Judgment & Order (Cav)

Kaushik Goswami, J.

1] Heard Mr. N. K. Kalita, learned amicus curiae appearing for the appellant. Also heard Mr. R. R. Kaushik, learned Additional Public Prosecutor appearing for the respondent No.1 and Ms. M. Barman, learned Amicus Curiae appearing for the respondent No. 2.

2] The present appeal is directed against the judgment & order dated 29.03.2022 passed by the learned Special Judge (POCSO), Barpeta (hereinafter referred to as the “trial court”), in Special POCSO Case No. 152/2021, whereby the accused/appellant was convicted for the offence punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the “POCSO Act”), and sentenced to undergo rigorous imprisonment for 20 (twenty) years with a fine of Rs. 10,000/-, and in default of payment of the fine, to suffer rigorous imprisonment for two years.

3] The brief facts of the case are that the wife of the accused, i.e., Niru Banikya (informant/PW-1), lodged an F.I.R. on 26.06.2021 before the Barpeta Sadar P.S., alleging, inter-alia, that though her eldest daughter/victim/PW-2, aged 15 years, had been brought up in her maternal house and was continuing her studies by living there, about four months back, upon her husband, i.e., the accused/appellant, forcing her, she brought the victim back to their house and was living with them in their rented house. It is further alleged that about 3 ½ months ago, when she had gone to work in another person’s house, the accused/appellant, by taking advantage of her absence, committed rape upon the victim. It is further alleged that later when the victim told her about the said incident, she threatened her husband not to do such an act again; however, the accused/appellant assaulted both her and the victim with firewood and confined them in the house and had also often established a physical relationship with the victim. Upon her asking the victim, she disclosed the entire incident to their neighbor, who thereafter informed the police.

4] Accordingly, the police arrived and investigated the matter by registering the case as Barpeta P.S. Case No. 1472/2021, under Section 376 of the Indian Penal Code, 1860, (hereinafter referred to as the “IPC”) read with Section 6 of the POCSO Act. Thereafter, upon completion of the investigation, charge sheet was submitted before the trial court under Section 376 of the IPC, read with Section 6 of the POCSO Act. Upon the accused pleading not guilty, the trial court framed charge under Section 6 of the POCSO Act against the accused/appellant and commenced the trial.

5] During the trial the prosecution examined 7 witnesses including the informant (PW-1), victim (PW-2), Dr. Mrs Renuka Rongpharpi (PW-3), neighbours, i.e., Anushree Das (PW-4), Puja Pathak (PW-5), Hemen Das (PW-6) and the Investigating Officer (PW-7).

6] After completion of recording of evidence, all the incriminating circumstances were put to the accused/appellant during his recording of statement under Section 313 of the Code of Criminal Procedure (hereinafter referred to as the “Cr.P.C.”), wherein though he admitted that the victim is aged 15 years, he generally denied all the other incriminating circumstances having arisen against him during the trial. He further did not adduce any evidence.

7] The trial court, after hearing the learned counsels for both the parties, rendered its judgment & order, which is under appeal before this court, whereunder the accused/appellant was held guilty of the offence charged, and accordingly convicted and sentenced thereof. Situated thus, the present criminal appeal has been preferred.

8] Mr. N. K. Kalita, learned amicus curiae appearing for the appellant has assailed the impugned judgment contending inter alia: (i) that the ocular version of the victim is inconsistent, suffers from embellishments, and does not inspire confidence; (ii) that the 164 Cr.P.C. and 161 Cr.P.C. statements do not comport with her deposition, thus rendering her testimony inherently unreliable; (iii) that the medical evidence does not reveal external injuries, which, according to the appellant, negates the prosecution case of repeated forcible sexual assault; (iv) that prosecution witnesses are interested and tutored, and no independent witness has proved the alleged occurrence beyond reasonable doubt. It is thus contended that the conviction is unsustainable.

9] Per contra, Mr. R. R. Kaushik, learned Additional Public Prosecutor has vehemently opposed the appeal and contended: (i) that the victim has remained unwavering in the core substratum of her accusations ever since the lodgment of the FIR; (ii) that her 164 Cr.P.C. statement, recorded before a Judicial Magistrate, contains a clear, categorical, and spontaneous narration of events, including the threats, repeated assault, and subsequent disclosure; (iii) that PW-4, PW-5, and PW-6, being neighbours, have corroborated the circumstances immediately following the disclosure; (iv) that medical evidence of hymenal tear lends assurance to the prosecution case; (v) that minor omissions or contradictions do not erode the credibility of a child witness in sexual offence prosecutions, especially in view of the settled law.

