Gauhati High Court
Page No.# 1/2 vs The State Of Assam And Anr on 1 April, 2025
Page No.# 1/20
GAHC010179582023
2025:GAU-AS:3746
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./303/2023
PROMUD YADAV
S/O LT. MOHAN YADAV,
VILL.- AMRAJAN, NEAR GORI SANKAR MILL, P.S.- BOKAJAN, DIST.-
KARBI ANGLONG, ASSAM.
VERSUS
THE STATE OF ASSAM AND ANR.
TO BE REP. BY THE LEARNED P.P., ASSAM.
2:KALUWA SHAH
S/O RAMMSAKAL SHAH
VILL.- SUKANJAN
KRISHNA NAGAR
P.S.- BOKAJAN
DIST.- KARBI ANGLONG
ASSAM
Advocate for the Petitioner : MR SARFRAZ NAWAZ, MR S A BARBHUYAN,MR A W
AMAN,SAMIM RAHMAN,MS SURAYA RAHMAN
Advocate for the Respondent : PP, ASSAM, MR. D GOGOI, LEGAL AID COUNSEL FOR R-2
BEFORE
HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA
For the Appellant : Mr. S. Nawaz, Advocate
For the Respondent : Mr. R. R. Kaushik, Addl. P.P., Assam
Page No.# 2/20
: Mr. D. Gogoi, Amicus Curiae,
(for the respondent No. 2/informant)
Date of Judgment : 01.04.2025
JUDGMENT & ORDER (CAV)
1. Heard Mr. S. Nawaz, learned counsel for the appellant. Also heard Mr.
R. R. Kaushik, learned Additional Public Prosecutor, Assam as well as Mr. D.
Gogoi, learned Amicus Curiae appearing for the respondent No. 2/informant.
2. This Criminal Appeal has been filed, under Section 374(2) of the Code
of Criminal Procedure, 1973, by the appellant, Promud Yadav, impugning the
judgment and order dated 14.06.2023 passed by the learned Special Judge
(POCSO), Karbi Anglong, Diphu in the POCSO Case No. 08/2022 whereby the
appellant was convicted under Section 10 of the POCSO Act, 2012 and was
sentenced to undergo rigorous imprisonment for seven years and to pay a fine
of Rs.10,000/- and in default of payment of fine to undergo simple
imprisonment for two months.
3. The facts relevant for consideration of the instant appeal, in brief, are
as follows:-
i. That on 08.11.2021, the father of the victim girl had lodged an FIR
before the Officer-in-charge of Bokajan Police Station, inter alia, alleging
that on 07.11.2021 at about 8:00 PM, his elder daughter who was aged
about seven years at the time of alleged incident informed him that on
06.11.2021 at about 11:00 PM when they were sleeping, the appellant
took her away gagging her mouth and committed rape on her thereafter
he threatened her not to disclose the matter to anyone else.
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ii. On receipt of the said FIR, Bokajan P.S. Case No. 205/2021 was
registered under Section 448 of the Indian Penal Code read with Section 6
of the POCSO Act, 2012 and investigation was initiated. After completion
of the investigation, charge-sheet was laid against the appellant under
Section 448 of the Indian Penal Code read with Section 8 of POCSO Act,
2012.
iii. During the course of investigation, the appellant was arrested and he
faced the trial remaining in custody. The Trial Court after considering the
materials available on record and after hearing the learned counsel for
both the sides, framed charges under Section 448 of the IPC and Section
4 of POCSO Act, 2012 against the appellant. When the said charges were
read over and explained to the appellant, he pleaded his innocence and
claimed to be tried.
iv. To bring home the charges against the appellant, the prosecution
side examined as many as 8 (eight) prosecution witnesses including the
informant as well as the victim girl. During his examination under Section
313 of the Code of Criminal Procedure, 1973, the appellant denied the
truthfulness of the testimony of the prosecution witnesses. He also
adduced two defence evidences in his defence. However, ultimately on
culmination of the trial, the appellant was convicted and sentenced, by the
impugned judgment, in the manner as already described in paragraph No.
