Gauhati High Court
Md. Aftar Hussain @ Aftar Hussain vs The State Of Assam And Anr on 14 November, 2025
Author: M. Zothankhuma
Bench: Michael Zothankhuma
Page No.# 1/14
GAHC010266952024
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./445/2024
MD. AFTAR HUSSAIN @ AFTAR HUSSAIN
S/O MD. SALIMUDDIN, R/O UDALGURI NEPALIGAON, P.S.-ORANG, DIST-
UDALGURI, BTAD (ASSAM)
VERSUS
THE STATE OF ASSAM AND ANR
REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM
2:MD. OFIZUL HAQUE
S/O LATE MANNAS ALI
R/O UDALGURI NEPALIGAON
P.S.-ORANG
DIST- UDALGURI
BTAD (ASSAM)
PIN-78411
Advocates for the appellant : Mr. H.RA. Choudhury, Sr. Advocate.
Mr. I.U. Choudhury, Advocate.
Advocates for the respondents : Ms. B. Bhuyan, Sr. Counsel. &
Addl. P.P., Assam.
:::BEFORE:::
HON'BLE MR. JUSTICE MICHAEL ZOTHANKHUMA HON'BLE MRS. JUSTICE MITALI THAKURIA Page No.# 2/14 Date on which judgment is reserved : 31.10.2025 Date of pronouncement of judgment : 14/11/2025 Whether the pronouncement is of the : N/a.
operative part of the judgment ?
Whether the full judgment has been : Yes.
pronounced?
JUDGMENT & ORDER (CAV)
(M. Zothankhuma, J)
1. Heard Mr. H.R.A. Choudhury, learned Senior Counsel for the appellant assisted by Mr. I.U. Choudhury, learned counsel. Also heard Ms. B. Bhuyan, learned Senior Counsel and Additional Public Prosecutor, Assam assisted by Ms. R. Das, learned Counsel.
2. This is an appeal against the impugned judgment dated 14.11.2024 passed by the Special Judge, Udalguri, in Special (POCSO) Case No.21/2022, by which the appellant has been convicted under Section 376(AB) and Section 6 of the POCSO Act, 2012. The learned Trial Court by applying Section 42 of the POCSO Act, sentenced the appellant under Section 6 of the POCSO Act, 2012, to suffer rigorous imprisonment for 20 (twenty) years with a fine of Rs.20,000/-, in default, simple imprisonment for 2 (two) months. The appellant was also convicted under Section 342 IPC for wrongful confinement of the victim and sentenced to suffer rigorous imprisonment for 1 (one) year.
3. The Prosecution case in brief is that an FIR dated 06.06.2021 was submitted to the Officer-in-
Charge of the Orang Police Station, Udalguri, Assam by the father of the victim, i.e. Prosecution Witness (PW) No.1. The FIR stated that at around 12:30 noon on 06.06.2021, his daughter who was playing with her friends in the courtyard of the house of the appellant was called inside the house, where she was shown obscene videos. The appellant thereafter raped her. Frightened, the victim went home crying and narrated the entire incident to her mother. Pursuant to the FIR, Orang P.S. Case No.72/2021 under Section 376(3) of IPC read with Section 6 of POCSO Act was registered and investigation was initiated.
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4. After the investigation had been completed by the Investigating Officer (IO), the IO submitted a Charge-sheet against the appellant, having found a prima facie case against the appellant under Section 342/376(AB) of IPC read with Section 6 of POCSO Act, 2012.
5. On the case being committed to the learned Trial Court, the learned Trial Court framed 3 (three) charges against the appellant, i.e. under Section 342 &, 376(AB) IPC and Section 6 of the POCSO Act, 2012, to which the appellant pleaded not guilty and claimed to be tried.
6. The learned Trial Court thereafter examined 9 (nine) PWs and 3 (three) Defence Witnesses (DWs). After examining the appellant under Section 313 Cr.P.C, the learned Trial Court came to a finding that the appellant was guilty of having raped the victim, who was below 12 years of age. The learned Trial Court accordingly convicted the appellant under Section 342 & 376(AB) of IPC read with Section 6 of POCSO Act, 2012. In view of Section 42 of the POCSO Act, the appellant was sentenced under Section 342 IPC and under Section 6 of the POCSO Act, 2012 only.
7. Being aggrieved with the conviction and sentence, the appellant has put to challenge the impugned judgment passed by the learned Trial Court by way of this appeal.
8. The learned Senior Counsel for the appellant submits that the appellant could not have been convicted under Section 6 of the POCSO Act, in view of the fact that there was no proof that the victim was below 12 years of age at the time of the incident, inasmuch as, the Birth Certificate of the victim girl had not been exhibited, though it had been seized by the police. Secondly, the evidence of the Doctor and the Medical Report did not prove that rape had been committed upon the victim. Thirdly, the stand taken by the victim in her statement under Section 161 Cr.P.C & 164 Cr.P.C and her testimony before the Court was at variance with one another. Fourthly, the evidence of the DWs showed that there was enmity between the family of the victim and the appellant and as such, a false case had been foisted upon the appellant.
