Judgment & Order (Oral):

M. Zothankhuma, J.

1. Heard Mr. A. Sandilya, Learned Amicus Curiae, appearing for the appellant. Also heard Ms. A. Begum, Learned Addl. P.P. Assam, appearing for the State/respondent No.1 and Dr. P. Agarwal, Learned Legal Aid Counsel, appearing for the respondent No. 2 (informant).

2. This appeal has been filed by the appellant against his conviction under Section 376AB IPC and Section 6 of the POCSO Act, by the learned Sessions Judge, Dibrugarh, in POCSO Case No. 36/2020, arising out of Khowang P.S. Case No.76/2020, vide the impugned Judgment dated 11.02.2022. The appellant was subsequently sentenced to undergo rigorous imprisonment for 20 years with a fine of Rs.3000/-, in default, to undergo simple imprisonment for 1 month, under Section 6 of the POCSO Act, in view of Section 42 of the POCSO Act.

3. The appellant's counsel submits that there is a delay in filing the FIR. He also submits that though the victim has stated in her testimony before the Court and under Section 161 Cr.P.C., that she had been raped by her uncle (mother's brother) in the house of her uncle, the victim in her Section 164 Cr.P.C. statement has stated that she had been raped in her own house. This discrepancy in the place of occurrence puts a question mark on the reliability of the victim as a witness. He however, submits that the victim's Section 164 Cr.P.C. statement had not been exhibited during trial, nor was the evidence of the person who recorded the said statement under Section 164 Cr.P.C. recorded before the learned Trial Court. He accordingly submits that when conviction has been made on the basis of the sole statement of the victim, the victim's statement has to be truthful and should inspire the confidence of the Court. However, in the present case, the discrepancy in the place of occurrence of the alleged incident not being ascertained by the victim, the entire evidence of the victim girl could not have been the sole basis for convicting the appellant under Section 376AB IPC and Section 6 of the POCSO Act.

4. Ms. A. Begum, learned Addl. P.P. submits that though there is some discrepancy in the testimony of the victim when compared with the statement given by her under Section 164 Cr.P.C. regarding the place of occurrence, the fact that the victim had been subjected to aggravated penetrative sexual assault by the appellant was not in doubt, as the testimony of the victim had been corroborated by the medical evidence. She also submits that the evidence of the victim showed that the Tea Garden Manager had beaten up the appellant, which the appellant did not deny in his examination under Section 313 Cr.P.C. The learned Addl. P.P. further submits that the discrepancy in the testimony of the victim and her statement under Section 164 Cr.P.C. could have been clarified, if the appellant had cross-examined the victim further during recording of the victim's evidence. However, the same was not done. She submits that the evidence recorded by the learned Trial Court with regard to the aggravated penetrative sexual assault was only with regard to one incident, while the victim (PW-3) had clearly stated in her examination-in-chief that the appellant had done the same thing upon her ‘on three days.’ He submits that the victim’s statement under section 164 Cr.P.C. had not been exhibited during trial and neither was the Judge who recorded the same examined. As such, the victim’s statement made under section 164 Cr.P.C. should be ignored.

5. The learned Addl. P.P. further submits that the fact that the appellant was bleeding from her private parts even after the incident, has corroborated the evidence of the victim that she had been raped by the appellant. This fact of the victim bleeding from the private parts has also been corroborated by the evidence of PW-2, who is the Aunt of the victim. She accordingly submits that no ground has been made out by the appellant for interfering with the impugned judgment passed by the learned Trial Court.

6. Dr. P. Agarwal, Learned Legal Aid Counsel for the respondent No. 2 (informant) submits that the foundational facts of the appellant having committed aggravated penetrative sexual assault on the victim having been proved by the prosecution, the reverse burden of proof as per Section 29 of the POCSO Act was required to be discharged by the appellant. However, the same has not been done. She further reiterates the submission made by the learned Addl. P.P. and prays that the appeal should be dismissed.

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

8. The prosecution case is to the effect that an FIR dated 13.07.2020 had been submitted by the informant (PW-1), to the effect that the appellant, who was a resident of Halmari Tea Estate, had raped his 7 year old niece when she visited the appellant's house. The victim had informed them about the incident on 12.07.2020, whereupon, he lodged the present FIR on 13.07.2020. Consequent to the FIR, Khowang P.S. Case No. 76/2020 under Section 376AB IPC read with Section 4 of the POCSO Act was registered. After investigation was completed, the Investigating Officer filed a charge-sheet, having prima facie established a case under Section 376AB IPC read with Section 6 of the POCSO Act against the appellant.

