JUDGMENT : Heard Mr. R. Datta, learned counsel appearing for the appellant as well as Mr. A. Roy Barman, learned Addl. P.P. appearing for the State-respondent. The present appeal is directed against the impugned judgment and order of conviction and sentence dated 20.12.2017, passed by the learned Special Judge, North Tripura, Dharmanagar, in connection with the Case No. Special (POCSO) 14 of 2016, whereby and where-under the appellant was convicted under Section 8 of the Protection of Children from Sexual Offences Act, 2012 and thereby sentenced him to suffer rigorous imprisonment for 4(four) years and to pay a fine of Rs.10,000/-(Rupees ten thousand) and in default to pay the fine to suffer R.I. for 6(six) months. 2. On the basis of a written complaint dated 08.09.2016 lodged by one Pranath Nath, the father of the victim girl, the Officer-in-Charge of Kanchanpur Police Station had registered an FIR against the appellant herein. The complaint so lodged disclosed the fact that on 05.09.2016 both his son Sri Partha Nath and his daughter Papiya Nath went to the house of their neighbour Sri Anukul Nath, the appellant herein to watch television when Sri Anukul Nath, the appellant took his 9 year old daughter on his lap by grasping her hand and started to press her breast. The daughter felt pain and reacted when his son Partha Nath looked back at his sister asking what had happened. At that time, the accused-appellant shouted at him and said to him-“you have come to watch TV so just watch TV. What do you see there?” Then his son out of fear went on watching TV. Later on, after returning back to the home, his daughter narrated the entire incident to her mother and started crying. The complainant returned back to his home at 9:00 pm when he received the information from the mother of the victim girl. The complainant had explained the delay in filing the ejahar at the police station that he was with the hope of meeting social justice but he did not get. Accordingly, investigation was carried on and after being satisfied with the materials prima facie, the Investigating Officer had submitted charge-sheet against the appellant under Section 354 of IPC and Section 8 of Protection of Children from Sexual Offences Act, 2012. 3. Accordingly, investigation was carried on and after being satisfied with the materials prima facie, the Investigating Officer had submitted charge-sheet against the appellant under Section 354 of IPC and Section 8 of Protection of Children from Sexual Offences Act, 2012. 3. The learned Special Judge took cognizance of the offences and charge was framed under Section 354 of IPC and Section 8 of the Protection of Children from Sexual Offences Act, 2012 against the accused-appellant. 3.1 In course of trial as many as 9(nine) witnesses were examined and the prosecution also introduced 6(six) documents which were marked as Exhibits. The excerpts of the statement of Sri Joggeswar Nath (P.W.4) recorded under Section 161, Cr.P.C. was also brought on record and marked as Exbt. A. 4. On completion of trial, the accused-appellant was put under examination under Section 313, Cr.P.C. where he pleaded his innocence. The accused-appellant, in this case had produced three witnesses to prove his innocence. These three witnesses are his wife namely Archana Rani Nath (D.W.1), two labours namely Sri Swapan Nath (D.W.2) and Sudip Nath (D.W.3). 5. Learned Special Judge after appreciation of the materials on record had convicted and sentenced the accused-appellant as aforestated. 6. Being aggrieved by and dissatisfied with the said order of conviction and sentence, the appellant has preferred the instant appeal. 7. The victim girl was examined as P.W.1. She in her examination-in-chief has stated that on 05.09.2016 went to the house of the appellant to watch one TV serial “Kiranmala” at that time, the appellant took her on his lap and started to press her breast. She felt pain and reacted with the incident. She has further stated that the appellant also inserted his hand inside her pant and also touched her vagina. When she raised sound, her brother (P.W.2) looked back and asked her why she was crying. At that time, the appellant threatened her brother, P.W.2 to watch TV, what for they went to his house. After returning back to her house, the victim girl narrated the incident to her mother and her mother narrated the incident to her father, the complainant herein when he returned back to his home at 9:00 pm. In her cross-examination, she has admitted that she did not specifically said to the police that by inserting his hand through her pant accused Anukul Nath also touched her vagina. In her cross-examination, she has admitted that she did not specifically said to the police that by inserting his hand through her pant accused Anukul Nath also touched her vagina. She has further stated when confronted by the defence that in her house there was also a television. She has further stated in cross that she did not state to the Magistrate that at first accused asked her to pull his fingers. She also categorically stated in her cross-examination that- “it is true that previously there was enmity between the accused and our family (WV)”. 