Surman Ali @ Basal vs State Of Tripura

The appellant was charged under Section 376(2)(i) of the IPC for committing rape on the victim during 4/5 months preceding to 01.09.2014 and he was separately charged under Section 4 of the Protection of Children from Sexual Offences Act, 2012 [in short, POCSO Act] for committing penetrative sexual assault on the victim. Even though the appellant denied the charge and pleaded innocence, but after trial by the judgment dated 03.16.2016 delivered in Special (POCSO) 14 of 2015, the Special Judge, North Tripura, Dharmanagar has convicted the appellant him under Section 4 of the POCSO Act, but no conviction has been returned under Section 376(1) of the IPC. Pursuant to the conviction under Section 4 of the POCSO Act the appellant has been sentenced to suffer rigorous imprisonment for seven years and fine of Rs.10,000/- with default stipulation.

The genesis of the prosecution can be located in the complaint filed by the victim [whose name has been withheld for protecting her identity]. In the complaint [Exbt.1] filed on 01.09.2014, the victim has stated that a 'relationship' grew up with the appellant during 4/5 months preceding 01.09.2014, the day of filing the complaint. The allegation that has been made in the complaint is as follows:

"He allured me of marrying (me). Presently I am pregnant of three months. Yesterday dtd 31-08-2014 at 4 pm, Surman Ali asked me to come to his house. As per his word I went to his house. After my arrival, the accused persons altogether assaulted me and driven (me) out of the house. So now I am lodging this complaint/petition with a hope of getting proper justice."

In the complaint the following persons are named as the perpetrators:

(1) Surman Ali (Basal),

(2) Manjir Ali,

(3) Mairangbibi,

(4) Raina Begam and

(5) Reshma Begam.

Based on the said complaint, Kadamtala P.S. Case No. 2014 KDL 070 under Section 376/419/323 of the IPC and under Section 4 of the POCSO Act was registered and taken up for investigation. After the investigation was complete, the final report was filed by the investigating agency on 02.09.2014 by sending up only the appellant to face the trial for commission of offence as stated above. The Special Judge having taken the cognizance, framed the charge and commenced the trial as the accused, the appellant herein, denied the charge completely.

In order to substantiate the charge, as many as 12 (twelve) witnesses including the victim [PW-3] were examined in the trial by the prosecution. That apart, the prosecution has introduced 14 (fourteen) documentary evidence including the certificate of birth [Exbt.3], the medical examination report [Exbt.6], the report of ossification test [Exbt.11] and the USG report [Exbt.12].

After recording the evidence led by the prosecution, the appellant was examined under Section 313 of the Cr.P.C. where the appellant has mostly denied the prosecution case on the ground of falsity. But in response to the question No.10 which was framed based on the evidence of PW-4 [Afia Begam] that the first marriage of the victim was not consummated and after her obtaining talak, the alleged occurrence took place. When she was feeling uneasy she got herself examined by one 'doctor Chakraborti'. At that time, her pregnancy was detected. In response, the appellant had stated that the victim was given marriage when she was 12 years of age and hence, her mother and relatives have committed offence. In response, to the question No.15 which deals with the evidence of PW-8, Jamir Uddin the appellant denied the statement that he was responsible for the pregnancy of the victim. The appellant has admitted that a panchayet meeting was held and in that meeting the appellant did not admit the alleged incident, but the guardian of the victim demanded cash. In the question No.15 which is stuffed with series of questions, the trial court has recorded the part of the deposition which reflects the statement of the victim as follows:

"Now Basal desired me to settle up the matter on payment of money. What I would gain with money if I could not save my chastity and he also did not appear in village shalishi. On the date of shalishi when I went to his house I was driven out by him by abusing me."

The appellant, has in response, on the contrary admitted that there was a meeting and when the victim made the allegation of rape he had denied the same. The victim and her relatives demanded money, but the appellant refused to give any money. The appellant had totally denied any relation with the victim as the victim was a married girl. The victim was pregnant by her husband and the appellant has been falsely implicated in order to exploit or harass him. Having appreciated the evidence, the trial court returned the finding of conviction, as stated, under Section 4 of the POCSO Act by the judgment dated 03.06.2016, which is under challenge in this appeal.

