Rahul Ali vs The State Of Assam & Anr.

(A.M. Kalita, J)

Heard Mr. A. Rashid, learned counsel appearing for the appellant. Also heard Ms. B. Bhuyan, learned Senior Advocate, appearing as the learned Addl. PP for the State and Mr. S. Biswas, learned Legal Aid Counsel for respondent No. 2.

The instant appeal under Section 374 (2) of the Cr.P.C. has been filed assailing the judgment and order dated 22.01.2024 and the sentence dated 25.01.2024 passed by the Special Judge, Goalpara under the POCSO Act, 2012 (for short, ‘POCSO Act’) sentencing the accused/appellant to undergo imprisonment for life with a fine of Rs.25,000/- (Rupees Twenty Five Thousand), in default of payment of fine, to undergo S.I. for 6 (six) months under Section 4 of the POCSO Act.

The prosecution story as it is discernible from the FIR lodged by one Ali Hussen on 27.06.2017 before the O.C. of Goalpara Police Station is that on the previous date, i.e., on 26.06.2017, in the morning time about 08.00 AM, the accused appellant took away his minor daughter, aged about 15 years by alluring her to marry her from Nayapara Eidgah, along with one Muskan Khanam to a park near the bank of river. Thereafter, the accused appellant took them to Raksyasini Pahar where they saw 5 (five) unknown boys sitting there. The accused appellant started talking to them and thereafter, the accused appellant dragged the minor daughter of the informant inside the bushes and thereafter, committed rape upon her. The other 5 (five) boys also committed raped upon her one by one and as a result, daughter of the informant sustained serious injuries and stained with blood. Due to the same, the daughter of the informant became unconscious. At around 6 PM, the accused appellant send the other girl, who accompanied them to her house and took informant’s daughter to his own house. The accused appellant again took the victim girl to the Moijonga tea garden and committed rape upon her again along with nine other boys. The accused appellant, thereafter, took her to his house and kept her there for the whole night. The accused appellant took the victim girl in a Magic vehicle and left her in the transport station before fleeing from there.

On receipt of the FIR, the Officer In-charge of Goalpara P.S. registered the case as Goalpara P.S. Case No. 256/2017 under section 376(D) of the Indian Penal Code read with section 4 of POCSO Act. The investigation of the case was entrusted to one, Mr. Narayan Kalita, SI and after completion of the investigation, he submitted the charge-sheet against the accused appellant under section 376 of the IPC read with section 4 of POCSO Act.

The learned Trial Court, thereafter, framed charges against the accused appellant under Section 376 of the IPC read with Section 4 of the POCSO Act and the same was read over and explained to the accused appellant, to which, the accused appellant pleaded not guilty and claimed to be tried.

During the trial of the case, the prosecution in support of their case, have examined 8 (eight) witnesses.

After closing of the evidence of the prosecution side, the statement of the accused appellant was recorded under Section 313 Cr.P.C., wherein, the accused appellant denied all the allegations levelled against him. The accused appellant did not adduce any evidence in his defence. The learned Trial Court had framed 2 (two) points of determination which are extracted hereinbelow:

After due consideration of the evidence available and in consideration of the laws laid down by the Hon’ble Supreme Court, the learned Trial Court has come to a conclusion, whereby, it has affirmed the aforesaid 2 (two) points for determination and thereby, convicted the accused appellant and sentenced the accused appellant as mentioned above.

