Judgment & Order (Cav):
M. Zothankhuma, J.
1. Heard Mr. A. Ahmed, learned counsel for the appellant and Ms. A. Begum, learned Addl. Public Prosecutor, for the State as well as Mr. R. J. Das, learned Amicus Curiae for the respondent No. 2.
2. The appellant has put to challenge the impugned judgment dated 30-08- 2022, passed by the learned Special Judge Kokrajhar, in Case No. Special 48/2019, by which the appellant has been convicted under Section 6 of the POCSO Act and sentenced to undergo rigorous imprisonment for 20 years with a fine of Rs.10,000/-, in default, to suffer rigorous imprisonment for a further one month, on account of having committed aggravated penetrative sexual assault on a 10 year old girl.
3. The appellant's counsel submits that the evidence of the victim given before the learned Trial Court shows that she has improved upon her case, inasmuch as, the victim in her statement made under Section 164 Cr.PC had not stated anything about bleeding in her private parts, while her testimony in Court was to the effect that there was bleeding on her private parts, due to the rape committed upon her by the appellant.
4. The learned counsel for the appellant further submits that though the undergarments of the victim girl had been sent for forensic examination, there was no forensic report regarding there being any bloodstain on the undergarments of the victim or bleeding being noticed in the medical examination. He also submits that the medical examination report of the victim showed that the victim was under 14 years of age and as the alleged rape had occurred only once on 07.07.2019, the appellant could not have been convicted under Section 6 of the POCSO Act, on the ground of having committed an offence under Section 5(m) of the POCSO Act. He also submits that the entire case of the prosecution is a fabricated case, which has been orchestrated by PW-3 (informant), as had been proved by the evidence given by the three defence witnesses. He accordingly submits that the impugned judgment should be set aside and the appellant should be acquitted of the charge framed against him. In the alternative, the appellant's counsel submits that as a case under Section 5(m) of the POCSO Act has not been made out, keeping in view the doctor's evidence that the victim was below 14 years of age and the fact that the amendment to Section 4 and 6 of the POCSO Act had occurred on 16-08- 2019, the sentence awarded to the appellant could only have been made in terms of the un-amended Section 4 of the POCSO Act, wherein a minimum sentence of 7 years could have been given, extendable to life imprisonment. He submits that when the learned Trial Court had sentenced the appellant to the minimum sentence under Section 6 of the POCSO Act, the minimum sentence in terms of the unamended Section 4 being 7 years, the appellant should have been convicted for 7 years only under the unamended Section 4 of the POCSO Act.
5. The learned APP and the learned Amicus Curiae for the respondent No.2, on the other hand, submit that there is no infirmity in the decision of the learned Trial Court in convicting the appellant under Section 6 of the POCSO Act, keeping in view the fact that the birth certificate of the victim, which has been proved by producing the original, shows that the victim was around 10 years at the time of the incident, which was on 07-07-2019. They submit that the date of birth of the victim was 10-3-2009 in terms of the birth certificate issued by the Registrar of Births and Deaths, Gossaigaon Block PHC, Kokrajhar, BTC under the Registration of Births and Deaths Act, 1969 and Rule 8/13 of the Assam Registration of Births and Deaths Rules, 1999. The counsels for the respondents submit that the medical examination of the victim had been done at around 2.30 p.m. of 08-07-2019, while the incident had occurred at around 3.35 p.m. of 07-07-2019. Due to there being no female doctors to examine the victim on the night of 07-07-2019, the victim had to stay in the police station for the night along with her family. The victim was subsequently medically examined the next day, wherein the bleeding that had apparently occurred, may have stopped during the interregnum.