2 hereinabove.
4. Before considering the submissions made by the learned counsel for
both the sides, let us go through the evidence of the prosecution witnesses,
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which is available on record.
5. The PW-1, who is the victim girl herself, has deposed that on the
date of deposing before the Trial Court she was aged about 9 years and she was
reading in Class-IV. Before recording her testimony, the Trial Court put her some
general questions to ascertain her capacity to understand and give rational
answers to the questions posed to her and after satisfying with her capacity, the
Trial Court recorded her testimony. She has deposed that she knows the
appellant and the incident took place on the next day of Diwali and at that time
she was eight years old. She has deposed that the incident occurred at night
and she came out of her house to attend the call of nature. At that time, her
father and younger sister were sleeping inside the house. She has deposed that
the appellant suddenly came and gagged her mouth and took her to Verandah
to the backside of their house. There was a bed at the Verandah. She deposed
that the appellant laid her on the bed and after removing her clothes, pushed
his penis into her vagina and raped her for about one hour. At that time, she
raised hue and cry, however, the appellant was gagging her mouth with his
hand. After about one hour, she was released and the appellant went away. She
has further deposed that on the next day morning, she informed the matter to
her father and her father took her to the Bokajan Police Station and lodged the
FIR and the Police arrested the appellant. She has also deposed that the Police
took her to the doctor and her medical examination was conducted. She was
also taken to the Court for recording her statement. She has exhibited her
statement as Exhibit- 1/PW-1.
6. During her cross-examination, she has deposed that she knows that
appellant since a long time. She used to sleep in the house of her aunt. After
the incident, she had informed the matter to her father only and not to her
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aunt. She has denied the suggestion that the appellant did not commit rape on
her.
7. The PW-2, who is the father of the victim girl as well as the informant
of this case, has deposed that the occurrence took place on 06.11.2021 and the
appellant is known to him. He has deposed that on the day of Diwali after
closing his tea stall, he asked the appellant to take his two daughters to home
and accordingly he took them to his house (house of the PW-2). The PW-2 has
further deposed that after the informant return to his house, the appellant again
came to his house and they drank liquor together. He has also deposed that he
fell asleep and on the next day morning when he woke up, his 8 years old
daughter told him that the appellant again came to their house and took her
away by gagging her mouth to nearby bamboo bush and again took her back to
the Verandah of their house and committed rape on her. He also deposed that
when his daughter shouted, the cousin sister of PW-2 came out from nearby
house and chased the appellant with a dao and the appellant fled away from
there. In the next day morning, the villagers caught the appellant and brought
him to his house. Thereafter, the appellant was handed over to the Police. The
PW-2 has exhibited the FIR as well as the birth certificate of the victim girl.
8. During his cross-examination, the PW-2 has deposed that the FIR
was written as per his instructions. He has also stated that he has not
mentioned in the FIR that he drank liquor with the appellant on the night when
the incident occurred. He also deposed that his sister did not tell him about the
exact time when she saw the appellant at the Verandah of his house. He denied
the suggestion that he has deposed falsely before the Court.
9. During his re-cross-examination, the PW-2 has deposed that on the
day of incident, the victim and her younger sister were alone in the house and
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the incident took place during his absence. He has also deposed that local
villagers apprehended the appellant from a road and took him to the Bokajan
Police Station.
10. The PW-3, Smti Sarita Gour, has deposed that the informant is her
cousin brother and she also knows the appellant. She has deposed that on the
day of the incident, the appellant came to her house at night and left when she
asked him to go away. On the next day, the informant called him and other
people of neighborhood to his house and told them that on previous day, the
appellant committed rape on his daughter. The members of the Mahila Samity
went to the house of the appellant to search him but he could not be found.
Later on, some boys caught him from the jungle where he was hiding and
thereafter handed him to the Police. During cross-examination, she has deposed
that on the day of incident, only the daughters of the informant were present in
his house along with him.
