ARJUN BORO Vs. STATE OF MEGHALAYA

JUDGEMENT

(1.) This Criminal appeal under Sec. 374 (2) Cr.P.C. is filed against the Judgment and order of conviction dtd. 18/5/2022 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 Sec. 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.10,000.00(Ten thousand rupees) only and in default to undergo one month's simple imprisonment.

(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 1908-2018 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 Sec. 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 Sec. 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 Sec. 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 dtd. 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 is a hearsay statement not admissible in law. He further submits that PW1 in her cross-examination stated that on the night of the incident she, her husband, her children including the survivor and the appellant were sleeping in the same room, but she did not see anything or hear any unusual sound. Hence, the evidence of PW1 is sufficient to negate the entire prosecution version of the case. He submits that the father of the survivor was also not cited as a witness by the prosecution which makes the allegation against the appellant doubtful. Drawing attention to the deposition of PW2 and the Exhibit P-2 which reflected that the survivor informed about the incident to his family members in the daytime of the following morning, the learned counsel submits that there is a delay in lodging the FIR as the same was not filed immediately thereafter and came to be filed on the next day.

(3.) The learned counsel for the appellant also places reliance on a judgment dtd. 16/5/2023 of a Division Bench of this High Court rendered in Crl.A.No.36 of 2022, Binod Tamang Vs. State of Meghalaya, and contends that in a similar situation of the present case, the conviction recorded by the Trial Court was set aside by the High Court on the ground of non-examination of survivor during the course of the trial. The learned counsel further contends that in the said case, there was a Test Identification Parade (TIP) conducted wherein the accused was identified by the survivor, but despite the identification, the High Court interfered on the ground of non-examination of the survivor by holding that the opportunity that an accused gets to cross-examine the survivor at the time that really has to be regarded as the primary evidence. The learned counsel submits that by following the proposition laid down in the aforementioned case, the appellant herein also deserves to be acquitted and the impugned judgment of conviction and order of sentence of the Trial Court be set aside and quashed.