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Judgment
(A.M. Kalita, J)
Heard Ms. B.R.A. Sultana, the learned counsel, appearing on behalf of the appellant. Also heard Mr. R.R. Kaushik, the learned Additional Public Prosecutor, Assam, as well as Ms. M. Barman, the learned Legal Aid Counsel for the respondent No. 2.
The instant appeal under Section 374 of the Cr.P.C. has been filed against the Judgment and Order dated 29.10.2022, passed by the learned Additional Sessions Judge-cum-Special Judge (POCSO), Sivasagar in POCSO Case No. 43/2021, registered under Sections 448/376(AB) of the Indian Penal Code, read with Section 6 of the POCSO Act and thereby, sentencing the accused/appellant to undergo rigorous imprisonment for 20 years and also to pay a fine of Rs. 10,000/-, in default, further R.I. for 6 months.
The prosecution case in brief is that an FIR was lodged on 20.08.2021 by one Raju Majhi (P.W.1) alleging that about 2:00 PM on 19.08.2021, while his daughter, who was around 10 years old at that time, was alone at home, suddenly a person, namely, Huntu Boraik, a resident of their locality, came to their house and forcefully committed rape on his daughter. It was also alleged that the accused person threatened the girl not to disclose the matter to anyone and therefore, they could learn about the incident yesterday (19.08.2021) only.
Pursuant to the FIR filed by P.W.1, Bihubor Police Station Case No. 39/2021, under Section 376(3) IPC read with Section 4 of POCSO Act, 2012 was registered.
After completion of the investigation, the Investigation Officer submitted the charge-sheet in the instant case, having found a prima facie case established against the appellant under Section 376(AB) IPC read with Section 6 of the POCSO Act, wherein the prosecution has named 9 P.Ws to prove its case.
The learned Trial Court, framed charges under Sections 448/376(AB) of IPC and Section 6 of the POCSO Act against the accused/appellant and the same was explained to the accused/appellant, to which the accused/appellant pleaded not guilty and claimed to be tried.
The learned Trial Court, thereafter, examined 10 prosecution witnesses and after examining the appellant under Section 313 of Cr.P.C., the learned Trial Court came to a finding that the prosecution had been able to prove the guilt of the appellant under Section 6 of the POCSO Act and convicted him accordingly, by sentencing him to undergo imprisonment for 20 years and also to pay a fine of Rs. 10,000/-, in default, to undergo R.I. for a period of 6 months.
Against the aforesaid judgment and sentence, whereby the appellant was convicted under Section 6 of the POCSO Act, the appellant has filed the instant appeal before this Court.
Ms. Sultana, the learned counsel appearing for the appellant, submits that the impugned judgment and order has been passed by the learned Trial Court only on the basis of hearsay evidence and there is no eyewitness in the instant case. She submits that the learned Trial Court has given undue importance to the evidence of P.W.1 as well as P.W.3 and P.W.5, which are only hearsay and inadmissible evidence. She further submits that the medical report and the evidence of P.W.8, i.e., Dr. Mandakini Mili, is not supporting the prosecution case. She submits that there is no sign of recent sexual intercourse and there was no injury in the private parts of the victim. She submits that though P.W.6 and P.W.7 had stated that they have seen the appellant along with the victim girl coming out of the bamboo bush, the same does not ipso facto prove any case of rape against the appellant. She submits that the "last seen" theory is not applicable in the instant case as the rape on her has not been seen by any of the P.Ws. Therefore, she submits that there is no foolproof case presented by the prosecution in the instant case to convict the appellant under Section 6 of the POCSO Act. In view of the aforesaid submissions, she submits that the impugned judgment and order should be set aside and the appellant should be acquitted of the charges framed against him. She further submits that the victim girl was re-examined by the Trial Court after her examination and in the re-examination, the victim girl has improved her case; therefore, the re-examination part cannot be relied upon by the Trial Court.
On the other hand, Mr. R.R. Kaushik, the learned Addl. P.P., submits that the instant case is a clear case of conviction under Section 6 of the POCSO Act, and the Trial Court has not committed any mistake in its judgment by convicting the appellant under Section 6 of the POCSO Act. He submits that the version of the victim girl, who is a minor below 12 years, is consistent all throughout and there is nothing which makes her statement unbelievable or untrustworthy. He submits that the medical report also supports the case of the prosecution and the version of the victim girl, as her hymen was found to be ruptured. He submits that P.W.6 and P.W.7 also corroborate the prosecution story as they have seen the victim girl along with the appellant coming out of the bamboo bush during the time of the incident as alleged in the FIR. He further submits that the investigation officer has done the investigation in the right manner and there is no dispute that the victim girl is a minor and therefore, there is nothing wrong in the conviction of the appellant under Section 6 of the POCSO Act. He submits that the statements of the victim girl under Sections 161 and 164 of Cr.P.C. also corroborate the deposition of the victim girl before the Trial Court and therefore, though there is no eyewitness to the incident of rape, however, circumstances and the version of the victim girl can be relied upon. Therefore, the conviction of the appellant is correctly decided by the learned Trial Court. In view of the aforesaid submissions, he submits that the instant appeal is liable to be rejected at once.