Mr. A. Rashid, the learned counsel appearing for the accused appellant submits that the prosecution story is totally based on suspicion as there is no direct eye witness, though, the prosecution has examined 8 (eight) PWs. He submits that PW. 7 Dr. Manikuntala Choudhury opined that the age of the victim was then about 18-20 years and therefore, the learned Trial Court has committed a grave error by convicting the accused appellant under Section 4 of the POCSO Act. The learned counsel submits that the investigation was not properly conducted as the investigating officer did not try to find out the other co-accused persons who had allegedly committed rape in the instant case. He further submits that the Auto Rickshaw driver of the auto Rickshaw whereby the victim girl and the other girl were supposedly taken to the Raksyasini pahar, was never examined. He submits that leaving out of the aforesaid important and vital witnesses vitiates the whole proceeding and the trial and therefore, the conviction of the accused appellant cannot be sustained. He submits that the accused appellant was a minor on the alleged date of incident and therefore, his case out to have been tried by the Juvenile Justice Board and not by a regular Trial Court. Therefore, the conviction arrived at by the learned Trial Court against the accused appellant cannot be sustained. He submits that, in fact, the birth certificate of the appellant was not produced before the Court by the Investigating Officer, therefore, the prosecution has failed to do justice to the accused appellant in the instant case.

In view of the aforesaid submission, the learned counsel submits that this is a fit case, wherein, this Court should interfere with the judgment dated 22.01.2024 and the sentence dated 25.01.2024 passed by the learned Trial Court.

On the other hand, Ms. B. Bhuyan, the learned Addl. PP submits that there is nothing wrong in the conviction of the accused appellant by the learned Trial Court. She submits that the evidence brought before the Court by the prosecution cannot be shaken or rebutted by the defence. She submits that the victim girl was a minor at the time when the incident took place which is evident from the birth certificate which has recorded her date of birth as 15.02.2003 and the incident occurred on 26.06.2017. Therefore, it is clear that the victim girl was a minor girl. She further submits that the accused appellant was a major at the time when the incident occurred which is discernible from the materials before the learned Trial Court. Therefore, the learned Trial Court has not committed any wrong by going ahead with the trial of the accused appellant in the instant case. She submits that the medical evidence, i.e., the medical examination report dated 29.06.2017 as well as the deposition of PW. 7, i.e., Dr. Manikuntala Choudhury corroborates the prosecution story. Therefore, she submits that there is no infirmity committed by the learned Trial Court by convicting the accused appellant. In view of the aforesaid, she prays that the instant appeal should be dismissed by affirming the conviction granted by the learned Trial Court. The learned Legal Aid Counsel has also supported the conviction by submitting that the prosecution has been able to prove its case, beyond doubt.

Coming back to the evidence adduced before the learned Trial Court, it is seen that PW-1, Ali Hussain, the informant and the father of the victim girl in his evidence deposed that at the time of the incident, the victim girl was 14 years of age. He deposed that on the date of occurrence after completion of the Id Namaj, the victim girl went out with her friend and came back only in the next morning. He further deposed that the victim, i.e., his daughter told him that one boy, namely, Rahul (the accused appellant) committed rape upon her after taking her to Raksyasini pahar. He deposed that after filing the FIR and when the Police arrived, they questioned her and conducted her medical examination.

In his cross-examination, he stated that he filed the case only after his daughter returned home. He deposed that his daughter narrated the incident to her mother as well as him and she had blood stains on her clothes.

PW-2, the victim girl (Ms. X-name not disclosed) deposed in her evidence that occurrence took place two and half (2 ) years back. She stated that on the date of the occurrence about 08.00 AM in the morning, she went to the Eidgah field to meet the accused appellant who claimed to be in love with her. She stated that the accused appellant took her to the Central School Park in a Tempo and thereafter, took her to Baladmari Char and from there, he took her to his house. She deposed that he told her that he would be marrying her, to which, she said that her mother had to be informed. Thereafter, the accused appellant took her towards ‘Mama-Bhagina Pahar’ and in the jungle, he raped her and thereafter, he handed her over to 6-7 boys who also committed rape upon her. She deposed that in the meantime, the accused appellant left the place and from there she came back home in a Tempo vehicle and informed her parents about the occurrence. She stated that the Police recorded her statement and thereafter, the Police took her to Court to record her statement and also got her medically examined. Ext-1 is her statement recorded by the Magistrate. Ext.1 (1) to 1 (3) are her signatures. She stated that the Police seized her birth certificate. Ext-2 is the copy of the said certificate which was compared with the original. Ext.3 is the seizure list and Ext. 3 (1) is her signature in the seizure list.

