Gauhati High Court
CRL.A(J)/16/2023 on 1 August, 2025
Author: Michael Zothankhuma
Bench: Michael Zothankhuma
GAHC010015522023
2025:GAU-AS:9958-DB
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
CRL.A(J) NO.16/2023
Babun Sarma
S/o- Late Niranjan Sarma
R/o- B P Chaliha Nagar, near Loknath Mandir,
P.S -Geetanagar, Dist- Kamrup (M), Assam.
.......Appellant
-Versus-
1. The State of Assam,
Represented by the Public Prosecutor,
Assam.
2. Smti. Rupa Sharma,
C/O - Gautam Das
D/o Late Mintu Chatterjee,
R/o- Kukurmara Town,
P.S- Chhaygaon,
Dist- Kamrup, Assam.
.......Respondents
Page 1 of 22
-BEFORE-
HON'BLE MR. JUSTICE MICHAEL ZOTHANKHUMA HON'BLE MR. JUSTICE KAUSHIK GOSWAMI For the Appellant(s) : MS. B. Sarma, Amicus Curiae.
For the Respondent(s) : Ms. A. Begum, Addl.PP., Assam.
: Ms. N. Deka, Legal Aid Counsel for respondent No.2.
Date of Hearing : 29.07.2025.
Date of Judgment : 01.08.2025.
JUDGMENT & ORDER (CAV)
(Kaushik Goswami, J)
Heard Ms. B. Sarma, learned Amicus Curiae appointed by this Court to represent the appellant in the present criminal appeal. Also heard Ms. A. Begum, learned Additional Public Prosecutor appearing for the state respondent, and Ms. N. Deka, learned Legal Aid Counsel to represent the informant/victim.
2. The present criminal appeal is directed against the judgment and order dated 10.08.2022 passed by the learned Additional Judge cum Special Judge (POCSO), Kamrup (M), in Sessions (Spl.) Case No.43/2021, whereby the appellant was convicted under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the 'POCSO Act') and sentenced thereof to undergo Rigorous Imprisonment for a period Page 2 of 22 of 25 (twenty five) years and to pay a fine of Rs. 5,000/-, in default of fine, to undergo Simple Imprisonment for another 6 (six) months.
3. The case of the prosecution in brief is that on 12.10.2020, an F.I.R. was lodged by the mother of the victim girl, i.e., PW-1 alleging, inter-alia, that her sister-in-law informed her over the phone about 4 (four) days ago that the accused/appellant had committed rape upon the victim by threatening her, while she was living with the accused/appellant and upon asking the victim girl, she affirmed the same. Accordingly, a case was registered as Geetanagar P.S. Case No.316/2020 dated 12.10.2020 under Section 376(f) of the Indian Penal Code, 1860 (hereinafter referred to as the 'IPC'), read with Section 6 of the POCSO Act. Thereafter, the investigating officer, i.e., P.W.6 upon being endorsed to investigate the case, examined the informant/P.W.2, the victim/P.W. 1, and other witnesses and also seized the birth certificate and produced the victim/P.W.2 for medical examination as well as for recording her statement under Section 164 of the Code of Criminal Procedure (hereinafter referred to as the 'Cr.P.C.'). Thereafter, he also arrested the accused/appellant. After completion of the investigation, he submitted charge sheet against the accused/appellant vide charge sheet no. 24 dated 18.07.2021, under Section 376(f) of the IPC read with Section 5(n)/6 of the POCSO Act. Thereafter, the trial court framed the charges under Section 376(2)(f) of the IPC read with Section 5(n)/6 of POCSO Act, Page 3 of 22 2012, against the accused/appellant, on 29.12.2021, and upon the accused/appellant pleading not guilty, the trial commenced.
4. During trial, the prosecution examined 6 (six) prosecution witnesses, including the informant/P.W.2, the victim/P.W.1, and the investigation officer. After completion of the trial, all the incriminating circumstances were put before the accused/appellant under Section 313 of the Cr.P.C., wherein the accused/appellant denied the allegations and explained that since the informant/P.W. 2 left his house, she tutored the victim to depose falsely against him, however, he did not depose any defence witness to prove his innocence.