Mr. S. Debnath, learned counsel appearing for the appellant has stated that the victim was not a child within the definition as provided under Section 2(d) of the POCSO Act. The prosecution has miserably failed to establish that the victim comes within the definition of 'child' or any sexual assault on her. That apart, Mr. Debnath, learned counsel has categorically denied that there is any legal evidence to show that the appellant had sexual intercourse with or without consent. The prosecution has failed to prove that the fetus had any biological link with the appellant. The prosecution has held back the best evidence from the trial and did not carry out the DNA test done. Even the prosecution has failed to show that the victim was given talak (divorce) by her husband. Even no marriage certificate of the former marriage had been collected or placed in the evidence. According to Mr. Debnath, learned counsel the investigating officer [PW-12] has admitted that in the report of USG, the age of the victim is mentioned as 18(eighteen) years. Even he had filed the final report without waiting for the SFSL report. No evidentiary materials had been collected to establish the age of the victim to be below 18 years have been introduced in the records. Even the investigating officer has admitted categorically as follows:

"I did not take any attempt to proof (sic.) the paternity of the fetus."

In the cross-examination, PW-12 has further deposed that he did not collect talaknama between Selim Uddin, the former husband of the victim and the victim. The investigating officer when was shown the kabinnama had stated that in the kabinnama, the victim has been shown as the major on 31.08.2013 and the date of marriage is shown as 18.08.2013.

Mr. Debnath, learned counsel has made a robust attempt to impress upon this court that on the basis of the certificate of birth [Exbt.3] which has been issued by the Registrar of Births and Deaths, Kadamtala Panchayet, the age of the victim cannot be determined. In this regard he has further stated that even the year of birth recorded in Adhaar card [Exbt.4] cannot be made the basis to determine the age of the victim. Mr. Debnath, learned counsel having referred to the ossification test [Exbt.11] has contended that by ossification when the age is determined, it is subject to deviation within a range and he has referred that the PW-10, Dr. Biswajit Paul has given an opinion that on 25.11.2014 the victim was 14 years of age. PW-10 has categorically admitted in response to the query made by the trial court that in the report he committed tampering in respect of date. He has admitted that the actual date was 21.02.2015, but that was tampered as 21.11.2014 and he had failed to give any explanation why he had tampered the date. However, he has denied in the cross-examination that he had manipulated the report and given the report without proper examination of the victim.

In support of his contention, Mr. Debnath, learned counsel has relied on a few decisions of the apex court namely Ravinder Singh Gorkhi vs. State of U.P. reported in (2006) 5 SCC 584. In Ravinder Singh (supra) the apex court had been considering the entry in the public records in order to determine the age. It has been observed in that report that determination of the date of birth of a person in the court of law, whether in a civil proceeding or in a criminal proceeding, would depend upon the fact and circumstances of each case. In the absence of any other statute governing in the field, Section 35 of the Evidence Act will have application and the court while determining the age would depend upon the materials brought on the record by the parties which are admissible in the evidence in terms of Section 35 of the Evidence Act. When the age of a person is required to be determined, in a manner, as laid down under a statute, different manner for proof should not be adopted. For purpose of further reference, the following passage from the Ravinder Singh (supra) is extracted:

"The age of a person as recorded in the school register or otherwise may be used for various purposes; namely, for obtaining admission; for obtaining an appointment; for contesting election; registration of marriage; obtaining a separate unit under the ceiling laws; and even for the purpose of litigating before a civil forum, e.g. necessity of being represented in a court of law by a guardian or where a suit is filed on the ground that the plaintiff being a minor he was not appropriately represented therein or any transaction made on his behalf was void as he was minor. A court of law for the purpose of determining the age of a party to the lis, having regard to the provisions of Section 35 of the Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted."

