JUDGMENT : A.M. Kalita, J. Heard Mr. D. Barua, learned counsel, appearing on behalf of the appellant. Also heard Mr. R. J. Barua, learned Addl. P.P., representing the State of Assam as well as Mr. U. Choudhury, learned Legal Aid Counsel, representing the respondent no. 2. 2. The instant appeal, filed under Section 374 of the Cr.P.C. against the Judgment and Order dated 14.07.2022, passed by Additional Sessions cum Special Judge (POCSO), Sivasagar in Case No. Special (POCSO) 01/2021, arising out of Namti P.S. Case No. 27/2020, convicting the appellant/accused under Section 8 of the POCSO Act, 2012 (hereinafter referred to as the POCSO Act) and sentencing to undergo rigorous imprisonment for a period of 5 (five) years and also to pay a fine of Rs. 5,000/- (Rupees Five Thousand) only, in default, to undergo further rigorous imprisonment for a period of 3(three) months. 3. The prosecution’s case is that an FIR dated 24.12.2020, lodged by one Brojen Gogoi (the respondent no. 2) before the Officer Incharge of Namti Police Station, Sivasagar, alleging, inter alia, that their 13 years’ old daughter (Ms. ‘X’, name not disclosed) had been lured by the appellant to go to his house without their knowledge; that on not seeing her for long, they asked their mason who was working in the entrance gate of their house, wherein they were told by him that the appellant had taken away their daughter to get a ‘tegari’; that the victim girl could be seen coming crying and on being asked, she told them that the appellant had behaved indecently with her. It was also alleged in the FIR that the victim girl, on earlier occasions also told them that the appellant used to give her bad signal but they brushed those aside thinking that he must had been joking. 4. In view of the aforesaid FIR, Namti P.S. Case No. 27/2020, under Section 354 A of the IPC read with Section 8 of the POCSO Act was registered. 5. On completion of the investigation, the police submitted chargesheet against the appellant under Section 354A of the IPC read with Section 8 of the POCSO Act. On 18.02.2021, charge was framed against the appellant under Section 354A of the IPC read with Section 8 of the POCSO Act, to which he pleaded not guilty and claimed to be tried. 6. On completion of the investigation, the police submitted chargesheet against the appellant under Section 354A of the IPC read with Section 8 of the POCSO Act. On 18.02.2021, charge was framed against the appellant under Section 354A of the IPC read with Section 8 of the POCSO Act, to which he pleaded not guilty and claimed to be tried. 6. The prosecution examined as many as six (6) witnesses, including the Investigating Officer (I/O). The statement of the accused under Section 313 Cr.P.C. was recorded. Two (2) witnesses were adduced on behalf of the defence. The defence plea was of denial. After hearing the parties, the learned Special Judge (POCSO), Sivasagar, vide Judgment and Order dated 14.07.2022, convicted the appellant under Section 8 of the POCSO Act and sentenced the appellant to undergo rigorous imprisonment for a period of five (5) years and also to pay a fine of Rs. 5,000/- (Rupees Five Thousand only), in default, to undergo further rigorous imprisonment for a period of three (3) months. 7. It is seen that there was no dispute regarding the age of the victim girl. The victim girl deposed in the Court that her date of birth is 28.11.2006. The father of the victim girl, the respondent no. 2, produced and exhibited the Birth Certificate of the victim girl as Exhibit-2, wherein, her date of birth has been mentioned as 28.11.2006. No dispute was raised about the age of the victim girl and therefore, it was held by the learned Trial Court that the victim girl was a minor at the time of the incident. 8. PW-1 is the victim girl and she deposed before the Trial Court that she knew the appellant as he is her neighbour; that he is her father’s friend and she used to address him as ‘Khura’; that the incident had taken place on 24.12.2020; that the day before the incident, her mother went to Guwahati for medical treatment; that on the date of the incident, at about 9-10 AM, her mother, after returning home from Guwahati was taking rest and her father went out for work; that on that day, the mason was constructing the front gate of their house and the name of the mason was Lakhi Borah. She stated that Lakhi Borah came to their house and sought for the ‘‘tegari’’ (a kind of tray used in construction); that their ‘tegari’ was in the house of the appellant as they had taken it and the mason asked her to bring the ‘tegari’ from the house of the appellant; that the appellant also heard the mason telling her to bring the ‘tegari’ from his house and he also asked her to come to his house and get the ‘tegari’; that she did not want to go but at the same time, could not tell the reason to the mason that on earlier occasions also the appellant used to come to her house and used to lift her wearing skirt; that at first, she thought the appellant was joking with her but on the 2nd time also, the appellant repeated the same; that at first when she told her mother about the appellant’s act, her mother also thought it was a joke but after the second time, her mother also became cautious and her parents thereafter, did not leave her alone in house. She stated that she hesitantly went inside the appellant’s house in search of the ‘tegari’ and after reaching their courtyard, she asked the appellant to bring out the ‘tegari’; that the appellant however asked her to go inside his house and bring the ‘tegari’ herself; that at first she refused to enter his house as no one else was present but the appellant insisted on her going inside by telling her that he was busy in other works; that she then entered inside the house of the appellant to bring the ‘tegari’ and the appellant also followed her and catching hold of her in her shoulders, pushed her towards their bedroom; that the appellant then placed his hands over her breasts over her clothes and tried to open her sporting; that at that time, she was wearing a yellow coloured sporting and a three quartered pant; that she then assaulted the accused with the ‘tegari’ in his shoulder and came out running. The victim girl stated that she raised hue and cry in front of his house in the tiniali; that Sri Sagar Das then came out and asked her as to why she was shouting and then she told hm about the incident; that her aunt Mitali Das, Smti Monu Das, Nitumoni Gayan also came out on hearing her cry and she reported to them about the incident; that they told her to go home and report the incident to her mother and accordingly, she came home and reported the incident to her mother; that she