5. After completion of the evidence and hearing, the trial court rendered its judgment and 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.
6. Ms. B. Sarma, learned amicus curiae submits that the trial court did not consider the explanation given by the accused/appellant in his 313 examination, and therefore, the impugned judgment and order warrants interference. She further submits that it has clearly come out from the prosecution evidence that the informant/P.W.2 is staying separately because of her differences with the accused/appellant, and though she had taken Page 4 of 22 the victim along with her to her brother's house, the accused/appellant forcefully brought the victim/P.W.1 to his house. She accordingly submits that in view of the above, the trial court ought not to have accepted the sole testimony of the victim/P.W. 1 to convict the accused/appellant.
7. Per contra, Ms. A. Begum, learned Additional Public Prosecutor appearing for the state respondent, submits that there is no inconsistency as far as the alleged incident is concerned. She further submits that the victim/P.W.1 has recounted the core spectrum of the alleged offence consistently from the beginning to the end of the trial. She accordingly submits that the testimony of the victim/P.W. 1 is wholly trustworthy and unblemished, and her evidence is of sterling quality and hence, conviction on the basis of such sole testimony is justified.
8. Ms. N. Deka, learned legal aid counsel while adopting the arguments made by the learned Additional Public Prosecutor, Assam, further submits that the explanation of the accused/appellant as regards the informant/P.W.2 tutoring the victim/P.W.1 to falsely implicate the accused/appellant for commission of the offence alleged, was for the first time taken only during the 313 examination and no such suggestion was put either to the victim/P.W.1 or to the mother/P.W.2 during cross- examinations.
Page 5 of 229. 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.
10. 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. The victim/P.W.1 herself deposed as under:-
"My mother lodged the case in the police station. The accused is my father. I was studying in class IX at the time of the time of the incident. The name of my school is New Guwahati Railway Colony High School. My mother lives separately. My mother moved to my grandmother's house about 3 years ago (from the incident) because my father used to assault her. I also went to my maternal uncle's house. But my father went there and brought me back. My father has been doing bad act with me since one year before the incident. (About one year before the incident) my father removed my panties in the night. I was asleep at that time but I woke up. My father pressed my mouth. When I tried to wear the panties, my father restrained me from doing so. About three months before the incident, my father climbed on top of me, touched and pressed my chest and fall asleep on top of me. My father inserted his penis in my vagina. He did so several times. Later also he did such acts. He applied oil on his penis and did bad act with me. If I prevent him from doing so, he used to assault me. He threatened to kill me if I tell about it to anyone. I told my aunt (wife of father's elder brother) about the incident as I had stopped menstruating for three months. My aunt asked me why I did not tell about the incident before. I replied that out of fear I did not tell anybody about it. My aunt informed my mother. My father had threatened to kill me. When my mother called me over phone, I told her about the incident. Doctor examined me. I was brought to the court and my statement was recorded. P. Ext. 1 is my statement recorded u/s 164 Cr.P.C. and P. Ext. 1(1) and P. Ext. 1(2) are my signatures."
11. During cross-examination, she clarified as under:-
Page 6 of 22"My mother and father often used to fight. I have seen them quarrelling with each other since my childhood. My father used to assault my mother.
During my childhood, when my father used to assault my mother, my mother did not go to my maternal uncle's house. My maternal uncle's house is situated at Kokrajhar Fakiragram. My grandmother is there in my maternal uncle's house. My maternal uncle had died earlier. Earlier I used to go to my maternal uncle's house with my parents.
It has never happened that my mother had gone alone to maternal uncle's house leaving me with my father. Earlier my mother used to take me to school, later I started going alone. I had tuition classes. I used to go alone and sometimes my mother or sometimes my father used to take me there.
My father did not love me much and sometimes he used to beat me after consuming alcohol.
