Judgment & Order (Cav )

K. Goswami, J.

1. Heard Mr. J Kalita, learned counsel for the accused appellant. Also heard Mr. R R Kaushik, learned Additional Public Prosecutor, Assam for the State as well as Mr. A Tewari, learned Amicus Curiae for the respondent No. 2.

2. This appeal is directed against the judgment and order dated 27.03.2023 passed by the learned Special Judge (POCSO), Baksa, Mushalpur in Special POCSO Case No. 7/2021 arising out of Barama P.S. Case No. 39/2021 under Section 376(3) IPC read with Section 6 of the POCSO Act, whereby the accused appellant has been convicted to undergo rigorous imprisonment for life, which shall mean for the remainder of the natural life of the said convict and to pay a fine of Rs. 20,000/-, in default to undergo R.I. for 1 year under Section 6 of the POCSO Act.

3. The brief facts of the prosecution case are that PW-1 lodged an FIR on 05.05.2021 alleging, inter alia, that around 6-7 months back the accused/appellant forcibly committed rape on his 15 year old daughter, i.e., victim-x, in absence of other members at home, resulting in her pregnancy. It is further alleged by the prosecution that upon learning about the entire incident from the victim-x, he lodged the FIR. Accordingly, a case was registered being Barama P.S. Case No. 39/2021 under Section 376 IPC read with Section 4 of the POCSO Act.

4. Thereafter, the Investigating Officer conducted the investigation, recorded the statement of the victim as well as the statement of the other witnesses and the victim was sent for medical examination. After collection of the medical report and completion of the investigation, charge-sheet was submitted. Thereafter, the Trial Court framed charges under Section 376(3) IPC read with Section 6 of the POCSO Act and thereafter, the trial commenced.

5. During the trial, the prosecution examined 8 prosecution witnesses, including the informant/PW-1, PW-2/victim, PW-3/mother of the victim, PW- 4/neighbor of the victim, PW-5/relative of the victim, PW-6/sister of the victim, PW-7/Medical Officer as well as PW-8/Investigating Officer of the case. After closure of the prosecution witnesses, the accused appellant was examined under Section 313 CrPC, where all the incriminating evidences/circumstances were put to him, which he generally denied and stated that he has been falsely implicated in the case; however, he did not adduce any defense witnesses in support of his defense.

6. After the closure of the evidence and hearing both sides, the Trial Court pronounced the judgment on 27.03.2023 whereby the accused/appellant was convicted and sentenced thereof. Hence, the present appeal.

7. Mr. J Kalita, learned counsel appearing for the appellant, submits that the accused appellant was impotent and did not have the capacity to commit rape and it has emerged in the cross-examination of PW-1, PW-2, PW-3, PW-4 and PW-6 that the accused/appellant did not have children of his own with his wife and so, he could not have impregnated the victim by committing the alleged sexual intercourse. He further submits that the medical examination report does not indicate any evidence of sexual intercourse with the victim. He further submits that the case of the prosecution is shrouded with suspicion, as there is a delay of 6-7 months in lodging the FIR, from the time of the alleged occurrence.

8. Per contra, Mr. R R Kaushik, learned APP submits that the victim-x in her deposition before the Trial Court has clearly narrated the repeated forceful sexual intercourse committed by the accused appellant while she was alone in the house. He further submits that the victim-x has been consistently recounting the same right from her initial statements made before the Investigating Officer under Section 161 CrPC till her deposition before the Trial Court. He further submits that her testimony is wholly trustworthy, credible and unblemished and hence, the conviction based on such testimony warrant no interference.

9. Mr. A Tewari, learned counsel appearing for the respondent No. 2/informant submits that delay in lodging the FIR in the context of the present case is not fatal and the reason for the delay has been clearly explained by the prosecution witnesses. He further submits that since the medical examination has been done upon the victim-x after 6-7 months of forceful sexual intercourse, absence of injury is of no consequence. He further submits that the prosecution has clearly established that the victim was pregnant and had delivered a child. He further submits that the prosecution having clearly established the guilt of the accused appellant beyond reasonable doubt, the impugned conviction and sentence warrants no interference from this Court.

10. We have given our prudent consideration to the arguments advanced by the learned counsels appearing for the contending parties and have perused the materials available on record.