10] Likewise, Ms. M. Barman, learned Amicus Curiae appearing for the respondent No. 2, by supporting the submissions made by the learned Additional Public Prosecutor, contended that the testimony of the victim being totally trustworthy, no further corroboration is required for sustaining the conviction under appeal.

11] We have given our prudent consideration to the arguments advanced by the learned counsels appearing for all the parties and have also perused the material available on record.

12] The instant criminal appeal being against the conviction, we shall now analyze and re-appreciate the evidence on record to satisfy ourselves as to whether the accused/appellant is guilty of the charged offence.

13] PW-1, who is the informant and the mother of the victim, deposed to the effect that the victim is aged about 15 years and her date of birth is 02.06.2007, and the incident took place on 25.06.2021. On the date of the incident, while she had gone to work in her employer’s house, upon returning at about 4 pm, the victim told her that the accused/appellant, after tying her mouth with a cloth, forcibly raped her and that the accused/appellant had threatened her not to disclose the same or else her head would be severed off. Upon her confronting the accused/appellant, he denied the same and chased the victim in order to assault her and thereafter kept them confined in the house. Later on, she came to know that the accused/appellant had committed similar acts prior to six months and had threatened the victim not to disclose the same to anybody. Accordingly, she filed the F.I.R. She further exhibited the FIR and birth certificate of the victim.

During cross-examination she clarified that she has two girls and two boys, and the victim is the eldest. She further clarified that PW-5, along with other tenants, visited their house upon knowing the incident. She further clarified that prior to one year from the incident, she had lodged a divorce case against the accused/appellant for torturing her.

14] The victim/PW-2 deposed that the incident took place about 4 months ago, and prior to the incident, she used to stay at her maternal uncle’s home. She further deposed that the accused/appellant brought her to his house to stay with them and that her mother used to work as a maid. She further deposed that on the day of the incident when her mother had gone out for work, the accused/appellant, after tying her mouth with a piece of cloth, forcibly raped her at about 9.30 am. She further deposed that her brothers and sisters during that time were playing outside and that after raping her; the accused/appellant threatened her not to disclose the incident to anybody and had also shown her a dagger. She further deposed that thereafter, when her mother, PW-1, returned, she secretly disclosed the incident to her. She further deposed that earlier also, prior to the said incident, after she was brought to stay with them, the accused/appellant committed similar acts with her. She further deposed that she could not disclose the said misdeeds of her father due to fear, as he would always threaten her with a dagger. She further deposed that after the incident the accused/appellant confined them at the house and did not allow them to move out; however, PW-1 managed to somehow lodge the F.I.R. when the accused/appellant had gone to the saloon. She further deposed that they have informed PW-5 and others of the incident. She further deposed that her statement was recorded before the Magistrate.

During cross-examination she clarified that her mother and her brothers and sisters were staying with the accused/appellant while she was staying at her maternal uncle’s place since childhood and that her parents had a strained relationship.

15] PW-3 is the Medical Officer, who examined the victim, deposed that upon examination she was of the opinion that no evidence of recent sexual intercourse was detected at the time of examination. She further deposed that no evidence of violence/injury marks on her private parts except the old hymeneal tears was detected. She further deposed that no evidence of external material was detected in the body/garments of the alleged victim girl. She exhibited the Medical Report as Exhibit-3. Her cross-examination was declined.

16] PW-5 is one neighbour who deposed to the effect that one day the victim came to her and told her that she wanted to end her life, and upon being asked, she disclosed to her that the accused/appellant used to abuse her sexually on and off, and as such, she wanted to end her life. She accordingly told the same to PW-4, who is another neighbor. PW-4 supported the testimony of PW-5 to the effect that PW-5 had disclosed the incident upon the victim informing her. She further deposed that thereupon, when she asked the victim herself, the victim also told her that the accused/appellant had indulged in sexual intercourse with her by force under threat and had also threatened her not to disclose the same to anybody.

17] PW-6, who is another neighbor, deposed that PW-5 disclosed to her about learning from the victim that the accused/appellant had sexually abused her.

Nothing substantial has been elucidated from the aforesaid witnesses during their cross-examination.

18] PW-7 is the Investigating Officer, who deposed to the effect that after receiving the ejahar, he registered the same and conducted the investigation wherein he recorded the statement of the informant, victim, and other witnesses, and sent the victim for medical examination and recording of statement by the Magistrate. He further deposed that during the course of the investigation, he arrested the accused and forwarded him to judicial custody. He also visited the place of occurrence and drew a rough sketch map. After completion of the investigation, he laid the charge sheet against the accused under Section 376 of the IPC, read with Section 6 of the POCSO Act. He exhibited the sketch map and the charge sheet.