At the time of the incident, my mother was at my grandmother's house and I was with my father. My father forcibly brought me from my maternal uncle's house. My mother didn't come to my father's house when my father brought me with him. My mother tried to stop him. My father went there alone to bring me.
During the time while I was with my father, although my mother wanted to meet me, my father did not allow her to do so.
It is not a fact that my father brought me from my maternal uncle's house so that I could study in school. My aunt (wife of father's elder brother) used to cook when I was in my father's house. My father, aunt, uncle (my father's elder brother) and two elder cousin (sisters) lives in my father's house. My grandmother was there, but she died later.
While I was staying with my father, I spoke to my mother over sister Nandini's mobile phone. I could not talk for a longer time, because my father did not allow it. I can talk to my mother only once or twice in a month. I used to play with my sisters, I was given chocolates and chips and I go for outing. Sometimes, I talk to my grandmother (mother's mother) over phone. I talk to my aunt and help her in the kitchen.Page 7 of 22
It is not a fact that my father did not commit any bad act with me. It is not a fact that my father did not remove my panties before the incident and that he did not press my mouth. It is not a fact that when I tried to wear the panties, my father did not restrain me from doing so. It is not a fact that my father did not touch and press my chest and did not fall asleep on top of me. It is not a fact that my father did not insert his penis in my vagina; that he did not do so several times; that he did not apply oil on his penis and that he did not assault me."
12. P.W.2/mother/informant deposed that the victim is her daughter and that she got married in the year 2005 to the accused/appellant, and out of their wedlock, the victim was born on 22.04.2006. She further deposed that since 1 (one) week of their marriage, the accused/appellant used to quarrel with her and assault her, and thereafter, on one day, i.e., 01.04.2017, she left the house of the accused/appellant and came to her maternal house with her son and the victim/P.W.1. She further deposed that though her son lives with her, the accused/appellant forcibly kept the victim/P.W.1 with him. She further deposed that she came to know from P.W.3, i.e., sister-in-law, that the accused/appellant had established a physical relationship with the victim/P.W.1 and that upon being asked, the victim/P.W.1 informed her of the details of the incident. Accordingly she lodged the F.I.R.
13. She further deposed that when she asked the victim/P.W.1, she told her that in the night, the accused/appellant used to commit bad act with her and that he used to commit rape on her after removing her panties. She further deposed that the victim/P.W.1 further told her that the accused/appellant used to Page 8 of 22 threaten her that if she disclose the incident to anyone, he would kill her. She further deposed that the victim/P.W.1 also told her that though the victim/P.W.1 used to resist the accused/appellant, he did not listen to her. She further deposed that the victim/P.W.1 also told her that out of fear, she did not tell anyone about the incident. She further deposed that the victim/P.W.1 also told her that the accused/appellant had been doing such bad act with her for about a year prior to alleging the F.I.R and that she had not had her periods for 3 (three) months. She further deposed that the victim/P.W.1 also told her that when P.W.3 asked her, she told her everything. She further exhibited the F.I.R. as Exhibit-2. She further proved the birth certificate and exhibited the same.
14. During cross-examination, she further clarified that the accused/appellant used to fight with her over trifle issues. She further clarified that whenever they used to fight, she used to take her children and go to her maternal home by train. She further clarified that presently, she is living with her aunt/P.W.4. She further clarified that in 2017, she left the victim/P.W.1 with the accused/appellant as she was studying there. She further clarified that later on, while the victim/P.W.1 was with her in her maternal house, the accused/appellant forcefully took her away. She further clarified that the accused/appellant did not allow her to talk to the victim; however, she used to secretly talk to her sometimes. Though a suggestion was made to the effect that she had adduced false evidence, she denied the same.
Page 9 of 2215. P.W.3, who is the wife of the accused/appellant's brother, i.e., sister-in-law of P.W.2, deposed that P.W.2 and the accused/appellant used to quarrel, and therefore, the P.W.2 went to stay in her maternal house. She further deposed that P.W.2 went away because the accused/appellant used to assault her and fight with her. She further deposed that the victim/P.W.1 used to reside with the accused/appellant and they all resided together as a joint family. She further deposed that one day, she saw the victim/P.W.1 coming out of the bed, and her panty was wet. She further deposed that on the other days also, the victim/P.W.1 used to sleep with her father. She further deposed that upon noticing that for the last few days, the victim/P.W.1 was not behaving in a normal way, she doubted and asked her if anything unwanted had happened.