6. The learned APP and the learned Amicus Curiae also submit that when the evidence of the victim regarding the aggravated penetrative sexual assault committed by the appellant upon her, has been corroborated by the evidence of the medical doctor, there was no reason for the learned Trial Court to come to a different view, other than to convict the appellant under Section 6 of the POCSO Act. They also submit that there is nothing to show that there would be bloodstains on the undergarments of the victim, inasmuch as, there is no evidence to show that the victim had re-worn her undergarments, after the illegal act committed upon her by the appellant. They also submit that just because the victim had not stated in her Section 164 Cr.PC statement that there was bleeding from her private parts, does not mean that there had been a fundamental change in the stand of the victim. They submit that the core subject matter/issue of rape has not been disturbed, only because the victim had not spoken about the bleeding from her private parts in her Section 164 Cr.PC statement. They also submit that a perusal of the evidence of the defence witnesses showed that their testimonies are all identical in nature, which appears to be tutored, raising a suspicion as to whether there actually exists a boundary dispute between the parties, when no details of the boundary dispute or the settlement made between the parties has been produced in the Court. They accordingly pray that the impugned judgment should be upheld.
7. We have heard the learned counsels for the parties.
8. The facts of the case in brief is that an FIR dated 07-07-2019 was submitted by the informant (PW-3) to the Officer in-charge of the Gossaigaon Police Station, stating that his niece, aged 10 years, had gone to the riverbank at about 3.35 p.m. on 07-07-2019, located about 200 meters west of his residence, to watch the cattle that they had tethered there. While she was watching the cattle, the appellant caught her from the back and gagged her mouth. He carried the victim to a nearby jungle and raped her. As she started crying, the appellant fled the scene. While looking for her, PW-3 found the victim crying, whereupon he brought her home and came to know about the incident from her.
9. Pursuant to the FIR, Gossaigaon P.S. Case No. 289/2019 dated 07.07.2019 under Section 4 of the POCSO Act was registered.
10. After the investigation was completed by the Investigating Officer (pw- 12), charge sheet was submitted against the appellant, as a prima facie case under Section 376 AB of the IPC read with Section 4 of the POCSO Act was found against the appellant. The learned Trial Court thereafter framed charge under Section 6 of the POCSO Act against the appellant, to which the appellant pleaded not guilty and claimed to be tried.
11. The evidence of PW-1, who is the mother of the informant and the grandmother of the victim, is to the effect that the victim was the daughter of her elder son (PW-5). About 6 months back at about 3 p.m., PW-1 asked the victim, aged 10 years, to look out for the cows grazing outside. On PW-3 coming home, PW-3 asked PW-1 as to whether the cows had returned home. PW-1 told PW-3 that the cows did not return home and that she had sent the victim to bring the cows from near the river. PW-3 went out in search of the cows and after a while, PW-1 heard the victim running towards their home crying. On inquiry, the victim told her that the appellant had grabbed her near the river and taken her to bamboo clump near the river and raped her. PW-1 also stated that the victim was in pain and she was bleeding from her private parts. PW-1 also stated that PW-3 chased the accused and when he returned home, PW-3 took the victim to Gossaigaon Police Station.
In her cross-examination, PW-1 denied the suggestion that the victim was not bleeding from her private parts or that she did not sustain any injuries on her private parts. PW-1 also denied the suggestion that there was a boundary dispute between them and the father of the appellant. She however admitted that their lands were adjacent to each other.
12. The evidence of PW-2, (victim), is to the effect that she knew the appellant and that the informant (PW-3) was her paternal uncle. PW-2 testified that she had gone to fetch the cows, as instructed by her grandmother about 6- 7 months back. While looking for the cows near the river, the appellant grabbed her and gagged her. The appellant then took her to a bamboo clump and removed her undergarments and had sexual intercourse with her. After a while, when the appellant saw the victim's paternal uncle, he ran away. Her paternal uncle then chased the appellant. Then her grandmother called her to come back home. She ran home and described the incident to her grandmother. PW-2 further stated that there was pain and bleeding from her private parts. Further, her paternal uncle had taken her to Gossaigaon Police Station and from there, she was taken to the Civil Hospital. She was also produced before the Magistrate, for recording her statement under Section 164 Cr.PC.