11. The PW-4, Gita Gour, has deposed that about one year ago, the
informant called her and some other villagers to his house and when they went
there, they were informed by the informant that the appellant had committed
rape on his daughter when she came out of her house to attend the call of
nature. She has also deposed that later on the villagers apprehended the
appellant and handed him over to the Police. During cross-examination, she has
deposed that the informant showed her the panty of the victim girl. She has
also deposed that she has never seen the appellant coming out of the house of
the informant. She denied the suggestion that she has deposed falsely before
the Court.
12. The PW-5, Amrita Dey, has also deposed that on the next day of
occurrence in the morning, the father of the victim girl (informant) came to her
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house and informed her that his daughter has been raped by the appellant.
Later on, the members of the Mahila Samity of the village went to the house of
the victim and asked her about the incident. On being asked, the victim girl
informed them that when she went out of her house to attend the call of
nature, the appellant forcefully took her to nearby abandoned house and
committed rape on her.
13. During cross-examination, she has deposed that she along with
Saritha Dhar, Gita Gour, Raj Das, Puchu Singh, Lili and many others visited the
house of the appellant. However, he was not found there. She has also deposed
that she did not ask anything to the victim about the incident and she does not
know as to who informed the members of the Mahila Samiti about the incident.
14. The PW-6, Smti Lili Mali, has deposed that the informant and the
victim girl are known to her and on the morning of the next day of the incident,
her aunt Sarita Gaur informed her that the appellant has committed rape on the
victim girl in an abandoned house belonging to her aunt. She has deposed that
she along with the other villagers went to the place of occurrence where she
saw the victim girl crying. On being asked by the Members of the Mahila Samity,
the victim girl told them that the appellant had committed rape on her.
15. During his cross-examination, the PW-6 has deposed that the house of
the informant is far away from her house. She also deposed that Sarita Gaur
informed her over telephone about the incident at about 5:00 AM. She has also
deposed that when she went to the house of the victim girl, she saw the victim
girl was crying and was not in good health.
16. The PW-7, Dr. Sainjali Haflongbar, has deposed that on 08.11.2021,
she was posted at Diphu Medical College & Hospital as an Assistant Professor in
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the Department of Forensic Medicine. She has further deposed that on that day
at about 1.40 PM, she examined the victim girl in connection with Bokajan P.S.
Case No. 205/2021 with a history of alleged rape. On her examination, she has
found as follows:-
“General Physical Examination:-
Height 111 CM, Weight 19 KG. Pulse 80 per min. BP 120/60 mm of
Hg. Temperature-37 Degree Celsius, Respiratory rate -16 per min,
Chest girth-56 CM. Abdomen Girth: 50 CM.
Teeth: Temporary- 8 Permanent- 16 Total 12/12 =24
Hairs: Scalp hair: 35 to 36 cm in length black in colour.
Axillary and pubic hair: Not yet erupted. Breast- Child like,
Menarche: Not yet attained.
On genital Examination: Genital organ- Developed
Vulva- healthy
Hymen; Intact
Vagina- Healthy
Cervix- cannot be examined
Uterus- Not palpable per abdomen
Evidence of veneral disease- not detected clinically
Evidence of Injury on her body or private parts: Not detected.
Vaginal smear- collected from Hymenal Oriface and clitoris
Anal smear- collected from anal margin and canal
Oral smear – collected from space between buccal mucosa and gums.
Evidence of struggle and evidence of stain on wearing clothes- the
wearing panty of the alleged victim girl properly signed and sealed
labelled and packed and handed over to escorting police for further
Page No.# 9/20necessary investigation. (The panty she wore at the time of incident.)
The mental condition- No abnormality detected. She was co-operative
and good. Intelligent and memory is average. Gait is normal.
Result of Laboratory Examination: Spermatozoa detection report VS
No. 80/2021 dated 09.11.2021.
Specimen- Vaginal oral and anal smear for detection of spermatozoa.
Pus cell- 1-2/HPF
Epithelial cells- 5-6/HPF
RBC- Not seen
Spermatozoa- not seen
Gonococcus- Not seen
Impression- No spermatozoa detected
Signed by Dr. A Manta, Department of pathology, DMCH, Karbi
Anglong.”
