Conviction under POCSO Act requires proof of sexual intent, which was not established, leading to appellant's acquittal.

ORDER :

MANINDER S. BHATTI, J.

This appeal has been filed by the appellant under Section 374(2) of the Cr.P.C. being aggrieved by judgment of conviction and order of sentence dated 14.01.2023 passed by the Special Judge, POCSO Act, District Narmadapuram, whereby the appellant has been convicted under Section 9 (m)/10 of the POCSO Act and sentenced to undergo R.I. for 05 years with fine of Rs.2000/-, with default stipulations.

2. Learned counsel for the appellant contends that in the present case the trial Court without even appreciating the scope and ambit of statutory provisions has convicted the appellant. It is contended by the counsel that as per prosecution, when the prosecutrix was there at the place of incident the present appellant came in the state of insobriety and caught hold of hand of the prosecutrix and the said incident was witnessed by one vegetable vendor (PW- 05) and accordingly, the machinery of law was set in motion.

3. It is contended by the learned counsel for the appellant that the mother of the prosecutrix (PW-02) as well as the vegetable vendor (PW-05) have turned hostile and they have not supported the prosecution story. It is further contended by the counsel that the trial Court prima facie while proceeding on assumption that the present appellant made an attempt to pull the prosecutrix towards himself concluded that it was a physical touch and advance involving explicit sexual overture. It is contended by the counsel that the statement of the prosecutrix recorded under Section 164 of CrPC as well as the statement of the prosecutrix recorded before the trial Court under Section 164 of the CrPC as well would reveal that the prosecutrix has nowhere stated that the present appellant had pulled the prosecutrix towards himself, on the contrary, in the statement recorded under Section 164 of CrPC, the prosecutrix said that the present appellant had pulled her hand, tried to drag her and in her statement recorded before the Court it has been stated in para 1, that the present appellant held hand of the prosecutrix and attempted to take her along with him but did not say anything.

4. Thus, it is contended by the learned counsel for the appellant that if the testimony of the prosecutrix, PW-01, her mother, PW-02 and also Ex.P/3 are placed at juxtaposition, the same would reveal that the findings so arrived by the trial Court in para 37 of the judgment, on the face of it, are unsustainable. It is the further contention of the learned counsel that the trial Court has grossly erred in convicting the appellant under Section 9 (m) and 10 of the POCSO Act.

5. Learned counsel for the appellant further submits that it was incumbent upon the trial Court to appreciate para 1 of the testimony of PW-01, inasmuch as as per the prosecutrix herself, the other bystanders had cautioned the prosecutrix that the present appellant was in the state of intoxication. Thus, it is the contention of the learned counsel that the impugned judgment of conviction is unsustainable.

6. Learned counsel for the State has opposed the prayer and submitted that the trial Court on proper analysis of the evidence adduced by the parties has arrived at the conclusion and thereby has convicted the appellant. The impugned judgment of conviction, in absence of any infirmity or perversity does not warrant any interference in this appeal.

7. Heard the submissions and perused the records.

8. A perusal of the impugned judgment as well as the records reflect that the proceedings were initiated on the complaint made by th