Judgment & Order (Oral):

Michael Zothankhuma, J.

1. Heard Mr. A. Ahmed, learned counsel appearing for the appellant. Also heard Ms. A. Begum, learned Additional Public Prosecutor appearing for the State respondent and Ms. S. Medhi, learned legal Aid Counsel appearing for the informant/respondent No. 2.

2. The appellant has put to challenge the impugned judgment dated 08.04.2022 passed by the court of the Additional Sessions Judge cum Special Judge (POCSO), Barpeta, in Special POCSO Case No. 30/2018, by which the appellant has been convicted under Section 6 of the POCSO Act, 2012, and sentenced to undergo rigorous imprisonment for 12 years with a fine of Rs. 10,000/-, in default, to undergo rigorous imprisonment for another 1 year.

3. The appellant’s case is that the victim, who was 7 years of age, has not named the appellant as the perpetrator of the crime in her statements made under Section 161 and Section 164 Cr.P.C. Further, there is no allegation of penetration of the private parts of the victim by the private parts of the appellant in the above two statements. The further case of the appellant is that charge had initially been framed under Section 8 of the POCSO Act, 2012, against the appellant on 26.11.2018. However, the charge was subsequently altered to Section 6 of the POCSO Act, 2012, on 31.03.2022, i.e., after recording the evidence of the witnesses and examination of the appellant had been undertaken under Section 313 Cr.P.C on 05.03.2021.

4. The appellant’s counsel submits that when a charge has been framed under Section 8 of the POCSO Act, 2012, and all the defences of the appellant have been garnered to meet the charge under Section 8 of the POCSO Act, 2012, the subsequent alteration of charge to a more serious charge under Section 6 of the POCSO Act, 2012, at the time of hearing, prejudices the appellant in terms of Section 216(4) of the Cr.P.C. and the subsequent conviction and sentence of the appellant under Section 6 of the POCSO Act, 2012 becomes unsustainable, as the appellant had not been made aware that his defences against the evidence of the witnesses would have to meet the charge of Section 6 of the POCSO Act, 2012. The learned counsel for the appellant submits that in view of the above, the impugned judgment should be set aside. In the alternative, he submits that the conviction could at best have been made only under Section 8 of the POCSO Act, 2012.

5. Ms. A. Begum, learned Additional Public Prosecutor appearing for the State respondent and Ms. S. Medhi, learned legal Aid Counsel appearing for the informant/respondent No. 2, submit that the appellant had been named as the perpetrator of the crime by the victim in her statement under Section 161 of the Cr.P.C., though the same was not reflected in her statement made under Section 164 of the Cr.P.C. They also submit that though there was nothing in the victim’s statement made under Section 164 Cr.P.C that there was penetration of the private parts of the victim by the private parts of the appellant, the same had been reflected in the victim’s statement made under Section 161 of the Cr.P.C.

6. The learned counsels for the respondents submits that the victim who was 7 years old and her brother who was 5 years old, had narrated the incident of the victim having been raped by the appellant to their mother (P.W.2), who informed her husband/informant (P.W.4). They submit that the medical evidence of the doctor (P.W.9) shows that the victim had been raped, inasmuch as, her vulva was swollen, red in colour and tender to touch, though the hymen remained intact. They submit that the evidence recorded by the learned trial court showed that there was no infirmity with the conviction of the appellant under Section 6 of the POCSO Act, 2012. Further, the appellant had been informed of the alteration of charge from Section 8 to Section 6 of the POCSO Act, 2012, on 31.03.2022. Besides the appellant pleading not guilty to the new charge under Section 6 of the POCSO Act, 2012, the counsel for the appellant in the learned trial court had declined to re-examine or further cross-examine the witnesses, whose testimonies had already been recorded. As such, there was no violation of Section 216 of the Cr.P.C and neither was any prejudice caused to the appellant by the alteration of charge from Section 8 to Section 6 of the POCSO Act, 2012. They accordingly submit that the impugned judgment may be upheld.