In her cross-examination, she stated that on that day, it was Eid festival and she went with the accused appellant as he agreed to marry her. She deposed that she cannot say the exact date of her birth but she was born in the year, 2003. She stated that although the Police took away her clothes, the same were not returned back to her. She deposed that she was unconscious and she was in the jungle for the whole night, thereafter, she came down from the hill on the next day morning. She deposed that she came in a Tempo where other passengers were also there but she did not tell anything to anybody though they asked her about her dress. She deposed that one Janmoni was with her when she went with the accused appellant, however, she was sent back to her home by the accused appellant.

PW.3, Jahangir Alom deposed that the incident took place on 26.06.2017 on the day of the Eid festival. He deposed that victim girl was missing from the morning on the day of the incident and they did a search for her but failed to find out. On the next morning, the victim girl came home with blood stained clothes and when they asked her about the same, she disclosed that the accused appellant took her to Raksyasini pahar where the accused appellant along with 3-4 boys committed rape upon her. He deposed that the victim girl disclosed that the accused appellant took her by saying that he would be taking her to his house for Eid festival but instead of taking her to his house, he had taken her to Raksyasini pahar. He deposed that in the next morning, the accused appellant dropped her at the new market and her brother who was present at the market noticed her sister and then he bought her back home.

In his cross-examination, PW.3 deposed that he met the victim girl about 09.00 AM in the morning. He stated that most of the village people were already present when the victim girl was brought back to her house by her brother. He stated that Musha, Ali Hussain (father of the victim), Jahan Master, Abul Hussain, himself, the brother of the victim girl who brought her and several other villagers were present when the victim girl disclosed about the incident. He denied the suggestion that the victim girl did not disclose before him and others that she was taken by the accused appellant to Raksyasini pahar.

PW. 4, Akbor Ali deposed that the incident occurred 5 years ago and on the date of the occurrence about 08.00 AM after hearing the hue and cry in the residence of the informant, he came to the residence of the informant and heard that the accused appellant enticed the victim girl and took her away. He deposed that huge crowd was there at that point of time.

In his cross-examination, he stated that he heard from the parents of the victim girl that the accused appellant had enticed the victim girl away. He denied the suggestion that he did not hear the aforesaid fact of the victim girl.

PW. 5, Moziruddin Hoque deposed that the incident occurred 3-4 years ago and on the date of the occurrence about 06.00-07.00 AM, a lot of people gathered at the residence of the informant. He also went there and heard from the informant and other village people that the accused appellant took the victim girl somewhere and committed rape upon her and thereafter, he left the victim girl on the road near the residence of the informant. He deposed that Police took his signature in the seizure list and Ext.P-3 (2) is his signature.

In his cross-examination by the defence, he stated that he did not have any personal knowledge about the incident. He denied that he did not hear from the father of the victim as well as villagers that the accused appellant had taken the victim girl away.

PW. 6, Muskan Khanom deposed that the victim girl was studying with her in the same school, i.e., Goalpara Girls High School till Class-IX. She deposed that the incident took place in the year, 2017 and on that day about 08.00 AM in the morning, she along with the victim girl went to see the namaz held at Eidgah Moidan at Goalpara on the occasion of Eid. On their way to Eidgah Moidan, they met the accused appellant on the road and the accused appellant proposed them for an outing and asked both of them to board in an auto. Thereafter, both of them reluctantly board in a Tempo vehicle along with the accused appellant and he took them to the bank of Barpukhuripar and after staying there for some time, the accused applicant again took them to Rakshyasini pahar. She deposed that the accused appellant, thereafter, sent her back to her home in an auto rickshaw and both the accused appellant and the victim girl stayed at Rakshyasini pahar. She deposed that on the same day, the family members of the victim girl enquired about the victim girl and she told them that the victim girl went along with the accused appellant to Rakshyasini pahar. After getting the information, the family members of the victim girl, searched for her but could not able to trace her out. She deposed that on the next day, she heard the hue and cry in the residence of the victim and then she came to know that on the previous night, the accused appellant had raped the victim girl. She stated that the Police examined her in connection with the case and recorded her statement.