During cross-examination he denied the suggestion that he did not visit the place of occurrence or did not investigate the case properly.

19] It is thus clear from the above that the victim is below the age of 18 years and the prosecution case rests solely on her testimony. In Ganesan v. State, reported in (2020) 10 SCC 573, the Apex Court held that the testimony of a child victim of sexual assault, if cogent and confidence-inspiring, requires no corroboration. Courts must not adopt a hypertechnical approach, as sexual offences are committed in secrecy and often without witnesses.

20] Likewise, in Santhosh Moolya v. State of Karnataka, reported in 2022 SCC OnLine SC 1243, it was held that minor inconsistencies or omissions are inconsequential, provided the witness remains consistent on material particulars.

21] In the present case, the victim’s statement recorded by the Judicial Magistrate on 21.06.2021 under Section 164 of the Cr.P.C. reveals a clear unequivocal assertion that after being brought from her maternal uncle’s house, the accused/appellant subjected her to repeated penetrative sexual assault, threatened her with a dagger, and warned her against disclosure. Her statement that she was abused “five times daily”, accompanied by coercion and her subsequent disclosure to her mother and neighbour PW-5, is consistent with her testimony before the trial court. Her initial statement made before the police under Section 161 of the Cr.P.C. is also similar to her statement made before the Judicial Magistrate as well as before the trial court. Hence, the victim has remained consistent as regards her core narrative of the act of repeated forceful sexual penetration committed by the accused/appellant right from her initial statement made before the police till the end of the trial, ensuring reliability.

22] Applying the aforesaid principles as laid down by the Apex Court in the case of Ganesan (supra) and Santhosh Moolya (supra), the victim’s testimony, as analyzed, reflects sterling quality, bearing the hallmark of truth, and also no material contradiction has been demonstrated.

23] That apart, PW-1, the mother, corroborates the immediate disclosure by the victim. Likewise, the neighbours PW-4, PW-5, and PW-6 corroborate the surrounding circumstance, particularly the victim disclosing the act of repeated forceful sexual penetration committed upon her by the accused/appellant to them, thereby building trust in the victim’s account. Further, the medical officer noted a hymenal tear, which is consistent with repeated penetrative sexual assault. The absence of external injuries is not determinative, as held repeatedly by the Apex Court [Refer: Phool Singh v. State of Madhya Pradesh, reported in (2022) 2 SCC 74)].

24] In view of the above, the prosecution case is thus not negated by medical findings. The evidence establishes beyond reasonable doubt the commission of penetrative sexual assault by a father upon his minor daughter, thereby attracting Section 5(n) [aggravated penetrative sexual assault by a relative], and repeated sexual assault, thereby attracting Section 5(l) of the POCSO Act. Consequently, punishment under Section 6 of the POCSO Act stands automatically attracted.

25] It is noteworthy that when examined under Section 313 of the Cr.P.C., the accused/appellant offered only bare denials to each incriminating circumstance proved by the prosecution, and except for admitting the minority of the victim, a fact fully established on record, he did not furnish any explanation capable of dislodging the prosecution case. No defence evidence was led. The Apex Court has consistently held that although the burden lies on the prosecution, the failure of the accused to offer any plausible explanation when confronted with incriminating evidence, and his choosing to remain content with vague and evasive denials, may be considered as an additional link in the chain of circumstances. In the facts of the present case, where the testimony of the minor victim is cogent and inspires confidence, the accused/appellant’s complete lack of explanation, coupled with the absence of any defence evidence, strengthens the prosecution version and supports the trial court’s finding of guilt.

26] Upon holistic appraisal of the evidence, the following conclusions emerge:

                   (i) The testimony of the victim is consistent, cogent, and unimpeachable, and stands duly corroborated by her initial disclosure made before the police, her 164 Cr.P.C. statement and surrounding circumstances.

                   (ii) Minor omissions or non-clinching medical findings do not dilute the prosecution case.

                   (iii) The learned trial court has meticulously appreciated the evidence and committed no perversity warranting interference.

                   (iv) The prosecution has succeeded in establishing the guilt of the appellant beyond reasonable doubt.

27] Accordingly, the appeal is devoid of merit and stands dismissed.

28] Resultantly, the conviction and sentence imposed upon the accused/appellant on 29.03.2022 by the learned Special Judge (POCSO), Barpeta, in Special POCSO Case No. 152/2021, are hereby affirmed in toto.

29] The appellant shall undergo the remaining part of the sentence.

30] Return the trial court record.

31] This court appreciates the service rendered by Mr. N. K. Kalita, learned Amicus Curiae, and Ms. M. Barman, learned Amicus Curiae, and their fee is fixed at Rs. 9,000/- (rupees nine thousand) each.