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

8. The brief facts of the case is that the father of the victim (P.W.4) submitted an F.I.R. dated 02.05.2018 to the In-charge of the Balikuri Out-Post on 02.05.2018 stated that at around 3 p.m. on 02.05.2018, the appellant had taken his 7 years old daughter to the char (alluvial land) of river Beki at Chanpur village and under a jhai (nutmeg) tree, he removed her half pant and raped her. Later his daughter came home and informed her mother (P.W.2). In pursuance to the FIR, Balikuri Out-Post registered GDE No. 23 dated 02.05.2018 and forwarded the same to the O/C Kalgachia P.S. for registering a case. Thereafter, Kalgachia P.S. Case No. 347/2018 under Section 4 of the POCSO Act, 2012, was registered. After recording the statement of the victim under Section 161 and Section 164 of the Cr.P.C. and completion of the investigation, charge sheet was submitted by the Investigating Officer (P.W.8), having found a prima facie case against the appellant under Section 4 of the POCSO Act, 2012.

9. The learned trial court thereafter framed charge under Section 8 of the POCSO Act, 2012 on 26.11.2018, to which the appellant pleaded not guilty and claimed to be tried. The learned trial court thereafter examined 9 prosecution witnesses and after examining the appellant under Section 313 of the Cr.P.C, the learned trial court altered the charge from Section 8 to Section 6 of the POCSO Act, 2012 on 31.03.2022. The altered charge was read over and explained to the appellant, to which he pleaded not guilty and claimed to be tried. However, in paragraph 4 of the impugned judgment dated 08.04.2022, the learned trial court observed that the Special Public Prosecutor as well as the learned counsel for the appellant declined to re-examine or further cross-examine the witnesses, whose testimonies had already been recorded by the learned trial court.

10. The learned trial court, on considering the evidence, came to a finding that the guilt of the appellant for committing an offence under Section 5 of the POCSO Act, 2012, had been proved beyond all reasonable doubt. The appellant was accordingly convicted under Section 6 of the POCSO Act, 2012, and sentenced to undergo rigorous imprisonment for 12 years with a fine of Rs. 10,000/-, in default, to undergo rigorous imprisonment for 1 year.

11. In the statement made by the victim under Section 161 of the Cr.P.C, the victim had stated that the appellant had removed her pant and hugged her and committed bad act on her. Though the exact word of penetration of the victim’s private parts by the private parts of the appellant has not been stated, it can be presumed that the bad act implies rape. However, in the statement of the victim made under Section 164 of the Cr.P.C, the victim did not name the appellant and had stated that a person took her near the river on the pretext of catching fish. Later he took her to the jungle and removed her pant and vest. He spat on her private parts and kept his hand on her private parts. Later, the victim came home and told her mother about the incident. As can be seen from the statement made by the victim under Section 164 of the Cr.P.C, there is no allegation of the appellant’s private parts having penetrated the private parts of the victim. Further, instead of the words “bad act”, the victim has specifically stated that the appellant had kept his hand on the victim’s private parts. In fact, the name of the person who had taken the victim to the river and the jungle and removed her pant and vest is not mentioned at all. Interestingly, the victim has pointedly named the appellant as the person who had raped her, in her testimony before the learned trial court.

12. The issue herein is whether the conviction of the appellant under Section 6 of the POCSO Act, 2012 is sustainable and if it has been proved that there was penetration of the private parts of the victim by the penis or any other part of the body of the appellant. The statement of the victim under Section 161 of the Cr.P.C, though pointing towards the appellant having raped the victim, the same is conspicuously absent in the victim’s statement made under Section 164 of the Cr.P.C.

13. In the case of R. Shaji Vs. State of Kerela reported in (2013) 14 SCC 266, the Supreme Court has held that a statement made under Section 161 of the Cr.P.C is not admissible in evidence and can only be used for the purpose of contradicting a witness, while a statement made under Section 164 of the Cr.P.C can be used for corroboration or contradicting the testimony of a witness. In the present case the victim’s statement under Section 164 of the Cr.P.C. does not corroborate the evidence of the victim. In fact, it contradicts the evidence of the victim, in so far as it relates to the appellant having raped the victim and as the identity of the person is not mentioned.