11. This being an appeal against conviction, we shall now analyze and reappreciate the evidence on record to satisfy ourselves as to whether the accused appellant is guilty of the charged offence.

12. PW-1 who is the father of the victim-x and the informant, deposed to the effect that the occurrence took place about 3-4 months ago. He further deposed that when the victim-x used to stay at the house alone when he and his wife used to go out to work, the accused appellant during their absence came to their house and committed sexual intercourse with the victim, thereby making her pregnant with child. He further deposed that the victim gave birth to a boy at their home. However, the child did not survive for more than a month. He further deposed that the victim was a minor at the relevant time. He further deposed that while the victim was not keeping well, upon consulting the Doctor they came to know about her pregnancy and upon enquiring, the victim revealed to him that the accused/appellant made her pregnant with child. He further deposed that he accordingly filed the FIR against the accused appellant. During cross-examination, he clarified that the accused appellant is a mason by profession and goes out daily in connection with his work. He further clarified that no dispute took place between the wife of the accused appellant and his family prior to lodging of the FIR and that the accused appellant does not have any children from his wife.

13. PW-2 who is the victim, deposed to the effect that she was 16 years of age at the time of deposing before the Trial Court, i.e., on 25.10.2021. She further deposed that the accused appellant is from her village and used to frequently come to their house when her parents were not at home while she was alone and used to have forceful sexual intercourse with her. She further deposed that the accused appellant threatened her not to raise any cry or alarm or to report about his sexual advances to anyone. She further deposed that the accused/appellant threatened to kill her if she reported the same to anyone. She further deposed that the accused appellant told her that in the event she became pregnant, she should tell the people that she was impregnated by someone at her uncle’s place at Mushalpur. She further deposed that the accused appellant started making sexual advances against her when she was reading in Class-V. She further deposed that due to the sexual intercourse committed upon her by the accused appellant, she became weak and her periods stopped, whereupon she was examined by the Doctor and was found to be pregnant with child. She further deposed that upon reporting the incident to the wife of the accused appellant, she slapped her and even kicked her on her belly. She further deposed that she gave birth to a premature baby boy during the 7th month of her pregnancy. However, the baby died prior to the commencement of the trial. She further deposed that her parents are daily wage earners. During cross-examination, she clarified that when she fell down at school and became unconscious, she was taken to the hospital wherein, upon examination her pregnancy came to light.

14. PW-3 is the mother of the victim, who deposed to the effect that the accused appellant is a co-villager and used to frequently visit their house while they were away and the victim was alone in the house. She further deposed that the accused appellant, on the pretext of tethering cows in the fields, came to their house and forcefully had sexual intercourse with the victim and thereby forbade her to disclose anything to anyone and even threatened her not to tell anything to anyone. She further deposed that the accused appellant continued his evil acts and ultimately made the victim pregnant. She further deposed that they did not know about the pregnancy and only when the victim was taken to hospital, her pregnancy came to light and upon enquiring, the victim revealed to them about the accused appellant committing sexual intercourse with her in their house in their absence and thereby making her pregnant. She further deposed that upon learning about the incident, she called the accused appellant to their house, and upon enquiring, the accused appellant admitted to having committed the act of sexual intercourse with the victim and asked them to abort the child and also expressed his intention of marrying the victim. However, the wife of the accused appellant did not agree to the marriage. She further deposed that the fetus could not be aborted. She further deposed that when the matter was reported to the villagers, they requested the accused appellant to marry the victim. The wife of the accused did not agree. Accordingly, the FIR was filed. She further deposed that the victim was reading at Class-VI at the relevant point of time and was about 15 years of age. In support of the victim’s age, she exhibited the victim’s birth certificate as material exhibit-1. During cross-examination, she clarified that for earning their livelihood, she and her husband PW-1 used to go out daily in search of work and that the accused appellant was a resident of their neighborhood.

15. PW-4 who is a neighbor, deposed to the effect that the victim was reading in Class-VI at the relevant time and sometime in the month of May, 2021 they came to know that the victim was pregnant. He further deposed that thereafter a meeting was held in the village, wherein it came to light that the accused appellant, during the absence of the family members of the victim, came to the house and had been forcefully having sexual intercourse with the victim, as a result of which the victim became pregnant with child. He further deposed that the accused appellant is a man of above 65 years of age and the victim a 13 year old girl. Though in the meeting the villagers decided to settle the matter by asking the accused appellant to marry the victim, the wife of the accused appellant objected to such marriage. He further deposed that the accused appellant’s wife also punched the victim in her belly. During cross-examination, he clarified that the accused appellant did not have any children from his wife.