Ms. M. Barman, the learned Amicus Curiae appearing for the informant, also supports and adopts the submissions made by the learned Addl. P.P. and submits that there is nothing wrong in the conviction of the appellant in the instant case, as there are sufficient materials against the appellant. She further submits that her version was not shaken by the defense, and there is no inconsistency in her statement about the commission of rape by the appellant. In view of the aforesaid, she submits that the instant appeal is liable to be dismissed.
After due consideration of the evidence in hand and after hearing the counsel appearing for the respective parties, the learned Trial Court had framed the following points of determination: -
(1)Whether the victim was less than 12 years of age at the time of incident?
(2)Whether on 19.08.2021 at about 2:00 PM, the accused entered inside the house in possession of the informant with intent to commit an offence and thereby committed offence punishable under section 448 of IPC?
(3)Whether on the same date, time and place, the accused committed rape on the daughter of the informant Miss X who was less than 12 years of age at the time and thereby committed offence punishable under section 376 AB of the IPC?
(4)Whether on the same date, time and place, the accused committed penetrative sexual assault on the daughter of the informant Miss X who was less than 12 years of age at that time and thereby committed offence punishable under section 6 of the POCSO Act?
While discussing the facts of the case and evidence in hand, the learned Trial Court has come to the conclusion that that the victim was aged less than 12 years as on the date of incident and thereby, confirmed the point no. 1.
As far as point of determination of 3 and 4 are concerned, after due consideration of the evidence available and the principles laid down by the Hon’ble Supreme Court in various cases, the learned Trial Court has come to the finding that the victim was less than 12 years of age at the time of incident and the accused is held guilty of having committed the offence under section 376 AB IPC and accordingly, confirmed the issue nos. 3 & 4 against the appellant. As far as question no. 2 is concerned, the appellant was held to be not guilty of commission of an offence under section 448 of IPC.
It has already been stated that as many as 10 prosecution witnesses were examined before the learned Trial Court.
The evidence of PW-1, who is the father of the victim girl, he deposed that the victim girl was 10 years of age and PW-1 knew the accused Huntu Boraik (appellant) as he is his neighbour. It is stated that the incident took place six (6) months back and his wife expired about three (3) years back. It is stated that he works as a daily labourer at Bihubor town. His daughter Miss X and his son Basu, aged about 24 years, used to remain in his house while he went for his work. It is stated that on the day of occurrence, he was at his workplace and when he returned home about 5:00 PM, he found some village women, namely, Sakina Begum and another woman there and told him that Huntu Boraik (appellant) committed misdeed on his minor daughter. He stated that thereafter, he filed the FIR before the Bihubor police station and recorded his statement. Exhibit-1 is the FIR and Exhibit-1/1 is his signature. He stated that police seized the original birth certificate of his daughter and Exhibit-2 is the seizure list and Exhibit-2/1 is his signature.
In his cross-examination, he stated that he lodged the FIR after he was told by Sakina that the accused committed misdeed with his daughter. He stated that he lodged the FIR on the same day of the occurrence and he did not file any other ejahar after that. He also stated that he is also known as Dhaneswar Gowala and he does not have any other name except these two names.
As far as the deposition of victim girl, who is less than 12 years of age, is concerned, the learned Trial Court, to satisfy himself that the victim girl is able to understand the questions put to her and she is able to give proper answers to the questions to be put to her, the learned Trial Court asked her a few formal questions, which were duly answered by the victim girl. And after being satisfied that the victim girl has the ability to understand the questions put to her and that she is capable enough to answer the questions coherently and voluntarily without being guided by others, the Trial Court proceeded to record her statement.
In her statement, the victim child stated that she knew Huntu Boraik, who is a neighbour. She stated that he took her into a bamboo bush on the backside of her house and thereafter, removing his pant, lifted her frock and panty and inserted his penis into her vagina (she pointed towards her vagina by placing her hand on her vagina). It is stated that police recorded her statement and got her medically examined and thereafter, got her statement recorded in the court also. She stated that she did not know how to write. In her cross-examination, she stated that it is not a fact that she has stated falsely before the court that the accused committed rape on her. She also denied to the suggestion that being tutored by a neighbouring woman, she has alleged about the incident falsely. She stated that she did not feel pain while the accused inserted his penis into her vagina and she did not bleed and suffer injury due to penetration. She stated that she did not state falsely that the accused inserted his penis into her vagina.
