The central legal point established in the judgment is the cautious use of statements recorded under Section 164 Cr.P.C. for corroboration and contradiction, rather than as substantive evidence.

ORDER :

Pradeep Kumar Srivastava, J.

1. Heard Sri Ashok Kumar Nigam, learned counsel for the appellant, Sri Manu Raj Singh and Smt. Alpana Singha, learned A.G.A. for the State of U.P. and perused the record.

2. This criminal appeal has been preferred against the judgment and order dated 20.02.2019, passed by Special Judge (POCSO Act)/1st Additional District Judge, Rampur, in Special Trial No. 46 of 2018, arising out of Case Crime No. 5/2018, under Section 377 IPC and Section 4 POCSO Act, PS Tanda, District Rampur, whereby the accused-appellant has been convicted and sentenced for the offence under section 377 IPC for ten years rigorous imprisonment and Rs. 15,000/- fine and in default of fine six months additional imprisonment and under section 4 POCSO Act for seven years imprisonment and Rs. 10,000/- fine and in default of fine four months additional imprisonment. It has further been directed by the trial court that both the sentences shall run concurrently.

3. Brief facts of the case are that on 29.12.2017, an 11 years old son of informant Mohd. Irfan had gone to Lalpur Market by his Atlas Cycle for taking some goods with Rs. 200/-. Till the late evening, he came back and told that his cycle and money were taken by accused Sajid and he sexually abused him in a sugarcane field. The incident was seen by one Mohd. Yakub of his village and he took back the child in faint condition. The child was provided treatment. On the basis of the written application, FIR was registered against the accused-appellant.

4. The Investigating Officer after completing the investigation filed charge sheet against the accused for the offence under Section 377 IPC and Section 3/4 POCSO Act. Thereafter, the learned trial court framed charges against the accused under Section 377 IPC and Section 4 POCSO Act for which the accused was tried.

5. The statement of the accused was recorded under section 313 Cr.P.C., in which he denied the occurrence and claimed trial. He has stated that he has falsely been implicated in the case. After hearing the prosecution and counsel to the accused, the impugned judgment was passed by the learned trial court.

6. Feeling aggrieved by the impugned judgment, the accused-appellant has preferred the present criminal appeal. He has stated that the impugned order passed by the learned trial court is without any cogent and credible evidence available on record. The learned trial court has mis-appreciated the evidence on record. The judgment of conviction is illegal and bad in the eye of law. The FIR was enough delayed and for the same has not been explained. The victim himself got hostile with the other witness Mohd. Yaqub and there was no evidence on record against the accused. PW-1 was not an eye witness, therefore, the impugned order is not sustainable under law and is liable to be set aside and the accused-appellant is entitled for acquittal.

7. The prosecution has examined as many as three witnesses. PW-1 is Mohd. Irfan, who is complainant and father of the victim. He has given the statement about the incident and has proved the written report as Exhibit Ka-1. He has stated that his son aged about 11 years took Rs. 200/- and went by his cycle to Lalpur market for purchasing some domestic items. He did not come back, therefore, his mother got worried. In the evening, the brother of informant Mohd. Yaqub took the victim back to home in unconscious state from the sugarcane field of one Liyakat and said that the accused Sajid has sexually abused him. The condition of the victim was not good and he was provided medical treatment and thereafter report was lodged. During cross-examination, PW-1 has stated that the incident did not take place before him and on the information of the village people, he registered the first information report against the accused-appellant. He has further stated that the victim did not take the name of the accused Sajid nor he knows him. His son came back with his cycle. On the third day, he lodged FIR. When