Conviction under the POCSO Act requires consistent testimony and corroborative evidence; discrepancies in witness accounts can undermine the prosecution's case.

JUDGMENT :

S. DATTA PURKAYASTHA, J.

1. The appeal arises from the judgment and sentence dated 10.02.2020 passed by the Special Judge (POCSO), Sepahijala, Bishalgarh in case no. Special (POCSO) 09 of 2016 whereby the appellant was convicted and sentenced under Sections 342 , 354, IPC and also under Section 10 of POCSO Act and was sentenced to suffer rigorous imprisonment for 5 years and to pay fine of Rs.5,000/- and in default of payment of fine to suffer further imprisonment for 3[three] months both under Section 10 of POCSO Act and under Section 354 , IPC and was also sentenced to suffer imprisonment for 1[one] year and to pay a fine of Rs.500/- under Section 342 of the IPC and in default of payment of fine to suffer further imprisonment for 15 days.

All the sentences were directed to run concurrently.

2. The investigation was carried out on the basis of an FIR submitted by the mother of the victim on 10.9.2013 at Bishalgarh PS that on the previous day at about 1 pm in absence of herself and her husband, the accused called the victim [age-9 years] and her brother [age-10 years] in his house and asked the brother to bring biscuits for him from the shop by paying him Rs.20/- and engaged the victim to wash his platters. Thereafter, he took the victim on his lap and committed unwanted behaviours with her. The victim somehow got her freed, fled to her house and informed the matter to her mother at about 3 pm on her return.

3. The charges were framed by the Special Judge under 3[three] counts viz. under Section 342 of the IPC, under Section 354 of the IPC and under Section 10 of the POCSO Act for committed offence under Section 9 (m) of the POCSO Act. On denial the charge, the prosecution examined total 8[eight] witnesses. Out of them, PW-4 [the victim], PW-5 [mother of the victim] and PW-7 [brother of the victim] are the key witnesses.

4. PW-1, Smt. Sarathi Bala Das and PW-3, Sri Radha Mohan Das became cipher in their evidence as they simply stated that they did not know anything about the alleged incident. PW-2 is the Judicial Officer who recorded the statement of the victim under Section 164 of the Cr.P.C. and PW.6, Smt. Jhunu Begam was declared hostile as she did not support the prosecution. The last witness PW-8 is the investigating officer of the case.

5. Mr. S. Bhattacharjee, learned legal aid counsel appearing for the appellant argued that the allegation of touching of breast of the victim as deposed by her was absent in her previous statement recorded by the investigating officer and also by the Judicial Officer and it was the statement divulged first time in the court. He also referred to the cross-examination of the brother of the victim that he went to the shop for purchase of household articles at the asking of the appellant but was delayed in his return due to rain. Said episode of rain and delayed return were absent in his previous statement. Mr. Bhattacharjee also tried to bring to the notice of the court some omission in the evidence of mother of the victim and submitted that even there was no proof that at the time of alleged incident the victim was below 12 years to justify conviction under Section 10 of the POCSO Act for violation of Section 9 (m) of the Act. According to Mr. Bhattacharjee, the charge under Section 342 of the IPC could also not be proved by the prosecution. Finally, Mr. Bhattacharjee, learned legal aid counsel submits that the appellant is in custody continuously from 10.06.2019 till date and therefore, even if the conviction is upheld some leniency may be shown in the matter of sentence.

6. In reply, Mr. S. Ghosh, learned Addl. PP strongly argued that the victim was throughout consistent in her statement befor