In her cross-examination, she deposed that she could as remember the exact date when the Police recorded her statement. She denied that she did not hear from others about the commission of rape by the accused appellant upon the victim girl. She denied that she deposed falsely as the victim girl was her friend. She denied that she did not state before the Police that the accused appellant initially took both of them to Rakshyasini pahar and thereafter, sent her alone in an autorickshaw.

PW. 7, Dr. Manikkuntala Choudhury is the medical officer who examined the victim girl and deposed that on 27.06.2017 while she was posted as Sub Divisional Medical Officer at Goalpara Civil Hospital, she examined the victim girl and found the following:-

PW. 7 exhibited the report issued by her, vide Ext. P-7, wherein, Ext. P-4 (1) is her signature.

In her cross-examination, she deposed that she had mentioned in her report about the type of injury sustained by the victim girl on her private part.

PW. 8, Naryan Kalita who is the Investigating Officer of the case deposed that on 27.06.2017, he was posted as attached officer at Goalpara Police Station. On that day, the informant lodged an FIR before the Officer-in-Charge, Goalpara Police Station and on receipt of the same, Goalpara P.S. Case No. 266/2017 under Section 376 (D) of the IPC read with Section 4 of the POCSO Act was registered. He deposed that Officer-in-Charge of Goalpara Police Station entrusted him with the investigation and he visited the place of occurrence, drew up sketch map of the place of occurrence, examined the witnesses and the victim girl was medically examined at Goalpara Civil Hospital. He deposed that thereafter, she was produced before the Judicial Magistrate for recording her statement under Section 164 Cr.P.C. He deposed that he collected the medical report of the victim girl and he arrested the accused appellant. He deposed that after completion of the investigation, he submitted charge sheet against the accused appellant under Section 376 (D) of the IPC read with Section 4 of the POCSO Act. Ext. P-5, wherein, the informant put his thump impression. Ext.P-6 is the sketch map, wherein, Ext. P-6 (1) is his signature. Ext. P-3 is the seizure list pertaining to wearing apparels of the victim girl, wherein, Ext. P-3 (3) is his signature. Ext. P-8 is the seizure list pertaining to the birth certificate of the victim girl, wherein, Ext. P-8 (1) is his signature. Ext. MOP-1 are the wearing apparels of the victim girl. He deposed that he has seen those apparels before the Court at the time of his deposition.

In his cross-examination, he stated that the FIR was lodged on the next day of the occurrence but no reasons for the delay was explained in the ejahar. He stated that he visited the place of occurrence on 27.06.2017 about 11.00 AM. He admitted in his cross-examination that he did not send the seized wearing apparels of the victim girl to FSL, Kahilipara, Guwahati for chemical examination.

Since the accused appellant has been convicted under the POCSO Act and there is a statement by PW. 7, Dr. Manikuntala Choudhury that as per the radiological report, the age of the victim girl was between 18 years to 20 years, it becomes important to ascertain whether the age of the victim girl has been properly examined in terms of the prevailing laws or not. As far as the determination of age of a child is concerned, the POCSO Act provides for a detail procedure for the same. Section 34 (2) of the POCSO Act provides that if a question arises in any proceeding before the Special Court, whether a person is child or not, such question will be determined by the Special Court after satisfying itself about the age of such person and it shall record in writing for such determination. Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short, JJ Act’) further provides the guidelines for determination of age of a child. Section 94 of the JJ Act provides for presumption and determination of age. In the event of a dispute regarding the age of the victim, the Courts is required to take recourse to the procedure mandated in Section 94 of the JJ Act. Section 94 of the JJ Act recognises the following documents for determination of the age of a child victim:

In the case in hand, it is seen that the birth certificate issued by the District Registrar, Birth and Death, Goalpara under the Director of Health Services, Government of Assam has been exhibited as Ext. No. 2, where the victim’s date of birth is recorded as 15.12.2003. It is seen that the veracity and credibility of the birth certificate could not be shaken by the defence in the instant case. The victim girl has stated in her deposition that her birth certificate has been seized by the Investigating Officer, which was confirmed by the Investigating Officer (PW.8). It is also seen that the informant who is the father of the victim girl when lodged the FIR, he stated that the age of his daughter was 14 years at that point of time. The victim girl also in her statement under Section 164 Cr.PC. before the Judicial Magistrate mentioned her age as 14 years at that point of time. In the instant case, the aforesaid birth certificate was seized by the Police and the same was exhibited and the credibility of the same was not shaken and therefore, in terms of the JJ Act, the birth certificate issued by the authority, i.e. the District Registrar, Birth and Death, Goalpara under the Directorate of Health Service can be relied on in terms of Section 94 (2) of the JJ Act. In this connection, as far as the reliability on the birth certificate, the Hon’ble Supreme Court in the case of Harpal Singh-vs-State of Himachal Pradesh; reported in (1981) 1 SCC 560 has observed that since the entry in a Birth and Death register is made by concerned official in discharge of his official duties, it is admissible in evidence and it is not necessary to examine the author of the entry to prove the entry.

In view of the aforesaid discussions and taking into account the evidence available, we are of the considered view that birth certificate, i.e., Ext.-2 in the instant case, can be relied upon as the defence has failed to negate the credibility of the birth certificate in any manner, whatsoever, in the instant case. Therefore, in consideration of the date of birth of the victim girl, i.e., 15.12.2003 and the incident occurred on 26.06.2017, the victim girl is found to be below 15 years of age at the time of the incident. Therefore, the victim girl was a minor at the time when the incident had occurred to attract the provisions of the POCSO Act, 2012.

As per the FIR lodged on 27.06.2017 by the informant, i.e., the father of the victim girl, the accused appellant on the false pretext of loving his daughter, took his daughter, i.e., the victim girl to Nayapara Eidgah Moidan to the river bank side accompanied by another girl, namely, Muskan Khannam. Thereafter, the accused appellant took them to Raksyasini pahar where 5 other boys were already present. After talking to the other boys there, the accused appellant suddenly dragged his minor daughter into the jungle and committed rape upon her. Subsequently, the remaining 5 boys also committed rape upon his minor daughter one by one. As per the FIR, the informant’s minor daughter became unconscious and about 6.00 PM, accused appellant sent the other girl back home and took his minor daughter to his residence. Later, on that day, he took his minor daughter to Moijonga tea garden and there also, along with 9 other boys raped her again. The accused appellant then bought her back to his house and kept her there for the whole night and left her to the transport station before fleeing. It is seen that the informant in his deposition before the trial Court specifically mentioned that the age of his daughter was 14 years and on the day of the incident, his minor daughter went out with her friend, however, she did not return home but she came back home on the next day and informed him as well as his wife that the accused appellant took her to Raksyasini pahar and did bad things with her. The victim girl as PW. 2 deposed that on the day of the incident when the Eid festival was celebrated, she went in the morning about 08.00 AM to witness the Eid Namaz, wherein, the accused appellant took her to the Central School Park in a tempo vehicle. Thereafter, the accused appellant took her to Baladmari Char and took her to his house. She deposed that from his house, the accused appellant took her to Mama-Bhagina Pahar and inside the jungle, he had committed rape on her. Thereafter, she was raped by other 6-7 boys. From her deposition, it is revealed that she had been raped initially by the accused appellant and thereafter, repeatedly by some other boys present there. From her cross-examination, it is revealed that she was wearing a new dress on the particular day and since the accused appellant had agreed to marry her, she went with the accused appellant. It is also revealed from the cross-examination that she initially did not object to the sexual intercourse with the accused appellant because of his promise to marry her but she got offended when she was handed over to the boys present there to rape her. She deposed that the Police took away her clothes and the same were not returned back. In her cross-examination, she deposed that she got injured in her mouth as she was bitten. She deposed that she told her mother about the occurrence as her mother asked her regarding her appearance. She deposed that she was in the jungle for the whole night and she was unconscious there. She deposed that she returned home on the next date by booking a tempo vehicle. She further deposed that one her friend (PW.6) was with her when she went out with the accused appellant, however, later on, the accused appellant sent her back home. She deposed that while disclosing about the incident to her mother, Abul, Mussa and Akbar and many others were present. She deposed that the Police recorded her statement. It is seen that she had described about the incident in minute details before the trial Court. It is also seen that the statement of the victim girl was recorded under Section 164 of Cr.P.C. before the Judicial Magistrate on 28.07.2017. She had stated and described the same facts as she had deposed before the trial Court. In her statement before the Magistrate also she stated that she was taken to Mama-Bhagina pahar by the accused appellant and after committing rape on her she was handed over to 6-7 boys, who also committed rape upon her. It was also stated that she became unconscious and came back on the next date by taking a tempo vehicle to transport station from where her father took her home. It is seen from the cross-examination of the PW. 1 that no relevant question has been put to him to contradict his version by the defence counsel.

