Per W. Diengdoh, J:

JUDGMENT

1. The appellant having been convicted and made to serve a cumulative sentence of 10(ten) years rigorous imprisonment with fine of ₹ 30,000/- (Rupees thirty thousand) for an offence punishable under Section 6 of the POCSO Act, and rigorous imprisonment of 1(one) year with fine of ₹ 5,000/- (Rupees five thousand) for an offence punishable under Section 506 Part-I IPC, relatable to Judgment and Sentence dated 03.01.2024 passed by the learned Special Judge, (POCSO), Nongstoin, West Khasi Hills District in Special (POCSO) Case No.11 of 2019, has now approached this Court, with this instant appeal, with a prayer to set aside and quash the impugned judgment of conviction and related sentence.

2. The prosecution case emanates from the filing of an FIR before the Officer-in-Charge, Nongstoin Police Station on 07.12.2018 by the complainant, who has alleged that the appellant herein, has committed sexual penetration on her minor daughter (name withheld) aged about 10(ten) years on 04.12.2018, at his house.

3. On receipt of the said FIR, a case was registered being Nongstoin P.S Case No. 99 (12) 2018, under Section 5(m)(n)/6 of the POCSO Act, read with Section 506 IPC, investigation commence with the recording of the statement of the complainant and the survivor. The accused/appellant was also arrested on that day itself, that is, 07.12.2018. In course of investigation, all the formalities that is, forwarding of the survivor as well as the accused for medical examination, collection of the birth certificate of the survivor as well as facilitation of recording of the statement of the complainant and the survivor respectively, before the Magistrate under Section 164 CrPC, have been completed. Thereafter, charge sheet was filed, with the Investigating Officer (I/O) sending the accused/appellant to face trial before the competent court of jurisdiction.

4. On the case being taken cognizance of by the learned Special Judge, (POCSO) on 09.05.2019, charge under One Head was framed against the accused/appellant, the charge being under Section 5(m)(n) of the POCSO Act, punishable under Section 6 of the said Act. The court has then examined 9(nine) prosecution witnesses including the complainant, the survivor and the doctor who has medically examined the survivor and the accused/appellant. About 9(nine) documents were also exhibited which includes the FIR and statement of the complainant and survivor made under Section 164 CrPC. The photocopy of the birth certificate of the survivor was also produced as Paper Mark- 1.

5. On completion of the recording of the deposition of all the 9(nine) prosecution witnesses, the statement of the accused/appellant made under Section 313 CrPC, was recorded. When asked as to whether he wish to adduce evidence, the accused/appellant answered in the negative.

6. The argument on behalf of the prosecution and the defence, was then heard by the learned Special Judge, (POCSO), after which the said impugned judgment and sentence was passed.

7. Heard Ms. P. Chettri, learned Legal Aid Counsel (LAC) appearing for the appellant, who has submitted that the impugned judgment and sentence meted out to the accused/appellant was based on mis-appreciation of evidence, wherein vital contradictions in the conduct and statement of the survivor have not been taken into account and the relevance of medical findings ignored which has resulted in miscarriage of justice.

8. It is the contention of the learned LAC that the prosecution’s case has been found wanting mainly on three counts, the first being the contradiction in the survivor’s statement before the police when her statement was recorded under section 161 CrPC in which she has stated that the accused carried her to his house, and there he laid her on the bed and took off her panty as well as his pants and touched her private parts with his penis.

9. When she was before the Magistrate to record her statement under section 164 CrPC, she has stated that th