The victim girl was re-examined again on 05.07.2022, wherein she stated that the accused, after taking her to the bamboo bush, opened his wearing t-shirt and spread it on the ground. She stated that thereafter, he asked her to sleep on the t-shirt and the accused opened her panty. She stated that she was wearing a frock and a panty at that time and after opening her panty, the accused opened his own pant and thereafter inserted his penis inside her vagina. She stated that he remained in that position for a long time and after that, he asked her to go home. She stated that she wore her panty and it was stained with mud. She stated that she suffered pain in her lower part of stomach after the accused did the said act. She stated that her aunt Juli Majhi came home from her work and then she reported her the incident. She stated that before the said incident also, on several occasions, the accused used to come to their house when she was alone and, in the same way, he used to insert his penis inside her vagina. She also stated that the accused once gave her Rs. 50/-. She stated that in their house, the accused used to commit the said act with her in her brother's room. She stated that she thought of disclosing the incident to her aunt Juli Majhi, but again used to think that they would scold her. She stated that only on the last time, when her aunt Juli Majhi questioned her as to what she was doing with Huntu Boraik inside the jungle, she disclosed her about the fact. She stated that when the accused inserted his penis inside her vagina for the first time, she sustained hurt in her vagina. In her cross-examination by the Defence, she stated that it is not a fact that she had been tutored to state as such in her statement under section 164 CrPC. She stated that she did not disclose to the doctor that she sustained hurt in the incident. She stated that she did not state before police that she suffered stomach pain and sustained hurt in the vagina because of the incident. She stated that it is not a fact that she did not state before police that before the said incident also, on several occasions, the accused used to come to their house when she was alone and in the same way, he used to insert his penis inside her vagina and the accused once gave her Rs. 50/-. She also stated that it is not a fact that she did not disclose the incident to her aunt Juli Majhi.
PW-3, namely, Shri Basu Prasad Gowala, has stated that after the death of his father, her mother married Raju Majhi and accordingly, Raju Majhi is his stepfather and Miss X is his stepsister. He stated to the effect that the incident took place about 6 months back and on his return from work in the evening, his sister had told him that the accused had come, but she did not say anything more out of fear. He stated that while coming back, he met the mother of the accused, who intimated him that the accused had committed misdeed with his stepsister. He stated that his statement was recorded by the police and police had seized the original birth certificate of his sister. In his cross-examination, he stated that he did not have any personal knowledge about the incident as his sister did not state in front of him about the incident. He stated that he did not depose falsely before the court.
PW-4, namely Smt. Julie Majhi, stated that the victim girl is her niece, and she knew the accused, Huntu Boraik, as he is her neighbor. She stated that the incident took place about six months back. She stated that on her return from her workplace in the evening, her husband told her that he saw the victim girl running and the accused following her while her husband went to untie the cow. She stated that her husband told her that the victim girl entered her house. She stated that her husband asked her to enquire as to what had happened to the victim girl. Accordingly, she asked the victim girl as to what had happened, and in reply, the victim girl told her that the accused took her to the backside of her house in the bamboo bush and there, he committed misdeed with her by inserting his penis into her vagina. She also stated that her statement was recorded by the police. In her cross-examination, she stated before the police that her neighbor, Sakhina Begum, told her about the incident. She stated that it is not a fact that she did not state before the police about the incident. She denied that she had falsely deposed before the court as the minor victim is her niece.
PW-5, namely Smt. Sakhina Begum, stated that she knew the informant Raju Majhi, who is her adjacent neighbor. She stated that the house of the accused is on the other side of her house, and he is also her neighbor. She stated that the incident took place about 6–7 months back. She heard that Rajesh Majhi and his wife were talking that Rajesh Majhi had seen the accused and the victim running out of the jungle. On that day, the victim went to collect firewood from the jungle. It is stated that on the next morning, she heard that a rape case had been filed against the accused. In her cross-examination, she stated that the police did not interrogate her about the incident, and she did not state before the police that she heard Rajesh Majhi and his wife talking that Rajesh Majhi had seen the accused and the victim running out of the jungle. She also stated that the police did not meet her in connection with the incident. She stated that she had not falsely deposed before the court after being tutored by the informant.