16. She further deposed that upon being asked, the victim/P.W.1 told her that the accused/appellant used to commit rape upon her during the night hours. She further deposed that the victim/P.W.1 told her that the accused/appellant used to torture her and threaten her not to tell anyone, and therefore the victim/P.W.1 was under constant fear and did not narrate the incident to anyone. She further deposed that she told the P.W.2 about the said incident after she came to know it from the victim/P.W.1.
17. During cross-examination, she clarified that she did not see the occurrence herself but heard from the victim/P.W.1.
18. P.W.4 is the aunt of P.W.2, with whom she was staying at the time of lodging the F.I.R. She further deposed that the Page 10 of 22 victim/P.W.1, at that time, used to reside in the house of the accused/appellant and that she heard P.W.2 talking about the victim/P.W.1 over the phone with P.W.3. She further deposed that P.W.3 told P.W.2 that the accused/appellant had done a bad act with the victim/P.W.1. She further deposed that when she, along with P.W.2, went to the house of the accused/appellant, the victim/P.W.1 also narrated to them the whole occurrence. She further deposed that thereafter, they informed the police and, after their statements were recorded, brought the victim/P.W.1 back to their house.
19. During cross-examination, she clarified that she did not see the occurrence but heard about the same. Though a suggestion was made to the effect that she had been tutored by P.W.2 to depose falsely, she denied the same.
20. P.W.5, who is the medical officer, examined the victim on 13.10.2020 and deposed that after examining the victim/P.W.1, she prepared a medical report and while examining the hymen, she found "old partial tears at 12, 6, 8 o'clock position". She further deposed that she reported in the said medical report that no evidence of recent sexual intercourse was found on her person.
21. P.W.6, who is the investigating officer, deposed that during the investigation, he visited the place of occurrence, wherein he recorded the statement of the witnesses, drew the sketch map and exhibited the sketch map and the birth certificate. He further Page 11 of 22 deposed that as per the birth certificate, the date of birth of the victim girl was 22.04.2006. He further deposed that he arrested the accused/appellant and forwarded him to judicial custody.
22. In a case of sexual assault, for a minor girl, what is important to keep in mind is that a minor girl, and that too of the age of around 12 to 13 years at the time of occurrence, would not ordinarily lie about being sexually assaulted. Therefore, the version of the victim has to be considered with the utmost care before discerning the same. In fact, if the version of the victim inspires confidence and appears to be trustworthy, credible, unblemished and of sterling quality, no further corroboration is required.
23. Reference in this regard is made to the decision of the Apex Court in the case of Ganesan Vs. State (Supra), relied on by the appellant, wherein the Apex Court has observed and held that where the testimony of the victim is found reliable and trustworthy, and reiterated conviction on the basis of her testimony is permissible. Relevant paragraphs of the aforesaid judgment are extracted hereunder for ready reference: -
"10.1. Whether, in the case involving sexual harassment, molestation, etc., can there be conviction on the sole evidence of the prosecutrix, in Vijay, it is observed in paras 9 to 14 as under:
'9. In State of Maharashtra v. Chandraprakash Kewalchand Jain this Court held that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person's lust and, therefore, her evidence need not be tested with the same Page 12 of 22 amount of suspicion as that of an accomplice. The Court observed as under: (SCC p. 559, para 16) '16. A prosecutrix of a sex offence cannot be put on a par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to Illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence.'