8. P.W.2, Sri Partha Nath, aged about 13 years also deposed in the same tune as was deposed by his sister, P.W.1. In cross-examination his attention was drawn to his statements made under Section 161 of Cr.P.C. where it is found that the statements he made in course of trial that he stated to police that first Anukul Nath asked Papiya to pull his fingers and he had seen Anukul Nath to press the breast of his sister i.e. P.W.1, were found absent. He has further admitted that he did not state to the police that his sister reported to him that accused also bite on her cheek and that they went to that house to see TV as there no balance in their TV. In cross-examination the said witness has further admitted that he did not state to the police the subsequent incident that in the house of Ramakanta nath, the accused also went and first he did not admit the incident and lastly he admitted the incident but did not apologize. P.W.2 has further admitted in his cross “I did not see that Anukul Nath had touched my sister’s breast.” 9. P.W.3, the father of the victim girl has stated in his evidence that after returning back to his home, his wife narrated the incident to him. He has further stated that he had learnt from his wife that the appellant had took her daughter on his lap and pressed her breast and touched her vagina after removing her pant. P.W.3 had admitted the contents of the FIR marked as Exbt.2 and his signature in the seizure list of birth certificate of the victim has been identified and which is marked as Exbt.3. P.W.4 identified the birth certificate of the victim girl which is marked as Exbt.4. P.W.3 had admitted the contents of the FIR marked as Exbt.2 and his signature in the seizure list of birth certificate of the victim has been identified and which is marked as Exbt.3. P.W.4 identified the birth certificate of the victim girl which is marked as Exbt.4. In cross examination when his attention was drawn to the statements he made in the FIR it is found that the statement what he made in the FIR that the accused also opened the pant of his daughter and touched her vagina and also caused bite on her cheek were found absent. 10. P.W.4 Sri Joggeswar Nath is a hearsay witness who has stated what he heard from the father of the victim girl. 11. P.W.5 Smt. Swapna Nath is the mother of the victim girl. She has deposed what her daughter i.e. the victim girl (P.W.1) has stated in her examination-in-chief. She has further stated that she narrated the incident to her husband, P.W.3, when he returned back home at 9:00 pm. In course of her cross-examination, the statement which she made before the Court that her daughter reported to her that the accused-appellant also caused bite on her cheek and inserted his hand inside her pant were found absent. 12. P.W.6, is a neighbour and what he has stated in his examination-in-chief that was told by the father of the victim. 13. P.W.7 is a woman constable who recorded 161 statement of the victim girl following the order of the I.O. P.W.8 is the seizure witness of the birth certificate (Exbt.4) of the victim girl. 14. P.W.9 is the Investigating Officer. He has deposed that he did not arrange the ossification test of the victim nor he arranged for her medical examination but on 09.09.2016, he arranged for recording statement of the victim girl under Section 164 of Cr.P.C. before the Magistrate. He has further deposed that he did not arrest the accused but the accused surrendered before the Court and obtained bail order. In his cross examination he has stated that during investigation he did not find any explanation as to why the complaint was not lodged just after occurrence of the incident on 5th September, 2016. In the case in hand complainant was lodged on 8th September, 2016 when it was registered. In his cross examination he has stated that during investigation he did not find any explanation as to why the complaint was not lodged just after occurrence of the incident on 5th September, 2016. In the case in hand complainant was lodged on 8th September, 2016 when it was registered. He has further stated that in the case diary he did not take the note who were the persons accompanied the victim girl while arranging statement of the victim under Section 164 of Cr.P.C. He further deposed that at the time of lodging FIR, the victim girl did not go to the police station but on the following day, the victim girl went there for recording statement under Section 164 of Cr.P.C. with her parents but he sent her back. It is evident from his statement in cross-examination that he did not enquire about the authenticity of the birth certificate of the victim and he did not go to the office of the Birth Registrar to find out the authenticity of the birth certificate. He has further stated in cross that in the case diary, there is no note whether there is any TV in the house of the victim. After perusal of the case diary, he has stated that there was no note whom he found in the house of the accused when he visited the house of the accused while preparing hand sketch map. He further has stated that he did not take the details view of the place of occurrence showing position of the TV and other articles. 