PW-6, namely Rajesh Majhi, deposed that the informant, Raju Majhi is his brother-in-law and the victim girl is his niece. He stated that he knows the accused as he is his neighbor. He stated that on the day of the incident, about 3:00 PM, he went to the field to look after his bullock, and on his way back home at about 3:30 PM, he saw the accused and the victim girl coming out of a jungle behind their house. On seeing the accused and the victim coming out from the jungle, when he asked the accused as to what he was doing in the jungle, the accused fled away and the victim entered her house. It is stated that he did not ask the victim anything about the incident as she was a very small girl and on seeing him, the girl got frightened. He stated that thereafter, he went home and when his wife, namely, Julie Majhi, returned home from work, he told her about the incident that he saw the accused and victim coming out of the jungle. He stated that he asked his wife to ask the victim as to whether anything happened to her. He stated that his wife accordingly asked the victim and the victim disclosed to his wife that the accused committed rape on her inside the jungle. He stated that at the same time, the father and the elder brother of the victim were not at home and when they returned, his wife reported the incident to the brother. He stated that thereafter, the father and the brother went to the police station and lodged the FIR. He stated that as the accused fled away when he asked him as to what he was doing inside the jungle, a strong suspicion arose in his mind and therefore, he asked his wife to ask the victim about the incident. He stated that police interrogated him about the incident. In his cross-examination, he stated the name of the victim and also stated that persons used to go into the jungle to collect firewood. He stated that he has not seen the victim before in the jungle for collecting firewood. He stated that it is not a fact that on the date of the incident, they were coming out of the jungle after searching for firewood and only on suspicion, the case has been lodged.
PW-7, namely, Smt. Munu Dutta, is a female VDP in the village and she stated that she knows the informant Raju Majhi as well as the accused. She stated that the incident took place in August 2021 and she heard from the village folks that the accused had committed rape on the victim and that a case had been lodged against him. She stated that the police were in search of the accused. She stated that in the evening time, while she was in front of her courtyard, she saw the accused coming out and trying to flee towards Naginimora. She then called the accused, saying that the police, although in search of him, would do nothing to him. However, on seeing the police at a distance, the accused tried to flee, but she caught hold of him by catching his long pants and at that time, the police came running and apprehended him. She stated that the police interrogated her about the incident. In her cross-examination, she stated that she cannot say as to from where she heard about the incident. She stated that the police were already aware of the incident and therefore, did not ask her anything. She stated that neither the victim nor the accused are related to her; however, both are from the same village. She stated that she had stated before the police that the accused is a "dusto boy." She denied that she did not like the accused from before and testified falsely against him.
PW-8, namely, Dr. Mandakini Dutta, stated that on 21.08.2021, she was working as Senior Medical and Health Officer at Sivasagar Civil Hospital. She stated that on that day, she examined the victim girl in connection with Bihubor Police Station Case No. 39/2021. In her examination, she mentioned, amongst others, that the breast of the girl child was not fully developed, and there was no mark of any violence on the body. She also mentioned that the genitalia of the girl were not fully developed. Clitoris were normal, and the hymen was absent. She also mentioned the vagina to be normal, and no spermatozoa were seen in the vagina. She mentioned that pregnancy test came negative. She opined that the victim is below 14 years of age. There was no injury found in the private parts or body of the victim during examination and there was no sign of recent sexual intercourse during examination. Exhibit-3 is the Medico-Legal report, Exhibit-3(1) is her signature, and Exhibit-3(2) is the radiological report. In her cross-examination, she stated that injury/sign of intercourse may be detected on a girl who is below 14 years of age if she is subjected to sexual intercourse more than once.
PW No. 9, namely, Sri Joyshlobi Dutta, stated that on 21.08.2021, she was posted as JMFC, Sivasagar. She stated that she recorded the statement of the victim under Section 164 CrPC. She stated that the victim, in her statement before her, stated that after taking her into the jungle, the accused put a cloth on the ground and made her lie down on the ground. She stated that the victim stated before her that after the act, she suffered pain in her vagina. In her cross-examination, she stated that the statement of the victim was recorded in the presence of her aunt. She stated that it is not a fact that she has not recorded the statement of the victim as per the procedure.
