Conviction cannot be sustained based on uncorroborated and inconsistent testimony of the victim, failing to meet evidentiary standards in sexual assault cases.

JUDGMENT

Meenakshi Madan Rai, J. - The Appellant was convicted under Section 354 and Section 506 (First Part) of the INDIAN PENAL CODE , 1860 (for short 'IPC'), in Sessions Trial (POCSO, Act) Case No.05 of 2021, vide the impugned Judgment, dated 28-08-2021. By the impugned Order on Sentence, dated 31-08-2021, he was directed to undergo imprisonment for one year under Section 354 of the IPC, with fine of Rs.1,000/- (Rupees one thousand) only, and imprisonment of one year under Section 506 of the IPC, with fine of Rs.1,000/- (Rupees one thousand) only, both sentences of fine bore default clauses of imprisonment. The sentences of imprisonment were ordered to run concurrently. Aggrieved thereof, the Appellant is before this Court assailing both and seeking an acquittal.

2(i). The Prosecution case arose on the basis of Exhibit 1, an FIR, dated 06-04-2021, lodged by P.W.1, the District Child Protection Officer (DCPO), informing therein that the victim, P.W.9, aged about 11 years, was produced before the Child Welfare Committee (CWC), North Sikkim, on 05-04-2021, by the Police. During the victim's counselling by P.W.1, she revealed that in 2019, one 'A.N.' committed aggravated penetrative sexual assault on her and her cousin in his room. Thereafter, when she along with her foster parents changed residence to a place 'C' the present Appellant sexually assaulted her by touching her private parts and kissing her from January, 2021, up to March, 2021. He threatened her with dire consequences if she reported the assault to any person. Exhibit 1 was duly registered at the concerned Police Station on the same date, under Sections 376 /506 of the IPC read with Sections 6 and 10 of the Protection of Children from Sexual Offences Act, 2012 (for short 'POCSO Act'), against the Appellant and the said 'A.N.' jointly.

(ii) During the course of investigation the victim's statements under Section 161 and Section 164 of the Code of Criminal Procedure, 1973 (for short, 'Cr.P.C.') were recorded. On completion of investigation, a common Charge-Sheet was submitted under Section 376 of the IPC read with Section 6 of the POCSO Act against the said 'A.N.' and under Sections 354 /506 of the IPC read with Sections 4 and 10 of the POCSO Act against the Appellant herein. The Learned Special Judge (POCSO Act) bifurcated the cases of the two accused persons named above and registered the case against the Appellant as Sessions Trial (POCSO, Act) Case No.05 of 2021 and commenced trial by framing Charge under Section 7 of the POCSO Act and Section 354 read with Section 506 of the IPC. On his plea of 'not guilty', the Prosecution examined 12 (twelve) witnesses, on closure of which, the Appellant was examined under Section 313 of the Cr.P.C. to enable him to explain the evidence appearing against him and his responses recorded. He sought to be and was examined as his own witness. Arguments advanced by Learned Counsel for the parties were heard by the Learned Trial Court. On consideration of the entire evidence on record the impugned Judgment and Order on Sentence was pronounced.

3. In Appeal, Learned Counsel for the Appellant contended that the entire Prosecution case is based on the victim's statement which however has been consistently improved, from her Section 161 Cr.P.C. to her Section 164 Cr.P.C. statements and in her deposition before the Court. Her evidence does not qualify as being that of a sterling witness and conviction cannot be sustained on such erratic evidence. Towards this end, Learned Counsel placed reliance on Sangam Rai and Another v. State of Sikkim SLR (2020) Sikkim 511 0and Rai Sandeep alias Deepu v. State of NCT of Delhi (2012) 8 SCC 21. Learned Counsel carefully led this Court through the evidence of the Prosecution witnesses and urge