10. In State of U.P. v. Pappu this Court held that even in a case where it is shown that the girl is a girl of easy virtue or a girl habituated to sexual intercourse, it may not be a ground to absolve the accused from the charge of rape. It has to be established that there was consent by her for that particular occasion. Absence of injury on the prosecutrix may not be a factor that leads the court to absolve the accused. This Court further held that there can be conviction on the sole testimony of the prosecutrix and in case, the court is not satisfied with the version of the prosecutrix, it can Page 13 of 22 seek other evidence, direct or circumstantial, by which it may get assurance of her testimony. The Court held as under: (SCC p. 597, para
12).
'12. It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional. However, if the court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice, would do.'
11. In State of Punjab v. Gurmit Singh, this Court held that in cases involving sexual harassment, molestation, etc. the court is duty-bound to deal with such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. Evidence of the victim of sexual assault is enough for conviction and it does not require any corroboration unless there are compelling reasons for seeking corroboration. The court may look for some assurances of her statement to satisfy judicial conscience. The statement of the prosecutrix is more reliable than that of an injured witness as she is not an accomplice. The Court further held that the delay in filing FIR for sexual offence may not be even properly explained, but if found natural, the accused cannot be given any benefit thereof. The Court observed as under: (SCC pp. 394-96 &403, paras 8 &21) '8. ... The court overlooked the situation in which a poor helpless minor girl had found herself in the company of three desperate young men who were threatening her and preventing her from raising any alarm. Again, if the investigating officer did not conduct the investigation properly or was negligent in not being able to trace out the driver or the car, how can that become a ground to discredit the testimony of the prosecutrix? The prosecutrix had no control over the investigating agency and the negligence of an investigating officer could not affect the credibility of the statement of the prosecutrix. The courts must, Page 14 of 22 while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. ... Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. ... Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances.
21. ... The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations." (emphasis in original)
12. In State of Orissa v. ThakaraBesra, this Court held that rape not mere physical assault, rather it often distracts (sic destroys) the whole personality of the victim. The rapist degrades the very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case and in such cases, non-examination even of other witnesses may not be a serious infirmity in the prosecution case, particularly where the witnesses had not seen the commission of the offence.
13. In State of H.P. v. Raghubir Singh this Court held that there is no legal compulsion to look for any other evidence to corroborate the evidence of the prosecutrix before recording an order of conviction. Evidence has to Page 15 of 22 be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which militate against her veracity. A similar view has been reiterated by this Court in Wahid Khan v. State of M.P. placing reliance on an earlier judgment in Rameshwar v. State of Rajasthan.
14. Thus, the law that emerges on the issue is to the effect that the statement of the 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."
10.2. In Krishan Kumar Malik v. State of Haryana, it is observed and held by this Court that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient, provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality.
10.3. Who can be said to be a "sterling witness", has been dealt with and considered by this Court in Rai Sandeep v. State (NCT of Delhi). In para 22, it is observed and held as under: (SCC p.
29) '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 Page 16 of 22 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.'"
24. What transpires from the above is that in order for a witness to qualify as a sterling witness, what would be relevant is the truthfulness of the statement made by such a witness. In short, it should be natural, realistic, and consistent, right from the starting point till the end. Thus, there is no doubt arising in our mind as to the alleged factum of the occurrence, the court considering the version of such witness is in a position to accept the same for its face value without any hesitation.
25. Therefore, the test is to take the testimony of the victim in the context of the facts of each case and to ascertain whether such testimony can be said to be trustworthy, reliable, credible, and of sterling quality. In doing so, whether the surrounding circumstances deposed by the victim/witness are supported by other witnesses or not, and the manner in which the victim has recounted the incident right from the beginning to the end, amongst others, to be taken into account.
Page 17 of 2226. Keeping the aforesaid position of law in mind, we shall now test the veracity of the testimony of the victim/P.W.1. It appears from the testimony of the victim/P.W.1 that she has recounted the alleged incident of sexual intercourse committed upon her by her father, i.e., the accused/appellant during the night hours while she was sleeping in the bed in a very natural and realistic manner. There does not appear to be anything suspicious as regards the manner in which she has narrated the alleged incident of the sexual intercourse committed repeatedly upon her while she was leaving with her father, after her father forcefully brought her back from her uncle's house.
