JUDGMENT : M. Zothankhuma, J. Heard Mr. A. Zho, learned counsel for the appellant. Also heard Mr. Veto V. Zhimomi, learned Public Prosecutor (P.P.), Nagaland, and Ms. Lhousino Sale, learned Legal Aid counsel for the respondent No. 2. 2. This is an appeal against the impugned Judgment & Order dated 06.09.2022 passed by the learned Special Judge, POCSO, Phek, Nagaland, in GR No. 31/2021 arising out of Women P.S. Phek Case No. 01/2021, by which the appellant has been found guilty of having committed penetrative sexual assault, sexual assault and sexual harassment under Section 4, 8 and 11 of the POCSO Act and also under Section 354 IPC. The learned Trial Court thereafter sentenced the appellant to undergo rigorous imprisonment for a period of 20 (twenty) years with a fine of Rs. 5,000/- (Rupees Five Thousand), in default to undergo simple imprisonment for the term of one year under Section 4 of the POCSO Act. The appellant was also sentenced to undergo rigorous imprisonment for 3 (three) years with a fine of Rs. 1,000/- (Rupees One Thousand), in default simple imprisonment for 6 (six) months under Section 8 of the POCSO Act. The appellant was also sentenced to undergo imprisonment for a term of 6 (six) months with a fine of Rs. 500/- (Rupees Five hundred), in default simple imprisonment for one month under Section 12 of the POCSO Act. He was also sentenced to undergo simple imprisonment for a period of 6 (six) months with a fine of Rs. 500/- (Rupees Five hundred), in default simple imprisonment for one month under Section 354 IPC. The sentences were to run concurrently. However, out of the total fine amount of Rs.7,000/-, Rs. 5,000/- (Rupees Five Thousand) was to be paid to victim and the period already undergone as a UTP was also to be set off. 3. The learned counsel for the appellant submits that there is no evidence to show that the appellant had committed any offence under the POCSO Act or the IPC. He submits that a case of penetrative sexual assault has not been made out, as can be seen from the Medical Report and evidence of the Medical Officer, i.e. PW-6 and the evidence of the victim. 4. He submits that a case of penetrative sexual assault has not been made out, as can be seen from the Medical Report and evidence of the Medical Officer, i.e. PW-6 and the evidence of the victim. 4. The learned P.P. submits that the statement of the victim under Section 164 CrPC corroborates the evidence of the victim and proves that the appellant had raped the victim girl. He also submits that just because the medical examination of the victim showed that her hymen was intact does not mean that the victim was not raped. Further, there was a small bruise on the left inguinal area of the victim. He, thus, submits that the impugned judgment should not be interfered with. 5. Ms. Lhousino Sale, learned Legal Aid counsel for the respondent No. 2 submits that the victim had clearly stated in her evidence that the appellant was bad and had suggested that they should have sex. Then the victim started crying. This could only be relatable to the penetrative sexual assault committed on the victim by the appellant, which is corroborated by the evidence of the Doctor, which shows that there was a small bruise on the left inguinal area of the victim. She also submits that the statement of the victim under Section 164 CrPC clearly proves that the appellant had raped the victim. 6. We have heard the learned counsels for the parties. 7. The prosecution case in brief is that an FIR dated 01.08.2021 was submitted by the mother of the victim (PW-1), to the effect that her daughter had told her on 28.07.2021 that the appellant had inserted his private parts into her private parts and that the appellant had allowed her to play with his private parts. Pursuant to the FIR, Women P.S. Phek Case No. 01/2021 was registered. After the Investigating Officer (I.O) completed the investigation, the I.O filed a chargesheet, on finding a prima facie case under Section 376(2)(i)/354 IPC read with Section 4, 8 and 11 of the POCSO Act established against the appellant, inasmuch as, the victim was 5 (five and a half) years old at the time of the incident. 8. The learned Trial Court framed charges against the appellant under Section 376(2)(i) and Section 354 IPC read with Section 4, 8 and 11 of the POCSO Act, to which the appellant pleaded not guilty and claimed to be tried. 8. The learned Trial Court framed charges against the appellant under Section 376(2)(i) and Section 354 IPC read with Section 4, 8 and 11 of the POCSO Act, to which the appellant pleaded not guilty and claimed to be tried. The learned Trial Court thereafter examined 8 (eight) prosecution witnesses and after having examined the appellant under Section 313 CrPC, it came to a finding that the appellant was guilty of having committed the offences under Sections 4, 8 & 11 POCSO Act and Section 354 IPC. The impugned judgment and order was thereafter passed by the learned Trial Court. The appellant was not convicted under Section 376(2)(i) IPC, as the same had been omitted by Act 22 of 2018 w.e.f 21.04.2018. 9. The evidence of the mother of the victim (PW-1) is to the effect that the victim had told her that the appellant made her touch and play with his private parts. Further, another incident occurred on 28.07.2021, wherein the victim told her that the appellant had taken off his pants and made her touch his private parts, besides putting his private parts into her private parts. 