Mr. Debnath, learned counsel has made reference to Alamelu and Another vs. State represented by Inspector of Police reported in (2011) 2 SCC 385 where the apex court had occasion to observe as under:

"41. We may notice here that PW1 was examined in the Court on 9th August, 1999. In his evidence, he made no reference to the transfer certificate (Ex.P16). He did not mention her age or date of birth. PW2 was also examined on 9th August, 1999. She had also made no reference either to her age or to the transfer certificate. It appears from the record that a petition was filed by the complainant under Section 311 Cr.P.C. seeking permission to produce the transfer certificate and to recall PW2. This petition was allowed. She was actually recalled and her examination was continued on 26th April, 2000. The transfer certificate was marked as Ex.P16 at that stage, i.e., 26th April, 2000. The judgment was delivered on 28th April, 2000. In her cross-examination, she had merely stated that she had signed on the transfer certificate, Ex.P16 issued by the School and accordingly her date of birth noticed as 15th June, 1977. She also stated that the certificate has been signed by the father as well as the Headmaster. But the Headmaster has not been examined. Therefore, in our opinion, there was no reliable evidence to vouchsafe for the truth of the facts stated in the transfer certificate.

Considering the manner in which the facts recorded in a document may be proved, this Court in the case of Birad Mal Singhvi Vs. Anand Purohit1, observed as follows:

"The date of birth mentioned in the scholars' register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined..... Merely because the documents Exs. 8, 9, 10, 11, and 12 were proved, it does not mean that the contents of documents were also proved. Mere proof of the documents Exs. 8, 9, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents. Since the truth of the fact, namely, the date of birth of Hukmi Chand and Suraj Prakash Joshi was in issue, mere proof of the documents as produced by the aforesaid two witnesses does not furnish evidence of the truth of the facts or contents of the documents. The truth or otherwise of the facts in issue, namely, the date of birth of the two candidates as mentioned in the documents could be proved by admissible evidence i.e. by the evidence of those persons who could vouchsafe for the truth of the facts in issue. No evidence of any such kind was produced by the respondent to prove the truth of the facts, namely, the date of birth of Hukmi Chand and of Suraj Prakash Joshi. In the circumstances the dates of birth as mentioned in the aforesaid documents 1988 (Supp) SCC 604 have no probative value and the dates of birth as mentioned therein could not be accepted."

The same proposition of law is reiterated by this Court in the case of Narbada Devi Gupta Vs. Birendra Kumar Jaiswal2, where this Court observed as follows:

"....The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the "evidence of those persons who can vouchsafe for the truth of the facts in issue"." [Emphasis added]

Even in Alamelu (supra) it has been observed in respect of variations that takes place while determining the age by medical examination as under:

"46. In addition, the High Court failed to consider the expert evidence given by PW13 Dr. Manimegalaikumar, who had medically examined the victim. In his cross-examination, he had clearly stated that a medical examination would only point out the age approximately with a variation of two years. He had stated that in this case, the age of the girl could be from 17 to 19 years. This margin of error in age has been judicially recognized by this Court in the case of Jaya Mala Vs. Home Secretary, Government of Jammu & Kashmir & Ors. In the aforesaid judgment, it is observed as follows:

"......However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side."

We are of the opinion, in the facts of this case, the age of the girl could not have been fixed on the basis of the transfer certificate. There was no reliable evidence to vouchsafe the correctness of the date of birth as recorded in the transfer certificate. The expert evidence does not rule out the possibility of the girl being a major. In our opinion, the prosecution has failed to prove that the girl was a minor, at the relevant date.