PW No. 10, namely, SI Nipan Das, stated that on 20.08.2021, he was posted as Second Officer at Bihubor Police Station, and on that day, an Ejahar was lodged by informant, namely, Raju Majhi, and after registration of the case, the OC entrusted him with the task of investigation. He stated that he went to the place of occurrence, which was at Ougurijan Tila Basti inside a bamboo bush. He stated that he inspected the PO and the house of the informant and examined the victim in her house. He stated that he recorded the statement of other witnesses and prepared the sketch map of the PO. He stated that he seized the birth certificate of the victim from the informant and on the same day, he found the accused on the road and brought him to the police station. He stated that on the next day of lodging of the FIR, he sent the victim to the hospital for medical examination and also forwarded her to the court for recording her statement under Section 164 of CrPC. He stated that after arresting the accused, he forwarded him to the court. He stated that he collected the medical report of the victim and on completion of investigation, submitted the charge-sheet against the accused under Section 376(AB) IPC read with Section 6 of POCSO Act. Exhibit-2 is the seizure list and Exhibit-2(3) is his signature. Exhibit-6 is the sketch map, and Exhibit-6(1) is his signature. Exhibit-7 is the charge-sheet, and Exhibit-7(1) is his signature. In his cross-examination by defense, he stated that the Ejahar had been lodged by Raju Majhi and the incident took place with his daughter. He stated that in the seizure list, the date of seizure had not been mentioned, but it was mentioned in the Case Diary as the date on which the Ejahar was lodged. He stated that he can't say whether the date of birth mentioned in the birth certificate was overwritten. He stated that it is not a fact that he did not seize the birth certificate of the victim and that he had seized a fake certificate. He denied the suggestion that PW-2 did not state before him that before the said incident also, on several occasions, the accused used to come to their house when she was alone and in the same way, he used to insert his penis inside her vagina. He also stated that PW-3 did not state before him that, "On my return from workplace in the evening, I met mother of the accused on the way. She told me that her son Huntu Boraik committed misdeed with my step-sister Ms. X (step-sister Anjali)." He also stated that PW-4, Smt. Juli Majhi, did not state before him that, "On my return from workplace in the evening, my husband told me that while he went to the front field for untying the cow, he saw Anjali running, and the accused Huntu Boraik running after Anjali. He also told me to enquire from Anjali what had happened. Accordingly, I asked Anjali what had happened. She told me that the accused Huntu Boraik took her on the backside of her house in the bamboo bush, and there, he committed misdeed with her by inserting his penis into her vagina." He stated that it is not a fact that he has not conducted the investigation properly and the charge-sheet was falsely submitted.
CW-1, namely, Himakanta Hazarika, stated that he was serving as an accountant at Nazira Sub-Divisional Civil Hospital. He stated that Superintendent of their hospital is also the Registrar of Births and Deaths, Ligiripukhuri. He stated that notice was issued to the Registrar and he has been authorized to appear before the court to depose in connection with the case. He stated that he has brought the relevant register of births of their hospital and has also brought the counterfoil of birth certificate issued in the name of Ms. X. He stated that in their register and counterfoil, the date of birth of Ms. X has been written as 10.04.2011. He stated that serial no. with date of issue and the registration no. in the copy of the birth certificate is also available in the record.
In his cross-examination, he stated that on 18.11.2013, the application was made for the said birth certificate. As the birth certificate was issued after two years from the date of birth, permission from the District Authority is required. He stated that, however, he has not brought the copy of the permission which was submitted in the case. He stated that the application in the instant case was made by one Nazima Begum.
In his cross-examination by prosecution, he stated that the name of the applicant is given in the last column of the relevant entry. He stated that the application for birth certificate can be made by the guardians or any of their acquaintances. He stated that in MO2, the date of birth has not been overwritten. He stated that the birth certificate was issued on the basis of the entries made in the register of births.
In recording of examination of the accused under Section 313 of the Code of Criminal Procedure, 1973, the accused has totally denied of commission of any offense by him as alleged in the FIR.
From the above, what is discernible is that there was no eyewitness of the incident of alleged rape on the victim child. However, the deposition of the victim child is consistent that she has been raped by the accused appellant by taking her into the bamboo bush.
It is also seen that the act of rape has been described by the victim girl in detail by stating that after taking her into the bamboo bush, the accused appellant had put his T-shirt on the ground and made the victim girl lie on the T-shirt and thereafter, put his penis inside her vagina and thereby committed rape on her.
It is seen that PW-1 Raju Majhi, the informant, deposed before the court that one village women, namely, Sakhina Begum, who is PW-5 in the instant case, has told him that the accused appellant had committed misdeed with his daughter Ms. X. PW-1, stated that when he came back from work at about 5 PM, he was told by the village women, namely, Shakina Begum and another woman that his daughter was raped by the accused-appellant. Accordingly, he filed the FIR on the same day. Shakina Begum, PW-5 stated that she heard the talk of Rajesh Majhi, PW-6 with his wife that Rajesh Majhi had seen the accused-appellant and the victim girl coming out of the jungle. Rajesh Majhi, PW-6 stated that on the date of the incident about 3 PM, he went to the field to look for his bullock, while coming back at about 5.30 PM, he saw the accused-appellant and the victim girl coming out of the jungle behind their house. He stated that when he asked as to what he was doing inside the jungle, the accused-appellant fled away and the victim girl entered her house. Thereafter, he told the incident to his wife, who in turn, asked the victim girl who disclosed her about the incident. He stated that after the return of the father and brother of the victim girl his wife, PW-4 reported the incident to them. From these depositions, it is seen that the statement of the victim girl is corroborated by the statements of the PW-1, the father of the victim, PW-5, Sakhina Begum and PW-6, Shri Rajesh Majhi and his wife, PW-4 about the fact that both the accused-applicant and the victim girl were together in the jungle as they were seen together while coming out of the jungle.