9. The learned Trial Court thereafter framed charge under Section 376AB IPC and Section 6 of the POCSO Act against the appellant, to which he pleaded not guilty and claimed to be tried. The learned Trial Court thereafter examined 6 prosecution witnesses.

10. PW-1, who is the informant, stated in his evidence that his wife had told him that the appellant had raped the victim and on enquiring the same from the victim, the victim told him that the appellant had climbed upon her in the house of the appellant. Thereafter, the victim was taken to the Tea Garden Hospital by PW-1 and his wife, inasmuch as, the mother of the victim girl had eloped with another person much prior to the incident. The Nurse at the Tea Garden Hospital stated that the victim had been raped. PW-1 then stated that the Tea Garden Manager had sent the appellant to the police station.

11. The evidence of PW-2 is to the effect that she was the elder sister of the victim's mother and that during the relevant time, the victim had been in the house of the appellant, wherein she stayed for about four days. After returning, blood had come out from the victim while she was urinating. As such, the victim was taken to the Tea Garden Hospital. The Doctor then told her that it was a rape case. On enquiring about the same with the victim, the victim told her that the appellant had raped her. The Doctor of the Tea Garden Hospital then sent them to Khowang Hospital and from there to Dibrugarh Hospital. Thereafter, she was brought to the Court and the police recorded her statement.

12. PW-3, who is the victim, was first asked preliminary questions by the learned Trial Judge, who thereafter found that the victim was competent to give evidence. The victim, who was 8 to 9 years at the time of adducing evidence, stated that she had gone to his mother’s brother’s house, by working there. She also stated that her mother had eloped and she stayed with her father and her two brothers. PW-3 stated that she stayed in her uncle’s house for 4 days, where her grandfather also resided. Her uncle came home drunk and pulled her onto the bed. He then took off her clothes including her half pant. He put a handkerchief in her mouth. Her uncle then pulled off all his clothes and put his private parts into her private parts. She stated that she felt pain and blood came out. She could not shout as a cloth was stuffed into her mouth. Thereafter, her uncle went away to another room to sleep and she slept alone that night. In the morning, when she went for urinal, she saw blood coming out. She informed the incident to her father’s elder brother’s wife, who took her to the hospital, where a lady doctor examined her. Thereafter, the garden manager caught hold of the appellant and beat him up. The doctor gave her some medicines to apply to her private parts, whereupon the bleeding stopped. She was then taken to the Police Station and then again to a medical hospital. PW-3 stated that she narrated the incident in the Police Station and then she was taken to the Court. PW-3 also stated that her uncle had raped her for 3 days. When she was asked as to why she remained there after what had been done by the appellant, PW-3 stated that she had gone to see the Durga Puja and thus remained there.

13. The evidence of PW-4, who is the father of the victim, is to the effect that the victim was 7 years old. PW-4 stated that his wife had eloped with another person and that he was staying with his daughter and 2 minor sons. Further, his father, brother and sister-in-law with 3 children, also stayed in the same house. He stated that he was informed by his brother that his brother-in-law had raped his daughter and had asked him to come to his house. However, due to the lockdown, PW-4, who was working in Arunachal Pradesh, could not go home.

14. The evidence of PW-5 (medical doctor), is to the effect that his findings were suggestive of recent attempted forceful penetration and that there was evidence of recent injuries detected on the private parts of the victim, as described in Column No. 20 (b)(c) of the Medical Examination Report conducted on the victim, which was in respect of Vulva and Hymen, wherein it has been stated as follows:-

                   “(b) Vulva

                   Introituses is red, oedematous, tenderness and active bleeding present.”

                   (c) Hymen

15. The evidence of PW-5 regarding his findings, on examining the victim girl, are reproduced herein below as follows:-

                   "On examination, I found the following-

                   On genital examination: Genital organs were developed.

                   Vulva and Hymen: Introituses was red, oedematous, tenderness and active bleeding present.

                   Vagina and cervix could not be examined.

                   Uterus not palpable per abdomen.

                   Evidence of veneral diseases was not detected clinically.

                   Evidence of injury on her body not detected but injury on private part detected.

                   Vaginal smears were taken from clitoris and hymenal margin.

                   Evidence of struggles not detected.

                   Evidence of stains of blood detected on the wearing under garment (panty) of the alleged victim girl collected and properly packed, sealed and handed over to escorting police for further necessary investigation.