and her mother went to the tiniali in front of the house of the appellant and they assaulted him in the tiniali; that the appellant then told that he simply pushed her and did not do anything; that her mother then informed her father about the incident; that after her father came, they went to the police station; that her father before going to the police station went to the house of the appellant to ask him about the incident but the appellant refused to admit and asked her father to do whatever he likes; that her father then lodged the FIR. 9. During her cross-examination, PW-1 stated that there were 6 to 7 residential houses near the house of the appellant; that the elder daughter of the appellant is her friend that in that context, she used to visit their house; that she knows the persons residing near the house of the appellant but she does not know their actual names; that she knows Sagar Das, Monu Das, Mitali Das and Nitumoni Gayan. She stated that she was aware about the family members of the appellant as she used to visit their house; that in the house of the appellant, his wife and his three children namely, Minakhi Das, Rupjyoti Das and Priyakhi Das who is her friend, reside; that the three children study in school, but on the date of incident, the school was closed and so the students of the school were in their respective homes. She stated that it was the appellant only who asked her to go inside the house to get the ‘tegari’ as he was busy in other work, though she was not willing to go inside as no one else was present in his house at that time. She stated that it was the appellant only who asked her to go inside the house to get the ‘tegari’ as he was busy in other work, though she was not willing to go inside as no one else was present in his house at that time. She stated that the ‘tegari’ was in the last room of their new house; that there are four rooms in the new house of the appellant and there are two rooms in their old house; that the family of the appellant used to reside in the old house and they did not reside in the new house; that the new house had been constructed adjacent to their old house; that in the new house, the construction of the walls were going on including the room from where she brought the ‘tegari’; that she shouted when the appellant pushed her towards their bedroom and the same was audible to Kabita Das who used to reside nearby; that Kabita Das did not have any talking terms with her mother at that time and she came out only when she shouted in the tiniali. It was further stated by her that she did not state before the police as well as in the statement under Section 164 Cr.P.C., about Kabita Das; that it takes about 3 minutes by foot to go to the house of the appellant; that when she shouted in the tiniali, about 15-16 persons assembled and said Kabita Das also came there. She further stated that during her crossexamination that she did not state before the Investigating Officer that she assaulted the appellant with the ‘tegari’ as police did not ask her in detail about the incident; that she denied suggestion that the wife and children of the appellant were present in their house at the time of incident. 10. PW-2, Sri Brojen Gogoi is the informant/father of the victim girl and he stated that on the day of incident, i.e., on 24.12.2020, he was out of the house for his works. 10. PW-2, Sri Brojen Gogoi is the informant/father of the victim girl and he stated that on the day of incident, i.e., on 24.12.2020, he was out of the house for his works. At about 10 AM, on that day, his wife called and told him over phone that an incident had taken place in their house and he was asked to come home immediately; that immediately he came home and saw his minor daughter Miss ‘X’ crying; that his wife told him that she was taking rest in the house and the mason Lakhi Borah, who was constructing the pillar of their gate asked their daughter to bring the ‘tegari’ from the house of the appellant; that their daughter went to bring the ‘tegari’ when the appellant pushed her towards their bedroom and put his hands underneath her clothes and also lifted her wearing clothes; that his wife told him that she went to the house of the appellant to ask about the incident but he refused to admit about the incident; that on being told by his wife, PW-2 went to the house of the appellant and asked him about the incident but the appellant told him that he was only joking with his daughter, that the appellant refused to admit and asked him to do whatever he can do; that he then went to the police station and lodged the FIR. 11. During his cross-examination, PW-2 denied the suggestion that he did not state before the Investigating Officer and in his statement, recorded under Section 164 Cr.P.C. that- “On being told by his wife he went to the house of the accused person, that the accused put his hands below the wearing clothes of his daughter”. PW-2 admitted not to have stated before the I/O and in his statement under Section 164 Cr.P.C. that the appellant told him that he was joking with their daughter. PW2 stated that before the incident also, his wife told him that the appellant used to commit misdeeds with their daughter. PW-2, denied suggestion that even after knowing about the misdeeds of the appellant, he engaged him in the works of his house. PW2 stated that before the incident also, his wife told him that the appellant used to commit misdeeds with their daughter. PW-2, denied suggestion that even after knowing about the misdeeds of the appellant, he engaged him in the works of his house. PW-2 further stated in his cross-examination that the appellant worked in his house for two days before the date of incident; that his daughter was a friend of the daughter of the appellant and although they had visiting terms but after coming to know about the misdeeds of the appellant, he did not allow their daughter to go to the house of the appellant; that he did not see the appellant coming to their house on the day of incident; that the appellant used to reside at a distance of 200 metres from their house; that he knows the neighbours of the appellant and that in between their house and the residence of the appellant, there are three residential houses; that when he went to the house of the appellant, he did not find any of his neighbour and no one asked him about the incident. 