We may further notice that even with reference to Section 35 of the Indian Evidence Act, a public document has to be tested by applying the same standard in civil as well as criminal proceedings. In this context, it would be appropriate to notice the observations made by this Court in the case of Ravinder Singh Gorkhi Vs. State of U.P.4 held as follows:

"The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for obtaining admission; for obtaining an appointment; for contesting election; registration of marriage; obtaining a separate unit under the ceiling laws; and even for the purpose of litigating before a civil forum e.g. necessity of being represented in a court of law by a guardian or where a suit is filed on the ground that the plaintiff being a minor he was not appropriately represented therein or any transaction made on his behalf was void as he was a minor. A court of law for the purpose of determining the age of a (2006) 5 SCC 584 party to the lis, having regard to the provisions of Section 35 of the Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted." [Emphasis added]

In addition to those reports, Mr. Debnath, learned counsel has placed his reliance on Chhattisgarh High Court in State of Chhattisgarh vs. Dipak Kumar and Another [judgment and order dated 07.12.2012 delivered in Acquittal Appeal No.353 of 2010]. Chhattishgarh High Court having referred Alamelu (supra) has observed as under:

"10. In Alamelu and another Vs. State represented by Inspector of Police, (2011) 2 SCC 385. The Hon'ble Supreme Court observed as follows:

The transfer certificate has been issued by a Government School and has been duly signed by the Headmaster. Therefore, it would be admissible in evidence under Section 35 of the Indian Evidence Act. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. The Supreme Court held that- the date of birth mentioned in the transfer certificate would have no evidentirary value unless the person, who made the entry case, though P.W.10 admitted to issue the transfer certificate (Exh. P 15) on the basis of entry in the school register, but the entry in the school register, by which, the prosecutrix was admitted in Class 6th, itself was not proved."

Sub-Inspector, A. Kujur (P.W.12) deposed that he had seized school certificate of the prosecutrix (P.W.7) vide Exh. P-10. Sadhuram (P.W.9) deposed that he gave school certificate to the police. But, in the instant case, primary school certificate was not proved by the prosecution. Sadhuram (P.W.9) produced birth certificate issued by Registrar (Births & Deaths). The date of birth mentioned in Exh. P-13 would have no evidentiary value unless the person, who made the entry or gave the date of birth is examined. Mere producing Exh. P-13 itself is not sufficient to prove the age of the prosecutrix (P.W.7) was above 16½ years and below 18 years. On the basis of ossification test, rage of error may be upto 3 years on either side. In the instant case Dr. N. Bajpai (P.W.6) deposed that on the basis of ossification test, the age of prosecutrix (P.W.7) was 16½ to 18 years. In this manner, if we add 3 years towards upper side, the age of the prosecutrix (P.W.7) would come to above 18 years. After due appreciation of the above evidence, we are of the view that the prosecution could not establish that the prosecutrix (P.W.7) was a minor."

Thus, Mr. Debnath, learned counsel appearing for the appellant has contended that even in the case in hand, the birth certificate having been issued by the Registrar of Births cannot be relied, unless the person who introduced the fact is examined in the trial.

From the other side, Mr. A. Roy Barman, learned Addl. P.P. appearing for the state has vehemently opposed the analogy of Mr. Debnath, learned counsel appearing for the appellant and submitted that the prosecution has established the age of the victim by adequate evidence. Not only that the register of birth or the report of the ossification test had been submitted, but the mother of the victim had been examined in the trial. She has stated that the victim was 14 years on the day of recording her deposition i.e. 19.03.2016. Therefore a cumulative reading of the documents [Exbt.3, Exbt.4 and Exbt.11] along with the statement of PW-4 [the mother] would establish without any confusion that the victim on the day of occurrence was below 18 years of age. That apart, there is no reason to disbelieve the victim [the prosecutrix], her statement should generate confidence in this court. Mr. Roy Barman, learned Addl. P.P. has further submitted that objections as raised by the appellant is farfetched and are not based on any evidentiary material to demolish the prosecution case. Mr. Roy Barman, learned Addl. P.P. has taken this court to the thick of evidence to show that the witnesses are not only rustic but their evidence is so natural that those cannot be discarded.

For appreciating the submission of the learned counsel for the parties, it is incumbent that this court takes a short survey of the evidence to weigh the objections in an appropriate manner.

PW-1, Mst. Jarina Begam, a woman ASI posted at Kadamtala police station at the relevant point of time has stated that at the direction of PW-12 she had recorded the statement of the victim under Section 161 of the Cr.P.C., where he had recorded her age as 15 years. The suggestion made to her of concoction was squarely denied.

