HAMBIWELL PALIAR Vs. STATE OF MEGHALAYA

JUDGEMENT

(1.) The Judgment and Order dtd. 15/12/2023 and the related order of sentence dtd. 21/12/2023 passed by the Special Judge (POCSO), South West Khasi Hills District, Mawkyrwat in Special POCSO Case No. 03 of 2021 is under challenged in this criminal appeal.

(2.) On the basis of the FIR, the Mawkyrwat PS Case No. 17 (07) 2017 was registered under Sec. 376/511/506 IPC r/w Sec. 7/8 POCSO Act and the matter was investigated into. On completion of the investigation, a charge-sheet was filed vide charge-sheet No. 18/2017 dtd. 23/10/2017 under Sec. 354/506 IPC r/w Sec. 7/8 POCSO Act. After the appearance of the appellant before the Trial Court, charge was framed against him under the aforementioned Ss. of law on 10/1/2018. The appellant pleaded not guilty and claimed to be tried. The prosecution examined 3 (three) witnesses and exhibited 6 (six) documents and 1 (one) paper mark in support of its case. After the closure of the prosecution evidence, the statement of the appellant was recorded under Sec. 313 Cr.PC on 27/7/2022. The appellant declined to adduce any defence witness. The learned Trial Court after hearing the final argument of both the parties, by Judgment and Order dtd. 15/12/2023 convicted the appellant under Sec. 7/8 POCSO Act and Sec. 354 IPC and by order dtd. 21/12/2023 sentenced the appellant to three years rigorous imprisonment with fine of Rs.5,000.00 (five thousand rupees) and in default of payment to undergo simple imprisonment for one week. Assailing his conviction and the related sentence, the appellant has preferred this criminal appeal before this Court.

(3.) Mr. S. Wahlang, learned Counsel appearing for the appellant submits that the FIR was filed after six months of the first alleged incident and after sixteen days of the second alleged incident and there is no explanation of delay by the prosecution. He submits that the delay in lodging the FIR makes the entire prosecution case suspicious as there is every possibility of concoction of the case. He submits that the prosecution examined only 3 witnesses out of 5 witnesses named in the list of prosecution witness and left out the medical witness and the Officer-in-Charge of the Mawkyrwat PS causing prejudiced to the defence of the appellant. He submits that there is also no specific mention of any sexual assault by the appellant in the chargesheet. He further submits that the evidence of PW-1 makes no disclosure of commission of any sexual offence on the survivor by the appellant. He contends that the evidence of PW-1 is contradictory to her own statemen u/s 164 Cr.PC. The learned Counsel further contends that the allegation made in the FIR is totally false in view of the fact that PW- 1 in her cross-examination stated that there was a family meeting and a decision was taken that the appellant should pay Rs.10.0020 to the survivor but the appellant wanted to settle the matter without paying any money. Further, the PW-1 was unable to clear all the money which she borrowed from the appellant. He submits that the FIR was lodged by PW-1 alleging attempt to rape, but in her cross examination she admitted that she did not know the intention of the appellant.