From the cross-examination of PW. 2, the victim girl, it is seen that the defence side failed to bring out any contradictions in her deposition viz-a-viz her statement under Section 161 Cr.P.C. as well as 164 Cr.P.C. In fact, in her cross-examination, the PW. 2 had given more details about the incident of rape upon her by the accused appellant and some other unknown boys. Therefore, it is seen that her deposition before the trial Court could not be shaken or disturbed by the defence. It is seen that the defence did not put any questions to the PW. 2 to contradict her previous statements under Section 161 and 164 Cr.P.C. In fact, the defence side did not put any question regarding her statement given before the Judicial Magistrate to bring any such contradictions.

PW. 6, namely, Muskan Khanom who is a friend of the victim girl deposed that the victim girl was studying with her till Class-IX in the same school. She stated in her deposition that on the day of occurrence about 08.00 AM in the morning, she went along with the victim girl to see the Namaz in the Eidgah Moidan. She deposed that on their way, they met the accused appellant on the road and after boarding an auto, they went to bank of Barpukhuripar and after spending some time there, they went with the accused appellant to Raksyasini pahar. She deposed that the accused appellant, thereafter, sent her back to her residence in an auto vehicle and both the accused appellant and the victim girl stayed back at Raksyasini pahar. She deposed that on the same day, the family members of the victim girl enquired about the victim girl and she told them that the victim girl was with the accused appellant at Raksyasini pahar. She further deposed that the family members tried to search for her but could find out the victim girl and on the next day, she heard hue and cry and she came to know that on the previous night, the accused appellant had committed rape upon the victim girl. It is seen from the cross-examination of PW. 6 by the defence that her statement before the trial court could not be shattered or contradicted by the defence, in fact, they did not put any material and pertinent suggestions in their cross-examination. She denied the suggestion that she deposed falsely before the Court as the victim girl is her friend. She also denied the suggestion that she did not state before the Police that the accused appellant initially took both of them to Raksyasini pahar. From the above, it is clear that the defence could not shatter any of the statements, either of PW. 1, PW. 2 as well as PW. 6 in their respective cross-examinations. The statement of PW. 6 clearly corroborates the statement of the PW. 1 as well as PW. 2.