PW-2, Mst. Safia Begam, a sister of the victim has stated that the appellant [Surman Ali] used to visit their house as a neighbour. At the time of occurrence, the age of the victim, her younger sister, was 13 years. The pregnancy was detected when the victim complained pain at her abdomen. PW-2 and her mother took her to a village doctor known as 'Chakrabarti doctor'. The said doctor detected her pregnancy. To their query, the victim disclosed that the appellant namely Surman Ali @ Basal was responsible for her pregnancy. She has stated that the father of Basal offered Rs.1,000/- and asked them to terminate the victim's pregnancy. But they did not terminate the victim's pregnancy. She has admitted in the cross-examination that her sister [the victim] was given marriage to one Selim Uddin who is also their cousin. She has confirmed in the cross-examination that she stated to the police officer that Basal's father had offered a sum of Rs.1,000/- for terminating the pregnancy of the victim, but they refused. After seeing through the statement recorded under Section 161 of the Cr.P.C. she has admitted that no such statement has been recorded. Even her statement that Surman Ali used to visit their house was not found in her previous statement. But she has denied that Surman Ali did not have any access to their house.

PW-3, the prime witness being the victim, has stated that one year preceding to the occurrence, her marriage with Selim Uddin took place. After three months of her marriage Selim Uddin gaver her talak (the divorce). About 5/6 months prior to the date of occurrence she came to his father's house at South Kadamtala. At that time in their house, her parents, her sister Safia Begam and her younger brother used to reside with her. Her elder brother is married and living separately. Her sister used to go outside for MGNREGA work. Her parents used to go out for work. Her younger brother used to go to school. Taking advantage of absence of family member, Surman Ali, the appellant, used to visit their house and developed a relation with her. He gave her assurance that he would marry her and on such assurance she had consented for sexual intercourse with him. But she did not disclose that fact to anyone. After about 4 months from the day when she had a sexual relation with the appellant, she was detected to have carrying three months pregnancy. A village doctor identified the pregnancy and then she disclosed the occurrence to her parents and sister. She had disclosed the name of the appellant. But the appellant had refused to accept the responsibility. Thus, she lodged the complaint for justice. But before that, there was an initiative to settle up the matter by conciliation, but that did not succeed. Her statement was recorded under Section 164(5) of the Cr.P.C. by the Chief Judicial Magistrate, Kailashahar. She identified her original birth certificate dated 22.03.2001 issued by the Registrar of Births and Death, Kadamtala RD Block [Exbt.3] and her Adhaar card [Exbt.4]. She has also identified the seizure list [Exbt.5] of those two documents [Exbts. 3 & 4]. She has stated further that the Medical Officer examined her at Kadamtala PHC. She identified her signature on the report. After the case was filed, her father was given a proposal that if the case is withdrawn, the father of the appellant would provide a sum of Rs.20,000/-. She has admitted that she delivered a still-born child, but did not deposit any document in this regard. In the cross-examination, she has categorically stated that she had documents of talak but the investigating officer did not collect those documents. But she denied all other suggestions including that she attained the majority and only thereafter her father gave her marriage. Even she had categorically denied the suggestion that the appellant had never developed any physical relation with her.