27. Perusing the initial statement of the victim/P.W.1 made before the investigating officer/P.W.6, it appears that she has recounted the core spectrum of the alleged sexual assault consistently till her deposition in the trial court. It further appears that her version of the core spectrum of the alleged incident in her statement recorded under Section 164 of the Cr.P.C. also remains intact. There appears to be no contradiction or inconsistency in her testimony as regards the factum of the occurrence. Thus, victim/P.W.1 has remained intact in recounting the alleged incident from the starting point till her deposition before the trial court. That apart, P.W.2/mother, P.W.3/aunt, P.W.4/grand aunt, P.W.5/ doctor have also supported the surrounding circumstances deposed by her. Thus, there is no doubt arising in our mind as to the alleged factum Page 18 of 22 of the occurrence, and we are in a position to believe the testimony of the victim/P.W.1.
28. We are therefore of the unhesitant view that the testimony of the victim/P.W.1 is wholly trustworthy, credible, unblemished and is that of a sterling quality.
29. In order to bring home an offence under Section 5 for which punishment is given under Section 6 of the POCSO Act, it is essential for the prosecution to establish that the accused/appellant has, amongst others, committed aggravated penetrative sexual assault on a child.
30. Apt at this stage to refer to Section 3 of the POCSO Act, which reads as under: -
3. Penetrative sexual assault.--A person is said to commit 'penetrative sexual assault' if--
(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or
(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or
(c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or
(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person.Page 19 of 22
31. Apt also to refer to sub-section (l), (m) and (n) of Section 5 of the POCSO Act, which reads as under:-
5. Aggravated penetrative sexual assault.--(a) Whoever, being a police.....
(b).....
(l) whoever commits penetrative sexual assault on the child more than once or repeatedly; or
(m) whoever commits penetrative sexual assault on a child below twelve years; or
(n) whoever being a relative of the child through blood or adoption or marriage or guardianship or in foster care or having a domestic relationship with a parent of the child or who is living in the same or shared household with the child, commits penetrative sexual assault on such child; or
(o) whoever being,......
....., is said to commit aggravated penetrative sexual assault.
32. Apt also to refer to section 6 of the POCSO Act, which reads as under: -
6. Punishment for aggravated penetrative sexual assault.--(1) Whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person and shall also be liable to fine, or with death.
(2) The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim.
33. Reading of the aforesaid provision of law, it is apparent that a person is said to commit aggravated penetrative sexual Page 20 of 22 assault, inter-alia, if he penetrates his penis to any extent into the vagina, mouth, urethra, or anus of a child who is related through blood or adoption or marriage or guardianship or in foster care etc. amongst others. It further appears that in the event a person commits penetrative sexual assault on the child more than once or repeatedly, the same is also sufficient to constitute aggravated penetrative sexual assault.
34. In the present case, it is established that the accused/appellant, who is the father of the victim/P.W.1, repeatedly inserted his penis in the victim/P.W.1's vagina while she was living with him after he forcefully brought her back from his wife's maternal house. Hence, an offence under Section 6 of the POCSO Act is made out against the accused/appellant. That being so, since we have accepted the testimony of the victim/P.W.1 to be believable, no further corroboration is required. Hence, the prosecution has established the guilt of the accused/appellant for committing aggravated sexual penetrative assault upon the victim/P.W.1 beyond reasonable doubt.
35. In view of the above, we do not find any legal infirmity or illegality in the judgment and order of the trial court, and hence the appeal is bereft of any merit whatsoever. Accordingly, the appeal fails.
36. This court appreciates the service rendered by Ms. B. Sarma, learned amicus curiae, and her fee is fixed at Rs. 7,500/-
Page 21 of 22and the service rendered by Ms. N. Deka, learned legal aid counsel, and her requisite fee is to be paid by the State Legal Services Authority as per existing rates.
37. Resultantly, the criminal appeal stands dismissed and is disposed of.
38. Return back the trial court records.
JUDGE JUDGE
Comparing Assistant
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