PW. -7 Dr. Manikuntala Choudhury was posted as Sub Divisional Medical Officer at Goalpara Civil Hospital on 27.06.2017. From her deposition, it is seen that she examined the victim girl who found one linear injury on right arm which was simple in nature in Labia Majora of the victim. She also found laceration in the vulva of the victim and perineum of the victim swollen. She found tenderness in the vagina and cervix. In her deposition, she opined that there is a possibility of rape in the instant case. She found injury on the private parts of the victim girl at the time of the examination. She also opined that as per clinical and radiological examination, the age of the victim girl was between 18-20 years. From her cross-examination, it is seen that she had deposed that whatever injuries sustained by the victim girl on her private parts have been mentioned in her report. Therefore, from the above deposition and cross-examination of the PW. 7, it is discernible that the defence could not bring any kind of contradictions as far as the injuries suffered by the victim girl are concerned. The contents of the medical examination report of the victim girl, Ext. P-4, fully corroborates the deposition of PW. 7 before the trial Court. The medical report and the deposition of PW. 7 clearly suggest injury on the private parts of the victim which corroborates the deposition of the victim girl before the trial Court.

It is a fact that there is no eye witness of the commission of the rape by the accused appellant upon the victim girl, however, the deposition of PW. 3, PW. 4 & PW.5 confirms that the victim girl had disclosed about the incident of rape before her parents. PW. 3 specifically stated in his deposition and confirmed in his cross examination that Mussa, Ali Hussain (father of the victim), Jahan Master, Abul Hussain, the brother of the victim and some other villagers were present when the victim girl disclosed about the incident before them. PW. 4 stated in his deposition that he came to the residence of the informant and saw a huge crowd and he heard from the parents that the victim girl was enticed by the accused appellant and he denied the suggestion that no such incident of rape occurred. PW. 5 also in his deposition stated that he went to the residence of the victim girl in the morning after seeing people gathered there and he heard from the father of the victim girl that the victim girl was raped by the accused appellant. It is seen that defence in their cross-examination of the aforesaid witnesses, could not bring in any material which could contradict the depositions made by the aforesaid three (3) PWs.

The PW. 8, the investigating officer deposed that he visited the place of occurrence, examined the witnesses and got the victim medically examined at Goalpara Civil Hospital. The victim girl was produced before the Judicial Magistrate for recording statement under Section 164 Cr.P.C.. He deposed that he collected medical report of the victim girl and arrested the accused appellant. He further deposed that he seized the wearing apparels and birth certificate of the victim girl and after completion of the investigation, he filed the charge sheet. In his cross-examination, he deposed that he seized the original birth certificate of the victim girl. It is seen from the cross-examination of the PW. 8 that the defence could not bring out anything from the PW. 8, which can contradict any of the statements before the trial Court.

During the appellant’s examination under Section 313 Cr.P.C, the accused appellant made a blanket denial of almost all the questions put to him by the trial Court except for a few of the questions. When a question was put to the effect that PW. 6 deposed in her evidence that while she along with the victim were returning on their way, they met him on the road where he made a proposal to go for an outing and had asked both of them to board an auto. The appellant then stated as follows:- “I met the victim along with Muskan near the Kalpana Cinema Hall and thereafter three of us came to our residence.” Another relevant question to the effect that PW. 6 further deposed in her evidence that thereafter he took them to the bank of Barphkhuri Paar and after staying there for sometime, he took both of them to Raksyasini pahar and from there he sent her to her residence with an auto rickshaw, What does he want to say?. He replied as follows:- “False. After reaching my home with victim and Muskan, we stayed there for a while and thereafter three (3) of us were proceeding towards Moylapathar on foot and at that time some people (cowmen) saw us and questioned me witnessing two girls with me due to which victim-x fled away from that place and thereafter, the people took me along with Muskan to Gausala and from there, I send her in a auto vehicle”. When asked whether he wanted to say anything in his defence, the accused appellant replied as follows:- “I only took the victim-X to see my residence on her request. But three of us, i.e., I along with the victim and Muskan, friend of victim, were proceeding on foot towards Moylapathar, some people questioned me, when they saw two girls with me. Witnessing the rough behavior of the people, victim due to fear fled away, but Muskan and I did not flee away from that place. Thereafter, they took us to Gausala, from there I had sent Muskan to her home in an auto. I do not know what happened to victim. But, later on, she lodged a false case against me, as she saw my wife and children in home, while she visited my house on that day. I did not commit any rape with the victim.”