PW-4, Afia Begam is the mother of the victim. She has categorically stated that when her deposition was being recorded by the court, the victim was running 14 years. Her first marriage was solemnized when she was 12 years of age. She had hardly spent 4/5 months with her first husband. Thereafter, she was given talak and she came back to their house. After 6/7 months from the day of her talak, the occurrence under reference took place. When the victim complained pain in her abdomen, she took her to a private Medical person, namely Dr. Chakrabarti who after examining her opined that she was carrying pregnancy. On their query, the victim disclosed that Surman Ali @ Basal was responsible for her pregnancy. Then her daughter lodged the FIR in the police station. Prior to that, they tried to settle up the matter through negotiation, but the father of the appellant offered Rs.1,000/- for terminating pregnancy. The police seized the birth certificate and Adhaar card of her daughter and obtained her signature on the seizure list. She identified her signature on the seizure list. When the victim was at the 10th month of pregnancy she gave birth of a still-born female child at Dharmanagar hospital. They informed the matter to the police but the police did not collect the documents and all those documents are available with her daughter. She identified Surman Ali in the trial. But she has stated in the cross-examination that she did state about talak to the Police Officer. But no such statement is found in her previous statement made to the Police Officer. Even her statement that father of the appellant offered a sum of Rs.1,000/- for termination of pregnancy was not found on scrutiny. In the village 'shalishi' the appellant denied his liability. But she denied that Surman Ali is not responsible for pregnancy.

PW-5, Smt. Juthika Rani Dhar, a Women Constable took the victim to Kadamtala hospital for her examination. After examination the Medical Officer handed her 3 glass vial containing saliva, vaginal swab and blood sample of the victim. She handed over those to the investigating officer namely Sankar Das [PW-12] and he seized those materials. He identified her signature in the seizure list. No cross-examination was carried out by the defence.

PW-6, Kishore Kumar Dhobi only took the appellant for sexual potency test to the Kadamtala PHC.

PW-7, Rantu Paul has stated that the victim was married to Selim Uddin and she stayed there for one year. When he stated that he did not give any statement regarding relationship of Surman Ali with the victim. He was declared hostile and put to cross-examination. He denied the statements as recorded under Section 161 of the Cr.P.C. to have made by him.

PW-8, Jamir Uddin has stated in the trial that he did not state to the police regarding relationship of the victim and the appellant. But he has admitted that the victim told him that the appellant made her pregnant and she was carrying two months' pregnancy. There was a panchayet meeting held over that issue but in that meeting Surman Ali @ Basal did not admit the responsibility. The guardian of the female demanded cash. At the stage PW-8 was also declared hostile. But, he identified the appellant in the dock at the instance of the defence.

PW-9, Subrata Paul was the Medical Officer on 02.09.2014 at Kadamtala PHC and he had examined the appellant. After examination following the procedure he prepared the report opining that the appellant is capable of performing sexual intercourse and he was mentally and physically fit at that point of time. No injury mark was present in his genital part. He had also examined the victim and took her history. She was not having her menstruation for last two months preceding the day of examination. She had also stated to PW-9 that she had physical relation, described as 'contact' two and half months preceding the date. The victim had also stated to PW-9 that she had multiple sexual intercourses with the appellant. Hymen of the victim was found ruptured and the breasts are pendulous which is an indication of her sexual experience. Vaginal orifice admitted two fingers. Vaginal Mucuous rugue was absent. There was no sign of violence. He collected the blood sample and advised for urine test. He also collected the sample of pubic hair and sample of vaginal swab. He advised for X-ray of the right wrist of the victim for age determination and for dental option. The opinion as regards whether she was pregnant or not, and what the actual age of the victim was. PW-9 has given the opinion that the victim had experience of regular sexual intercourse. On 02.09.2014 he submitted his report [Exbt.6]. He has admitted in the cross-examination that the paternity of the fetus can be done even without delivery.

PW-10, Biswajit Paul was the dental Surgeon on 15.09.2014 in Sub-Divisional Hospital, Dharmanagar. Women Constable, Jarina Begam produced the victim before him for age determination. After examination he found all the permanent teeth were fully erupted except third molar teeth. There was no sign of eruption of the third molar. That is an indication that the victim was below 15 years of age. So he opined that she was about 14 years of age. After attaining the age of 15, sign of eruption of the third molar, could be seen. Since he did not get any sign of eruption of third molar, it was safely opined that she was below 15 years of age i.e. 14 years old. He identified his report [Exbt.11]. In respect of the date he made some manipulation but he has stated that he did not give any explanation. He denied in the cross-examination that he manipulated the report.

