SRI ANANTA BORA vs STATE OF ASSAM and ANR

Heard Mr. T.J. Mahanta, learned senior counsel for the appellant and Mr. BB Gogoi, learned Addl. Public Prosecutor for the State.

This appeal is directed against the judgment and order dated 05.11.2014 passed by the learned Sessions Judge, Golaghat in Sessions Case No.

23/2013. By the said judgment, learned Sessions Judge convicted the accused appellant u/s 6 of the POCSO Act and sentenced him to

imprisonment for ten years and fine of Rs. 10,000/-, in default, to further imprisonment for one year.

As per prosecution case, the victim, being a child of 16 years of age, was subjected to penetrative sexual assault by the accused on

01/11/2013, while he was working as a hotel boy. An FIR was lodged by the father of the victim, on the basis of which, police registered a case

and after usual investigation, submitted charge sheet against the accused/appellant u/s 6 of the POCSO Act.

In course of trial, learned Special Court framed charge against the accused appellant u/s 6 of the POCSO Act, to which he pleaded not guilty.

Prosecution examined eight witnesses to establish the charge and on appreciation of evidence, learned trial court convicted the accused/appellant

u/s 6 of the POCSO Act and awarded sentence as indicated above.

Learned counsel for the accused submits that the oral testimony of the victim was not at all reliable and therefore, conviction ought not to have

based on the sole testimony of the victim.

I have considered the submissions made by the learned counsel and also the evidence and materials brought on record.

It appears from the impugned judgment, that learned trial court basically relying on the testimony of PW 1 and the PW 8, who proved the age of

the victim, recorded conviction of the accused/appellant. Although PW 3 was projected as an eye witness by the victim, he did not support the

prosecution case.

PW 1, the victim stated that he was working as a salesman in a tea stall and the accused/appellant was known to him, as he was a regular visitor

to the tea stall. On the day of occurrence at about 11 am, the accused called him to his residence to show certain thing. When the victim entered

the room, the accused closed the door and having laid the victim on the bed penetrated his male organ into his anus and he continued to do so for

15 minutes. While the accused was penetrating his male organ into the anus of the victim, PW 3 came there, but seeing the accused and the victim

inside the room he left the place. From the testimony of the IO, it appears that in his previous statement recorded u/s 161 CrPC, the PW 1 simply

stated that accused did bad thing with him.

PW 3 stated, that on the day of occurrence, when he went to attend the call of nature, he noticed the victim and the accused inside the room.

This witness was declared hostile. It is the settled position of law that the testimony of a hostile witness does not get washed off, merely because of

declaring him hostile by the prosecution. The testimony of such witness, if found to be otherwise reliable and supporting the other evidence brought

on record, there is no bar in relying on the testimony of such witness. During cross-examination of PW 3, he was confronted with the previous

statement made before police, which shows that he also did not state anything incriminating before the police.

PW 4, the doctor, who examined the victim stated, that the age of the victim was below 16 years. According to the doctor, no injury was

found on private part of the victim. It was also elicited, that if forceful penetration is made through the anus without any lubricant there shall be

injury. Evidently, the victim was examined by the doctor on the same day within 5/6 hours of the occurrence, but the doctor did not find any injury.

Thus, the medical evidence coupled with the fact that the victim did not state anything in his previous statement with regard to penetration of the

male organ of the accused or any other substance into his anus and the testimony of PW 3 clearly suggests that the evidence of the victim, that he

was subjected to penetrating sexual assault is hardly reliable or at least it is doubtful. Therefore, conviction of the accused/appellant u/s 6 of the

POCSO Act is not sustainable. However, the circumstances of the victim having taken to the room of the accused and keeping him in the room

with closed door and that some bad thing was done indicates that certainly the victim had been subjected to non-penetrating sexual assault, which

is punishable u/s 8 of the Act.

Thus, having found that the evidence was not sufficient to bring home an offence u/s 6 of the POCSO Act and the facts and circumstances

establishing commission of offence u/s 8 of the POCSO Act against the appellant, for subjecting the victim to sexual assault, the conviction of the

accused/appellant is modified and he is convicted u/s 8 of the POCSO Act.

It has been submitted by the learned counsel for the appellant that the accused has been in jail for about four years. Maximum sentence of

imprisonment provided for offence u/s 8 of the Act is 5 years. Therefore, it is held that simple imprisonment for the period which the accused had

already been in jail would meet the ends of justice.

Accordingly, the accused is sentenced to imprisonment for the period, which he had already undergone in jail. So far the fine imposed and the

compensation awarded by the learned trial court, I am of the view that no interference is called for. In default of payment of fine, the appellant shall

undergo simple imprisonment for three months. On payment of fine of Rs. 10,000/- the accused shall be released forthwith, if not required in any

other case, otherwise he shall serve out further three months of sentence, in default of payment of fine.

The appeal is partly allowed.

Send back the LCR.