In her cross-examination, PW-2 denied the suggestion that she did not scream when the appellant grabbed her. She also denied the suggestion that in her Section 164 Cr.PC statement, she had not stated that her uncle had chased the appellant. She also denied the suggestion that in her Section 164 Cr.PC statement she did not say there was bleeding from her private parts. She also stated that she had stated in her statement under Section 164 Cr.PC that she felt pain while relieving herself. She also stated that there was a boundary dispute between her uncle and the father of the appellant. She also denied the suggestion that because of the land dispute, she had been tutored to give false evidence. She also denied the suggestion that the appellant did not rape her.
13. The evidence of PW-3, who is the uncle of the victim, is to the effect that he came home at around 3 p.m. in the month of July 2019 from the market. On asking his mother whether the cows had returned home, her mother (PW-1) informed him that the cows had not returned home. PW-3 immediately left for the riverfront and on reaching the same, he heard the sound of someone weeping. When he was about to approach the bamboo clump, the appellant started running away. He then saw the victim lying in the bamboo clump with her garments removed and she was crying. PW-3 then chased the appellant but could not apprehend him. When he returned to the place of occurrence, PW-3's mother had already taken the victim home. On reaching home, the victim told him that when she had gone to fetch the cows, the appellant had grabbed her and taken her to the bamboo clump where the appellant raped her. PW-3 stated that he then took the victim to the Gossaigaon Police Station and lodged the FIR. On the following day, the medical examination on the victim was done at Kokrajhar Civil Hospital. He also stated that the police seized the birth certificate of the victim, which was exhibited as material Ext.-1. He also identified the seizure list as Ext.-3. The birth certificate of the victim showed her date of birth to be 10.03.2009 and that the same had been proved by production of the original birth certificate, made in terms of the Registration of Births and Deaths Act, 1969 and the Assam Registration of Births and Deaths Rules, 1999.
14. PW-3 also was the seizure witness in respect of the seizure list, which was exhibited as Ext.4, wherein one sky colour long samise (vest) and one panty of light yellow colour was seized.
In his cross-examination, PW-3 stated that he did not see the wearing apparels in the Court. He also denied the suggestion that he did not see the victim lying in the bamboo clump with her undergarments removed. He also denied the suggestion that he had not seen the appellant near the river or that he had not chased the appellant.
15. The evidence of PW-4 is to the effect that PW-3 had informed him that the appellant had raped the victim when she had gone to fetch the cows. Further, the victim had also told him that the appellant had raped her.
16. The evidence of PW-5, who is the father of the victim, is to the effect that he knew the appellant and he was working at home on 07/07/2019. PW-5's mother came along with the victim and he saw the victim crying. On enquiry, the victim told him that when she had gone to fetch the cows, the appellant had grabbed her and raped her. PW-5 then informed his elder brother, who stays in Shillong and his elder brother told him to lodge a case. Thereafter, PW-5's younger brother (PW-3) went to the Gossaigaon P.S and lodged the case.
In his cross-examination, PW-5 denied the suggestion that there was a boundary dispute between the appellant and himself.
17. The evidence of PW-6 is to the effect that PW-3 informed him that the appellant had raped his niece. He also denied the suggestion that there was a boundary dispute between the appellant and themselves.
18. The evidence of PW-7 is to the effect that the victim was her daughter and that she knew the appellant. The informant was her brother-in-law. On receiving a phone call from PW-3, she came to Gossaigaon, wherein her daughter told her that the appellant had raped her. Further, the appellant ran away on seeing PW-3. She also stated that they had taken her daughter to Kokrajhar Civil Hospital for medical examination and that her daughter was also produced in Court, for recording her statement under Section 164 Cr.P.C.
19. The evidence of PW-8 is to the effect that the victim was her niece and that she had been informed by the victim that the appellant had raped the victim.
20. The evidence of PW-9 is to the effect that she was informed that the victim had been raped by the appellant. Similarly, PW-10 stated that he heard that the victim had been raped by the appellant.
21. The evidence of PW-11 is to the effect that he was posted as Senior Medical and Health Officer at RNB Civil Hospital, Kokrajhar on 08.07.2019 when he was asked to examine the victim. His findings were as follows:
“Finding:-
Total number of teeth-24, Auxiliary hair-nil
Public hair-nil, Breast-not developed.