10. The testimony of the victim (PW-2) before the learned Trial Court is reproduced herein as follows:- “The Victim XXX is present in Camera. Some question have been ask to find out whether she is able to understand and has knowledge about the things around. On the asking of her name, she is able to smartly respond. On asking how many brothers and sisters she has, she said she has one big brother and one small sister. In which class are you studying she said she has passed class A. She is able to write A to Z and has co-operated to write her name My fathers name is Kurita and my mothers name is Tsutalu. She said she want to go to school. What is the name of your school She said she is studying in Royal Foundation School. I will be going to school in February. The Victim now 6(six) years old on 28th Dec. 2021 is withdrawn when asked about the accused refer to as Apotsa and refused to speak anything. She finally mentioned about the name of the accused and said that his name is Apotsa Kuripra. I went to Apotsa's house to watch TV. Apotsa is very bad. I don't like Apotsa. The Victim now 6(six) years old on 28th Dec. 2021 is withdrawn when asked about the accused refer to as Apotsa and refused to speak anything. She finally mentioned about the name of the accused and said that his name is Apotsa Kuripra. I went to Apotsa's house to watch TV. Apotsa is very bad. I don't like Apotsa. Apotsa said shall we have sex (A vu kuna to ne) The victim could not proceed further and started to cry. No further response is given after that.” 11. The evidence of PW-3, who is the father of the victim, is to the effect that he had been told by his wife (PW-1) that the appellant had raped their daughter. 12. The deposition of PW-4, who is the wife of the appellant, is to the effect that she came to know 2/3 days after the incident, that an allegation had been made against her husband by the father of the victim, to the effect that the appellant (her husband) had raped the victim. PW-4 further stated that she told the victim’s family who were their next door neighbors that the appellant loved children and joked with them and if they misunderstood the same, they were sorry about it. 13. The evidence of PW-5 is to the effect that she worked at Shakhi One stop Centre and on 31.07.2021, she received a call stating that the victim had been raped. PW-5 then stated that she took the father, mother and aunt of the victim to the police station and filed the FIR. Thereafter, the victim was taken to hospital for medical checkup. 14. The evidence of PW-6, who is the Medical Officer of the District Hospital, Phek is to the effect that on 31.07.2021, he examined the victim and found there was a small bruise on the left inguinal area. Further, there was an erythematous tender lesion on the left labia minora. He also stated that hymen of the victim was intact. He also stated that evidence of recent sexual intercourse was inconclusive. 15. The evidence of PW-7 is to the effect that he was present on 31.07.2021 when PW-6 examined the victim child. 16. The evidence of PW-8 (I.O), is to the effect that she served as the O.C of the Women Police Station and Phek Police Station. He also stated that evidence of recent sexual intercourse was inconclusive. 15. The evidence of PW-7 is to the effect that he was present on 31.07.2021 when PW-6 examined the victim child. 16. The evidence of PW-8 (I.O), is to the effect that she served as the O.C of the Women Police Station and Phek Police Station. She received a written FIR on 01.08.2021 to the effect that the victim had been assaulted by the appellant. A case was registered and the victim sent for medical examination. On finding a prima facie case of rape and sexual assault etc. against the appellant during investigation of the case, she filed the charge-sheet. 17. As can be seen from the facts of the present case, one of the issues amongst others, pertains to whether the victim had been subjected to penetrative sexual assault by the appellant, as defined in Section 3 of the POCSO Act, 2012. 18. A reading of the testimony of the victim does not indicate in any manner that the appellant had committed the offence of penetrative sexual assault, as provided in Section 3 POCSO Act. Though the victim had stated in her evidence that the appellant had suggested that they should have sex, there is no further evidence to show that there has been penetration of the appellant’s penis into the private parts of the victim. The victim had stated that the appellant was very bad and had thereafter started to cry. Though we might imagine or speculate or have a suspicion that the appellant had thereafter committed the offence of penetrative sexual assault on the victim, imagination, speculation and suspicion cannot take the place of proof. 19. There were no eye witnesses to the crime and the proof of the appellant having committed penetrative sexual assault on the victim, would depend upon the evidence given by the victim before the learned Trial Court. When the victim in her testimony, has not made any mention of the appellant having committed penetrative sexual assault on the victim, we cannot add words beyond what is stated in the testimony of the victim. 20. In the case of Wahid Khan vs. State of Madhya Pradesh , reported in (2010) 2 SCC 9 , the Supreme Court has held that just because the hymen remains intact does not mean that rape has not been committed. 