12. PW-3 Smti. Sangita Gogoi is the mother of the victim girl and she stated in the court that on 24.12.2020 at about 10-11 AM, she was sleeping in her residence and her husband was at his work place; that on that day at about 5 AM, she returned from Guwahati, where she had gone for some medical treatment; that besides her, her daughter Miss ‘X’ and her son aged about 5 years were in her residence; that the mason, namely, Lakhi Bora, was working on that day at her residence for constructing a gate at the entrance of her residence. She stated that when she was sleeping, she woke up on hearing hue and cry and found that her daughter came crying to her and told her that the mason Lakhi Bora was searching for the ‘tegari’ and since he did not find the same, asked her to bring the ‘tegari’ from appellant’s house. She stated that when she was sleeping, she woke up on hearing hue and cry and found that her daughter came crying to her and told her that the mason Lakhi Bora was searching for the ‘tegari’ and since he did not find the same, asked her to bring the ‘tegari’ from appellant’s house. She stated that along with Lakhi Bora, the appellant Babul Das also came and asked her to go with him to his house to bring the ‘tegari’; that her daughter told her that she accordingly went with the appellant Babul Das to his house; that her daughter further told her that the appellant asked her to go inside his house for bringing the ‘tegari’ and when she went inside the house, the appellant grabbed her breasts and attempted to disrobe her by removing her clothes; that she further told her that the appellant dragged her towards his bedroom; that her daughter told her that she then started crying and pushed the appellant with the ‘tegari’ and somehow escaped from there. PW-3 stated that after coming to know about the incident from her daughter, she called her husband over the phone and when her husband came back to the house after about one hour, he went to the house of the appellant to know what had happened but the appellant told him to do whatever he wished to do. She stated that at about 1-2 PM, she and her husband went to Namti Police Station and her husband lodged the FIR. 13. During her cross-examination, PW-3 stated that the appellant was known to them since long time. She stated that till the date of occurrence, they and the appellant had visiting terms and there was cordial relation in between them. She stated that the appellant worked as helper with mason Lakhi Borah while constructing the gate at the entrance of their house. She admitted to have not stated before police that the appellant attempted to disrobe her daughter by removing her clothes and that she woke up on hearing hue and cry. 14. She stated that the appellant worked as helper with mason Lakhi Borah while constructing the gate at the entrance of their house. She admitted to have not stated before police that the appellant attempted to disrobe her daughter by removing her clothes and that she woke up on hearing hue and cry. 14. PW-4 Shri Sagar Das, stated before the Court that on the date of incident, at about 9 AM, he was doing his household works in front of his house and at that time, the victim came out of her residence and addressed him as “borta” and went to the house of the appellant; that after about 3-4 minutes, he heard hue and cry of the victim from the house of the appellant and when he reached in front of the house of the appellant, he saw the victim crying in the courtyard of the house of the appellant; that on being asked by him, the victim told him that the appellant had grabbed her breast. During his cross-examination, the PW-4 stated that the house of the informant is about 100 metres from his house. He stated that when the victim went to the house of the appellant crossing his house, at that time, Milon and Khitik were also present alongside him. He stated that he did not have good terms with the appellant since some time. He stated that he has good terms with the informant and came to the court with him. 15. PW-5 Shri Lakhi Bora, stated before the Court that on the date of the incident, he was engaged in the construction of gate in the house of the informant as told by the appellant, Babul Das. He stated that on the date of the incident, when he was engaged in the work, he was in need of a ‘tegari’ and the appellant, who was passing by at that time, told him that the ‘tegari’ was in his house. He then sent the daughter of the informant to collect the ‘tegari’ from the house of the appellant and she, accordingly went there but did not bring the ‘tegari’. He stated that after some time, he saw the victim inside the house and asked her about the ‘tegari’ but she did not reply anything. He then sent the daughter of the informant to collect the ‘tegari’ from the house of the appellant and she, accordingly went there but did not bring the ‘tegari’. He stated that after some time, he saw the victim inside the house and asked her about the ‘tegari’ but she did not reply anything. After about one hour, the mother of the victim told him that something had happened with her daughter and she had to return home crying. He stated that the mother of the victim girl told her that the appellant had caught her daughter and so she returned home crying. 16. During his cross-examination, PW-5 stated that on the date of incident, the victim girl went with her younger brother to the house of the appellant to bring the ‘tegari’ and he did not see the victim girl coming out of the house of the appellant; that the victim girl did not tell him about the incident. 17. PW-6, namely, Gitartha Choudhury, the I/O, in his deposition, stated that on 24.12.2020, he was posted as attached Officer at Namti Police Station. On that day, he was on leave. He stated that on that day, an FIR was lodged by the informant and after registration of the case, the O/C entrusted the investigation of the case to ASI Ashok Ganguly. He stated that he interrogated the informant and recorded his statement and also the statement of his wife. He stated that he also recorded the statement of the victim at the police station and the medical examination of the victim was not done as the informant had given in writing that his daughter does not want to undergo medical test as she has not sustained any injury. He stated that ASI Ashok Ganguly visited the PO and prepared the sketch map and recorded the statements of two witnesses. He stated that on the next day, the appellant was apprehended in his residence and he was brought to the police station. He stated that the Birth Certificate of the victim girl was seized and the victim along with three more witnesses were forwarded to the court to record their statement under Section 164 Cr.P.C., thereafter, he took up the investigation on 29.12.2020. He stated that on completion of the investigation, he submitted the charge-sheet against the appellant. He stated that the Birth Certificate of the victim girl was seized and the victim along with three more witnesses were