17. The PW- 7 has deposed that on the basis of physical examination,
radiological examination and laboratory examination done on the victim girl, she
was of the opinion that there is no evidence of recent sexual intercourse on her
person. There was also no evidence of any injury detected on her person. Her
cross-examination was declined by the defence side.
18. The PW-8, Shri Haokam Changsan, who is the Investigating Officer of
the case, has deposed that on 08.11.2021, he was posted at Bokajan Police
Station as Attached Officer. On that day, he received the FIR from the informant
and registered the same as Bokajan P.S. Case No. 205/2021 under Section 448
of the Indian Penal Code read with Section 6 of POCSO Act, 2012 and took up
the investigation. During investigation, he examined the informant as well as the
victim girl and recorded their statement. He also forwarded the victim girl to
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Diphu Medical College & Hospital for her medical examination. He also recorded
the statement of other witnesses. On the same day, he arrested the accused
person (the appellant) and forwarded him to Diphu Court. The statement of
victim girl was also recorded under Section 164 of the Code of Criminal
Procedure, 1973. He has also deposed that he visited the place of occurrence
and prepared the sketch map of the place of occurrence and after completion of
the investigation, he laid the charge-sheet against the appellant under Section
448 of the Indian Penal Code read with Section 8 of the POCSO Act, 2012.
19. During cross-examination, he has deposed that in the FIR, the time of
alleged incident has been mentioned as 11:00 PM on 06.11.2021 whereas the
FIR was lodged on 08.11.2021 at about 10:00 AM. He has also deposed that the
informant had narrated about the incident to the people of the locality. He
denied the suggestion that he has not properly investigated the case.
20. During his examination under Section 313 of the Code of Criminal
Procedure, 1973, the appellant has denied the truthfulness of the testimony of
prosecution witnesses and has pleaded his innocence. He also stated that there
was an altercation between him and the informant and because of the said fact,
the informant filed a false case against him. He also adduced the evidence of
two defence witnesses in his defence.
21. The DW-1, Smti. Promila Yadav, has deposed that the appellant is his
son. She has deposed that in the month of November, 2021 at around 10:00
AM, the informant along with Raj, Sarita Garh, Sankar Garh and Baby Das came
to their house and caught hold of her son and beaten him up badly. She has
further deposed that when she tried to interfere, she was also assaulted by
those persons. She has also deposed that on the day of alleged incident, her
son Pramud Yadav (appellant) was at home along with other family members
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and the informant had lodged false FIR against her son. During cross-
examination, she has deposed that she did not lodge any case against the
informant and other persons who had assaulted her son.
22. The DW-2, Smti Sabha Devi, has deposed that the appellant is her
brother and in the month of November, 2021, on the day at about 9:00 AM to
10:00 AM, the informant with some other persons came to their house and
caught hold of her brother and beat him up badly. She has deposed that when
she tried to interfere, she was also assaulted by them. She has deposed that on
the day of incident, her brother Pramud Yadav (the appellant) was at home
along with other family members and the informant has lodged a false FIR
against her brother.
23. During cross-examination, she has deposed that she got married 11
years ago. However, on the date of alleged incident, she was in her maternal
home. She has also deposed that her family members did not lodge any
complaint against the persons who had assaulted her brother.
24. Mr. S. Nawaz, the learned counsel for the appellant has submitted that
the accusation against the appellant has been constantly shifting during
different stages of the criminal proceeding. He submits that while in the FIR, it
was alleged that the appellant had committed a bad act upon the victim girl and
the said FIR was registered under Section 448 of the Indian Penal Code read
with Section 6 of the POCSO Act, 2012. However, after the investigation,
charge-sheet was laid under Section 8 of the POCSO Act, 2012. He further
submits that though the cognizance of offence was taken under Section 8 of the
POCSO Act, 2012, charges were framed against the appellant on 14.07.2022
under Section 4 of the POCSO Act, 2012 and ultimately charges were altered at
the stage of delivery of judgment on 11.05.2023 under Section 6 of the POCSO
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Act, 2012. However, the conviction was made under Section 10 of the POCSO
Act, 2012. He submits that due to constant tinkering with the accusation against
the appellant, at various stages of the trial, the appellant was deprived of a fair
opportunity of putting up proper defence and same has caused prejudice to
him.
