Judgment & Order (Oral):

M. Zothankhuma, J.

1. Heard Mr. A. Ahmed, learned Amicus Curiae for the appellant and Ms. B. Bhuyan, learned Addl. PP for the State. Also heard Ms. K. Phukan, learned Legal Aid Counsel for the respondent No. 2 (informant), who is also the elder sister of the appellant.

2. This appeal is against the conviction of the appellant under Section 6 of the POCSO Act, 2012 and Section 376(c) of the IPC by the Court of the Addl. Sessions Judge -cum- Special Judge, POCSO, Dibrugarh, in POCSO Case No. 17/2023, vide order dated 04.02.2023.

3. In view of Section 42 of the POCSO Act, 2012, the appellant has been sentenced to undergo 20 years rigorous imprisonment with a fine of Rs.5,000/-, in default, simple imprisonment for one month under Section 6 of the POCSO Act, 2012.

4. The appeal has been filed by the appellant (stepfather of the victim girl), who was found to be 14 years at the time she was raped by her step-father.

5. The counsel for the appellant submits that the challenge made to the conviction of the appellant by the learned Trial Court, is on the ground that the age of the victim was beyond 18 years at the time of the alleged crime. As such, the POCSO Act, 2012 is not attracted to this case. He submits that the learned Trial Court has not proved the age of the victim at the time of the alleged rape of the victim. He also submits that there is no DNA profiling/test report, proving that the child born from the victim was fathered by the appellant. Further, the victim being partially blind, she could not have identified the appellant as the perpetrator of the crime. He also submits that no effective Legal Aid had been provided to the appellant during trial proceedings, inasmuch as, necessary questions that were required to be put to the Prosecution Witnesses during trial, had not been put to the Prosecution Witnesses during cross-examination by the counsel for the appellant.

6. Ms. B. Bhuyan, learned Addl. PP submits that no challenge had been made by the appellant with regard to the age of the victim at any time during the trial proceedings. She also submits that though DNA test report had not been produced by the Prosecution during the trial, the evidence adduced by the victim and the Doctor proved that the appellant had committed penetrative sexual assault on the victim, which attracted Section 4(2) of the POCSO Act, 2012. She also submits that the evidence adduced by the victim showed that the victim had identified the appellant as the one who had raped her. The learned Addl. PP also submits that effective Legal Aid had been provided to the appellant during trial. The learned Addl. PP thus prays that the impugned judgment should be upheld.

7. We have heard the learned counsels for the parties.

8. The prosecution story is that the informant (PW-3), who is the elder sister of the appellant, submitted an FIR dated 19.06.2019 to the Officer-in- Charge of the Chabua Police Station, stating that the appellant had married a woman, who had a 14-year-old daughter (victim). The appellant established physical relationship with the victim, as a result of which she got pregnant. The residents of Dowania Pother of South Balijan Tea Estate having come to know about the incident, the appellant, his wife and the victim ran away from their residence. The appellant and his wife left the victim in the house of the appellant's uncle, i.e., the appellant's auntie's husband. On 19.06.2019 at 6 am, the appellant's uncle and grandmother left the victim at the informant's house, as he did not want to take the responsibility of looking after the victim. The informant in her FIR prayed to the Officer-in-Charge of the Chabua P.S., to take necessary action after investigating the matter.

9. Consequent to the FIR, Chabua P.S. Case No. 158/2019 under Section 376 IPC read with Section 4 of the POCSO Act was registered.

10. After completion of the investigation, the Investigating Officer (PW-9) submitted the Charge-Sheet against the appellant, having found a prima facie case against him under Section 376 IPC read with Section 4 of the POCSO Act. The learned Trial Court thereafter framed charges under Section 376 (C) of the IPC, read with Section 6 of the POCSO Act, 2012, to which the appellant pleaded not guilty and claimed to be tried.

11. The learned Trial Court thereafter examined nine Prosecution Witnesses and after examining the appellant under Section 313 CrPC, wherein the appellant denied having done any wrong against the victim, the learned Trial Court came to a finding that the offence punishable under Section 376 (C) of the IPC and Section 6 of the POCSO Act, stood established against the appellant. The appellant was accordingly convicted under Section 376 IPC and Section 6 of the POCSO Act, 2012. The appellant was however sentenced to undergo R.I. for 20 years with a fine of Rs.5000/-, in default, S.I. for 1 month under Section 6 of the POCSO Act 2012, in view of Section 42 of the POCSO Act, 2012.

