A conviction under the IPC for sexual assault requires corroborated evidence of the act without presumption, highlighting the necessity of foundational facts in POCSO cases.

JUDGMENT

1. This present criminal appeal has been filed under Section 447 and 354 of the Code of Criminal Procedure, 1973 against the impugned judgment of conviction and sentence dated 15.02.2021 passed by the learned Special Judge (POCSO Act), Agartala, West Tripura in Case No. Special(POCSO) 01 of 2018, whereby the learned Special Judge (POCSO), Agartala, West Tripura has convicted the appellant for committing offence, punishable under Section 447 and 354 of IPC and Section 08 of the Protection of Children from Sexual Offences Act, 2012, and sentenced him to suffer 3 months S.I. for committing offence punishable under Section 447 of I.P.C and also sentenced him to suffer 3 years Rigorous Imprisonment and also to pay a fine of Rs.15,000/- for committing offence punishable under Section 354 of IPC, with default stipulation. The appellant herein is also sentenced to suffer Rigorous imprisonment for 3 years and to pay a fine of Rs.15,000/- for committing offence punishable under Section 8 of POCSO Act with default stipulation.

2. The facts of the case in brief leading to this present criminal appeal is that on 12.12.2017, in the afternoon at about 3.00 P.M., taking advantage of the absence of others, the accused-appellant herein trespassed into the house of the informant at Pratapgrah and touched the body of the victim and outraged her modesty. It is also alleged that the accused-appellant herein prohibited the victim from stating anybody about the incident, but on 16.12.2017, after knowing about the same from the victim-daughter, the informant lodged the complaint before the police.

3. Based on the written complaint of the informant (father of the victim) a case was registered at East Agartala Women P.S. vide No.2017/WEA/091 dated 16.12.2017 under Section 448 /354A(2)(3) of the IPC read with Section 8 of the POCSO Act, against the accused-Nakul Paul. In course of the investigation, the I.O. visited the place of occurrence and recorded the statement of the material witnesses under Section 161 of Cr.P.C. The victim girl was forwarded before the Magistrate for the recording of her statement under Section 164 (4) of Cr.P.C. At the conclusion of the investigation, the Police submitted the charge sheet having found prima-facie materials against the accused under Sections-448/354(2)(3) of the IPC read with Section 8 of the POCSO Act.

4. On receipt of the police report, learned Special Judge (POCSO), Agartala framed the charge against the accused-appellant herein under Section 447 & 354 of IPC and alternatively under Section 8 of POCSO Act.

5. The accused-appellant after hearing all the matters and contents of the charge, pleaded not guilty and claimed to be tried. Accordingly, Trial was conducted, and to prove the case, prosecution side examined as many as 5 witnesses, namely:-

1) P.W.1, Smt. Rita Saha(Baishnab), mother of the victim.

2). P.W.-2, victim(name withheld).

3) P.W.-3, Shri Bimal Baishnab, informant and father of the victim.

4) P.W.-4, Shri Suman Baishnab, brother of the victim.

5) P.W.-5, Smti. Jamuna Roy, I.O. of the case.

6. After hearing the parties learned Special Judge(POCSO), West Tripura, Agartala, convicted the appellant as stated above.

7. Being aggrieved and dissatisfied with the impugned judgment and conviction of the sentence dated 15.02.2021, the appellant has preferred this instant criminal appeal.

8. Heard Mr. S. Lodh, learned counsel appearing for the appellant as well as Mr. S. Ghosh, learned Addl. P.P. appearing for the State-respondent.

9. Mr. S. Lodh, learned counsel appearing for the accused-appellant herein submitted that contradictory statements were given by the prosecution witnesses regarding the place of occurrence of the alleged incident. From the deposition of P.W.-1, it is revealed that just after the alleged incident, the victim narrated the incident to the landlady, Geeta Roy, but the prosecution did not produce her. Further 2(two) eyewitnesses of the alleged incident who were the sister and friend of