Vulva and Vagina-not developed property.
Vaginal Canal-difficult to admit one finger.
Presence of injuries-Abrasion on posterior vaginal wall, Colour-red, Hymen, intact.
Final Opinion :- After clinical examination vaginal smear and ossification test, the following points are noted :-
1. The age of the girl is below 14 years.
2. Injury found on her private parts.
3. Friction by a hard and firm object but penetration is unlikely. Exhibit-5 is the Medical report and Exhibit-5(1) is my signature.”
22. The evidence of PW-12, who is the Investigating Officer, is to the effect that PW-3 lodged an FIR on 07.07.2019, stating that PW-3 had sexually abused his niece. The victim was also produced in the Gossaigaon Police Station. However, since it was night, she was kept in the station and on the following day, she was taken to the Civil Hospital for medical examination. Her statement was also recorded under Section 164 Cr.PC. He visited the place of occurrence and after recording the statement of witnesses, he submitted a charge-sheet against the appellant, on finding a prima facie case under Section 376 AB IPC read with Section 4 of the POCSO Act. He also stated that he seized the garments of the victim and sent the same for forensic examination. He also collected the FSL report which gave negative tests for human blood and semen.
23. The evidence of DW No.1, who is the VDP President of Harbhanga Village and also Panbari, the evidence of DW-2 and the evidence of DW-3 (who is the Government Gaonburah) are similar. The 3 DWs have stated that there was a boundary dispute between the appellant and PW-3. There was a village settlement between them and the boundary was demarcated by putting posts. However, 15 days prior to the date when the police came, there was a village settlement. The village settlement was not agreed to by PW-3 and he threatened to take legal action against the appellant. They later heard from the police that PW-3 had filed a rape case against the appellant.
In their cross-examination, DW-1 stated that he had not submitted any document in the Court about the village settlement.
24. What is interesting in the present case is that PW-1, PW-3, PW-4, PW-5, PW-7, PW-8, PW-9 and PW-10 have all stated that the victim had told them that the appellant had raped her. It is interesting to note that all the Prosecution Witnesses mentioned above are somehow related to the victim and they had all made it a point to ask the victim as to what happened. In normal circumstances, when a young girl, who is of tender age has been subjected to rape, it is not expected that every one of the family would individually inquire from the victim, as to what had happened, as the allegation of rape would most probably be discussed quietly amongst themselves, without the knowledge of the victim. In the present case, that is not so. Be that as it may, the fact remains that the victim has testified that she was raped by the appellant. The Doctor's medical report and evidence shows that there has been abrasion on the posterior vaginal wall. The hymen was intact and red in colour. The opinion of the Doctor was that there was injury found on her private parts and there was friction by a hard and firm object on the genital area of the victim, with penetration being unlikely. There was no medical examination done on the private parts of the appellant also.
25. Thus the question arises as to whether there was any penetration on the private parts of the victim, by the appellant’s private parts, keeping in view the above facts.
26. On considering the evidence of the victim and the fact that the appellant was seen running away by PW-3, we do not have any reason to doubt the fact that the appellant had grabbed the victim to rape her. This is also due to the fact that there is no cross-examination of the witnesses to the effect that the appellant had not grabbed the victim and taken her to the bamboo clump. Though the appellant has tried to make out a case that a false case had been made on account of a land dispute between the appellant's family and the PW- 3, there is nothing shown by the Defence Witnesses to show that there was a land dispute which had been settled by the parties. The Defence Witnesses have not produced any settlement deed to prove that there was any land dispute, which was settled between the parties. In any event if the land dispute between the parties had been settled, there was no occasion or reason for PW-3 to file a false case against the appellant. The settlement of the land dispute would have naturally required the acceptance of the alleged dispute by someone from the family of PW-1 & PW-3. However, as can be seen from the above, no specific evidence has been provided by the Defence Witnesses showing that there had been any settlement of any land dispute, thereby giving rise to an inference that there was no longer any land dispute between the parties. Even if we are to assume that there was a land dispute between the parties, the said issue is a double edged sword. On one hand it can be said that due to the land dispute, a false case had been made by the family of the victim. On the other hand, a genuine case of rape could be projected as a fabricated case on the ground of there being a land dispute between the parties. As such, it cannot be said with certainty that in all cases of rape, the existence of a land dispute would lead to a false case being filed.