12. PW-1, in her evidence, stated that the victim was the step-daughter of the appellant. She learnt from her neighbours that the appellant had raped the victim, due to which the victim became pregnant.

13. The evidence of PW-2 (victim), is to the effect that the informant was her maternal aunt and that the appellant was her step-father. PW-2 also identified the appellant in the Court during the time she gave her evidence. PW-2 stated that the accused raped her 5 or 6 times and made her pregnant. PW-2 also testified that the appellant threatened to kill her if she revealed the matter to the victim's mother. PW-2 also stated that it was found that she was pregnant when she had gone for a check-up. She also stated that the appellant's elder sister lodged the FIR, when she came to know about the rape. When the neighbours came to know about the incident, they kicked them out from the village and since then, PW-2 had been living with her maternal grandmother. PW-2 further stated that she gave birth to a female child. However, she refused to keep her, as she was blind. Thereafter, the child was taken to Prerona Children Home. PW-2 further stated during the time of giving her evidence, she was 17 years of age.

14. In her cross-examination, PW-2 stated that she could not see anything from her right eye, but from her left eye she could see a little bit, though blurred. She denied the suggestion that it was not the appellant who had raped her or that she could not identify him. She said that she could see partially in a blurred manner. She also denied the suggestion that the appellant had not raped her. She also stated that no paperwork was done when the child was taken from her nor knew where the female child was presently located.

15. The evidence of PW-3 is to the effect that the victim was the stepdaughter of the appellant. PW-3 further stated that the appellant was her younger brother. The incident had occurred more than two years ago. One day when the victim came to her house, the neighbours told her that the victim was pregnant. On asking the victim, the victim told PW-3 that she was pregnant and that the appellant had impregnated her. PW-3 stated that she reported the matter to the police in writing by submitting an FIR. PW-3 further stated that at the time of the incident, the victim was around 14 years of age. PW-3 further stated that the victim gave birth to a male child. She further stated in her cross-examination that the victim was presently staying with her maternal grandmother. PW-3 also stated that the victim could only see a little bit and that she could walk by herself. She also stated that she did not see the child of the victim.

16. The evidence of PW-4 is to the effect that he had learnt from the VDP members of his village that the victim had become pregnant by having an illicit relationship with the appellant, who was the stepfather of the victim. He also learnt that the victim gave birth to a child and the victim had very low vision. However, she could work.

17. The evidence of PW- 5 to 7 is hearsay evidence, as their statements are based on what they heard from others.

18. The evidence of PW-8, who is a doctor, is to the effect that he examined the victim and as per the statement made by the victim to her, her stepfather had sexual intercourse with her around 11 times by force. He threatened her not to tell anyone or else he would beat her and kill her. When she became pregnant, her parents left the victim at her grandparents' house in Tengakhat. She also stated that the victim was blind in one eye. PW-8 examined the genitals of the victim and found that there was an old tear in her hymen at 7 o'clock position. On the basis of the physical examination, radiological and laboratory investigation done on the victim, the opinion of PW-8 was that the victim was above 14 years of age and below 16 years. She was pregnant with a single viable fetus in utero, corresponding to gestational age of 25 weeks and 2 days.

19. The evidence of PW-9, who is the Investigating Officer, is to the effect that the informant had submitted an FIR and that he was assigned to investigate the case. On completion of the investigation, he submitted the Charge Sheet under Section 376 IPC read with Section 4 of the POCSO Act against the appellant.

20. The appellant denied all the evidence that had been adduced against him, while being examined under section 313 CrPC.

21. The learned Trial Court, while considering the evidence of the prosecution witnesses held that though there was discrepancy in the number of times the appellant had raped the victim, inasmuch as, the victim had stated in her testimony that she was raped 5 or 6 times, while in her statement made under Section 164 Cr.P.C she stated that she had been raped around 10 times and PW- 8 had stated that the victim had told her that she had been raped 11 times, this discrepancy in the number of times sexual intercourse had occurred did not make the evidence of the victim unbelievable. Further, as the foundational facts had been established by the prosecution, the appellant failed to prove his innocence after the presumption of guilt was drawn against him in terms of Section 29 of the POCSO Act.