25. The learned counsel for the appellant has further submitted that the
only eye-witness in the case is the victim girl herself and there is inherent
inconsistency in the evidence of the victim girl. He submits that while the victim
girl, while deposing as the PW-1, has categorically stated that the appellant has
pushed his penis into her vagina and committed rape on her for about one hour,
however, the PW-7 who is the Medical Officer who examined the victim girl
found the vulva and vagina of the victim girl healthy as well as hymen intact. He
also did not detect any injury on her person or on the private part of the victim
girl. The learned counsel for the appellant submits that the uncontroverted
evidence of the PW-7 belies the testimony of the PW-1.
26. The learned counsel for the appellant has also submitted that even the
Trial Court has opined in the impugned judgment that rape might not have been
taken place, however, there might be an aggravated sexual assault, which
according to the learned counsel for the appellant is only a speculative
assumption on the part of the Trial Court without there being any materials on
record to support such a finding.
27. The learned counsel for the appellant has submitted that there is no
evidence on record to prove the charge under Section 10 of the POCSO Act,
2012 against the appellant. He submits that when the allegation of aggravated
penetrative sexual assault under Section 6 of the POCSO, 2012 could not be
proved by the prosecution side, the appellant ought to have been acquitted
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instead of being convicted under Section 10 of the POCSO Act, 2012 without
there being any basis for the same.
28. The learned counsel for the appellant has submitted that it has been
alleged in the FIR which is exhibited as Exhibit-P2 that the alleged incident of
rape took place at 11:00 PM, however, the evidence of the PW-2, who is the
father of the victim girl, shows that the appellant has come to his house at
around 11:30 to 12:00 PM midnight and thereafter they drank together and
after that the informant went to asleep. The learned counsel for the appellant
submits that if the informant went to sleep after 12:00 midnight, it is not
possible for the appellant to have committed rape on her daughter at 11:00 PM
on that day as alleged in the FIR.
29. The learned counsel for the appellant has also submitted that the
prosecution side has failed to prove the foundational fact regarding the
allegations of rape made against the present appellant and, therefore,
presumption under Sections 29 and 30 of the POCSO Act, 2012 could not have
been made by the Trial Court against the appellant.
30. The learned counsel for the appellant has also submitted that the Trial
Court did not consider the evidence adduced by the DW-1 and DW-2 wherein
they have categorically stated that the appellant was in his house on the day of
the alleged incident.
31. The learned counsel for the appellant has also submitted that as the
plea taken by the appellant in his statement recorded under Section 313 of the
Code of Criminal Procedure, 1973, as well as the evidence adduced by the
defence witnesses has not been considered by the Trial Court, it may in itself be
sufficient to set aside the conviction of the appellant in view of the judgment of
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the Apex Court in the case of “Reena Hazarika -Vs- State of Assam” reported in
“(2018) 13 SCR 1108”.
32. The learned counsel for the appellant also submitted that though the
sole testimony of the victim may be sufficient for arriving at the conclusion of
guilt in a case involving sexual offences, however, for that the evidence of the
victim must be of sterling quality so as to inspire confidence. However, in the
instant case, he submits that in view of the evidence of the PW-7 (doctor), the
allegation of rape could not be proved by the prosecution side and there is no
corroboration to the testimony of the victim who is also a child witness. He
submits that the Trial Court ought to have been extra cautious while convicting
the appellant mainly on the basis of the sole testimony of child victim. In
support of his submissions, the learned counsel for the appellant has cited
following cases:-
(i) “Ganesan -Vs- State represented by its Inspector of Police” reported in
“(2020) 10 SCC 573”
(ii) “Suryanarayana -Vs- State of Karnataka” reported in “(2001) 9 SCC 129”
(iii) “State of Madhya Pradesh -Vs- Ramesh and Anr .” reported in “(2011) 4
SCC 786”
(iv) “Phool Singh -Vs- The State of Madhya Pradesh ” reported in “LiveLaw
2021 SC 696”
33. On the other hand, Mr. R. R. Kaushik, the learned Additional Public
Prosecutor has submitted that the Trial Court has rightly convicted the appellant
under Section 10 of the POCSO Act, 2012 on the basis of sufficient evidence on
record and the conviction and sentence imposed on the appellant does not
justify any interference by this Court.