16. PW-5 who is related to the father of the victim, deposed that he had come to know from the mother of the victim about the sexual abuse committed by the accused/appellant upon the victim.

17. PW-6 who is the sister of the victim, deposed to the effect that the occurrence of the crime came to light about 5-6 months ago, after the victim became unconscious at her school, for which she had to be taken to the hospital. However, since she was not recovering, she was taken to a hospital at Dighaldonga, wherein it came to light that she was pregnant. She further deposed that upon enquiring, it came to light that the accused appellant had been sexually assaulting the victim and had raped her, for which she became pregnant with child. During cross-examination, PW-6 clarified that the accused appellant did not have children from his wife.

18. PW-7 is the medical officer who examined the victim. He was of the opinion that there was no evidence of recent sexual intercourse and that there was no evidence of any injury marks on her body and private parts. He further opined that the pregnancy test was positive on 05.05.2021. During crossexamination, PW-7 clarified the age of victim as 13 to 16 years.

19. PW-8 is the Investigating Officer, who investigated the case and recorded the statement of the witness and thereafter submitted the charge-sheet. He further exhibited all the documents.

20. It appears that the prosecutrix in the instant case is the sole eyewitness to the sexual assault committed upon her by the accused appellant. In such cases, there is no bar for convicting the accused solely on the basis of the sole testimony of the prosecutrix without seeking corroboration in material particulars. However, the test is whether the testimony of the prosecutrix inspires confidence and is of trustworthy and sterling quality. Thus, in short, it should be natural, realistic, and consistent right from the starting point till the end. Thus, if a witness withstands the cross-examination and under no circumstance there arises any doubt as to the factum of the occurrence, the Court considering the version of such witness is in a position to accept the same at its face value without any hesitation (Refer Ganesan V. State represented by its Inspector of Police, reported in (2020) 10 SCC 573).

21. Therefore, the test is to take the testimony of the victim in the context of the facts of each case and to ascertain whether such testimony can be said to be trustworthy, reliable, credible and of sterling quality. In doing so, whether the surrounding circumstances deposed by the victim/witness are supported by other witnesses or not, and the manner in which the victim has recounted the incident right from the beginning to the end, amongst others, is to be taken into account.

22. Keeping in mind the aforesaid principles, upon scrutinizing the testimony of the prosecutrix, it appears that the prosecution has given her deposition in the Court in a realistic manner. It does not appear that the prosecutrix has been tutored or that she is making out a false allegation against the accused appellant. In fact, she clearly and consistently recounted the details of the act of sexual assault committed upon her by the accused appellant, right from the stage of informing her parents upon her pregnancy coming into light till her final deposition before the Trial Court. The victim has categorically stated in her Section 161 CrPC statement before the Investigating Officer and before the Judicial Magistrate during her examination under Section 164 CrPC that the accused appellant, by visiting her house in the absence of her parents, had repeatedly by applying force committed rape on her and had also threatened to kill her if she informed her parents. There does not appear to be anything suspicious or unusual as regards the manner in which she has narrated the alleged incident of the sexual intercourse committed repeatedly upon her while she was about 15 years of age in the absence of her parents at her house.

23. It further appears that initially out of fear she did not disclose the same to her parents, but when her pregnancy was detected, she disclosed the same to her parents. There appears to be nothing improbable or unbelievable to doubt the said allegation of sexual assault made upon her by the accused appellant. In fact, the defense has also not shaken her credibility in any manner. We cannot be unmindful of the fact that sexual offences degrade and humiliate the victim and where the victim is a helpless, innocent child or a minor; it leaves behind a traumatic experience.

