Hafizur Rahman vs The State Of Assam & Anr.

Heard Mr. T. Deuri, learned counsel for the accused appellant. Also heard Mr. B. Sarma, learned Addl. P.P., Assam appearing for the respondent No.1 and Dr. P. Agarwal, learned Amicus Curiae appearing for the informant/respondent No.2.

This appeal has been preferred by the accused appellant against the judgment and order dated 22.09.2022, passed by the learned Special Judge (POCSO), Sivasagar in Special (POCSO) Case No.50/2021 (corresponding to Demow P.S. Case No.192/2021), whereby the accused appellant was convicted and sentenced to undergo rigorous imprisonment for a period of 5 (five) years and a fine of Rs.5,000/- (Rupees Five Thousands) under Section 10 of the POCSO Act, 2012 with default stipulation.

The prosecution case, as revealed from the ejahar lodged by the informant (the mother of the minor victim) before the in-charge of the Nitaipukhuri Police Out Post stating inter alia that on 18.09.2021 at about 6 P.M., her 12 years old daughter Miss 'X' (name withheld to protect the identity of the victim) was alone in their shop, accused appellant Hafizur Ali came to the shop and asked for a cigarette from her daughter. Her daughter gave the cigarette to him and was about to keep the money paid by the accused appellant in the cash box, at that moment the accused appellant caught her from behind and touched her body parts and tried to commit bad act on her. The accused appellant thereafter gagged her mouth, when the victim tried to shout and somehow her daughter raised hue and cry hearing the same, her uncle came out and seeing him, the accused appellant fled away from the place of accordance.

On receipt of the ejahar, the In-charge of the Nitaipukhuri Police Out Post made the GD Entry vide G.D.E. No. 264 dated 18.09.2021 and forwarded the same to the Officer-in-Charge of the Demow Police State, where the case was registered as the Demow P.S. Case No.192/2021, under Sections 447/354A/511 of the IPC, read with Section 8 of the POCSO Act.

Police started investigation and after completion of the investigation submitted charge sheet under Sections 447/354A/511 of the IPC read with Section 8 of the POCSO Act. On appearance of the accused appellant before the learned Trial Court and after furnishing him with the relevant copies, vide order dated 06.01.2022, charge was framed against the accused appellant under Sections 323/354A of the IPC, read with Section 10 of the POCSO Act, to which he pleaded not guilty and claimed to be tried. During the trial, the prosecution examined nine (9) numbers of witnesses including the informant, victim as well as the Investigating Officer. The statement of the accused appellant had been recorded under Section 313 of the CrPC. The defence did not adduce any evidence in support their case and the plea of the defence was of total denial.

Thereafter, the learned Trial Court, after hearing the parties and upon perusing the materials on record, passed the impugned judgment and order dated 22.09.2022 and being highly aggrieved and dissatisfied with the impugned conviction and sentence, the accused appellant has preferred this appeal.

Mr. T. Deuri, the learned counsel for the accused/appellant during the course of argument had submitted that the evidence on record does not warrant conviction against the present accused appellant and as such, the impugned judgment and order passed by the learned Special Judge (POCSO), Sivasagar in Special (POCSO) Case No.50/2021 is bad in law and the same is liable to be set aside and quashed. Mr. Deuri further submitted that the learned Special Judge (POCSO), Sivasagar did not appreciate the evidence on record in its true perspective and thus came to an erroneous finding and accordingly, passed the impugned order of conviction which is not tenable in the eye of law. He further submitted that the PW.2/the victim of this case while recording her statement under Section 164 of the CrPC, could not tell the name of the accused appellant and she stated that she personally did not know the accused appellant earlier and also does not know his name. But while deposing before the Court, she not only identified the person but she also uttered the name of the person and then described as to what had happened to her at the time of incident. Thus, Mr. Deuri, the learned counsel for the accused appellant submitted that the evidence of the victim is not believable and she contradicts her own evidence in two important stages. Thus, the conviction of the accused appellant cannot be based on such witness who cannot be considered as a sterling witness. The learned counsel for the accused appellant further submitted that the Doctor who attended the victim was also not examined by the prosecution though the medical report is accordingly exhibited from where it is seen that no external injury was found as per the medical report. Thus, the medical evidence does not support the case of the prosecution and the attending Doctor would have found any injury or tenderness as the manner the accused committed the sexual assault on her. He further submitted that there are no eye witness to the prosecution case and on the basis of the statement of the victim only, the impugned order of conviction has been passed by the learned Special Judge (POCSO), Sivasagar. But as discussed above, the evidence of the victim is not believable and trustworthy and hence, the judgment cannot be based on the sole evidence of the prosecutrix.