15. After closure of the prosecution evidence, the accused-appellant was put under 313, Cr.P.C. examination where he denied the allegations and the incriminating materials of the prosecution evidence against him. Being asked, in 313, Cr.P.C. examination, why he was implicated with the instant case, the appellant answered that since he joined BJP leaving CPI(M), he has been falsely implicated. When he was asked as to whether he wanted to adduce evidence in his defence he replied “yes”. In reply to another question, the appellant had stated that “she and her brother went to my house to see ‘Kiranmala’ but I did not allow them to see as I had a dispute with their entire family”. In reply to another question, the appellant stated in course of examination U/s 313, Cr.P.C. that-“They have own TV, I had dispute with them. In reply to another question, the appellant stated in course of examination U/s 313, Cr.P.C. that-“They have own TV, I had dispute with them. All the members of my house was very much present”. When he was asked as to why he went to the house of Ramakanta Nath? He replied that he went to the house of Ramakanta, but, he did not admit or did not pay apology. 16. The accused person had produced three witnesses to prove his innocence. D.W.1, Swapan Nath is a day labourer. He has stated in his evidence that more than one year back one day at about 7-30 to 8-00 pm he was in the house of the appellant as Mason to take payment along with one of his labourers namely, Sudip Nath. At that time, the appellant was not present at his house. The wife of the appellant was present in the house. The said witness was observing TV and the same was in running condition. The wife of Anukul Nath was observing TV along with the victim girl and her brother. He has further stated that when the appellant returned to his house, he asked the victim girl to go to home for study. But when they did not go, the appellant assaulted the victim girl by giving a slap. At that time, the victim girl was accompanied by his brother, P.W.2. After receipt of payment they left. The said witness in his cross-examination had denied that he was procured witness and he appeared before the Court on receipt of money from the appellant. No material contradiction was surfaced in his cross-examination. 17. D.W.2, Sri Sudip Nath has stated in his examination-in-chief that about one year back, one day at about 7-00 pm to 8-00 pm he along with his mason, namely, Gushu Nath went to the house of Anukul Nath for collection of payment. On that date, they were constructing a latrine situated in the northern side of the house of the appellant. They were observing TV. At that time, they found two children-one girl and one boy inside the room where TV was playing. He was not observing any TV serial. On that date, they were constructing a latrine situated in the northern side of the house of the appellant. They were observing TV. At that time, they found two children-one girl and one boy inside the room where TV was playing. He was not observing any TV serial. However, he noticed that when the appellant came, he scolded the children and asked them to go home and also assaulted the girl by giving a slap and then the children left and they also took their money and left that place. In cross-examination the said witness had denied that he was a procured witness and he deposed falsely to save the appellant. 18. D.W.3, Archana Rani Nath, the wife of the appellant appeared before the Court to prove that her husband was innocent. She has stated in her evidence that about one year back, one day her mason Swapan Nath (D.W.1) and his labourer Sudip Nath (D.W.2) were waiting for payment at about 7-30 pm and at that time, P.W.1 and her brother, P.W.2, came to their house to see TV. They were observing TV. At that time, her husband was out of the house. After some time her husband returned home and asked the girl to go home. Then her husband assaulted the victim (P.W.1) by giving a slap and the girl left. After 5 to 6 days, she heard that parents of the girl lodged an allegation against her husband, the appellant herein. Police did not arrest her husband in connection with this case. 19. From the above discussion of the evidence led by both the prosecution and the defence, it has become clear that there are two sets of witnesses adducing two sets of stories. The prosecution has been able to prove that the victim girl, P.W.1 and her brother P.W.2 were in the house of the appellant at the evening of that fateful day. After scanning the evidence of P.W.1 and P.W.2, the most vital witnesses in the case, it is found that the statements they made in course of trial that the appellant had inserted his hand inside her pant and also touched her vagina and bite her cheek are not found in their earlier statements, and both P.W.1 and P.W.2 have stated that they did not disclose those facts in course of investigation. 20. 