9. The learned Senior Counsel for the appellant further submits that though conviction can be made on the sole testimony of the prosecutrix in a rape case, provided the same is truthful and inspires the confidence of the Court, the testimony of the prosecutrix in the present case is not truthful and as such, there could not have been any conviction of the appellant. He also submits that the medical evidence does not support the victim's case, inasmuch as, the Doctor had stated that in his opinion, rape had not been committed. In support of his submission that when conviction is based on the sole testimony of the Prosecutrix and the medical evidence does not support the case of the victim, besides there being a dispute between the parties, it was not safe to convict the appellant. In support of the Page No.# 4/14 above submission, he has relied upon the judgment of the Supreme Court in the case of Santosh Prasad @ Santosh Kumar vs. State of Bihar, reported in (2020) 3 SCC 443. The learned Senior Counsel for the appellant thus submits that the impugned judgment should be set aside and the appellant should be acquitted from the charges framed against him.
10. Ms. B. Bhuyan, learned Additional Public Prosecutor, on the other hand submits that the evidence of the prosecutrix clearly shows that she had been raped in her anus by the appellant. Further, there is no discrepancy in the statement made by the victim under Section 161 Cr.P.C, 164 Cr.P.C and her testimony before the learned Trial Court. She also submits that there is nothing to show that there was any enmity between the parties and no specifics in that regard have been made by the Defence Witnesses (DWs), except for the evidence of the father of the victim (PW-1), who stated in his cross- examination that one dispute had occurred in the year 2017, on the question of grinding rice by means of a Tractor by the appellant. However, the incident having occurred 4 (four) years earlier, nothing is shown to connect the alleged dispute to the crime committed by the appellant on 06/06/2021. The learned Additional Public Prosecutor submits that there is no delay in the filing of the FIR or for that matter the mother of the victim taking up the issue with the mother of the appellant, with regard to the rape of the victim by the appellant.
11. The learned Additional Public Prosecutor also submits that the opinion and evidence of the Doctor is also advisory in nature and the same could not prove as to whether the rape of a victim had occurred or not. The learned Additional Public Prosecutor submits that the evidence of the victim being trustworthy, the evidence of the victim girl would have to be placed on a higher pedestal than the Medical Report. Further, this Court should remain sensitive while dealing with the charge of sexual assault on a child who is helpless. As the rape has been experienced and proved by the victim, the impugned judgment passed by the learned Trial Court should not be interfered with. In support of her submission, she has relied upon the judgment of the Supreme Court in the case of Deepakumar Sahu vs. State of Chhattisgarh (Criminal Appeal 3352/2025), reported in AIR 2025 Supreme Court 3763.
12. We have heard the learned counsels for the parties.
13. The first issue to be decided is with regard to the age of the victim girl. In this respect, it is to be noted that in the FIR dated 06.06.2021, PW-1, who is the father of the victim, has stated that the victim was 10 years of age. At the time of framing of the charge on 06.04.2023 the victim's age has been shown to be 12 years. The evidence of PW-1 is to the effect that the age of the victim on the date of recording of the evidence of PW-1, i.e, on 30.05.2023, was 12/13 years of age. Though the evidence of Page No.# 5/14 PW-1 shows that the birth certificate of the victim had been seized, the said birth certificate has not been exhibited in the learned Trial Court. Thus, there is no proof of the age of the victim on the date the incident occurred.
14. The evidence of PW-2, who is the mother of the victim, is to the effect that at the time of the incident the victim was 9 years of age and was studying in Class-V. Her deposition is as follows:-
"On oath :
Informant Afijul Hoque is my husband. I know the accused as he is our neighbour. Victim (name has been withheld) is my daughter. On 06.06.2021 at about 12 noon while I was staying in my residence and my husband was away from my residence for working, my victim daughter was playing at the residence of my neighbour Abdul Halim. My another daughter was also playing with her. As reported by my daughter she was first called by accused by inducing her. Then accused displayed the obscene video and showed the video to my victim daughter. Even accused gave the mobile to my victim daughter by locking the door from inside. After sometime the accused came and by gagging the mouth of my daughter he committed illegal act with my daughter. Accused removed her wearing cloth and penetrate his private part into the private part of my daughter. Then my victim daughter somehow came to my residence. She was in fear psychosis at the time and narrated me about that incident. I immediately went to the residence of accused and informed the matter to mother of accused. But no attention was given by mother of accused to my words. At evening time my husband came and then my husband lodged the FIR on the same day. At that time the age of my daughter was 9 years. She was reading in Class V. Cross examination by defence:
Accused has his parents, two sisters and one niece in his residence. His uncle is residing in the neighbouring house. The niece of accused was also playing with my daughter alongwith my other daughter Farnaz Sultana. My younger daughter and the niece of accused did not report the matter to me. Quarrel broke out between the family and accused in question of grinding the paddy by means of tractor. Since then our relation has been deteriorating. It is not the fact that due to such adverse relationship my husband lodged the false FIR against the accused. My victim daughter did not sustain any injury. It is not the fact that Police did not seize and wearing cloth of my daughter. It is not the fact that I did not state before Police that my victim daughter along with other two girl were playing at the residence of Abdul Halim and accused did not display obscene video to the victim. It is not the fact that no such incident took place as stated by me."
