has been followed or not and as such gone through the testimony of PW 3 and it is evident therefrom that the first 3 questions are within the parameter of Section 118 of the Evidence Act and the learned Court, while recording her testimony, has assessed her mental status as to whether she was in a position to give her testimony or not.

11.This Court, after having been satisfied, has given a finding therein that the witness is capable to state and her evidence can be taken into consideration.

12.We, therefore, is of the view that the procedure as laid down under Section 118 of the Evidence Act read with Section 4 of the Oaths Act has been fully followed herein.

13.We, therefore, has gone through the testimony of the victim, who is a female child of 5 years, who has fully supported the prosecution version in her testimony which she has also stated in her statement recorded under Section 164 of the Cr. P. C.

14.The other evidence, i.e., the testimony of the other witness is also in favour of the prosecution version.

15.This Court, after considering the aforesaid fact particularly the testimony of PW 3, the victim child of 5 years, who remained consistent in her statement recorded under Section 164 of Cr. P. C. and examination-in-chief/cross examination, is of the view that it is not a fit case where the sentenc