SHILLONG, March 8: The High Court of Meghalaya has set aside the impugned judgment and order of conviction passed by the Special Judge (POCSO)/Additional DC (J) of the East Jaintia Hills district in a POCSO case in Khliehriat.
The court also set aside the order of sentence.
A criminal appeal under Section 374(2) of the CrPC was filed against the judgment and order of conviction on May 18, 2022, and the subsequent sentence passed in the POCSO case whereby the accused/appellant was convicted under Section 3(a)/4 of the Protection of Children from Sexual Offences Act of 2012 and sentenced to seven years of rigorous imprisonment and a fine of Rs 10,000 and in default, to undergo one month’s simple imprisonment.
On August 19, 2018, an FIR was lodged by the complainant saying that at midnight of August 17 that year, her 10-year-old son was sexually assaulted by the accused/appellant who came to stay in her house as he was well-known to her husband.
The FIR, received at the Ladrymbai police outpost, was forwarded to the Khliehriat police station and a cognizable case was registered under Section 377 of the IPC read with Section 9(m)/10 of the POCSO Act.
After completion of the investigation, a charge sheet under Section 5(m)/6 of the POCSO Act was submitted against the appellant. On production before the trial court, the appellant was provided with a state defence counsel and after hearing both parties, the charge was framed against the appellant on August 16, 2019.
The prosecution examined eight witnesses and exhibited six documents and two material exhibits before the trial court in support of its case. The appellant was examined under Section 313 of the CrPC after the prosecution witness was heard.
The appellant declined to adduce any defence witness. The matter was heard thereafter by the trial court and the impugned judgment and order of conviction and order of sentence was passed.
M. Sharma, the Legal Aid counsel for the appellant, submitted that the identity of the accused was not established before the trial court. The counsel referred to the arrest memo and submitted that while reflecting the details of the appellant therein, the name was recorded as Arjun Boro alias Amit (first alias), whereas the first prosecution witness
in her evidence before the trial court said the accused person’s name as ‘Bhutt’ while the survivor in his statement referred to the accused person as ‘Ksuid’.
The counsel submitted that in the absence of the establishment of the proper identity of the accused person before the trial court, the conviction of the appellant cannot be sustained in law.
The counsel contended that the trial court relied on the statement of the survivor recorded under Section 161 of the CrPC to support the conviction in utter disregard to the settled provision of law. He further contended that the recorded statement of the survivor also could not have been taken into consideration by the trial court as it was contradicted by the evidence of the second prosecution witness, the medical report, and the Forensic Science Laboratory report indicating no visible injury or sign of bleeding on the body of the survivor.
The counsel submitted that the survivor had not been examined by the prosecution and as a result, the appellant was deprived of an opportunity to counter the allegation made against him.
The high court in its 21-page judgment said that under the country’s system of justice, no person can be punished unless legal proof is adduced in a court of law to establish that he has committed the crime for which he has been charged.
“Suspicion, however strong, does not amount to legal proof. In the absence of legal proof that the appellant had committed the offence, the court has no option but to give the benefit of the doubt to the appellant,” the order of the court of Justice B. Bhattacharjee said.
The court quashed the order passed by the special POCSO judge as “it cannot stand scrutiny of law”. The order of sentence was also set aside.