24. It is in the backdrop of the aforesaid that in cases of sexual offence of a child, if the Court accepts the version of the victim at its face value, there is no requirement to search for further evidence, direct or circumstantial, that would lend assurance to her testimony, and delay in such cases, per se, is also not a mitigating circumstance for the accused. Therefore, delay in lodging the FIR cannot be used as a ritualistic formula for discarding the prosecution case and doubting its authenticity when the testimony of the victim appears to be totally reliable, trustworthy, and credible. In such cases, it only puts the Court on guard to search for and consider if any explanation has been offered for the delay. In other words, the test is once an explanation is offered for the delay in lodging the F.I.R, the court is to see whether it is satisfactory or not. Hence, if a satisfactory explanation of the delay is given by the prosecution, such delay is of no consequence.

25. Reference in this regard is made to the decision of the Apex Court in the case of State of H.P -Vs- Shree Kant Shekari , reported in (2004) 8 SCC 153. Paragraph Nos. 17, 18, 19, 20 & 21 of the aforesaid judgment are reproduced hereunder for ready reference:-

                   “17. The High Court has also disbelieved the prosecution version for the so-called delay in lodging the FIR. The prosecution has not only explained the reasons but also led cogent evidence to substantiate the stand as to why there was delay. The trial Court in fact analysed the position in great detail and had come to a right conclusion that the reasons for the delay in lodging the FIR have been clearly explained.

                   18. The unusual circumstances satisfactorily explained the delay in lodging of the first information report. In any event, delay per se is not a mitigating circumstance for the accused when accusations of rape are involved. Delay in lodging first information report cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered, the Court is to only see whether it is satisfactory or not. In case if the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment or exaggeration in the prosecution version on account of such delay, it is a relevant factor. On the other hand satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of the prosecution case. As the factual scenario shows, the victim was totally unaware of the catastrophe which had befallen her. That being so, the mere delay in lodging of the first information report does not in any way render the prosecution version brittle. These aspects were highlighted in TulshidasKanolkar v. State of Goa (2003 (8) SCC 590). 19. The High Court by hypothetical calculations has concluded that there were discrepancies and has come to the presumptuous conclusion on mere surmises and conjectures that there was unexplained delay in lodging the FIR. In view of the above, conclusions of the High Court are not to be sustained. 20. It was also pleaded by the accused before the High Court which seems to have weighed regarding absence of any corroboration to the victim's evidence.

                   21. 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 without corroboration in material particulars. She stands on a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is physical as well as psychological and emotional. However, if the court on 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 suffice.”

26. In the instant case, it appears that PW-2 has recounted the incident consistently right from the stage of informing her parents till her deposition before the Trial Court. The victim has categorically stated that she was afraid of the accused, who had threatened her, to the extent that he would kill her if she spoke about the incident to anybody. The argument of the learned counsel appearing for the accused appellant to the effect that because of the quarrel between the wife of the accused and the victim, she has falsely implicated the accused appellant is too shallow to be accepted. There is not even a remote possibility of the same being the foundation for a false implication. The accused appellant has also not taken such a defense at any given stage of the trial. The prosecution has also sufficiently explained the delay in lodging the FIR. There is no reason for the victim to falsely implicate the accused appellant, which would totally jeopardize her entire future. Most pertinently, the learned counsel appearing for the accused appellant argued before the trial Court that the victim was a consenting party to the sexual act and she allowed the accused to take advantage of her, for which she did not inform her parents about the alleged incident immediately. That apart, PW-1, PW-3, PW-4 and PW-5 and PW-6 have also supported the surrounding circumstances deposed by the victim. Thus, there is no doubt in our mind as to the alleged factum of the occurrence and we accept the same at its face value without any hesitation. We are therefore of the unhesitant view that the testimony of the victim/PW-2 is wholly trustworthy, credible, unblemished and of a sterling quality, and hence, such testimony is truthful and honest. The offence under which the accused appellant is convicted being Section 6 of the POCSO Act, 2012, apt to refer to Section 3, which defines penetrative sexual assault, and Section 5, which defines aggravated penetrative sexual assault, for which punishment is prescribed under Section 6 of the POCSO Act, 2012, which reads as hereunder:-

                   “3. Penetrative sexual assault.—A person is said to commit “penetrative sexual assault” if—

                   (a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or

                   (b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or

                   (c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or

                   (d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person.

                   5. Aggravated penetrative sexual assault.—

                   (a) ..

                   (b) ..

                   (c) ..

                   (d) ..

                   (e) ..

                   (f) ..

                   (g) ..

