A conviction based on the sole testimony of a child witness must be based on evidence that is inherently reliable, natural, and consistent. Significant improvements in testimony combined with a lack of corroborative medical evidence necessitate an acquittal based on the benefit of doubt.

JUDGMENT :

JAI KRISHNA UPADHYAY, J.

1. The present criminal appeal has been preferred against the judgement and order dated 31.01.2019 passed by Additional Sessions Judge/Special Judge (POCSO Act), Court No. 1, Auraiya in Special Case No. 34P/2017 ( State vs. Kuntesh ), arising out of Case Crime No. 121 of 2017, u/s 376, 323 IPC & ¾ Protection of Children From Sexual Offence Act, Police Station – Ayana, District – Auraiya. thereby convicting and sentencing the appellant for life imprisonment and fine of Rs. 50,000/- for the offence under Section 376 IPC, in default of payment of fine one year additional R.I, 01 year R.I. for the offence under Section 323 IPC, and of 10 years R.I and fine of Rs. 50,000/- for the offence under Section ¾ Protection of Children From Sexual Offence Act, in default of payment of fine 01 year additional R.I.. All the sentences were directed to run concurrently.

2. A brief narrative of the prosecution story, as discernible from the N.C.R., is that on 09.05.2017 at around 12:00 noon, the daughter of the informant had gone to buy some item from the shop of Kunwar Singh. After purchasing the item when she reached near the house of Kuntesh, the accused-appellant, he had pressed the throat of the victim due to which she fell down and become unconscious.

3. On the basis of written report, an FIR bearing case crime no. 121/2017 under section 323, 354-B of IPC and 7/8 of POCSO Act was registered against accused Kuntesh on 10.05.2017 at 4:30 pm at police station – Ayana, District – Auraiya. During investigation on the basis of the statement of the prosecutrix recorded under Section 164 C.r.P.C. offence under Section 376 IPC was added to the matter. After completion of investigation, the Investigating Officer submitted charge-sheet against the accused, Kuntesh under Sections 323, 376 of IPC and Section ¾ POCSO Act.

4. The case against accused Kuntesh being exclusively triable by the Court of Sessions was committed before the Trial Court. Accordingly, it was registered as Special Case No. 34P/2017 ( State vs. Kuntesh ).

5. The accused was charged for the offence punishable under Sections 323, 376 of IPC and Section ¾ POCSO Act. He denied the charges and claimed to be tried.

6. In order to prove the prosecution case, the prosecution has examined seven witnesses i.e., P.W.-1, (the victim), PW-2, Daya Shankar, PW-3, Lady Constable, Mithlesh Kumari, PW-4, Dr. Seema Gupta, PW-5, Dr. Mrityunjay Kumar, PW-6, Smt. Amresh Kumari and PW-7, Sub Inspector Alma Ahirwar.

7. P.W.1, who was 8 years old at the time of incident in her oral testimony had stated that she had gone to a shop to buy Nirma Powder. While returning from the shop she found the accused Kuntesh on the way and he called out to her to his house and when she reached there Kuntesh locked the door from inside, removed her clothes, and then removed his own. Then, accused Kuntesh inserted his penis into her vagina. Blood oozed from her vagina. At that very moment, Kuntesh's brother, Rajesh, arrived and knocked the door then Kuntesh fled. By then, she had fallen unconscious. Rajesh poured water on her mouth, gave her water to drink, and called her father. When she regained consciousness, she told her father everything. Her father filed a report. Cross-examination of the victim had been done, but she had supported the prosecution story therein and stood firm.

8. PW-2, Daya Shankar, the informant, had stated