Conviction under POCSO Act quashed due to reliance on inadmissible evidence and lack of direct proof, emphasizing that suspicion alone does not constitute legal proof.

JUDGMENT AND ORDER

This Criminal appeal under Section 374 (2) Cr.P.C is filed against the Judgment and order of conviction dated 18-05-2022 and sentence of even date passed by the learned Special Judge (POCSO)/ Addl D.C(J), East Jaintia Hills District, Khliehriat in POCSO Case No. 8/2020 (new), [Spl Session No.18/19 (old)] whereby the accused/appellant was convicted under Section 3(a)/4 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and awarded a sentence of 7 (seven) years of rigorous imprisonment and a fine of Rs.10,000/- (Ten thousand rupees) only and in default to undergo one month’s simple imprisonment.

1. The fact of the case is that on 19-08-2018 a written FIR was lodged by the complainant to the effect that on the midnight of 17-08- 2018, her son, aged about 10 years, was sexually assaulted by the accused/appellant who came to stay in her house as he was well known to her husband. The FIR was received vide GDE No. 24 dated 19-08-2018 at Ladrymbai Police Outpost. Thereafter the FIR was received at Khliehriat PS vide GDE No. 05 dated 19-08-2018 and a cognizable case was registered vide Khliehriat PS Case No. 153(8)2018 under Section 377 IPC read with Section 9(m)/10 POCSO Act. After completion of the investigation, a charge-sheet bearing No.62/19 dated 01-06-2019 under Section 5(m)/6 POCSO Act was submitted against the appellant. On production of the appellant before the Trial Court, he was provided with a State defence Counsel and after hearing both the parties, the charge under Section 5(m)/6 POCSO Act was framed against the appellant on 16-08-2019. The prosecution examined 8(eight) witnesses, exhibited 6(six) documents and 2(two) material exhibits before the Trial Court in support of its case. The appellant was examined under 313 Cr.P.C. after completion of the prosecution witness. The appellant declined to adduce any defence witness. The matter was finally heard thereafter by the Trial Court and the impugned judgment and order of conviction and order of sentence was passed.

2. Mr. M. Sharma, learned Legal Aid Counsel for the appellant submits that the identity of the accused was not established before the Trail Court. The learned counsel refers to the Arrest Memo dated 19- 08-2018 and submits that while reflecting the details of the appellant therein, the name was recorded as Shri. Arjun Boro alias Amit (First Alias), whereas the PW1 in her evidence before the Trail Court referred the accused person’s name as ‘Bhutt’ and the survivor in his statement under Section 164 Cr.P.C. referred the accused person as ‘Ksuid’. He submits that in absence of establishment of proper identity of the accused person before the Trail Court, the conviction of the appellant cannot be sustained in law. The learned counsel contends that the Trail Court has placed reliance on the statement of the survivor recorded under Section 161 Cr.P.C. to support the conviction in utter disregard to the settled provision of law. He further contends that the statement of the survivor recorded under Section 164 Cr.P.C. also could not have been taken into consideration by the Trial Court as the same stood contradicted by the evidence of PW2, medical report (Exhibit P–2) and the FSL report dated 29-11-2018 indicating no visible injury or sign of bleeding on the body of the survivor. The learned counsel submits that the survivor has not been examined by the prosecution and as a result, the appellant was deprived of an opportunity to counter the allegation made against him. The statement of PW1 as to the occurrence of the incident