Conviction under lesser charges cannot be sustained if the primary charge is not proven, emphasizing the need for corroborative evidence.

JUDGMENT :

S. DATTA PURKAYASTHA, J.

1. Heard Mr. Ratan Datta, learned counsel appearing for the appellant. Also heard Mr. Rajib Saha, learned Addl. P.P. appearing for the State-respondent.

2. The judgment dated 05.08.2024 passed by learned Special Judge (POCSO), Dhalai Judicial District, Ambassa in Spl. (POCSO) No.08 of 2023 convicting the appellant under Section 341,354, 506 IPC and also under Section 8 of the POCSO Act, 2012 sentencing the appellant to suffer simple imprisonment for 1(one) month for commission of offence punishable under Section 341 IPC and to pay a fine of Rs.500/- under Section 341 IPC and also to suffer rigorous imprisonment for 5(five) years for commission of offence punishable under Section 354 IPC and to pay a fine of Rs.5,000/- under Section 354 IPC and to suffer rigorous imprisonment for 2(two) years and to pay a fine of Rs.1,000/- under Section 506 IPC. Appellant was also sentenced to suffer rigorous imprisonment for 5(five) years and to pay a fine of Rs.5,000/- under Section 8 of the POCSO Act, 2012, are under challenge in this appeal. All the sentences were directed to run concurrently.

3. The gravamen of the accusation as given in the FIR lodged by the father of the victim that on 21.08.2023 (Monday) at about 06.00 am when the victim was going to her tuition centre from her house, on the way the appellant forcibly pressed her mouth, took her to the nearby jungle and raped her. The police authority on receipt of the FIR, lodged on the same day at about 12.55 hours, registered it as Manu PS case No.25 of 2023 under Section 341,376(1),506 IPC and Section 4 of the POCSO Act, 2012 and on completion of the investigation, laid the charge sheet under the similar provisions of law.

4. Learned Trial Court also framed the charges under above said provisions i.e. under Section 341, 376(1), 506 IPC and also under Section 4 of the POCSO Act for wrongfully restraining the victim on the above said date, time and place, for committing rape upon her and also for threatening her in fear of death not to disclose the incident to anyone.

5. The victim is the sole eye witness of the incident and so far the charge under Section 506 IPC is concerned, the victim in her evidence nowhere stated that after commission of the alleged rape, he threatened her not to disclose the said incident to anyone rather, the victim gave statement of alleged threatening in another form just prior to the commission of alleged rape which was not reflected in the charge. Anyway, after conclusion of the trial, learned Trial Court declined to convict the appellant under Section 376(1) IPC, rather convicted him under Section 354 IPC and under Section 8 of POCSO Act in lieu of Section 4 of the Act.

6. Mr. Ratan Datta, learned counsel appearing for the appellant submits that total 19(nineteen) witnesses were examined in this case, out of whom, PW-9 is the victim and PW-8 and PW-10 are her parents. PW-11, PW-12, PW-13 and PW-15 are her near relatives like her grandmother and aunts who are basically witnesses of hearsay evidence. Mr. Datta, learned counsel contends that the key witness of the alleged incident is PW-9 herself and her parents are also relevant witnesses whose evidences are required to be scrutinized meticulously and cautiously. According to Mr. Datta, learned counsel, in the FIR there was no allegation of any sort of threatening or molestation of the victim and even the victim or her parents also did not utter a single word regarding molestation of the victim by the appellant but despite the same, just relying on a stray evidence of the Medical Officer [PW-17] conviction was rendered under Section 354 IPC and also under Section 8 of the POCSO Act against the appellant. Mr. Datta, learned counsel also contends that the medical report itself was also a perfunctory one as the doctor did not mention anything as to whether she had examined the internal or external part of the genital of the victim and did not even make any observation on that poin