22. On considering the testimony of the victim which has been corroborated by her statement made under Section 164 Cr.P.C., we do not find any reason to doubt the veracity of the charge of aggravated penetrative sexual assault committed upon the victim by the appellant. With regard to the age of the victim, the sister of the appellant has categorically stated that the victim was around 14 years old at the time of the incident. The victim has also stated that at the time she gave her evidence, i.e, on 14.06.2022, she was 17 years old. As the incident had occurred 3 years back, inasmuch as, the FIR had been submitted on 19.06.2019, the victim would have been 14 years of age. The FIR also records the age of the victim as 14 years. Further, the evidence of PW-8 shows that a radiological investigation by way of Skiagram No.6037 dated 22.06.2019 had been affected on the victim, which showed her age to be above 14 years and below 16 years. There is no challenge to the age of the victim by the appellant during trial.

23. In the case of Narender Kumar Vs. State (NCT of Delhi), reported in (2012) 7 SCC 171, the Hon’ble Supreme Court has held that once the statement of the prosecutrix inspires confidence and is accepted by the Court, conviction can be based on the solitary evidence of the prosecutrix and no corroboration would be required, unless there are compelling reasons which necessitate the corroboration of her statement. It also held that minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case.

24. It is also settled law that the testimony of a victim of sexual assault has the evidentiary value, equivalent to the evidence of an injured witness. As such, unless highly compelling circumstances are established by an accused, which casts a reasonable doubt over the statement of the victim, the statement of an injured witness can be safely relied upon by the Court to convict an accused person. In the present case, there is nothing to show that the victim had been tutored or had a reason to fabricate a false case against the appellant.

25. It is settled law that statements made under Section 164 Cr.P.C. can be used for both corroboration and contradiction, as held by the Hon’ble Supreme Court in the case of R. Shaji Vs. State of Kerala, reported in (2013) 14 SCC 266.

26. In the present case, not only do we find the evidence of the victim to be truthful, inspiring the confidence of this Court, we find that the victim’s evidence has been corroborated by her statement made under Section 164 Cr.P.C. and the testimony of the Doctor (PW-8). On considering the evidence of the victim and PW-8, we are of the view that the victim had the capacity to identify the appellant, as she was not blind in both eyes. As such, it cannot be said that the victim could not identify the appellant as the perpetrator of the crime.

27. The examination of the appellant under Section 313 Cr.P.C. shows that the appellant has basically given a blanket denial to the questions put to him in relation to the evidence that had been adduced against him during trial.

28. In the case of Rajkumar Vs. State of M.P., reported in (2014) 5 SCC 353, the Hon’ble Supreme Court has held that in the event of complete denial and non-explanation of incriminating materials, Courts would be entitled to draw an inference, including an adverse inference against the accused, as may be permissible in accordance with law. With regard to the submission made by the counsel for the appellant that no effective legal aid had been provided to the appellant during the trial proceedings, we find that legal aid counsel had been provided to the appellant from the time of consideration of charge. Further, on perusing the cross-examination of the prosecution witnesses, we find that the legal aid counsel has asked questions as expected of a counsel. Just because the appellant's counsel has a different view as to what should have been asked in the criminal trial by the legal aid counsel of the accused, does not mean that the legal aid counsel of the accused appellant in the Trial Court was not an effective counsel. As such, we do not accept the submission of the learned counsel for the appellant that no effective legal aid counsel had been provided to the appellant during trial.

29. In the present case, we find the evidence of the victim to be cogent and truthful and the complete silence on the part of the appellant, with regard to the incriminating evidence made against him, does not create any doubt in our minds that the prosecution has been able to prove beyond all reasonable doubt, that an offence punishable under Section 376(C) IPC and Section 6 of the POCSO Act has been made.

30. In view of all the reasons stated above, we do not find any ground to interfere with the impugned judgment passed by the learned Trial Court. The appeal is accordingly dismissed.

31. Send back the TCR.

32. In appreciation of the assistance provided by the learned Amicus Curiae for the appellant and the learned Legal Aid Counsel for the respondent No.2, their fees should be paid by the Gauhati High Court Legal Services Committee.