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34. The learned Additional Public Prosecutor submits that in a case
involving sexual offences, if the evidence of the prosecutrix inspires confidence,
there is no bar in convicting the appellant on the basis of such sole testimony of
the prosecutrix. He submits that in the instant case, the prosecutrix has
categorically implicated the appellant of having committed aggravated sexual
assault on the victim girl as the victim girl was below the age of 12 years. He
has also submitted that when ocular evidence is contradictory to the medical
evidence, the ocular evidence may be relied if such ocular evidence inspires
confidence. He submits that there was no reason for a child of 8 years of age to
falsely implicate the appellant with offence of such nature. He also submits that
in cases involving offences of such nature, there is no requirement of law that
the testimony of the prosecutrix cannot be accepted unless corroborated. In
support of his submission, the learned Additional Public Prosecutor has relied
upon a ruling of the Apex Court in the case of ” Ranjit Hazarika -Vs- State of
Assam” reported in “(1998) 8 SCC 635”. He, therefore, submits that the
conviction and sentence imposed on the appellant by the Trial Court should not
be disturbed and this appeal should be dismissed.
35. Mr. D. Gogoi, the learned Amicus Curiae for the respondent No.
2/informant has submitted similar to that of the learned Additional Public
Prosecutor and has prayed for dismissal of the instant appeal.
36. I have considered the submissions made by the learned counsel for
both sides and I have also gone through the records of POCSO Case No.
08/2022 which was requisitioned from the Trial Court in connection with this
appeal.
37. There is no dispute regarding the question that out of 8 (eight)
prosecution witnesses, only the victim girl is the eye-witness to the alleged
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incident. It is also pertinent to note that in offences of such nature, normally
except the victim, there is always an unlikelihood of the availability of other eye-
witnesses to such incidents. It is also not disputed at the bar that there is no
bar for the Court to arrive at the conclusion of guilt of the accused on the basis
of uncorroborated testimony of the prosecutrix if she is found to be trustworthy
and her evidence is of sterling quality. However, in the instant case, it appears
that the victim girl has deposed in her testimony that the appellant had pushed
his penis into her vagina and raped her for one hour. The victim girl was a minor
of about 8 years of age at the time of the alleged incident. If she was subjected
to penetrative sexual intercourse by the appellant for about one hour, there
would certainly be some signs of the said incident on her private part not to
speak of injuries, if she is examined immediately after the incident. In the
instant case, the testimony of the PW-7 who is the doctor who examined the
victim girl on 08.11.2021 at about 1:40 PM i.e., within 48 hours of the date of
alleged incident, she found no evidence of any recent sexual intercourse on her
person and also, no injury was detected on her person. She also found her
hymen to be intact.
38. This Court finds the submission of the learned counsel for the
appellant persuasive wherein he submits that if a minor girl of 8 years old is
subjected to forceful penetrative sexual assault, there would certainly be some
injuries on her private part and her hymen is unlikely to remain intact. It
appears that even the Trial Court found the testimony of the PW-1 to be an
exaggeration of facts, however, it came to a conclusion that this case is a case
of aggravated sexual assault merely on the assumption that had such incident
had not occurred, the informant as well as victim would not have come to the
police.
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39. This Court is unable to accept the conclusion arrived at by the Trial
Court for the reason that once the testimony of victim girl was not found to be
of sterling quality, same may not be utilized, without corroboration, for the
purpose of convicting the appellant for a lesser offence.
40. In this case, the medical evidence does not support the testimony of
the victim girl i.e., the PW-1. Rather, it belies her testimony as no internal or
external injury was found on the person of the victim girl. Her hymen was also
found intact. Same would be unlikely if she was subjected to penetrative sexual
intercourse by the appellant for above one hour.