forwarded to the court to record their statement under Section 164 Cr.P.C., thereafter, he took up the investigation on 29.12.2020. He stated that on completion of the investigation, he submitted the charge-sheet against the appellant. Exhibit-5 is the seizure list and Exhibit-5 (2) is the signature of ASI Ashok Ganguly, which can be identified by him. He stated that Exhibit-8 is the sketch map and Exhibit-8(1) is the signature of ASI Ashok Ganguly, Exhibit-9 is the Charge-sheet and Exhibit-9(1) is his signature, which can be identified by him. 18. In his cross-examination, PW-6 stated that the time of incident has not been mentioned in the FIR and the printed form of FIR. He stated that the medical examination of the victim was not done because of the unwillingness on the part of the informant. He stated that statements of the persons whose names are mentioned in the sketch map were not recorded. He stated that the statement of Sagar Das was recorded. However, the statements of Monu Das, Mitali Das, Nitumoni Gayan were not recorded. He further stated that the statements of the persons whom the victim had claimed to have met on her way to the tiniali were not recorded. He stated that the victim, in her statement under Section 161 of Cr.P.C. stated that on earlier occasions also the appellant gave her signal of misdeeds. However, she had not stated that on earlier occasions, the appellant committed any misdeeds. He stated that PW-1 Miss ‘X’ did not state before him that- “I reported to my mother on two occasions that the accused used to commit misdeed with me that the accused tried to lift my wearing clothes.” He stated that PW-2 Brojen Gogoi, did not state before him that- “that the accused put his hand below the wearing clothes of my daughter.” He stated that PW-2 stated before the I/O that the time of the incident was 10 AM. He stated that PW-3 Sangita Gogoi, stated before the I/O the time of incident as 10 AM. PW-3 stated before the I/O that the appellant put his hand on the breast and the back of her daughter. He stated that PW-3, however, did not state about the opening of cloths. He stated that PW-3 Sangita Gogoi, stated before the I/O the time of incident as 10 AM. PW-3 stated before the I/O that the appellant put his hand on the breast and the back of her daughter. He stated that PW-3, however, did not state about the opening of cloths. He stated that PW-3 did not state before him that the appellant was working in their house as mason and PW-3 did not state before him that when the victim raised hue and cry, she woke up. PW-6 further stated during his cross-examination that PW-4 Sagar Das, did not state before him that- “at that time, Ms. ‘X’ came out from her residence and addressed me as “borta” and then went to the residence of the appellant Babul Das that after 3-5 minutes she heard the cry of the victim girl from the house of Babul Das.” He stated that PW-4 Sagar Das did not state before him that- “while reaching in front of the house of the accused Babul Das, I saw Ms. ‘X’ in the courtyard of Babul Das and that she was crying and that when I asked her what had happened, she told me that the accused babul Das had grabbed her breasts.” He stated that PW-4, however, told that on being asked, the victim girl told him that the appellant had put his hand on her body. It is further stated by PW-6 that the statement of Milan Das and Khitik had not been recorded. He stated that PW-5 Lakhi Bora did not state before the I/O that the victim went with her younger brother to the house of the appellant on the date of incident. He further stated that it was not a fact that only as shown by Brojen Gogoi, the statements of the witnesses were recorded. He stated that the investigation was done by ASI Ashok Ganguly. He stated that it was not a fact that he has not conducted the investigation properly and the charge sheet was submitted falsely. 19. DW-1 Smti Priyakshi Das and DW-2 Smti Minakhi Das, who are the daughters of the appellant, both deposed identical facts before the Court that the appellant is their father. They stated that the victim is the classmate of Priyakshi Das and it takes about 10 minutes by foot to go the house of the victim. 19. DW-1 Smti Priyakshi Das and DW-2 Smti Minakhi Das, who are the daughters of the appellant, both deposed identical facts before the Court that the appellant is their father. They stated that the victim is the classmate of Priyakshi Das and it takes about 10 minutes by foot to go the house of the victim. They stated that the incident took place about 2 years back at about 9 to 10 AM, when the victim with her younger brother came to take the ‘tegari’ from their house. They stated that they and their younger brother were playing in their front courtyard and the victim and her brother also started playing with them. They stated that their father told the victim to take out the ‘tegari’ and scolded her as she was playing as their father was getting late for market. They stated that their father then took out the ‘tegari’ from inside their house and handed over the ‘tegari’ to the victim in front of their house. They stated that thereafter, the victim went away; that their school was closed on that day. 20. During their cross-examination, the DW-1 and DW-2 denied that on the date of incident they were not at home. They denied that they stated falsely that on the date of incident both the DWs and their younger brother were playing in their front courtyard and that the victim also played with them. They denied that on the date of incident their father sent the victim inside their house to take the ‘tegari’. They also denied that for the sake of their father they falsely testified before the Court on that day. 21. Mr. D. Baruah, learned counsel appearing for the appellant submits that the learned Trial Court erroneously convicted the appellant under Section 8 of the POCSO Act without having any definite material to prove against him by the prosecution. He submits that the learned Trial Court fails to consider the fact that the prosecution had not examined the witnesses who were present at the PO and named in sketch map prepared by the I/O in the case, while convicting the appellant under Section 8 of the POCSO Act. He submits that the nonexamination of those witnesses resulted in failure of justice. He submits that the nonexamination of those witnesses resulted in failure of justice. He submits that there are contradictions between statements under Section 161 and Section 164 of Cr.P.C. of PW-5, i.e., Lakhi Bora, working in the house of the informant. He submits that he being a vital witness and his evidence was not considered in proper perspective by the learned Trial Court and