Mr. T. Deuri, the learned counsel for the accused/appellant further submitted that it is a settled position of law that conviction can be based only on the basis of sole testimony of the prosecutrix if she is of sterling quality and/or believable and trustworthy. But here in the instant case, it is seen that the victim herself contradicted her own statement which is not believable and hence, the conviction cannot be based on the sole testimony of the prosecutrix. In that context, Mr. Deuri, the learned counsel for the accused appellant relied on a decision of the Hon’ble Apex Court in the case of Rai Sandeep @ Deepu vs. State of NCT of Delhi reported in AIR 2012 SC 3157 and basically emphasized in para 15 of the said judgment, which reads as under:-

Mr. T. Deuri, the learned counsel for the accused appellant further submitted that in a Criminal Case, the Court must appreciate the evidence on record in accordance with Section 3 of the Evidence Act and it cannot be based in accordance with its own perception. In that context, Mr. Deuri, the learned counsel for the accused appellant cited a decision of the Hon’ble Apex Court in the case of R. Shaji vs. State of Kerala reported in (2013) 14 SCC 266 and emphasized in para 61 and 62 of the said judgment, which reads as under:

Mr. T. Deuri, the learned counsel further submitted that the accused appellant is in the custody since last 3 years 8 months as he was behind the bar prior to the order of conviction and hence, considering this aspect also the accused may be acquitted and released by reducing his sentence imposed on him, considering the period of detention already undergone by the accused appellant. In that context also, he substantiated his plea by relying on a decision of the Hon’ble Apex Court in the case of Dinesh Kumar Jaldhari vs. State of Chattisgarh reported in AIR 2025 SC 5756 and in para 9 of the said judgment, it has been held as under :-

Citing the above referred judgments, it is submitted by Mr. Deuri, the learned counsel submitted that it is a case of acquittal and the accused appellant is entitled for an order of acquittal. However, even if the case is established against the accused appellant, his period of detention of more than 3 years 8 months can be considered and the sentence may be modified to that extent and he may be released accordingly.

Mr. B. Sarma, the learned Addl. P.P., Assam appearing for the respondent No.1 submitted in this regard that there cannot be any reduction of sentence as the minimum sentence has been passed for the present accused appellant. More so, the victim is found to be consistent in her statement recorded under Section 161 and 164 of the CrPC and while adducing her evidence before the learned Trial Court as the PW.2 and thus her statement is found to be believable and trustworthy. Further, it is the settled position of law that the conviction can be based on the sole testimony of the prosecutrix if it is reliable and trustworthy. Mr. Sarma, the learned Addl. P.P., Assam further submitted that the learned Special Judge (POCSO), Sivasagar had passed the order of conviction on appreciation of the evidence in its true perspective and hence, interference of this Court is not necessary in the judgment passed by the learned Special Judge (POCSO), Sivasagar. In the case under the POCSO Act, there is a presumption under Sections 29 & 30 of the said Act, unless said presumption is rebutted by the defence either by adducing evidence or by cross-examining the prosecution witnesses. But here in the instant case, it is seen that there is no cross-examination in that extend nor could rebut the evidence of the prosecution witnesses. Further, the accused appellant had taken the plea in his statement recorded under Section 313 of the CrPC that only due to previous grudge on monetary transaction with the mother of the victim, a false case has been instituted against him. But he could not substantiate that plea by adducing any evidence nor could rebut the case of the prosecution by cross-examining the witnesses. Mr. Sarma, the learned Addl. P.P., Assam accordingly submitted that the learned Special Judge (POCSO), Sivasagar had rightly passed the order of conviction and hence, the present appeal may be dismissed.

Dr. P. Agarwal, the learned Amicus Curiae appearing for the informant/respondent No.2 submitted in this regard that the learned Special Judge (POCSO), Sivasagar had appreciated the evidence of the PW.2 and PW.4 in para 22 of the judgment, wherein it has been discussed that the statement made by the victim regarding the incident is fully consistent with her previous statements recorded under Section 161 and 164 of the CrPC and the defence failed to shake the evidence of the victim. Except putting some suggestions, the accused appellant could not rebut the evidence of the victim to the extent that he did not pressed her breasts and she deposed falsely as tutored by her uncle Pranab Das (PW.4) and her mother (the informant of this case).