                   (h) ..

                   (i) ..

                   (j) ..

                   (k) ..

                   (l) whoever commits penetrative sexual assault on the child more than once or repeatedly; or

                   (m) ..

                   (n) ..

                   (o) ..

                   (p) ..

                   (q) ..

                   (r) ..

                   (s) ..

                   (t) ..

                   (u) ..

                   is said to commit aggravated penetrative sexual assault.”

27. Reading the aforesaid provision, it appears that whoever commits penetrative sexual assault on the child more than once or repeatedly, is sufficient enough, amongst others, to constitute the offence of aggravated penetrative sexual assault.

28. In the present case, the prosecution has established that the victim-x was below the age of 18 years and hence, is a child as per the definition of child under Section 2 (d) of the POCSO Act and that the accused appellant had repeatedly sexually assaulted the victim-x, which resulted in her pregnancy. Therefore, an offence of aggravated penetrative sexual assault under Section 6 of the POCSO Act, 2012, is clearly made out against the accused appellant.

29. Mr. J Kalita, learned counsel for the accused appellant though contended that the accused was impotent and therefore incapable of committing the offence alleged. However, this submission is wholly untenable and deserves outright rejection. Firstly, no such plea was taken by the accused appellant in his examination under Section 313 CrPC. The law is well settled that incriminating circumstances must be specifically explained by the accused when afforded an opportunity under Section 313 CrPC, and a defense not so taken cannot ordinarily be permitted to be raised during the stage of arguments. The omission to raise the plea of impotence at the appropriate stage is fatal to the defense sought to be projected at a later stage. Secondly, the attempt to infer impotence merely from the circumstance that the accused appellant did not have children from his wedlock is legally misconceived and factually fragile. Childlessness by itself does not establish impotence, nor does it rule out the capacity to commit sexual assault. In the absence of any medical evidence or contemporaneous plea, such a contention rests on conjecture and cannot dislodge the otherwise cogent prosecution evidence. Thirdly, the wife of the accused appellant was not examined by the defense in support of this plea. No explanation has been offered for withholding the best possible witness on this aspect. On the contrary, the materials on record indicate that the wife of the accused appellant was not agreeable to accepting the victim as the appellant’s wife and there is evidence suggesting that she had even assaulted the victim, by punching her in the abdomen. Hence, the defense of impotence is found to be an afterthought, unsupported by pleadings, evidence or law and is accordingly rejected.

30. Upon appreciation of the evidence, we are satisfied that the prosecution has proved its case beyond reasonable doubt. The testimony of the victim inspires confidence and is duly corroborated by supporting evidence. The findings recorded by the trial court on conviction do not suffer from any perversity or illegality, warranting interference by this Court.

31. Accordingly, the conviction of the appellant under Section 6 of the POCSO Act is affirmed, and the appeal to that extent is dismissed.

32. However, while affirming the conviction, we have considered the limited submission made on the question of sentence. It is not in dispute that the appellant is now about 53 years of age. There is nothing on record to show that he is a habitual offender. Without diluting the gravity of the offence or the legislative intent underlying the POCSO Act, this Court is of the view that the sentence of imprisonment for life for the remainder of the natural life of the convict calls for reconsideration. We are of the view that justice would be served if the minimum sentence is awarded to the appellant.

33. Having regard to the facts of the present case and the principle of proportionality in sentencing, we are inclined to modify the sentence, while ensuring that the punishment remains stern and commensurate with the offence proved.

34. Consequently, while maintaining the conviction, the sentence is modified as follows:

                   a) The sentence of imprisonment for life for the remainder of the natural life of the convict is set aside.

                   b) The appellant shall instead undergo rigorous imprisonment for a period of 20 (twenty) years, in terms of Section 6 of the POCSO Act.

                   c) The imposition of fine of Rs. 20,000/-, and in default, to undergo rigorous imprisonment for one year, is maintained.

35. Except for the above modification in the sentence, the judgment and order of the trial court stands confirmed.

36. The appeal is dismissed with the aforesaid modification of sentence.

37. Return the TCR.

38. This Court appreciates the service rendered by Mr. Atal Tewari, learned Amicus Curiae appearing for the respondent No. 2 and his fee is fixed at Rs. 9,000/- (Rupees Nine Thousand).