PW-7, Munu Dutta who is a neighbor of the victim girl stated that she heard from villagers that the accused-appellant committed rape on the victim girl and an FIR had been lodged. She also heard that police were looking for the accused-appellant. In the evening when she was in front of the courtyard of her house, she saw the accused-appellant coming out and trying to flee towards Naginimora, when she called the accused-appellant, the accused-appellant saw police at a distance and the accused-appellant tried to flee but she caught hold of her long-pant and then police came running and apprehended him. She further stated that since police apprehended the accused appellant in front of her, she was not required to explain anything to them. From the above, is clear that though the PW-5, 6 & 7 have not seen the actual commission of rape but PW-6 had specifically stated that he saw the accused appellant and the victim girl together coming out of the jungle and immediately after that Juli Majhi, PW-4 was informed about the rape by the victim girl. It is also seen from the statement of PW-7 that the accused appellant tried to flee but he was apprehended by police. PW-8, Dr. Mandakini Dutta also stated that the hymen of the victim girl was absent during the medical examination on 21.08.2021, though there was no sign of injury on the private parts of the victim girl. From the above, it is clear that the version of the victim girl that she had been raped by the accused appellant gets support from the surrounding facts and events as disclosed by the aforesaid PWs, namely, PW-4, PW-5, PW-6, PW-7 and PW-8.
Birth Certificate of the victim girl has been seized by the Investigating Officer, vide Seizure List dated 08.02.2022, which is marked as Court Exhibit MO1. As per the Birth Certificate, the date of birth of the victim girl is 10.04.2011. The incident occurred on 08.02.2022. Therefore, the victim girl was a minor at the time of the incident. The accused appellant in his statement under 313 CrPC has stated that the girl was 12 years of age. Therefore, there cannot be any question as to the minor age of the victim girl. As per the medical evidence on record also, the age of the victim girl has been opined as less than 14 years on the date of examination on 21.08.2022. Shri Himakanta Hazarika, CW-1 the accountant at Nazira Sub-Divisional Civil Hospital on behalf of the Registrar, Birth and Death of Ligiripukhuri had been examined as court witness and he had exhibited as MO1 (proved in original) the Counter foil of the Birth Certificate issued to the victim girl. He exhibited Registrar of Births of May 2013 to July 2015 and MO2 in the relevant entry. Though the Birth Certificate contained the name of father as Dasai Majhi, PW-10, the Investigating Officer clarified that Raju Majhi is the step father. Therefore, the Birth Certificate cannot be doubted and the same makes it clear that on the date of the incident, the age of the victim was 10 years 4 months and 9 days. PW-1 had deposed the girl to be 10 years, which corroborates the age of the victim girl, vis-à-vis the Birth Certificate. Therefore, the age of the victim can be taken as less than 12 years on the date of the incident.
It is seen that in the evidence of PW-6, Shri Rajesh Majhi to the effect that when he saw the accused appellant and the victim girl coming out of the jungle, he asked the accused-appellant as to what was he doing there, the accused appellant fled away which raised his suspicion. Therefore, he asked his wife, PW-4, to inquire from the victim girl as to what happened. PW-4, the wife of PW-6, Juli Majhi deposed that the victim girl intimated her about the rape committed upon her by the accused appellant. The Defence in their respective cross-examination of the PW-4 and PW-6 could not establish any contradictory facts to disbelieve the versions of the PW-4. PW-4 denied the suggestion that she did not state the aforesaid fact before the police. Therefore, if there is an omission about the fact of stating before the police by the PW-4, the same cannot shatter the version of the PW-6 and PW-2 about the fact that PW-2 and the accused-appellant were seen together coming out of the jungle and the fact that the rape was committed by the accused appellant as stated by the victim, PW-2. The statements under Section 313 CrPC of the accused-appellant though may not be substantive piece of evidence, the accused-appellant when asked by the court about PW-6’s deposition that the accused-appellant and victim girl were seen together coming out of the jungle, he simply said the fact to be false without providing any reasonable explanation. The above fact transpires that the evidence of the PW-2, the victim girl is corroborated by the evidence of PW-4 and PW-6.