Dr. P. Agarwal, the learned Amicus Curiae also stressed on para 26 of the impugned judgment passed by the learned Special Judge (POCSO), Sivasagar wherein it is well discussed by the Court as to the admission made by the victim that while recording her statement under Section 164 of the CrPC, she did not know the accused appellant properly nor she knew his name. While examining the victim by the Court, it is stated by her that she saw the accused appellant for the first time and when she came to the Court to give her evidence, then only she could identify the person who had committed the offence. Thus, it is well explained by the victim as to why she could not initially identify the person or name of the accused appellant, while recording her evidence under Section 164 of the CrPC. Dr. Agarwal, accordingly submitted that there is no reason to disbelieve a 12 years old child victim who had faced such kind of sexual assault on her by an elderly person on the day of incident. She further submitted that the learned Special Judge (POCSO), Sivasagar had well appreciated the evidence on record and accordingly, passed the judgment and order and hence, there cannot be any reason for interference.

Hearing the submissions made by learned counsel for both sides it is seen that as per case of the prosecution, the victim who was a 12 years old child had subjected to sexual assault by the accused appellant on the day of incident, while she was alone in her shop and the accused appellant went there to purchase a cigarette. On the other hand, it is the case of the defence that a false and concocted case has been brought against him and he did not commit any such offence as alleged in the FIR. In the same time, he also took the plea in his statement recorded under Section 313 of the CrPC that only due to monetary transactions with the mother of the victim, this case is instituted falsely against him.

Before discussing further detail about the case, late us scrutinise the evidence on record.

PW.1 is the informant/mother of the victim and as per her, she came to know about the incident from her daughter. On the day of incident at about 7:00 P.M., when she returned home from her shop at Demow, she saw that her daughter was crying and on being asked her, she told her as to what had happened with her. The victim reported her that at about 6:00/6:30 P.M., while she was alone in their grocery shop, the accused appellant asked her to give him a cigarette and accordingly she gave the cigarette to the accused appellant and when she was keeping the ten rupee note given by the accused in the cash box, the accused caught hold her from behind and pressed her breasts. When she raised alarm, her uncle Pranab Das came there and tried to catch the accused appellant but he could not succeed as he managed to escape from the shop. Thereafter the PW.1 went to the Police Out Post with her daughter and lodged the FIR against the accused appellant. She accordingly exhibited the FIR as Exhibit-P1 and also the birth certificate of the victim as Exhibit No.2. From her evidence, it is also seen that at the relevant time of incident, her daughter was only 12 years old and she was alone in the shop which is attached with their residence when such incident had happened. The PW.1 denied when suggested that a false case is lodged against the accused appellant as the uncle of the victim Pranab Das had enmity with the accused appellant and her victim daughter had implicated the accused appellant as tutored by said Pranab uncle.

PW.2 is the victim of this case and she also deposed that the daughter of the accused appellant is one class senior to her and they are studying in the same school. On the relevant day she was alone in her grocery shop as her mother/informant runs a vegetable and meat/fish shop at Demow Town. On the day of incident her father had gone to Jorhat and she was alone in their grocery shop. At about 6:30 P.M., the accused appellant came to their shop and asked her to give him a cigarette and accordingly she gave him a cigarette. The accused appellant gave her a ten rupee note and while she was keeping the ten rupee note in the cash box, the accused appellant came from her behind, caught hold her and pressed her breasts. When she raised alarm, the accused appellant gagged her mouth by his hands. In the meantime, her uncle Pranab Das came there and tried to caught hold the accused appellant but he was not successful as the accused appellant fled away immediately. She immediately reported the incident to her uncle and her mother, when she returned home from her shop at Demow. Thereafter, her mother lodged the FIR, the police recorded her statement and she was medically examined at Demow Hospital. Her statement is also recorded by one Lady Magistrate and she exhibited her statement under Section 164 of the CrPC as Exhibit-3. She was again examined by the Court on 02.06.2022, after putting some preliminary questions to her and after considering her maturity of understanding, her statement was recorded. In the said statement, the victim deposed before the Court that while recording her statement under Section 164 of the CrPC before the Lady Magistrate, she stated that she does not know the person properly and also does not know the name of the person but she made a true statement before the Magistrate. The victim further clarified that till the date of her statement recorded under Section 164 of the CrPC, she did not know the name of the person but she could identify him and hence, she could not state the name of the person before the police as well as before the Magistrate when her statement was recorded. She further clarified that she had not seen the person earlier and for the first time she saw the accused appellant but when he came to the Court to give her evidence, she could identify the person who committed the offence. But she saw the person for the first time when he came to their shop on the date of incident.