thereby, failure of justice has occurred in the instant case, whereby, the appellant has been convicted for the maximum punishment of 5 years. He submits that the learned Trial Court failed to consider the evidence of DW-1 and DW-2 who had deposed that they and the victim are friends and on the day of the alleged incident, the victim was playing with them in their courtyard. Under such circumstances, the alleged incident could not have occurred and therefore, the allegations made against the appellant are baseless and false. He further submits that the quantum of punishment is severe and maximum for the appellant in the facts and circumstances of the case, which is unwarranted. He submits that this is not a fit case wherein the maximum punishment allowed under Section 8 of the POCSO Act could have been given to the appellant. He submits that there are many discrepancies in the statements of the witnesses in the instant case and the learned Trial Court has totally ignored those discrepancies while relying solely on the testimony of the victim, the learned Trial Court has passed the impugned Judgment and Order, whereby the appellant has been convicted for the maximum punishment of 5 years. 22. To support his submission that the quantum of punishment given in the instant case is not proportionate to the facts and circumstances of the instant case. In this connection, he has referred to the case of Attorney General for India vs. Satish & Another, reported in (2022) 5 SCC 545 , wherein the Hon’ble Supreme Court, in a similar case relating to offence punishable under Section 8 of the POCSO Act, has convicted the accused undergo rigorous imprisonment for a period of 3 years and to pay a fine of Rs. 5,000/- and in default, to undergo simple imprisonment for a period of one month for the offence under Section 8 of the POCSO Act. 5,000/- and in default, to undergo simple imprisonment for a period of one month for the offence under Section 8 of the POCSO Act. In view of the aforesaid, he submits that the quantum of punishment given in the instant case is too harsh on the appellant. 23. The learned counsel for the appellant further submits that the appellant had already spent about 4 years in jail and therefore, at this stage, he should be released from jail. In terms of the aforesaid submission, the learned counsel appearing for the appellant submits that the impugned Judgment and Order dated 14.07.2022 should be set aside and the appellant should be released from jail. 24. Per contra, Mr. R. J. Barua, learned Addl. P.P., appearing for the State submits that there is no infirmity in the Judgment and Order passed by the learned Special Judge (POCSO), Sivasagar in the instant case. He submits that the intention or mens rea of the appellant is present from the very beginning which is apparent from the statements made by the victim girl as well as her parents which is reflected in the FIR filed by the father of the victim girl. He submits that on earlier occasions also, the appellant had committed misdeeds with the minor victim girl. He submits that during the trial, the defense totally failed to reject or demolish the prosecution’s story. He submits that though one or two minor discrepancies are present between the statements of PW-4, PW-5 and PW-3, the same is not fatal in the facts and circumstances of the case. He submits that the statement of PW-4 and the statement of PW-1, PW-2 and PW-3 corroborates with each other and the same being trustworthy, the same had been considered and taken into account while passing the impugned Judgment & Order by the learned Special Judge (POCSO). Mr. Barua, learned Addl. P.P., further submits that testimony of the victim can be a sole ground for conviction in a case under the POCSO Act. He submits that in the instant case, there are no inconsistencies in the narration of the story of the alleged offence by the victim girl. He submits that her statements before the police and before the Trial Court are consistent without having any material discrepancies. He submits that in the instant case, there are no inconsistencies in the narration of the story of the alleged offence by the victim girl. He submits that her statements before the police and before the Trial Court are consistent without having any material discrepancies. Therefore, her testimony has been rightly appreciated by the learned Special Judge (POCSO), Sivasagar, while convicting the appellant under Section 8 of the POCSO Act. In support of his submissions, the learned Addl. P.P. has relied on the case of Ranjit Hazarika Vs. State of Assam , reported in (1998) 8 SCC 635 and the case of Sham Singh Vs. State of Haryana , reported in (2018) 80 SCC 34. 25. Mr. U. Choudhury, learned Legal Aid Counsel, appearing on behalf of the respondent no. 2 has supported the submissions made by the learned Addl. P.P. for the State. He submits that PW-1, the victim, has been all throughout very consistent. He submits that the statement of the victim girl before the I/O as well as before the court are consistent and without having any material contradictions. He submits that the appellant has a history of misdeeds which is apparent from the statements of PW-1, PW-2 and PW-3. He submits that the defence has miserably failed to discredit any of the witnesses in the instant case. He submits that though the defence has taken a plea that in fact, the brother of the victim had accompanied the brother but, the same fact was not brought out by the defence by way of cross-examining the victim. In view of the aforesaid submissions, he submits that there is no infirmity in the impugned Judgment & Order dated 14.07.2022. 26. The Trial Court Record of the instant case has been received and the same is perused. 