The victim was medically examined on 21.08.2021, whereas the incident took place on 19.08.2021. As per the opinion of the Medical Officer, there was no injury on the private part or body of the victim child found during the examination. It was also opined that there was no sign of sexual intercourse during the examination. But the evidence of PW-2 reveals that before the incident of 19.08.2021, the accused appellant had sex with the victim girl on many occasions earlier. She further deposed that she did not bleed or felt pain during the sexual intercourse. But in the further examination, she mentioned that when the accused appellant inserted his penis inside her vagina for the first time, she felt pain and got hurt. It is discernible from the above that when the incident was reported on 19.08.2021, she did not feel any pain during the intercourse due to the fact that she had already put to sexual intercourse on many occasions and therefore, she neither suffered any hurt on her private part nor she felt pain as she got accustomed to the sexual act. Therefore, it is seen that the version of the victim girl remained consistent and Defence was unable to shake her deposition in her cross-examination. The deposition of the victim girl seems to be trustworthy and circumstances as discussed above, have corroborated her version and Defence has failed to bring in any reliable and trustworthy material on record to disbelieve the version of the victim child.
As far as the statement of the victim girl is concerned, from the very beginning, i.e., her statement before the police under Section 161 CrPC, her statement under Section 164 CrPC and her deposition before the court, it is seen that her statement remained the same to the effect that the accused appellant has had sexual intercourse with her. In her statement before the Magistrate under Section 164 CrPC and her deposition before the Trial Court, she deposed that the accused-appellant had committed rape upon her on earlier occasions also including the reported incident. Though there is a minor omission that she did not state before police about earlier sexual intercourse by the accused-appellant, the same cannot be termed as a major variance in the facts and circumstances of the case. Therefore, her version of testimony can be termed as that of a sterling witness. In this connection, the case of Rai Sandeep alias Deepu Vs. State of (NCT of Delhi), reported in (2012) 8 SCC 21 can be referred to wherein the Hon’ble Supreme Court, regarding the “sterling witness” has observed as follows: -
“22.In our considered opinion, the "sterling witness" should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.”
From the entire facts of the case on record, it is seen that no material is found to be present about any motive on the part of the victim girl who was about 12 years of age when the incident occurred to falsely implicate the accused appellant. Nothing in that regard has been stated by the accused appellant either before the police or before the Trial Court in his statements under Section 313 CrPC. In this connection, the case of Ganesan Vs. State, reported in (2020) 10 SCC 573 can be referred to, wherein the Hon’ble Supreme Court observed as follows: -
“10.In the present case, the appellant-accused has been convicted by the learned trial court for the offence under Section 7, punishable under Section 8 of the POCSO Act. We have gone through the entire judgment passed by the learned trial court as well as the relevant evidence on record, more particularly the deposition of PW 1 father of the victim, PW 2 mother of the victim and PW 3 victim herself. It is true that PW 2 mother of the victim has turned hostile. However, PW 3 victim has fully supported the case of the prosecution. She has narrated in detail how the incident has taken place. She has been thoroughly and fully cross-examined. We do not see any good reason not to rely upon the deposition of PW 3 victim. PW 3 aged 15 years at the time of deposition is a matured one. She is trustworthy and reliable. As per the settled proposition of law, even there can be a conviction based on the sole testimony of the victim, however, she must be found to be reliable and trustworthy.
10.1.Whether, in the case involving sexual harassment, molestation, etc., can there be conviction on the sole evidence of the prosecutrix, in Vijay, it is observed in paras 9 to 14 as under: (SCC pp. 195-98)
"9.In State of Maharashtra v. Chandraprakash Kewalchand Jain, this Court held that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person's lust and, therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Court observed as under: (SCC p. 559, para 16)
‘16. A prosecutrix of a sex offence cannot be put on a par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to Illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence.'
10.In State of U.P. v. Pappu, this Court held that even in a case where it is shown that the girl is a girl of easy virtue or a girl habituated to sexual intercourse, it may not be a ground to absolve the accused from the charge of rape. It has to be established that there was consent by her for that particular occasion. Absence of injury on the prosecutrix may not be a factor that leads the court to absolve the accused. This Court further held that there can be conviction on the sole testimony of the prosecutrix and in case, the court is not satisfied with the version of the prosecutrix, it can seek other evidence, direct or circumstantial, by which it may get assurance of her testimony. The Court held as under: (SCC p. 597, para 12)
‘12. It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional. However, if the court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice, would do.'
