The main legal point established in the judgment is the requirement for consistent and credible witness testimony, as well as the need for corroboration of evidence in criminal cases. The judgment also highlights the limitations of using Section 164 Cr.P.C. statements as substantive evidence.

JUDGMENT :

Meenakshi Madan Rai, J.

1. The Appellant impugns the Judgment in Sessions Trial (POCSO) Case No.25 of 2018 (State of Sikkim vs. Binod Sanyasi), dated 30.05.2019, and the Order on Sentence of even date, wherein he was convicted of the offence under Section 354 of the Indian Penal Code, 1860 (hereinafter “IPC”) and sentenced to undergo Simple Imprisonment for a term of one year and to pay a fine of Rs.2,000/- (Rupees two thousand) only, with a default clause of imprisonment.

2. The Prosecution case is that on 08.10.2018 at around 21:00 Hrs, a verbal Complaint was received from the victim at the Kaluk Police Station (reduced into writing by the Police), to the effect that when she was alone at home that evening, after School, the Appellant came to her home, touched her body, her private parts and also attempted to sexually assault her. He was unable to accomplish his intentions as her brother returned home. She narrated the incident to her father upon which the First Information Report (“FIR”) came to be lodged, seeking redressal. The case was duly registered under Section 376 IPC read with Section 8 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter the “POCSO Act”) and taken up for investigation.

3. Investigation revealed that the victim, a student of Class IV, in a Senior Secondary School, was living with her family. On the relevant day when she reached home, she was followed home by her younger brother shortly, who came along with another boy and the Appellant. The victim directed her younger brother to fix the water pipes and he left along with the other boy to attend to the chore. As she was left alone with the Appellant he attempted to sexually assault her inside her home. On completion of investigation, Charge-Sheet was submitted against the accused/Appellant under Section 354 IPC read with Section 8 of the POCSO Act. The learned trial Court framed charge against the Appellant under Section 9(m) of the POCSO Act and Section 354 IPC. On examination of 11 (eleven) Prosecution witnesses and closure of evidence thereof, the Appellant was examined under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter the “Cr.P.C.”), pursuant to which he sought to examine one Defence Witness. His witness was accordingly examined and the final arguments of the parties were heard thereafter. The learned trial Court taking into consideration the entire evidence and documents on record, acquitted the Appellant of the offence under Section 9(m) of the POCSO Act, on the failure of the Prosecution to establish that the victim was below 12 years of age. The learned trial Court however convicted the Appellant under Section 354 IPC, observing that the Prosecution had proved its case for the said offence. The Sentence as extracted supra was meted out consequently.

4. Learned Counsel for the Appellant, before this Court, submits that the learned trial Court was in error in convicting the Appellant under Section 354 of the IPC, since the victim in her evidence has clearly stated that as she was afraid of her father she lied to him about the incident of sexual assault by the Appellant, when in fact no such assault had taken place. That, her cross-examination categorically reveals that the Appellant and another man had come to her house when she was washing utensils and she served them tea after which they both left the house. When her father returned home that evening and scolded her as to why she had spent time with the boys, she narrated a non-existent incident of sexual assault to him. However, she unequivocally admitted under cross-examination that the Appellant did not commit any kind of sexual assault on her. That, her evidence finds corroboration in that of PW2, her younger brother, who has stated that on the relevant day he had gone to the field to connect the water pipes and when he returned from the field he saw the Appellant along with one Manoj (DW1) coming out from their house as also his sister (vic