From the above statement under Section 313 Cr.P.C., it is clear that the accused appellant was with the victim girl on the particular day. It is also seen from the deposition of PW. 6, Muskan Khanom, who was supposedly with the victim girl as well as the accused appellant, she neither stated anything having any semblance with the statement of the accused appellant under Section 313 Cr.P.C. before the Police nor before the trial Court.

From the above discussions, it is clear that version of the victim girl seems to be trustworthy which inspires confidence of this Court. Her version has also been corroborated by the evidence of PW. 6 who was all along with the victim girl just before the incident of rape occurred. The medical evidence of PW. 7 also corroborates the fact that sexual assault occurred on the victim girl as sufficient injuries were found on the private parts of the victim girl. It is seen that the evidence of the victim girl and PW. 6, who was with the victim girl just before the occurrence could not be shaken by the defence side. It is also seen that the accused appellant has not denied the fact that he was with the victim girl and her friend Muskan Khanom on the day of the alleged occurrence. He clearly stated in his statement under Section 313 Cr.P.C. that he was, in fact, with the victim girl on that particularly day, though, he has denied commission of any rape upon her. He did not give any reason/motive, for the victim girl to falsely implicate him.

It is settled law that in a case of a rape, the sole testimony of the victim girl is sufficient to convict an accused, if the evidence of the victim girl is found to be trustworthy and reliable without having any major contradictions and material variations in her statement.

In the instant case, the evidence of the victim girl is supported by evidence of PW. 6, though the PW. 6 is not an eye witness in the instant case, but the circumstances as have been narrated by the prosecution, completes the full circle and does not leave any gap in the circle of the story of the prosecution. The circumstantial evidence present in the instant case corroborates the prosecution, story and the evidence of the victim girl which could not be rebutted or shaken to any extent by the defence side.

As discussed above, the version and evidence of the victim girl all alone seem to have been trustworthy and inspiring confidence in the instant case.

The issue regarding reliability of the statement of the victim girl has been elaborated and discussed by the Hon’ble Supreme Court in many cases, holding that if the statement is trustworthy which inspires confidence of the Court, the same can be relied and on the basis of her statement only, if nothing adverse if found, the accused can be convicted. In this connection, the case of Narender Kumar-vs-State (NCT OF Delhi); reported in (2012) 7 SCC 171 can be referred to. In this case, the Hon’ble Supreme Court has observed as follows:-

Similarly, in the case of Vijay ALIAS Chinee-vs-State of Madhya Pradesh; reported in (2010) 8 SCC 191, the Hon’ble Supreme Court observed as follows:-

From the above law laid down by the Hon’ble Supreme Court, it is clear that if the statement of the victim girl is found to be trustworthy which inspires confidence of the Court, the sole testimony of the victim girl can be the basis of conviction of the accused person. In the instant case, the statement of the victim girl was not shaken or rebutted by the defence in any manner. In addition to her deposition, the statement of the PW. 6 who was with the victim girl just before the occurrence took place, corroborates the fact that the victim girl was with the accused appellant. It is also seen from the medical evidence of the PW. 7 that the occurrence of rape cannot be denied in the instant case as there are substantial injuries could be found in the private parts of the victim girl.

In view of the aforesaid discussions and also taking into account the presumption of a guilt under the POCSO Act as provided under Section 29 and Section 30 of the POCSO Act, which has been sufficiently discussed and applied to by the learned Trial Court, we are of the considered opinion that the conviction and sentence of the accused appellant in the instant case cannot be disturbed. Accordingly, the instant criminal appeal is dismissed by affirming the judgment dated 21.01.2024 and the sentence dated 25.01.2024 passed by the learned Trial Court.

Send back the Trial Court Records.

In appreciation of the assistance provided by Mr. S. Biswas, learned Legal Aid Counsel of respondent No. 2, his fees shall be paid by the Gauhati High Court, Legal Services Committee.