20. Thus, it is found that the statements of P.W.1 and P.W.2 are not consistent and they tried to exaggerate and improve the prosecution story. Further, both P.W.1 and P.W.2 have deviated from their earlier statements at the time of giving deposition in course of trial and thus, such statements are hit by Section 157 of the Evidence Act, which at this juncture, would be apposite to reproduce herein below:- “157. Former statements of witness may be proved to corroborate later testimony as to same fact.—In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact, at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved.” A bare reading of Section 157 of the Evidence Act makes it crystal clear that the former statement may be treated to be proved if it is corroborated by such witness relating to the same fact. But, as I said earlier, in the instant case, the testimony of P.W.1 and P.W.2 appear to be exaggerated and improved and in view of the fact that there was delay of 3 (three) days in lodging the complaint according to which, the FIR was registered, there was every chance of the story being concocted. 21. The defence witnesses, particularly, D.W.1 and D.W.2 have stated that they were engaged in the construction of one latrine in the house of the appellant. D.W.1 and D.W.2 have stated that when they went to the house of the appellant they did not find the appellant in the house and they waited for payment out of construction works. They have categorically stated that when the appellant returned back to his house he asked P.W.1 and P.W.2 to go to their house for study. They have further stated that out of anger the appellant assaulted the girl by giving a slap and thereafter P.W.1 and P.W.2 both left the house of the appellant. The wife of the appellant (D.W.3) also has stated that her husband assaulted the girl by way of giving a slap but formally denied that she was not inside the house at the relevant point of time. 22. The prosecution has failed to shake the evidence of the defence witnesses. The wife of the appellant (D.W.3) also has stated that her husband assaulted the girl by way of giving a slap but formally denied that she was not inside the house at the relevant point of time. 22. The prosecution has failed to shake the evidence of the defence witnesses. By now, it is well settled that the evidence of a child witness cannot be thrown out outright. But the testimony of such witness of tender age most carefully be evaluated and scrutinized with greater circumspection because a child is susceptible to be swayed by what others tell him and can be an easy prey to tutoring. The Court must assess as to whether the statement of the victim is his voluntary expression of what had transpired or was it made under the influence of others [Refer; Panchhi Vrs. State of U.P., AIR 1998 SC 2726 and Mohd. Kalam Vrs. State of Bihar, (2008) 7 SCC 257 ]. 23. So, the touchstone to believe the testimony of a child witness is to see whether such testimony is consistent, trustworthy and credible and inspires the confidence of the Court. Another important aspect is that unless it is proved that such a witness harbours some enmity against the accused or he/she wished to implicate an accused falsely, for all aspects and purposes, there is no reason to disbelieve her statements. 24. In the instant case, I find the evidence of P.W.1 and P.W.2 suffer from unreasonable exaggeration and both of them tried to improve the story. The fact of enmity also has been surfaced. The victim girl (P.W.1) in her cross-examination has admitted that there was enmity between her family and the family of the appellant which was also corroborated by the accused when he was examined under Section 313, Cr.P.C. In my considered view, a girl of 9 years which is also admitted by the appellant, cannot exaggerate or try to improve the story or deviate in any manner on her own volition unless and until she was tutored by elders. At this juncture, I like to travel to find out the meaning of the word “modesty”. 25. At this juncture, I like to travel to find out the meaning of the word “modesty”. 25. The Apex Court in Raju Pandurang Mahale v. State of Maharashtra (2004) 4 SCC 371 relied on the dictionary meaning of modesty which reads -- "Webster's Third New International Dictionary of the English language defines modesty as freedom from coarseness, indelicacy or indecency a regard for propriety in dress, speech or conduct". In the Oxford English Dictionary (1933 Edn) the meaning of the word "modesty" is given as "womanly propriety of behaviour, scrupulous chastity of thought, speech and conduct (in man or woman); reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions." Similar view was expressed in Aman Kumar Vrs. State of Bihar, (2004) 4 SCC 379 . 