PW-11, Saptam Bhattacharya carried out the sonography for ascertaining pregnancy of the victim. After sonography, he found that the pregnancy was of 8 weeks two days old. He identified his report [Exbt.12]. He has admitted that in the report there is no remark who had identified and put the patient to him.

PW-12, Sankar Das, a Sub-Inspector of police at Kadamtala police station investigated the case. He has narrated how he carried out the investigation including recording of the evidence of the witnesses and sending the victim for recording her statement under Section 164(5) of the Cr.P.C. The Chief Judicial Magistrate recorded the said statement. He has also stated that he had seized the original birth certificate and Adhaar card on preparation of the seizure list. He sent all samples to SFSL for ascertaining the blood group of the victim and to ascertain whether semen is available in the vaginal swab of the victim. He collected the report of the Medical Officers from the respective hospital and thereafter he found that the age of the victim was about 13 years. He did not carefully look at the age mentioned in the USG report and he did not wait for the report of the SFSL. He submitted the chargesheet against the appellant. But he did not seize the Kabin Nama, the contract of marriage. He has also denied his knowledge whether any child was borne or not. Later on, he filed the chargesheet under No.19/15 dated 23.02.2015. He has clearly admitted in the cross-examination that he did not collect the blood sample from the fetus for DNA matching. He has even did not examine Selim Uddin to verify the version of the victim.

It appears that PW-12 was re-examined on 22.12.2016 in terms of the order dated 06.12.2016 passed by this court in IA No.1619 of 2016 in Crl. A.(J) No.36 of 2016. He has in the re-cross-examination state that the age of the victim was in the USG report but in the requisition for her USG examination he mentioned her age as 13 years. Kabin Nama on record dated 31.08.2013 was not submitted by the victim but that was submitted by the defence before the Special Judge, North Tripura, Kailashahar on 15.09.2014 as revealed from the order that Kabin Nama was never sent to him from the court for further verification or for further investigation. He has denied the suggestion that he had suppressed the kabin nama, though in his report dated 02.09.2014 he mentioned that the victim was married woman and the name of her husband was Selim Uddin and the marriage took place about one year back prior to 02.09.2014.

Two pertinent questions emerge for consideration in this appeal viz. (i) whether the victim was below 18 years of age and whether the evidence is adequate to infer that the victim was a 'child' within the meaning of Section 2(d) of the POCSO Act and (ii) whether the victim was subjected to penetrative sexual assault resulting in the pregnancy or no pregnancy by the appellant [the accused]. PW-4 has categorically stated that the victim returned their house after 4/5 months of the occurrence, meaning that the penetrative sexual assault took place after 6/7 months of her talak. That part of the statement has not been confronted by the appellant in the trial. Even for purpose of determining paternity even no presumption can be drawn under Section 112 of the Evidence Act. On the contrary, if this statement is read with the statement of Sonologist [PW-11] who has categorically stated that when he carried out the sonography on 09.10.2014, the fetus was 8 weeks two days old. Therefore the pregnancy cannot be attributed to Selim Uddin, the former husband of the victim. It has to be noted that PW-3 [the victim] has clearly stated that she had consented to the sexual intercourse on assurance of marriage which however has been denied by the appellant. If it is found that the victim had reached the majority, then the appellant cannot be convicted under Section 4 of the POCSO Act. But if it is found that the prosecution has established that she did not reach the majority, then the element of consent becomes irrelevant and in that case the irresistible inference has to be drawn by this court that the appellant committed penetrative sexual assault. The medical examination report has clearly established that the victim had the experience of sexual intercourse but there was no sign of violence. Even the appellant was found capable of doing intercourse. For purpose of determining the age, the prosecution has placed the following evidence: (a) the ossification report [Exbt.11] where her age was found to be 14 years (b) the certificate of birth where the victim's date of birth is recorded as 16.03.2001 and the certificate was issued on 16.03.2001 much much before the occurrence took place. In the Adhaar card, year of birth has been recorded as 2001. That apart, the statement of the mother [PW-4] and elder sister [PW-2] in respect of the age of the victim is highly material. The defence has laid huge emphasis on the sonography report where her age was recorded as 18 years. PW-12 has explained the discrepancy by stating that in the requisition slip he wrote the age of the victim was 13 years but in the report her age is recorded as 18 years. Sonography is not a process of determining age and the Sonologist was also not asked on that issue. It is only probable that three as written in the requisition slip was read by the Sonologist as eight and thirteen as written in the requisition slip was read by the Sonologist as eighteen. This is an inconsequential material so far determination of the age is concerned.