PW.3 is the co-villager and he deposed that the incident took place in the year 2021 and at that time, he was in his own house. Later on, at the night only he heard that the accused appellant had caught hold her when she was alone in her shop. After the incident, at night, many village persons went to Nitaipukhuri Outpost in connection with the incident and some of the persons also went in his vehicle as he was the driver. But in his cross-evidence he stated that he has no personal knowledge about the incident.

PW.4 is the uncle of the victim and he deposed that the victim is his niece and he also know the accused appellant who is their neighbour. On the incident, the victim was alone in her shop which is situated in front of their house. After having dinner, he went to the shop of the informant for purchasing ‘Sikhar’ and the time, when he was about to enter into the shop, the accused appellant came out of the shop and went away by hitting him. He saw the victim was crying and on being asked, the victim told him that the accused caught hold her and pressed her breasts and was paining. He then went running to caught hold the accused appellant who was on way by foot and he also assaulted him but he managed to flee away from the place. Thereafter, his sister-in-law i.e. the mother of the informant lodged the FIR. In his cross-evidence he stated that he did not state before the police that after having the dinner, he went to the shop of the informant for purchasing ‘Sikhar’ and also did not say before the I.O. that when he entered the shop, the accused appellant came out of the shop and went away by hitting him and that the accused was also in intoxicated state.

PW.5 is the father of the victim, who deposed that on the day of incident he was at Jorhat and while returning home on 19.09.2021, in the early morning he came to know about the incident from his wife and also came to know that his wife has already lodged a case against the accused appellant. But he did not ask anything about the incident to his daughter and handed over the birth certificate of his daughter to police and police obtained a thumb impression. From his cross-evidence it is seen that he has no personal knowledge about the incident. The accused appellant never visited their house before the incident.

PW.6 is another witness who addressed the informant as ‘Bou’ (sister-in-law). At the time of incident he was in his house when he heard the commotion outside at about 8:00 P.M. Then he came out of his house and saw some people gathered near the house of the informant. The paternal uncle of the victim, namely Pranab told that the accused appellant came to the shop of the informant when the victim was alone and Pranab also told that the accused appellant fled away from the shop. PW.6 does not have any personal knowledge about the incident and came to know about the incident only on being told by Pranab.

PW.7 also does not have any personal knowledge in regards to the incident but he heard that the accused appellant behaved in an indecent manner with the victim girl while she was in their shop. However, he put his signature in the seizure list and the police told that his signature was required as some documents are seized by the police during investigation.

PW.8 is also a co-villager and related to the victim and he also heard about the incident and went to the police station along with Sri Sanjay Hazarika and Sri Niran Hazarika. Police also took his signature at the time of seizure of the birth certificate of the victim and this witness also exhibited his signature on the seizure list. However, from his cross-evidence, it is seen that he has no personal knowledge about the incident.

PW.9 is the Investigating Officer of this case who was entrusted with the investigation after registration of the case by the Officer-in-Charge of the Demow Police Station. Thereafter he interrogated the informant and the victim and the witnesses accompanied with the informant i.e. one Pranab Das (PW.4), Deepjyoti Das (PW.3) and Sanjib Das (PW.6). He sent the victim for medical examination and went in search of the accused appellant, who was found present in his house and accordingly, he was apprehended and brought to the Police Out Post and thereafter, he was arrested and forwarded to the Court. The PW.9 also went to the place of occurrence, prepared the sketch map, forwarded the victim for recording her statement under Section 164 of the CrPC, seized the birth certificate of the victim and also collected the medical report and after completion of the investigation, he submitted the charge sheet against the accused appellant under Sections 447/354A/511 of the IPC read with Section 8 of the POCSO Act. From his cross-evidence, it is seen that the I.O. recorded the statement of the relatives as well as some neighboring people but he did not record the statement of one Horuki Hazarika, Jagannath Das and Deba Hazarika, whose names were mentioned in the sketch map.