27. On considering the evidence of the victim, we are hard-pressed to believe that a 10 year child would make a false case of being carried into the bamboo clump and being raped. However, the evidence of Doctor does not appear to corroborate the testimony of the victim when the Doctor says :-
“Finding:-
Total number of teeth-24, Auxiliary hair-nil
Public hair-nil, Breast-not developed.
Vulva and Vagina-not developed property.
Vaginal Canal-difficult to admit one finger.
Presence of injuries-Abrasion on posterior vaginal wall, Colour-red, Hymen, intact.
Final Opinion :- After clinical examination vaginal smear and ossification test, the following points are noted :-
1. The age of the girl is below 14 years.
2. Injury found on her private parts.
3. Friction by a hard and firm object but penetration is unlikely.”
28. In the case of State of Maharashtra vs. Chandraprakash Kewalchand Jain, reported in (1990) 1 SCC 550 the Supreme Court has held that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another man’s lust. Therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice.
29. In the case of State of U.P vs. Pappu, reported in (2005) 3 SCC 594, the Supreme Court has held that a victim of the offence of rape stands at a higher pedestal than an injured witness. However, if the Court of facts finds it difficult to accept the version of the Prosecutrix on it’s face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony.
30. In the case of State of Punjab vs. Gurmit Singh, reported in (1996) 2 SCC 384, the Supreme Court has held that minor contradictions or insignificant discrepancies in the statement of a victim should not be a ground for throwing out an otherwise reliable prosecution case.
31. In the case of Ganesan vs. State, reported in (2020) 10 SCC 573, the Supreme Court held that the statement of a Prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The Court may convict the accused on the sole testimony of the Prosecutrix.
32. In the case of Debraj Dutta versus State of West Bengal and another, reported in 2026 SCC online SC 664, the Supreme Court has held that unless the testimony of a victim child is found to be fully credible and trustworthy, the question of applying the presumption under Section 29 of the POCSO Act on the strength of such testimony would not arise.
33. In the case of State of U.P. Vs. Mushtaq Alam, reported in (2007) 11 SCC 215, the Supreme Court has held that rape causes great distress and humiliation to the victim, but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailant, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration.
34. In the case of State of Karnataka vs F. Nataraj , reported in (2015) 16 SCC 752, the Supreme Court held that though rupture of the hymen may not occur in all cases of sexual intercourse, it is the burden of the prosecution to extract from the medical examiner examining a rape victim, that the nature of the hymen was such that it could remain intact despite there being intercourse with the girl on several occasions within a period of 15 to 20 days. In our view, the above decision is not applicable to the facts of this case, inasmuch as, the rape of the victim had been subjected to rape only once. Further, it is not the requirement of Section 3 of the POCSO Act that there should have been full penetration of the private parts of the appellant into the private parts of the victim. Even the slightest degree of penetration and the attempt at penetration even onto the labia majora would amount to penetration.
35. In the present case, though the Doctor's evidence clearly shows that there was injury on the genital area of the victim and though the testimony of the victim is to the effect that she was raped, which resulted in bleeding, we are not convinced that the appellant had inserted some part of his private parts into the private parts of the victim.
36. In the case of Rahim Beg & Another vs. State of U.P, reported in (1972) 3 SCC 759, the Supreme Court held that the absence of injuries on the male organs of an accused in a case of rape of a virgin would point to the innocence of the accused. In the present case, there does not appear to be any penetration. Further, full penetration of the private parts of the appellant into the private parts of the victim who was only 10 years, which allegedly led to bleeding, which is not proved, would have resulted in some injury or tear on the genitals of the victim. Further, there is no medical report with regard to the condition of the private parts of the appellant in the present case.