20. In the case of Wahid Khan vs. State of Madhya Pradesh , reported in (2010) 2 SCC 9 , the Supreme Court has held that just because the hymen remains intact does not mean that rape has not been committed. Similarly, just because there is absence of injury on the private parts of the victim does not mean rape has not been committed. In the evidence given by PW-6 and the Medical Examination Report made by him, it is stated that there was a minor bruise on the left inguinal area of the victim and that the hymen was intact. However, in the absence of the victim having testified that the appellant had committed penetrative sexual assault upon her, it cannot be said that the evidence of PW-6 corroborated any evidence of penetrative sexual assault. 21. We have also seen the statement made by the victim to the Judicial Officer under Section 164 CrPC, wherein she has specifically stated that the appellant had inserted his penis into her private parts. This statement no doubt is incriminating against the appellant. However, as held by the Supreme Court in various decisions, a statement made under Section 164 CrPC can only be used for the purpose of contradiction or corroboration. 22. In the case of R. Shaji vs. State of Madhya Pradesh , reported in (2013) 14 SCC 266 , the Supreme Court held that the statement made under Section 161 CrPC can be used to contradict the witness, while a statement made under Section 164 CrPC can be used for contradicting or corroborating the evidence of the said witness. “ 26. Evidence given in a court under oath has great sanctity, which is why the same is called substantive evidence. Statements under Section 161 CrPC can be used only for the purpose of contradiction and statements under Section 164 CrPC can be used for both corroboration and contradiction. In a case where the Magistrate has to perform the duty of recording a statement under Section 164 CrPC, he is under an obligation to elicit all information which the witness wishes to disclose, as a witness who may be an illiterate, rustic villager may not be aware of the purpose for which he has been brought, and what he must disclose in his statements under Section 164 CrPC. Hence, the Magistrate should ask the witness explanatory questions and obtain all possible information in relation to the said case. 27. So far as the statement of witnesses recorded under Section 164 is concerned, the object is twofold; in the first place, to deter the witness from changing his stand by denying the contents of his previously recorded statement; and secondly, to tide over immunity from prosecution by the witness under Section 164. A proposition to the effect that if a statement of a witness is recorded under Section 164, his evidence in court should be discarded, is not at all warranted. (Vide Jogendra Nahak v. State of Orissa [ (2000) 1 SCC 272 ]. 28. Section 157 of the Evidence Act makes it clear that a statement recorded under Section 164 CrPC can be relied upon for the purpose of corroborating statements made by witnesses in the committal court or even to contradict the same. As the defence had no opportunity to cross-examine the witnesses whose statements are recorded under Section 164 CrPC, such statements cannot be treated as substantive evidence.” 23. In the present case, when there is no evidence adduced by the victim to the effect that she had been raped by the appellant, the statement made by the victim under Section 164 CrPC cannot be used as the basis for convicting the appellant under Section 4 POCSO Act. 24. In his examination under Section 313 CrPC, the appellant has denied that he had raped the victim and said that the allegation was false. 25 In view of the fact that a finding of guilt can only be based on evidence and as there is no evidence of rape having been committed, in terms of the testimony of the victim, we are unable to agree with the learned Trial Court, in coming to a finding that the appellant was guilty of having committed an offence under Section 4 of the POCSO Act. 26. With regard to the conviction of the appellant under Section 8 and 11 POCSO Act, we would have to see whether an offence under Section 7 and 11 has been made out. Section 7 and 11 of POCSO Act states as follows:- “ 7. Sexual Assault. 26. With regard to the conviction of the appellant under Section 8 and 11 POCSO Act, we would have to see whether an offence under Section 7 and 11 has been made out. Section 7 and 11 of POCSO Act states as follows:- “ 7. Sexual Assault. - Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involved physical contact without penetration is said to commit sexual assault. 11. Sexual harassment. -A person is said to commit sexual harassment upon a child when such person with sexual intent,- (i) utters any word or makes any sound, or makes any gesture or exhibits any object or part of body with the intention that such word or sound shall be heard, or such gesture or object or part of body shall be seen by the child; or (ii) makes a child exhibit his body or any part of his body so as it is seen by such person or any other person; or (iii) shows any object to a child in any form or media for pornographic purposes; or (iv) repeatedly or constantly follows or watches or contacts a child either directly or through electronic, digital or any other means; or (v) threatens to use, in any form of media, a real or fabricated depiction through electronic, film or digital or any other mode, of any part of the body of the child or the involvement of the child in a sexual act; or (vi) entices a child for pornographic purposes or gives gratification therefore. Explanation.