26. In Rupan Deol Bajaj Vrs. Kanwar Pal Singh Gill (1995) 6 SCC 194 ], the Apex Court in its attempt to find out the meaning of the word “modesty” as expressed thus : [SCC pp. 205,206, Paras 14 & 15]. “14. Since the word ‘modesty' has not been defined in the Indian Penal Code we may profitably look into its dictionary meaning. According to Shorter Oxford English Dictionary (3rd Edn.) modesty is the quality of being modest and in relation to woman means "womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct". The word ‘modest' in relation to woman is defined in the above dictionary as "decorous in manner and conduct; not forward or lewd; shamefast". Webster's Third New International Dictionary of the English language defines modesty as "freedom from coarseness, indelicacy or indecency; a regard for propriety in dress, speech or conduct". In the Oxford English Dictionary (1933 Edn.) the meaning of the word ‘modesty' is given as "womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct (in man or woman); reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions". “15. In State of Punjab vs. Major Singh ( AIR 1967 SC 63 ) a question arose whether a female child of seven and a half months could be said to be possessed of ‘modesty' which could be outraged. “15. In State of Punjab vs. Major Singh ( AIR 1967 SC 63 ) a question arose whether a female child of seven and a half months could be said to be possessed of ‘modesty' which could be outraged. In answering the above question Mudholkar J., who along with Bachawat J. spoke for the majority, held that when any act done to or in the presence of a woman is clearly suggestive of sex according to the common notions of mankind that must fall within the mischief of Section 354 IPC. Needless to say, the “common notions of mankind” referred to by the learned Judge have to be gauged by contemporary societal standards. The other learned Judge (Bachawat J.) observed that the essence of a woman's modesty is her sex and from her very birth she possesses the modesty which is the attribute of her sex. From the above dictionary meaning of ‘modesty' and the interpretation given to that word by this Court in Major Singh's case (supra) it appears to us that the ultimate test for ascertaining whether modesty has been outraged is, is the action of the offender such as could be perceived as one which is capable of shocking the sense of decency of a woman……...” 27. Modesty, is to be interpreted as an attribute associated with female human beings as a class. It is a virtue which attaches to a female on account of her sex. [Tarkeshwar Sahu v. State of Bihar, (2006) 8 SCC 560 & Major Singh Lachhman Singh V. State, AIR 1963 Punj 443]. 28. If we apply the above test in the facts of the present case, according to me, the evidence of both P.W.1 (victim girl) and brother P.W.2, both being minors, are not credible and trustworthy due to serious inconsistencies in their statements which they earlier made in course of investigation. Having given anxious thought to the evidence of P.W.1 and P.W.2, I find it would not be prudent to accept the statements of the victim girl and her brother, P.W.2 in absence of any corroboration. According to me, this is the case where corroboration of the evidence of P.W.1 and P.W.2 by any independent witness is necessary. Having given anxious thought to the evidence of P.W.1 and P.W.2, I find it would not be prudent to accept the statements of the victim girl and her brother, P.W.2 in absence of any corroboration. According to me, this is the case where corroboration of the evidence of P.W.1 and P.W.2 by any independent witness is necessary. Further, unexplained delay of three days to lodge the complaint to the police station appears to be unreasonable and it may not be unjustified that due to enmity as surfaced in course of evidence before the trial Court, there was ample chance of developing or fabricating the story. In furtherance thereof, out of the enmity as has been revealed, the chances of tutoring P.W.1 and P.W.2 cannot also be brushed aside. From the evidence, it is clear that the accused-appellant had slapped the girl out of his anger and in the facts and circumstances of the case, a different view can reasonably be taken that the incident of slapping might have aggravated the already prevalent enmity between the complainant and the accused-appellant. 29. In this backdrop, in my opinion, it is very difficult to hold that appellant has committed offence under Section 354 of IPC and Section 8 of the Protection of Children from Sexual Offences Act, 2012 and the accused-appellant is entitled to get the benefit of doubt. Slapping of girl out of anger does not come within the purview of definition of outraging of ‘modesty’ to a woman keeping in view the authorities enunciated by the Apex court as delineated here-in-above. 30. In view of above, I am of the considered opinion that the judgment and order of conviction and sentence cannot sustain and is liable to be interfered with. 31. Accordingly, the judgment and order of conviction and sentence dated 20.12.2017, passed by learned Special Judge, Dharmanagar, North Tripura in Case No. ST Special (POCSO) 14/2016 is set aside and quashed. 32. In the result, the accused-appellant, Sri Anukul Nath is acquitted of the charge framed against him as aforestated on the benefit of doubt and set at liberty forthwith if he is not required in connection with any other case. 33. The appeal stands allowed and thus disposed of. 34. Send back the L.C. records along with the copy of this judgment.