14. It is a settled proposition of law in terms of the various judgments of the Supreme Court that conviction can be based on the sole testimony of the victim. However, the testimony must be found to be reliable and trustworthy and should inspire the confidence of the court. Thus, the truthfulness of the statement made by a witness would have to be determined on the basis of its consistency, right from the starting point till the end. In the case of Rai Sandeep Alias Deepu Vs. State (NCT of Delhi) reported in 2012 8 SCC 21, the Supreme Court held that a sterling witness should be of a very high quality and caliber, whose version should be unassailable. The court considering the version of such a witness should be in a position to accept it at it’s face value, without any hesitation. The Supreme Court further held that to test the quality of such a witness, the status of the witness would be immaterial and what would be relevant would be the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, when the witness makes initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused.

15. Paragraph 22 of the judgment of the Supreme Court in Rai Sandeep (supra) is reproduced herein below as follows:

                   "22. In our considered opinion, the "sterling witness" should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."

16. In the present case, the inconsistency between the statement of the victim under Section 164 of the Cr.P.C and her testimony before the court makes us hesitant to accept the stand of the victim that she had been raped by the appellant, inasmuch as, the victim’s statement under Section 164 of the Cr.P.C does not corroborate her testimony given before the learned trial court during trial. In fact, it is inconsistent. However, on considering the other aspects of the case, we find that the statement of the victim under Section 161 and Section 164 of the Cr.P.C are consistent with the testimony of the victim, in so far as it relates to the appellant having committed sexual assault on the victim. The offence of sexual assault under Section 7 of the POCSO Act, 2012, is to be punished in terms of Section 8 of the POCSO Act, 2012. However, Section 9(m) of the POCSO Act, 2012, provides that a sexual assault committed on a child below 12 years amounts to aggravated sexual assault, in which case the punishment would have to be given under Section 10 of the POCSO Act, 2012. While Section 8 provides for imprisonment for a term which shall not be less than 3 years but which may extend to 5 years, and shall also be liable to fine, Section 10 provides for imprisonment for a term which shall not be less than 5 years but which may extend to 7 years and shall also be liable to fine. In the present case, the FIR had been registered under Section 4 of the POCSO Act, 2012, and charge sheet had also been submitted, the Investigating Officer having found a prima facie case against the appellant under Section 4 of the POCSO Act, 2012. However, charge had been framed by the learned trial court on 26.11.2018 under Section 8 of the POCSO Act, 2012, instead of Section 10 of the POCSO Act, 2012, though the victim was only 7 years old at that time. The above being said, charge was altered to Section 6 of the POCSO Act, 2012, after the evidence of the witness had been recorded by the learned trial court and the appellant had been examined under Section 313 of the Cr.P.C.

17. Section 216 and 217 of the Cr.P.C states as follows:

                   “216. Court may alter charge. - (1) Any Court may alter or add to any charge at any time before judgment is pronounced.

                   (2) Every such alteration or addition shall be read and explained to the accused.

                   (3) If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the Court, to prejudice the accused in his defence or the prosecutor in the conduct of the case, the Court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge.

                   (4) If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary.

                   (5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded.

                   217. Recall of witnesses when charge altered.- Whenever a charge is altered or added to by the Court after the commencement of the trial, the prosecutor and the accused shall be allowed-

                   (a) to recall or re-summon, and examine with reference to such alteration or addition, any witness who may have been examined, unless the Court, for reasons to be recorded in writing, considers that the prosecutor or the accused, as the case may be, desires to recall or re-examine such witness for the purpose of vexation or delay or for defeating the ends of justice;

                   (b) also to call any further witness whom the Court may think to be material.”

