DILIP ROY Vs. STATE OF ASSAM

JUDGEMENT

(1.) This appeal is preferred to set at naught the judgment and order dtd. 28/2/2023, passed by the learned Additional Sessions Judge cum Special Judge (POSCO), Sivasagar in connection with Special (POCSO) Case No. 36/2019, convicting Sri Dilip Roy (hereinafter after the accused or the appellant) under Sec. 354 of the Indian Penal Code (IPC for short) and sentencing him to undergo rigorous imprisonment for 5 years and to pay a fine of Rs.5000.00 with default stipulation. The appellant was acquitted from charges under Sec. 8 of the Protection of Children from Sexual Offences Act, 2012, (POSCO Act for short).

(2.) The allegation against the appellant is that he committed sexual harassment on the victim 'X' (name withheld). The 15 year old victim was suffering from some ailment and the appellant was summoned to the informant's house for her treatment as the appellant is a sorcerer. On 21/8/2018, the appellant went to the informant's house and later, the informant learnt that the appellant committed sexual harassment on his victim sister. The informant will hereinafter be referred to as 'Y'. When the appellant again came to the informant's house, he was confronted by the informant and then the appellant tried to escape but was apprehended by the local public. As a result, an Ejahar (FIR) was lodged at Joysagar Outpost and GDE number 469 dtd. 23/8/2018 was registered and was forwarded to Sivasagar P.S. The FIR was registered as Sivasagar P.S. Case No. 837/2018 under Sec. 8 of POSCO Act read with Sec. 376 of IPC. Investigation commenced and on conclusion of investigation, charge sheet was laid under Sec. 354 of IPC read with Sec. 8 of POSCO Act. With commencement of trial, a formal charge under Sec. 354 of IPC read with Sec. 8 of POSCO Act was framed and read over and explained to the appellant who abjured his guilt and claimed innocence. To substantiate its stance, the prosecution adduced the evidence of eight witnesses including the Investigating Officer (IO for short) and the Medical Officer (MO for short). On the incriminating evidence projected by the prosecution through the witnesses, several questions were asked to the appellant under Sec. 313 of the Criminal Code ofProcedure (CrPC for short) and the plea of the appellant was of total denial. The appellant adduced the evidence of one witness in defence.

(3.) It is submitted on behalf of the appellant that the FIR has been lodged by the informant but his deposition is contradictory to the contents of the FIR. It has been mentioned in the FIR that the informant learnt about the incident on the following day whereas PW-1 has deposed that family members learnt about the incident on the same day. It is mentioned in the FIR that the appellant was handed over to the police on the same day whereas, on the contrary, it is deposed that the appellant was handed over to the police on the next day. It is further submitted that the age of the victim has been contradicted and so, the appellant was acquitted from the charges under the POCSO Act and convicted under the IPC. The other dissimilarity is that PW-1 has stated that the victim was crying which is contradictory to the contents of the FIR. It is further argued that she informed about the incident to her sister, PW-3 at dinner time whereas her sister PW-3 has deposed that she learnt about the incident on the following day.