37. On considering the fact that there is no proof of bleeding of the private parts of the victim and in the absence of any corroboration of the testimony of the victim by her testimony under Section 164 Cr.P.C relating to there being bleeding of the private parts of the victim, we are unable to hold that there had been penetration of the private parts of the victim by the private parts of the appellant. The act of the appellant would most probably only amount to an attempt to penetrate the private parts of the victim without there being any actual penetration. Further, we cannot speculate or guess that there could have been penetration to some extent of the private parts of the victim in the absence of any evidence to prove the same, inasmuch as, the findings based on speculation amount to a miscarriage of justice. Keeping in view the medical examination report of the Doctor, wherein it has been stated that there was injury found on the victim’s private parts and there was friction by a hard and firm object where penetration was unlikely to have occurred, we find that the present case is a case of aggravated sexual assault on the 10 year old victim, without any penetration into her private parts. Accordingly, we are of the view that the Prosecution has been able to prove a case of aggravated penetrative sexual assault in terms of Section 9(m) of the POCSO Act punishable under Section 10 of the POCSO Act. The Prosecution has not been able to prove that the appellant had committed penetrative sexual assault on the victim.
38. The next question that remains to be decided is whether the appellant could have been convicted under the amended Section 6 of the POCSO Act or whether he should have been convicted under the unamended Section 4 of the POCSO Act.
39. The unamended Section 4 of the POCSO Act provides that punishment for committing penetrative sexual assault shall be imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life, and shall also be liable to fine. The amendment to Section 4 had been made w.e.f. 16.08.2019, wherein Section 4(2) was added. The minimum punishment under the amended Section 4(1) is for 10 years and under Section 4(2) it is 20 years. Similarly in terms of the un-amended Section 6 of the POCSO Act prior to 16.08.2019, punishment for aggravated penetrative sexual assault provides for a minimum of 10 years rigorous imprisonment which could extend to imprisonment for life and also be liable to fine.
40. As the incident of rape had occurred on 07.07.2019, the appellant could not have been sentenced on the basis of the amended Section 6 of the POCSO Act.
41. In the present case, we find that the age of the victim has been proved to be 10 years, as on the date of the incident, on the basis of the Birth Certificate issued under the Registration of Births and Deaths Act, 1969 which is a valid document for proving the age of a person in terms of the judgment of the Division Bench of this Court in the case of Saiful Islam vs. State of Assam and Another (Criminal Appeal No.126/2023). However, as the sentence provided for the offence under Section 5(m) of the POCSO Act provides for a minimum sentence of 10 years, the learned Trial Court had wrongly sentenced the appellant for the minimum sentence of 20 years. This is clear from paragraph 68 of the impugned judgment, where the learned Trial Court has held that as the offence under Section 6 of the POCSO Act prescribed the minimum sentence of 20 years, the appellant has been sentenced to rigorous imprisonment for 20 years.
42. However, as we find that a case of penetrative sexual assault has not been made, there is no question of the appellant being sentenced under the unamended Section 6 of the POCSO Act. As we find that the Prosecution has only been able to prove the offence of sexual assault on a 10 year old girl, under Section 9(m), we are of the view that justice would be served if the appellant is sentenced to undergo 5 years rigorous imprisonment with a fine of Rs.20,000/, in default to suffer simple imprisonment for another 3 (three) months under Section 10 of the POCSO Act.
43. In view of the reasons stated above, the conviction of the appellant under Section 6 of the POCSO Act is interfered with by this Court and set aside. The appellant is convicted under Section 10 of the POCSO Act and sentenced accordingly. The charge under Section 6 of the POCSO Act is accordingly altered to Section 10 of the POCSO Act. Consequently, the sentence imposed by the learned Trial Court to be undergone by the appellant is hereby modified, to the extent indicated above.
44. The appeal is accordingly disposed of.
45. Send back the TCR.
46. In appreciation of the assistance provided by learned Amicus Curiae, his fees should be paid by the Gauhati High Court Legal Service Committee.