From the evidence on record, it is seen that there is no eye witness to the prosecution case. However, the PW.4 immediately went to the shop of the informant, came to know about the incident and he also saw the accused appellant while coming out from the shop of the informant. The PW.4 also tried to caught hold the accused appellant but somehow he managed to escape. Thus, PW.4 is also one of the vital witnesses of the prosecution and the other witnesses came to know about the incident from the victim as well as from the informant. From the evidence of the informant also it is seen that on her return from Demow, the incident was reported to her by the victim as well as by PW.4 Pranab Das and thereafter, on the night of incident itself, the informant lodged the FIR. The father of the victim came to know about the incident on the next day as he was in Jorhat Town. However, some of the witnesses also accompanied the informant/victim to the Police Station at the time of lodging the FIR and their statements also recorded at the time of institution of this case, which reveals from the evidence of the I.O.

It is a fact that all the witnesses have no personal knowledge about the incident except the PW.4 but they have heard about the same and some of the witnesses also accompanied to the police station, coming to know about the incident. Thus, though the witnesses have no personal knowledge about the incident but their evidence to the extent that they came to know about the incident and some of the witnesses also visited the police station cannot be disbelieved and there is no such contradiction to disbelieve their evidence.

So the entire case is based on the evidence of the victim/prosecutrix who was only a 12 years old child at the relevant time of incident. The statement of the victim is also found consistent in every stage. But the learned counsel for the accused appellant basically stressed on the point that the victim contradicted of her own statement as she could not identify the person or could not name the person who committed the offence with her on the day of incident but on the other hand, she specifically named the person while recording her evidence by the Court. Accordingly, it is the case of the defence that she being tutored by her mother/informant and the uncle/PW.4, she falsely implicated the accused appellant with the case.

The only plea taken by the defence, while cross-examining the PW.1 that she lodged a false case against the accused appellant only for the previous enmity/grudge with her brother-in-law i.e. PW.4 Pranab Das and it was also suggested to the PW.2/the victim of the case that she deposed on being tutored by her mother as well as by her uncle Pranab Das. But the defence failed to substantiate his plea that the false case was instituted only for the previous grudge/enmity with the PW.4. Rather, at the time of recording his statement under Section 313 of the CrPC, the accused appellant took the plea that a false case is lodged by the informant only due to some monetary transactions with her. Thus, the defence took to different stands while examining the PW.1 and PW.2 as well as while giving his statement under Section 313 of the CrPC but failed to substantiate the same either by cross-examining or by adducing any defence evidence to that regard.

Coming to the contradicting statement made by the victim, it is seen that after recording her evidence, the Court recalled this witness to examine to that extent wherein she clarified that it is a fact that at the relevant time of incident, the name of the accused appellant was not known to her, as he came to the shop for the first time and hence, he could not identify him nor his name was known to her while recording her statement under Section 164 of the CrPC. But subsequently, at the time of adducing her evidence, she could identify the person who committed the sexual assault on her and accordingly, she deposed and named the person. Thus the said contradiction was clarified by the victim herself when it was asked by the Court and thus, she made a proper explanation that she could identify the accused only at the time of adducing her evidence, when she could identify him. But earlier, his name was not known to her as he came to their shop for the first time. Thus, there is no such unbelievable statement made by the victim to discard her statement only for the said contradiction which is also clarified by her while her statement was recorded by the Court itself.

Coming to the point of non-examination of the Doctor, as raised by the learned counsel for the accused appellant, it is seen that one medical report is available in the record but the Doctor was not examined by the prosecution and on perusal of the report, it is seen that no external injury was found at the time of her examination. But from the evidence of the victim as well as from the case of the prosecution, it is seen that there is no allegation of penetrative sexual assault or causing any injuries on the private parts of the victim and it is the case of the prosecution that the accused caught hold the little girl from her behind and pressed her breasts tightly for which she also felt pain. That apart, there is no evidence that the victim sustained any injury for the sexual assault on her. Thus, the probability of not finding of any injury on her person is quite probable and for non-examination of the Doctor also did not caste any doubt on the veracity of the case of the prosecution.

The Hon’ble Apex Court in the case of Dilip Kumar @ Dalli vs. State of Uttarakhand in Criminal Appeal No.1005 of 2023 had expressed the view that bodily injuries are not necessary to sexual assault and neither it is important to raise hue and cry and also held that “it is a common myth that sexual assault must leave injuries”. In para 8 & 9 of the said decision, the Hon’ble Apex Court had observed that:

So from the discussions made above, the prosecution could establish the foundational fact of the case and the defence could not rebut the said presumption neither by cross-examining the witnesses nor by producing any defence evidence to rebut the presumption of guilt under Sections 29 & 30 of the POCSO Act.