27. It is seen from the evidence of PW-1 the victim, that at the time of the incident, her mother was sleeping in the house and her father was out for his work. This aspect of the matter is not disputed as the same has been deposed by PW-2, PW-3 as well as PW-5. PW-1 stated that she went to the house of the appellant on being asked by PW-5, the mason. She also stated that the appellant also accompanied her to his house. This fact has been narrated by PW-1 to PW-3 and PW-3 narrated the same to PW-2. PW-1 stated that she went to the house of the appellant on being asked by PW-5, the mason. She also stated that the appellant also accompanied her to his house. This fact has been narrated by PW-1 to PW-3 and PW-3 narrated the same to PW-2. This aspect is also corroborated by the evidence of PW-5 as well as PW-4, who also stated that he has seen the victim girl going to the house of the appellant. As far as the incident of pushing the victim by the appellant to their bedroom, there is no discrepancy in the statements made under Section 164 Cr.P.C. made by the victim and the deposition made before the court by the PW-1. There is no contradiction in the statements of PW-2 and PW-3 under Section 164 Cr.P.C. as well as before the court about the fact that the appellant had pushed the victim girl into their bedroom. There is also no contradiction as far as the statements regarding inappropriate touch by the appellant on the victim girl. It is seen from the evidence of PW-2 as well as PW-3 also that the same aspect of touching her inappropriately, was reported to PW-2 and PW-3 by the victim girl, i.e., the PW-1. It is also seen from the evidence of PW-4 Sagar Das that when the victim girl made hue and cry and on being asked for, the victim girl reported to him that appellant had inappropriately touched her breast. These statements about the occurrence of the incident could not be demolished or any way contradicted by the defence in their cross-examination. 28. As far as the defence’s version in the statements of DW-1 and DW-2 that the victim girl went along with their father and her younger brother to their home for getting the ‘tegari’ is concerned, in his statement under Section 313 Cr.P.C., statement has been made by the appellant that the victim girl’s brother accompanied them. In addition to the aforesaid facts, the statement of PW-5, i.e., Lakhi Bora did not state the fact the younger brother of the victim also accompanied the victim girl to the house of the appellant though he contradicted the same in his cross-examination by the defence, making the statement not reliable. In addition to the aforesaid facts, the statement of PW-5, i.e., Lakhi Bora did not state the fact the younger brother of the victim also accompanied the victim girl to the house of the appellant though he contradicted the same in his cross-examination by the defence, making the statement not reliable. Therefore, the defence’s version being contradictory with the statement of PW-4 as well as it was stated before that no statement or explanation about the same coming forth by the appellant. This makes the defence’s version doubtful. 29. As far as non-examination of certain witnesses who were supposedly present in the tiniali when the victim girl came running out of the house of the appellant is concerned, the same may not be indispensable, as in the instant case, the evidence of PW-1, PW-2, PW3, PW-4 and PW-5 are quite consistent about the facts regarding visiting the house of the appellant by the victim girl, which is not in dispute. It is also seen from the evidence of PW-5 that the victim girl came back to her house without the ‘tegari’. Though statement under Section 313 Cr.P.C., the appellant contradicted the same by saying that the ‘tegari’ was taken by the victim girl. The statement of PW-4 Sagar Das also corroborates the fact that something unusual happened inside the house of the appellant. Therefore, without any material or any reason of falsely implicating the appellant by the victim minor girl is evidenced, her evidence cannot be disbelieved. It is a settled law that in a case under POCSO Act, sole testimony of the victim can be also the basis of convicting the accused person if there are no material inconsistencies in her statement and/or any different statements of the witnesses negating the allegation of the victim girl. 30. In this connection, the case of Ranjit Hazarika (supra), which has been referred to by the learned Addl. P.P., being relevant, is considered. Paragraph-6 of the aforesaid case being relevant in the instant case is extracted herein below:- “6. The evidence of the prosecutrix in this case inspires confidence. Nothing has been suggested by the defence as to why she should not be believed or why she would falsely implicate the appellant. P.P., being relevant, is considered. Paragraph-6 of the aforesaid case being relevant in the instant case is extracted herein below:- “6. The evidence of the prosecutrix in this case inspires confidence. Nothing has been suggested by the defence as to why she should not be believed or why she would falsely implicate the appellant. We are unable to agree with the learned counsel for the appellant that in the absence of corroboration of the statement of the prosecutrix by the medical opinion, the conviction of the appellant is bad. The prosecutrix of a sex offence is a victim of a crime and there is no requirement of law which requires that her testimony cannot be accepted unless corroborated. In State of Punjab v. Gurmit Singh to which one of us (Anand, J.) was a party, while dealing with this aspect observed: (SCC pp. 395-96, para 8) “The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation be viewed with doubt, disbelief or suspicion? Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation be viewed with doubt, disbelief or suspicion? The court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self-inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable." 31. The learned Addl. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable." 31. The learned Addl. P.P., has also referred to the case of Sham Singh (supra), though the offence involved in that case was rape, the principle laid by the Hon’ble Supreme Court regarding the evidence of prosecutrix, being relevant, the following paragraphs are being extracted herein below:- “6. We are conscious that the courts shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If the evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations or sexual assaults. [See State of Punjab v. Gurmit Singh (SCC p. 403, para 21).] 7. It is also by now well settled that the courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. (See Ranjit Hazarika v. State of Assam.)” 32. From the above referred cases, it is clear that when the evidence of the prosecutrix inspires confidence and nothing has been suggested by the defence as to why she should not be believed or why she would falsely implicate the appellant, the Hon’ble Supreme Court held that such evidence of the victim can be accepted without any corroboration. 33. In the case of Vadibelu Thevar Vs. State of Madras , reported in AIR 1957 Supreme Court 614, the Hon’ble Supreme Court laid down certain guiding principles classifying witnesses into three distinct categories and elucidated the approach to be adopted in assessing their creditability, which are reproduced herein below:- “11. ………………………………………..The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution. Hence, in our opinion, it is a sound and well- established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for, proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:- (1) Wholly reliable. (2) Wholly unreliable. (3) Neither wholly reliable nor wholly unreliable. 