18. As can be seen from the provisions of Section 216(4) of the Cr.P.C, if the alteration or addition of a charge is likely to prejudice the accused or prosecutor, the court may either direct a new trial or adjourn the trial for such period as may be necessary. In the present case, paragraph 4 of the impugned judgment has recorded the submission made by the learned Special Public Prosecutor as well as the learned counsel for the appellant, which is to the effect that they do not want to re-examine or cross-examine the witnesses, who had already been examined during the trial, after the charge had been altered to Section 6 of the POCSO Act, 2012. The above being said Section 216(3) Cr.P.C., provides that trial may proceed if the alteration of charge does not cause prejudice to the accused in his defence or the prosecution in the conduct of the case. When there is no difference in the facts of the case due to alteration of the charge from Section 8 to Section 10, besides the defence of the accused during trial and his explanation under Section 313 Cr.P.C., being in relation to Section 8 of the POCSO Act, 2012, we find no prejudice is caused to the appellant by altering the charge to Section 10 of the POCSO Act, 2012. However, Section 217 of the Cr.P.C. provides that whenever a charge is altered or added to by the court after the commencement of the trial, the prosecutor and the accused shall be allowed to recall or re-summon any witness with regard to alteration or addition of the charge or call any further witness whom the court may think to be material. In the case of Madhusudan & Ors. Vs. The State of Madhya Pradesh in Criminal Appeal No. 1509/2010, the Supreme Court has held that a court may alter or add any charge before judgment is pronounced but when charges are altered, opportunity must be given under Section 217 of the Cr.P.C, both to the prosecution and the defence to re-call or re-examine witnesses in references to such altered charges more importantly, in case, charges are altered by the court and reasons for the same are recorded.

19. In the present case, it may be reiterated that there is inconsistency in the statement of the victim under Section 164 of the Cr.P.C and her testimony before the learned trial court. Thus, we are of the view that conviction of the appellant under Section 6 of the POCSO Act, 2012, on the sole testimony of the victim is not sustainable, as the same would not be in consonance with the judgment of the Supreme Court in Rai Sandeep (supra). As there is consistency only with regard to aggravated sexual assault on the victim who was below 12 years of age by the appellant, but not with regard to the offence of rape, we are of the view that the charge should have been framed under Section 10 of the POCSO Act, 2012, and not under Section 8 or 6 of the POCSO Act, 2012. There is no difference between Sections 8 and 10 of the POCSO Act, 2012, except for the fact that Section 10 of the POCSO Act, 2012, would apply in the case of a victim who is below 12 years old, while Section 8 of the POCSO Act, 2012 would apply to victim who are 12 years old and above.

20. Though we are of the view that opportunity is to be provided when charges are altered, both to the prosecution and the defence, to recall and re-examine witnesses in reference to the altered charge, the same may not be strictly required in this case, keeping in view that there is hardly any difference in the defence to be conducted by an accused in relation to a charge under Section 8 or 10 of the POCSO Act, 2012. However, on asking the learned counsel for the appellant and the learned Additional Public Prosecutor as to whether they would like to recall or re-examine witnesses in reference to the alteration of charge to Section 10 of the POCSO Act, 2012, they submit that they do not want to recall or re-examine any witnesses, whose evidence has been adduced during trial.

21. In view of the above, the charge is altered to Section 10 of the POCSO Act, 2012, and due to the reasons given in the foregoing paragraph, we find that the appellant has committed an offence under Section 9(m) of the POCSO Act, 2012. Accordingly, the appellant is convicted for aggravated sexual assault on the victim and is sentenced under Section 10 of the POCSO Act, 2012, to undergo rigorous imprisonment for 6 years with a fine of Rs. 10,000/-, in default, to undergo rigorous imprisonment for 6 months. Consequently, the impugned judgment dated 08.04.2022 passed by the court of the Additional Sessions Judge cum Special Judge (POCSO), Barpeta, in Special POCSO Case No. 30/2018 and the sentence awarded are modified to the extent indicated above.

22. Send back the TCR.

23. In view of the assistance provided by the learned Legal Aid Counsel for the informant/respondent No.2, her fees should be paid by the Assam State Legal Services Authority, as per their guidelines.