In a decision of the coordinate Bench of this Court in the case of Manirul Islam vs. State of Assam and anr reported in (2021) 6 GLR 55, in para 51, it has been held that:

It is well settled that the conviction can be based on the basis of a child witness and his/her testimony can be relied upon even in absence of oath, if the victim has the capacity of understanding and can give rational answers. The child witness also can be considered as competent witness under Section 118 of the Evidence Act and there is no legal principle that the child witness would not be able to recapitulate the facts in his/her memory. However, the probability of tutoring a child witness cannot be denied but that cannot be the only reason to disbelieve the child witness, who is otherwise considered as a competent witness.

The Hon’ble Supreme Court in the case of Hemmat Sukhadeo Wahurwagh Vs State of Maharashtra, reported in (2009) 6 SCC 712 (FB), has held that “… though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and molded, but it is also accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness.”

In the instant case also, it is seen that as no such evidence that the victim was tutored by her mother/informant or by the uncle/PW.4. Rather, it is seen that the defence took two different pleas/stands while cross-examining the PW.1 and PW.2 and while making his statement under Section 313 of the CrPC.

In the case of State of Himachal Pradesh Vs. Sanjay Kumar @ Sunny reported in (2017) 2 SCC 51, Hon’ble Supreme Court also had made the observation that whenever charge of rape is made, where the victim is a child, it has to be treated as a gospel truth if the deposition of the child victim is found to be trustworthy.

The Hon’ble Apex Court in the case of Moti Lal vs. State of Madhya Pradesh reported in (2008) 11 SCC 20 has held in paragraph Nos. 7 & 9 as under:

In State of Himachal Pradesh v. Raghubir Singh, reported in (1993) 2 SCC 622, the Hon’ble Supreme Court held that there is no legal compulsion to look for any other evidence to corroborate the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which militate against her veracity. A similar view has been reiterated by the honourable Supreme Court in Wahid Khan v. State of Madhya Pradesh (2010) 2 SCC 9; AIR 2010 SC 1, placing reliance an earlier judgment in Rameshwar S/o kalian Singh v. State of Rajasthan, AIR 1952 Sc 54. Thus the law that emerges on the issue is to the effect that the statement of prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The Court may convict the accused on the sole testimony of the prosecutrix.

The learned counsel for the accused appellant during the course of his argument also submitted that the accused appellant is in the custody since last 3 years 8 months and hence, considering the period of detention already undergone by the accused appellant, the sentence imposed upon him may be reduced and accordingly, the sentence may be modified. In that context, Mr. Deuri, the learned counsel for the accused appellant has also cited the decision of the Hon’ble Apex Court in the case of Dinesh Kumar Jaldhari vs. State of Chattisgarh (Supra), wherein also the prayer for reduction of sentence was also considered by the Hon’ble Apex Court and accordingly, the sentence was reduced to six years. But in the said case, the Hon’ble Supreme Court had reduced the sentence from 7 years which was imposed for the offence under Section 10 of the POCSO Act, which was the maximum sentence for Section 10 of the POCSO Act. So considering that aspect only, the Hon’ble Supreme Court had reduced the sentence to 6 years, considering the period of detention undergone by the accused appellant. But here in the instant case, it is seen that the learned Special Judge (POCSO), Sivasagar considering all aggravating and mitigating circumstances of this case, had passed the minimum sentence of 5 years for the offence under Section 10 of the POCSO Act, 2012 and thus, there cannot be any scope for further reduction of sentence which has already been imposed by the learned Special Judge (POCSO), Sivasagar, while passing the order of sentence.

So considering this aspect of the case, this Court is of the opinion that there cannot be further reduction of sentence as the learned Special Judge (POCSO), Sivasagar had passed the minimum sentence for the punishment prescribed under Section 10 of the POCSO Act, 2012.

Accordingly, considering the discussions made above, it is held that the prosecution could establish that the accused appellant had sexually assaulted the victim finding her alone in the shop and thus, the case is found to be established under Section 10 of the POCSO Act, 2012 and also passed the order of sentence reasonably and hence, this Court is opinion that there is no reason to make any interference in the judgment and order dated 22.09.2022, passed by the learned Special Judge (POCSO), Sivasagar against the present accused appellant.

Accordingly, this appeal being devoid of any merit stands dismissed.

Send back the TCR along with a copy of this judgment and order forthwith.