41. This Court is of considered opinion that once it is found that the
prosecutrix has not deposed truthfully before the Trial Court, her evidence no
longer remains of a sterling quality and, therefore, it becomes unsafe for the
Trial Court to rely on such testimony and to come to the finding of guilt of the
appellant on the basis of uncorroborated testimony of such a witness. It is also
pertinent to note that the victim, in this case, is also a child witness and,
therefore, possibility of tutoring her may not be excluded.
42. Moreover, though the PW-2 has deposed that when the appellant
committed rape on the victim girl, she shouted and on this the cousin sister of
informant came out from nearby house and chased the appellant with a dao.
However, the cousin sister while deposing as the PW-3 did not corroborate the
testimony of the PW-2. She only deposed that the appellant went to her house
on that day and when she asked him to go away, he went away.
43. Another aspect of this case is that though the appellant has taken a
plea during his examination under Section 313 of the Code of Criminal
Procedure, 1973, that due to altercation which occurred between the informant
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and the appellant, he lodged false case against him as well as both the defence
witnesses deposing that the appellant was in his home on the date of alleged
incident, however, the said defence plea was not considered by the Trial Court in
the impugned judgment. The Apex Court in the case of ” Reena Hazarika -Vs-
State of Assam” (supra) has observed as follows:-
“Whether the defence is acceptable or not and whether it is
compatible or incompatible with the evidence available is an entirely
different matter. If there has been no consideration at all of the
defence taken under Section 313 of the Code of Criminal Procedure,
in the given facts of the case, the conviction may well stand vitiated.
To our mind, a solemn duty is cast on the court in dispensation of
justice to adequately consider the defence of the accused taken
under section 313 Code of Criminal Procedure and to either accept or
to reject the same for reasons specified in writing”.
44. In the instant case, the Trial Court failed to consider the plea taken by
the appellant during his examination under Section 313 of the Code of Criminal
Procedure, 1973 as well as evidence adduced by the defence witnesses while
coming to the conclusion of the guilt in the impugned judgment.
45. The victim girl, in the instant case, was of about 8 years of age at the
time of occurrence of alleged offence. The Apex Court in the case of
“Suryanarayana -Vs- State of Karnataka” (supra) has observed that the evidence
of the child witness cannot be rejected per se, but the Court, as a rule of
prudence, is required to consider such evidence with close scrutiny and only on
being convinced about the quality of statements and its reliability, base
conviction by accepting the statement of child witness.
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46. However, in the instant case, the Trial Court did not accept the
statement of victim girl to be true and it was held to be exaggerated and,
thereafter, convicted the appellant for a lesser offence based on the same
testimony. This approach, in the considered opinion of this Court, is not a
correct approach. More so, when the deposition of the PW-1 (victim) has been
belied by the medical evidence as well as testimony of the PW-7 (doctor), it
would be unsafe for the Court to rely on such testimony without any
corroboration to come to the conclusion of guilt of the appellant even for a
lesser offence. The Trial Court without there being any reliable evidence to that
effect on record assumed that the appellant had committed aggravated sexual
assault on the victim girl, which is a wrong approach. The finding of the Trial
Court has to be based on evidence available on record.
47. At the cost of repetition, it is again stated that if the evidence of victim
is of sterling quality which inspire confidence, only on that condition the
conviction may be recorded on the basis of sole testimony of such witnesses,
however, that is not the case in the instant case. Hence, the conviction of the
appellant under Section 10 of the POCSO Act, 2012, based on the sole
testimony of the victim girl is not sustainable in law.
48. For the reasons discussed hereinabove, this Court gives benefit of
doubt to the appellant and set aside his conviction under Section 10 of the
POCSO Act, 2012 as well as sentenced imposed on him by the impugned
judgment.
49. The appellant shall be set at liberty forthwith if not required in
connection with any other case.
Page No.# 20/20
50. Sent back the records of the Trial Court to the Trial Court along with a
copy of this judgment.
JUDGE
Comparing Assistant
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