- Any question which involves “sexual intent” shall be a question of fact.” 27. With regard to whether the appellant has committed an offence under Section 7 of the POCSO Act, we would again have to look into the testimony of the victim. As can be seen from the testimony of the victim as has been reproduced in the foregoing paragraphs, there is no evidence adduced that the appellant had committed an offence under Section 7 of the POCSO Act. As such, when there is no evidence to show that an offence under Section 7 POCSO Act has been made out, conviction under Section 8 of the POCSO Act does not arise. 28. As such, when there is no evidence to show that an offence under Section 7 POCSO Act has been made out, conviction under Section 8 of the POCSO Act does not arise. 28. With regard to the conviction of the appellant under section 11 of the POCSO Act, we find that the evidence of the victim is to the effect that the appellant had suggested to the victim that they should have sex. The said evidence given by the victim comes within the provision of section 11(i) of the POCSO Act, as the appellant had uttered a suggestion to the victim to have sex. On considering this fact, we are of the view that the appellant is guilty of having committed an offence under section 11(i) of the POCSO Act, for which punishment is provided under section 12 of the POCSO Act. Section 12 of the POCSO Act provides that punishment for sexual harassment of a child can be up to 3 years imprisonment and a fine. As the appellant has been convicted and sentenced to undergo simple imprisonment for 6 months for the offence of having committed a crime under section 11 of the POCSO Act by the learned Trial Court, the same is not interfered with. 29. With regard to the conviction of the appellant under Section 354 IPC, the evidence adduced by the witnesses does not show that there was assault or use of a criminal force on the victim, with intent to outrage her modesty. The evidence recorded by the learned Trial Court is sadly lacking on this count. As such, we are unable to agree with the learned Trial Court that the appellant was guilty of having committed the offence under Section 354 IPC. 30. The above being said, we are surprised to see that the learned Trial Court had stopped the recording of evidence of the victim because the victim had started crying at the time of giving her testimony. The fact that the victim cried during the time she gave her testimony could be due to trauma suffered by her at the hands of the appellant and as such, the learned Trial Court should have exercised more patience and waited for some time, to enable the victim to compose herself. Further, as held by this Court in the case of Md. Shah Alam Vs. the State of Assam and another [Crl. Further, as held by this Court in the case of Md. Shah Alam Vs. the State of Assam and another [Crl. A(J) 87/2024] , which was disposed of on 04/02/2026, a victim child should be provided with psychological counselling or emotional support, to enable her to narrate the incident in a clear and comfortable manner, inasmuch as, the object of the POCSO Act is not only to punish a criminal, but to ensure that the child is able to participate in the criminal process without fear, confusion or inhibition. The learned Trial Court could have adjourned the proceedings to another date, to enable the victim child to compose herself and be in a better state of mind. However, the testimony of the victim child is clearly not complete because she started crying. If some more time had been given to the child, the child may have been able to narrate the incident more completely and clearly, which was possible, keeping in view the clear and unambiguous statements made by the victim while recording her statement under section 164 Cr.P.C. However, the victim’s testimony is shorn of material particulars, to prove that the appellant had committed an offence under section 4 & 8 of the POCSO Act and Section 354 IPC. 31. In view of the reasons stated above, we are of the view that the conviction and sentence of the appellant under Section 4 and 8 of the POCSO Act, 2012 and Section 354 IPC have not been proved and as such, the same cannot be upheld. The appellant is however found to be guilty of having committed the offence under Section 11(i) of the POCSO Act and accordingly, he has been rightly convicted under section 12 of the POCSO Act. As the sentence imposed under section 12 of the POCSO Act has already been served, he is no longer required to be in judicial custody. The appellant is accordingly discharged from the liability of the charges framed under Section 4 and 8 POCSO Act and Sections 376(2)(i) & 345 IPC. Consequently, the impugned judgment and order dated 06.09.2022 passed by the learned Special Judge, POCSO, Phek, Nagaland in GR No. 31/2021 corresponding with Women P.S. Phek Case No. 01/2021 is accordingly set aside to the extent indicated above. The Jail Authorities are directed to immediately release the appellant from judicial custody, if not involved in any other case. Consequently, the impugned judgment and order dated 06.09.2022 passed by the learned Special Judge, POCSO, Phek, Nagaland in GR No. 31/2021 corresponding with Women P.S. Phek Case No. 01/2021 is accordingly set aside to the extent indicated above. The Jail Authorities are directed to immediately release the appellant from judicial custody, if not involved in any other case. The appeal is accordingly allowed to the extent indicated above 32. Send back the TCR. 33. In appreciation of the assistance provided by Ms. Lhousino Sale, learned Legal Aid counsel, her fee is to be paid by the Nagaland State Legal Services Authorities, as per their norms.