11.In State of Punjab v. Gurmit Singh, this Court held that in cases involving sexual harassment, molestation, etc. the court is duty-bound to deal with such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. Evidence of the victim of sexual assault is enough for conviction and it does not require any corroboration unless there are compelling reasons for seeking corroboration. The court may look for some assurances of her statement to satisfy judicial conscience. The statement of the prosecutrix is more reliable than that of an injured witness as she is not an accomplice. The Court further held that the delay in filing FIR for sexual offence may not be even properly explained, but if found natural, the accused cannot be given any benefit thereof. The Court observed as under: (SCC pp. 394-96 & 403, paras 8 & 21)
‘8. …….The court overlooked the situation in which a poor helpless minor girl had found herself in the company of three desperate young men who were threatening her and preventing her from raising any alarm. Again, if the investigating officer did not conduct the investigation properly or was negligent in not being able to trace out the driver or the car, how can that become a ground to discredit the testimony of the prosecutrix? The prosecutrix had no control over the investigating agency and the negligence of an investigating officer could not affect the credibility of the statement of the prosecutrix….. The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case…..Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury…..Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances…… * * * * * * * * * *
21.... The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.'
(emphasis in original)
12.In State of Orissa v. Thakara Besra, this Court held that rape is not mere physical assault, rather it often distracts (sic destroys) the whole personality of the victim. The rapist degrades the very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case and in such cases, non-examination even of other witnesses may not be a serious infirmity in the prosecution case, particularly where the witnesses had not seen the commission of the offence.
13.In State of H.P. v. Raghubir Singh, this 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 this Court in Wahid Khan v. State of M.P. placing reliance on an earlier judgment in Rameshwar v. State of Rajasthan.
14.Thus, the law that emerges on the issue is to the effect that the statement of the 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."
In Krishan Kumar Malik v. State of Haryana, it is observed and held by this Court that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient, provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality.
Who can be said to be a "sterling witness", has been dealt with and considered by this Court in Rai Sandeep v. State (NCT of Delhi). In para 22, it is observed and held as under: (SCC p. 29)
"22.In our considered opinion, the "sterling witness" should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
On evaluating the deposition of PW 3 victim on the touchstone of the law laid down by this Court in the aforesaid decisions, we are of the opinion that the sole testimony of the PW 3 victim is absolutely trustworthy and unblemished and her evidence is of sterling quality.
Therefore, in the facts and circumstances of the case, the learned trial court has not committed any error in convicting the accused, relying upon the deposition of PW 3 victim. The learned trial court has imposed the minimum sentence provided under Section 8 of the POCSO Act. Therefore, the learned trial court has already shown the leniency. At this stage, it is required to be noted that allegations against the accused which are proved from the deposition of PW 3 are very serious, which cannot be permitted in the civilised society. Therefore, considering the object and purpose of the POCSO Act and considering the evidence on record, the High Court has rightly convicted the accused for the offence under Section 7 of the POCSO Act and has rightly sentenced the accused to undergo three years' RI which is the minimum sentence provided under Section 8 of the POCSO Act.”
If the victim girl’s statement regarding the offence committed by the accused appellant is consistent from initial point of time till the end, and her version could not be shaken by the Defence then there is no reason why only on the basis of the statement of the victim girl only, the accused appellant cannot be convicted. Similarly, it is well settled that the evidence of a child witness can form the basis of the conviction if the same is found to be truthful and inspires the confidence of the Court. In the instant case, the victim child was put to certain questions by the court and she was found to be having sufficient understanding and therefore, trustworthy as she replied to the answers properly and with confidence. In the instant case, the statement of the victim child is adequately corroborated by the statements of other witnesses, namely, PW-4, PW-6 & PW-7. Therefore, we are of the opinion that the PW-2, victim girl’s evidence is of the nature of a sterling witness and the same can be safely trusted and relied upon. In this connection, another important issue is about the presumption of an offence under the POCSO Act. This aspect of the matter as provided under Section 29 and Section 30 of the POCSO Act has been adequately discussed and applied to by the learned Trial Court, therefore, we do not find any necessity to delve into the same issue.
From the available evidence, especially the victim girl, which gets corroborated by evidence of PW-4, PW-5 and PW-6, it is seen that the victim girl has been subjected to penetrative sexual assault on more than once or repeatedly. Therefore, Section 6 of the POCSO Act shall be attracted in the instant case.
In view of the aforesaid discussions, we do not find any reason to interfere with the judgment dated 29.10.2022 and the sentence dated 29.10.2022 challenged by the criminal appeal. Accordingly, the criminal appeal is dismissed.
Send back the TCR immediately.
In appreciation of the assistance provided by the learned Legal Aid Counsel for the respondent no. 2, her fees shall be paid by the Gauhati High Court, Legal Services Committee.