12. Generally speaking, oral testimony in this context may be classified into three categories, namely:- (1) Wholly reliable. (2) Wholly unreliable. (3) Neither wholly reliable nor wholly unreliable. 12. In the first category of proof, the court should have no difficulty in coming to its conclusion either way-it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial.” 34. In the instant case, the evidence of PW-1, PW-2, PW-3, PW-4 and PW-5 are found to be reliable with negligible or very minor discrepancies. Therefore, the evidence in the instant case can be termed as fully reliable due to the fact that the defence could not bring any material to show the reason why a minor girl, who is the neighbour of the appellant and classmate of the appellant’s daughter, will falsely implicate her friend’s father. 35. As far as the submission of the learned counsel for the appellant that there are discrepancies in the statements of the victim and her parents before the police and the deposition before the Court, it may be relevant to refer to the case of Birbal Nath Vs. State of Rajasthan & Ors., reported in (2024) 15 SCC 190 , wherein the Hon’ble Supreme Court has elaborately discussed about such discrepancies between the statement given to police and the deposition before the Court. The following paragraphs being relevant are quoted herein below:- “22. The contradictions in the two statements may or may not be sufficient to discredit a witness. Section 145 read with Section 155 of the Evidence Act, have to be carefully applied in a given case. One cannot lose sight of the fact that PW 2 Rami is an injured eyewitness, and being the wife of the deceased her presence in their agricultural field on the fateful day is natural. Her statement in her examination-in-chief gives detail of the incident and the precise role assigned to each of the assailants. This witness was put to a lengthy cross-examination by the defence. 23. Her statement in her examination-in-chief gives detail of the incident and the precise role assigned to each of the assailants. This witness was put to a lengthy cross-examination by the defence. 23. Some discrepancies invariably occur in such cases when we take into account the fact that this witness is a woman who resides in a village and is the wife of a farmer who tills his land and raises crops by his own hands. In other words, they are not big farmers. The rural setting, the degree of articulation of such a witness in a court of law are relevant considerations while evaluating the credibility of such a witness. Moreover, the lengthy cross -examination of a witness may invariably result in contradictions. But these contradictions are not always sufficient to discredit a witness. 24. In Rammi v. State of M.P., this Court had held as under: (SCC p. 656, para 24) "24. When an eyewitness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non-discrepant. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny." 25. In the same case, how far a contradiction in the two statements can be used to discredit a witness has also been discussed: (Rammi case, SCC pp. 656-57, paras 25-26) "25. It is a common practice in trial courts to make out contradictions from the previous statement of a witness for confronting him during cross-examination. Merely because there is inconsistency in evidence it is not sufficient to impair the credit of the witness. No doubt Section 155 of the Evidence Act provides scope for impeaching the credit of a witness by proof of an inconsistent former statement. But a reading of the section would indicate that all inconsistent statements are not sufficient to impeach the credit of the witness. No doubt Section 155 of the Evidence Act provides scope for impeaching the credit of a witness by proof of an inconsistent former statement. But a reading of the section would indicate that all inconsistent statements are not sufficient to impeach the credit of the witness. The material portion of the section is extracted below: ‘155. Impeaching credit of witness-- The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the court, by the party who calls him- (1)-(2) (3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted;' 26. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Only such of the inconsistent statement which is liable to be "contradicted" would affect the credit of the witness. Section 145 of the Evidence Act also enables the cross-examiner to use any former statement of the witness, but it cautions that if it is intended to "contradict" the witness the cross-examiner is enjoined to comply with the formality prescribed therein. Section 162 of the Code also permits the cross-examiner to use the previous statement of the witness (recorded under Section 161 of the Code) for the only limited purpose i.e. to "contradict" the witness." 26. In Tahsildar Singh v. State of U.P., it was held that to contradict a witness would mean to "discredit" a witness. Therefore, unless and until the former statement of this witness is capable of "discrediting" a witness, it would have little relevance. A mere variation in the two statements would not be enough to discredit witness. This has been followed consistently by this Court in its later judgment, including Rammi. Moreover, in this case the High Court lost sight of other more relevant factors such as the witness being an injured eyewitness. 27. The purpose of the cross-examination of a witness in terms of Sections 145 and 155 of the Evidence Act is to bring contradictions in the two statements of the witness, in the case at hand, one given to police under Section 161 CrPC, and the other given before the court. 27. The purpose of the cross-examination of a witness in terms of Sections 145 and 155 of the Evidence Act is to bring contradictions in the two statements of the witness, in the case at hand, one given to police under Section 161 CrPC, and the other given before the court. Even assuming for the sake of argument that there is a difference in the two statements of PW 2 as she evidently does not disclose in her examinationin-chief that Jethnath was also working in the adjacent field and there was altercation between the two, this may discredit the witness only so far as the beginning of the incident; how it started. The fact that the incident happened is not in doubt. The offenders were the accused is also not in doubt. There is no doubt that the incident took place, which resulted in one death and grievous injuries to another. It may not have happened exactly as narrated by PW 2, yet for this discrepancy the entire testimony of PW 2 cannot be discarded. **************** 32. The reasons assigned for disbelieving the statement of PW 2 by the High Court are not correct. The High Court discredits the statement of PW 2 because of the discrepancies in her earlier statement given under Section 161 CrPC, and the one given in her examination-in-chief. This as we have already discussed was not sufficient to totally discredit an injured eyewitness. Apart from this eyewitness, there were other eyewitnesses as well, which we have referred above. Further, there is also the recovery made of the weapons and the bloodstained cloth of the accused. There is nothing to doubt either the recovery or the manner in which the recovery has been made. The conclusion derived by the High Court that the assailants were not having common intention or common object of killing deceased Chandernath is not entirely correct.” 