                   Smti Laxmi Ghatowar was referred to Department of Gynecology, AMCH, Dibrugarh for treatment.

                   Radiological finding:

                   1. X-ray elbow joint (AP view)- Epiphysis not fused.

                   2. X-ray wrist joint (AP view)- Epiphysis not fused.

                   3. X-ray of shoulder joint (AP view)- Epiphysis not fused.

                   Laboratory investigation: Microscopic examination of vaginal smears did not show the presence of spermatozoa or gonococcus.

                   OPINION:-

                   1. Genital findings are suggestive of recent attempted forceful penetration.

                   2. Her age is above 9 (nine) years and below 10(ten) years.

                   3. There is evidence of recent injuries detected on her private parts as described in column no. 20 (b), (c).

                   Ext. 1 is the Medico-legal Report wherein Ext. (2) and Ext. (3) are my signatures."

16. The evidence of PW-6, who is the Investigating Officer, is to the effect that he recorded the statement of the informant, victim and witnesses. He also had the medical examination of the victim done and that he found a prima facie case under Section 376(AB) of the IPC read with Section 4 of the POCSO Act against the appellant.

17. On considering the fact that the testimony of the victim girl, which we find to be truthful, has been corroborated by the medical evidence, there is no reason for us to doubt the fact that the appellant had committed aggravated penetrative sexual assault on the victim, only because there was some discrepancy regarding the place of the occurrence of the incident in the victim’s testimony, vis-à-vis her statement under Section 164 Cr.PC. In her testimony before the learned Trial Court, the victim stated that she was raped in the appellant’s house, while in her Section 164 Cr.PC statement, she had said that she had been raped in her house. The statement under Section 164 Cr.PC was not exhibited by the Prosecution and neither was the Judge who recorded the same, made a Prosecution Witness. The victim could have been cross-examined by the appellant during trial regarding the place of occurrence. However, the same was not done by the appellant. In any event, the victim’s statement under Section 164 Cr.P.C. was not exhibited in the Trial Court and neither was the Magistrate who recorded the said statement examined as a witness. As such, there is no ground to make any findings with regard to the victim’s statement under Section 164 Cr.P.C. In any event, we do not find any ground to accept the submission of the learned counsel for the appellant that no incident of rape had been committed on the victim. Even if there was some discrepancy in the evidence of the victim, regarding the place of occurrence of the crime, we are convinced with the truthfulness of the victim’s testimony that the appellant had raped the victim. Further, the fact that blood was oozing from her private parts has also been corroborated by PW-2 and PW-5. There is nothing in the evidence of the witness to suggest that there was any enmity between the victim's family and the appellant, for the victim girl to have made a false accusation of rape against the appellant. It is also not the case of the appellant that the victim had been tutored to make a false case of rape against the appellant.

18. On considering the testimony of the victim, which has been corroborated by the medical evidence, we do not find any infirmity with the decision of the learned Trial Court. Further, the evidence of the victim inspires our confidence.

19. With regard to the stand of the appellant's counsel that there was delay in filing the FIR, which cast a doubt on the authenticity of the allegation of rape made by the victim, it would be profitable to refer to the decision of the Supreme Court in the case of State of Himachal Pradesh vs. Shree Kant Shekari, reported in (2004) 8 SCC 153, wherein it has been held that delay in lodging an FIR in a rape case cannot be used as a ritualistic formula for discarding the prosecution case or doubting its authenticity, when the testimony of the victim appears to be totally reliable, trustworthy and credible.

20. The above being said, the evidence shows that the victim had stayed with the appellant for 4 days and the incident had been informed to others on 12.07.2020 only. The FIR was lodged on the next day thereafter i.e., 13.07.2020. On considering the above facts, we do not find any reason to hold that the delay in filing the FIR, which has been explained, can be a ground to doubt the authenticity of the charges foisted upon the appellant.

21. One other interesting fact is that the evidence of PW-3 (victim) is to the effect that she had stated that the garden manager had assaulted the appellant. This is borne out by the answer given by the appellant to the question put to the appellant under Section 313 Cr.PC, where he has admitted the fact that the garden manager had beaten him up.

22. On considering the evidence of the victim, which we find to be truthful and which has been corroborated by the evidence of PW-2 and PW-5, we do not find any reason to interfere with the impugned judgment and order.

23. The appeal is accordingly dismissed.

24. Send back the TCR.

25. In appreciation of the assistance provided by the learned Amicus Curiae and the Legal Aid Counsel, their fees should be paid by the High Court Legal Services Committee.