The prosecution must establish both the victim's age and the accused's specific intent for conviction under the POCSO Act, with intoxication acting as a potential defense only if it incapacitates the ability to form such intent.

JUDGMENT :

Meenakshi Madan Rai, J.

1. Being aggrieved by the Judgment of the Court of the Special Judge (POCSO Act, 2012), Gangtok, dated 19-06-2023, in Sessions Trial (POCSO) Case No.25 of 2019, this Appeal assails it. The Appellant was convicted of the offence under Section 9 (m) punishable under Section 10 of the Protection of Children from Sexual Offences Act, 2012 (for short “POCSO Act”) and consequently sentenced to undergo simple imprisonment for five years and to pay a fine of Rs. 5,000/- (Rupees five thousand) only. A default clause of imprisonment was imposed in the event of non- payment of fine. He was acquitted of the offence under Sections 9 (a)(iii) and 9(l) of the POCSO Act.

2. Learned Counsel for the Appellant raised the argument that at the relevant time the Appellant was inebriated and in no condition to have committed the alleged offence against PW-1. He remained asleep during the entire journey after he boarded the taxi, as vouched for by the evidence of PW-4, the taxi driver. Learned Counsel urged that the Prosecution case is unreliable as the vacillating statements of PW-6 viz., in the FIR Exhibit P-6/PW-6 where she stated that it was PW-1 who had informed her at around 07.30 p.m. that, the Appellant had touched his private part repeatedly, while before the Court she claimed to have herself noticed that the Appellant had placed his hands between her son’s legs and on his genital, raises doubts about the veracity of the Prosecution case. As PW-1 corroborated the evidence of PW-6, regarding the incident as having been witnessed by her, his statement is also rendered contradictory to the contents of Exhibit P-6/PW-6. That, the evidence of PW-1 reveals that he was seated in the middle of the rear seat with his mother seated to his left and the Appellant to his right, while another passenger was in the front seat of the vehicle. That, an offender would choose an isolated place to commit such an offence and it is unbelievable that the Appellant would attempt to sexually assault a minor in a taxi with his mother seated in close proximity while travelling in a taxi filled with passengers. That, PW-1 told PW-2 the Doctor who examined him, that his co-passenger had fondled and ‘pinched’ his private part. That, PW-1 thus introduced a previously undisclosed allegation as neither PW-1 nor PW-6 have alleged that the Appellant had also pinched the genital of PW-1, therefore the authenticity of the Prosecution case is suspect. PW-5 who examined the Appellant on 11-05-2019, at 12.10 p.m., found him to be smelling of alcohol, fortifying the evidence of PW-4, thereby vouching for the Appellant’s inability to commit the offence. That, the cross-examination of PW-4 indicates that in fact PW-6 was arguing with the Appellant inside the vehicle before the journey commenced as the Appellant was drunk, which consequently led to PW-6 implicating him by a false allegation. As per PW-4, the Appellant habitually drank and fell asleep after boarding his taxi. That, PW-6 has also categorically deposed that the Appellant was drunk. Considering the condition of the Appellant, the offence of sexual assault cannot be foisted on him which he had no intention of committing. Learned Counsel for the Appellant speculated that in all likelihood, while asleep, he had unwittingly placed his hand on the victim’s leg which may have touched his genital, sans sexual intent, thus the requirement of Section 7 of the POCSO Act remained unfulfilled. That, the Learned Trial Court failed to appreciate that the Appellant being in a drunken stupor could not have committed the offence. Besides, the Prosecution failed to