36. Moreover, regarding the discrepancies in the evidence of witnesses, the Hon’ble Supreme Court in the case of Leela Ram Vs. State of Haryana , reported in (1999) 9 SCC 525 has held as follows:- "9. Be it noted that the High Court is within its jurisdiction being the first appellate court to reappraise the evidence, but the discrepancies found in the ocular account of two witnesses unless they are so vital, cannot affect the credibility of the evidence of the witnesses. Be it noted that the High Court is within its jurisdiction being the first appellate court to reappraise the evidence, but the discrepancies found in the ocular account of two witnesses unless they are so vital, cannot affect the credibility of the evidence of the witnesses. There are bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefore should not render the evidence of eyewitnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence. In this context, reference may be made to the decision of this Court in State of U.P. v. M.K. Anthony. In para 10 of the Report, this Court observed: (SCC pp. 514-15) ‘10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals.' 10. In a very recent decision in Rammi v. State of M.P., this Court observed: (SCC p. 656, para 24) ‘24. When an eyewitness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non-discrepant. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.' This Court further observed: (Rammi case, SCC pp. 656-57, paras 25-27) ‘25. It is a common practice in trial courts to make out contradictions from the previous statement of a witness for confronting him during cross-examination. Merely because there is inconsistency in evidence it is not sufficient to impair the credit of the witness. No doubt Section 155 of the Evidence Act provides scope for impeaching the credit of a witness by proof of an inconsistent former statement. But a reading of the section would indicate that all inconsistent statements are not sufficient to impeach the credit of the witness. The material portion of the section is extracted below: "155. Impeaching credit of witness -- The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the court, by the party who calls him- (1)-(2) (3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted;" ‘26. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Only such of the inconsistent statement which is liable to be "contradicted" would affect the credit of the witness. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Only such of the inconsistent statement which is liable to be "contradicted" would affect the credit of the witness. Section 145 of the Evidence Act also enables the cross-examiner to use any former statement of the witness, but it cautions that if it is intended to "contradict" the witness the cross-examiner is enjoined to comply with the formality prescribed therein. Section 162 of the Code also permits the cross-examiner to use the previous statement of the witness (recorded under Section 161 of the Code) for the only limited purpose i.e. to "contradict" the witness.’ ‘27. To contradict a witness, therefore, must be to discredit the particular version of the witness. Unless the former statement has the potency to discredit the present statement, even if the latter is at variance with the former to some extent it would not be helpful to contradict that witness (vide Tahsildar Singh v. State of U.P.)." 37. In view of the principles/ratios laid down by the Hon’ble Supreme Court, this Court is of the considered opinion that in the instant case, whatever minor discrepancies have been raised, the same cannot be termed as fatal to the prosecution case. In the instant case, from the evidence available in the record, it is seen that prosecution is successful in establishing it’s case which could not be demolished or negated by the defence. In the instant case, there is no dispute that the victim girl went to the house of the appellant to get the ‘tegari’. This aspect is neither denied by the appellant nor by DW-1 and DW-2. As far as the alleged incident which occurred inside the house, there is no eyewitness. However, the version of the victim girl cannot be negated as there is no material which has been brought in the instant case to show that there is any genuine reason for the minor victim girl to falsely implicate the appellant of a sexual offence. 38. In the instant case, the evidence of PW-1, PW-2, PW-3, PW-4 and PW-5 are corroborating each other and consistent without any material contradictions. During their cross-examinations also, the defence could not negate the version of the aforesaid PWs. The evidence of PW-6, i.e., the I/O has also supported the case of the prosecution by his deposition before the court. 38. In the instant case, the evidence of PW-1, PW-2, PW-3, PW-4 and PW-5 are corroborating each other and consistent without any material contradictions. During their cross-examinations also, the defence could not negate the version of the aforesaid PWs. The evidence of PW-6, i.e., the I/O has also supported the case of the prosecution by his deposition before the court. Defence could not bring on record anything worthy in his cross-examination. 39. In the instant case, it is seen from the evidence brought on record that the minor girl was touched inappropriately by the appellant on her breast as well as he put his hand inside the clothes of the victim girl. Therefore, the offence under Section 7 is made out from the facts of the case. There is also allegations of similar inappropriate behavior committed by the appellant on earlier occasions, which could not be negated by the defence. 40. In view of the aforesaid discussions and finding of this Court, this Court does not find any reason to interfere with the Judgment and Order dated 14.07.2022, and therefore, the instant appeal is dismissed. 41. T.C.R. to be sent back immediately.