Mr. Debnath, learned counsel has referred two decisions of the apex court in Ravinder Singh Gorkhi (supra) and Alamelu (supra) that even if the entry created by a public servant during his discharge of his official duty can be admitted under Section 35 of the Indian Evidence Act but their admission in the evidence cannot be treated sufficient for proof of the content. Unless the person on whose statement the content was written, the content cannot be read as the evidence. In this case, we find that the mother, who else can be the better witness than her, has deposed in the trial that on the date of deposition her daughter was running 14 years thus at the time of occurrence, the victim was 13 years and more. That statement has been supported by the victim's elder sister [PW-2]. On cumulative reading, this court does not find any difficulty to come to an inference that the victim was below the age of 18 years on the day of occurrence. It gathers further support from the ossification report. Thus the appellant rightly has been convicted for committing penetrative sexual assault under Section 4 of the POCSO Act. Whether there was any penetrative sexual assault by the appellant? There is evidence on record to prove that the victim believed the appellant, but finally when she become pregnant, she disclosed the occurrence to her parents and elder sister as stated. Now the question, whether the victim can be believed and or on the testimony of the victim, the appellant can be convicted? This court does not find any reason why the victim cannot be believed. She was a simple village girl and believed the appellant. The appellant had taken the advantage of her innocence and trust. The appellant had assured her of marriage and had the sexual intercourse knowing well that the victim was a minor.

Thus, this court does not have any hesitation to lay full confidence on the victim. In this regard, this court would like to refer a decision of the apex court in The State of Punjab vs. Gurmit Singh and Others, reported in (1996) 2 SCC 384 where the apex court has referred a previous decision in State of Maharashtra vs. Chandraprakash Kewalchand Jain reported in 1990 (1) SCC 550 where the apex court had observed as follows:

"A prosecutrix of a sex-offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be ac- cepted 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 evi- dence 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 incorporat- ed in the Evidence Act similar to illustration (b) to Sec- tion 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 corrobo- ration 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 circum- stances of each case. But if a prosecutrix is an adult and of full understanding the Court is entitled to base a con- viction 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." [Emphasis added]

The apex court in Gurmit Singh (supra) has reiterated and consolidated by observing that in a tradition-bound and non-permissive society in India the victim would extremely be reluctant even to admit that any incident which is likely to reflect upon her chastity had occurred. The apprehension of being ostracized by the society or fear of being looked down by the society cannot be ruled out completely. Further, it has been succinctly observed that the testimony of the victim in sexual assault cases is vital. The testimony of the victim in such cases of enormous value unless there are compelling reasons, which may necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The Court while appreciating the evidence of the prosecutrix, may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction. The evidence of a victim of sexual assault stands almost at par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence [not in the context of rape], which is not found to be self inflicted, is considered to be a good witness in the sense that he is least un-likely to shield the real culprit. The evidence of a victim of a sexual offence is of great importance. Corroboration by supplementary evidence is not an imperative, but requisite for judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence. It must not be over-looked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another persons's lust and it is, therefore, improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inference has to be drawn from the given set of facts and circumstances with realistic deviation, not with dead uniformity, lest that type of rigidity in the shape of rule of law is introduced to a new form of testimonial tyranny, making justice a casualty. Courts cannot cling to a fossilized formula and insist upon corroboration.

Having observed thus, this court does not find serious infirmity in the judgment of conviction and hence the same is affirmed.

In the result, this appeal stands dismissed.

The appellant shall serve out the sentence, as inflicted by the trial Judge.

Send down the LCRs forthwith.