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15. The form in which the evidence of PW-3 (victim) has been recorded shows that she was 12 years of age on 30.05.2023. Her deposition is as follows :-
"On oath:
Informant Afijul Hoque is my father. I know the accused as he is our neighbour. On 06.06.2021 while I was playing with Asma, then accused Aftar Hussain called me to his room as his residence is situated near our residence. When I went to his room then he showed me some obscene videos in his mobile phone. After that incident he removed my pant. He also removed his own pant. Then he penetrates his penis into my private part. I could not raise alarm because he was gagging my mouth. After that incident I came back to my residence and narrated the fact to my mother. Then my mother told the matter to my father. Though my father informed the matter to the guardian of accused but no response was found from the side of the accused. Then my father lodged the FIR. After lodging of FIR I was produced before Magistrate. I gavethe statement. Ext-P3 is my statement. Ext-P3(1)/PW3, P3(2)/PW3 & P3(3)/PW3 are my signatures.
Cross examination by defence:
I was playing with my younger sister and with Asma. In between our residence and the residence of accused there is one residence. At the time of occurrence my mother was at the residence. My sisters were also present at residence. I went to the room of accused asking Asma to stay at the playing ground. We were playing in the courtyard of accused. I cannot say when Asma left the place. I stated in the statement recorded by Magistrate as well as before Police that accused had shown me the cartoon like video. It is not the fact that I did not state before Police that accused gagged my mouth and penetrate into my anus. I did not state before Police that accused penetrate into my vagina. The family members of uncle of accused were present in their residence. The family of Aftar has TV. Whenever I was at the residence of accused I did not notice other family members of accused. It is not the fact that the family members of accused were present in his residence. There was no bleeding from my private parts nor any injury was sustained by me. It is not the fact that I have deposed evidence as dictated by my parents. It is not the fact that accused never committed any illegal act."
16. The victim (PW-3) in her statement made under section 164 Cr.P.C. has stated that the appellant called her into his room while playing in his courtyard. She was shown some cartoon videos from his mobile. The door was then closed. The appellant removed her pant and also removed his pants. Then the appellant inserted his penis into her anus and that she freed herself after about 5 minutes and ran to her house. Further, she was having pain in her anus (anal area). In her statement made under section Page No.# 7/14 161 Cr.P.C., the victim stated that the appellant had called to his house and showed her cartoons. Thereafter, he took off her underwear and told her to lie on the bed. He then took off his pants and did bad things to her. After she came home, when she washed her underwear, she noticed a substance similar to phlegm/snut, which was stuck to her underwear.
17. The evidence of PW-5, who is the neighbour of the informant and the appellant, is to the effect that the age of the victim at the relevant point of time was 8/9 years. His evidence is hearsay evidence.
18. The evidence of PW-6, who is the Medical and Health Officer, who medically examined the victim on 06.06.2021, is to the effect that the radiological age of the victim was 10-12 years. His evidence is as follows :-
"On oath:
On 06.06.2021, while I was working as Medical Officer at Udalguri Civil Hospital on that day at about 8.20 PM I examined the victim (name has been withheld) on the basis of Police requisition in reference to Orang PS case No. 72/2021. The victim was escorted and identified by WPC Rebati Boro of Orang PS. On examination I found-
1. The Radiological age of the victim was found 1. 10-12 years.
2. No external or internal injury was detected at the time of examination.
3. No spermatozoa found in sample.
4. There was no mark of rape.
Then I submitted the report.
Ext-P4/PW6 is the report. Ext. P4(1)/PW6 is my signature.
Cross examination by defence:
In my opinion the victim was not raped."
19. The evidence of PW-8, who is an independent witness, is to the effect that the age of the victim was approximately 10-11 years.
20. The evidence of PW-9 (Investigating Officer) is to the effect that he seized the birth certificate of the victim girl.
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21. The evidence of the witnesses mentioned above regarding the age of the victim is to the effect that the victim was around 12 years or below at the time of the incident, inasmuch as, the birth certificate had not been exhibited to prove the exact age of the victim. There is no cross-examination of any of the witnesses made by the appellant, with regard to the victim being a girl of 12 years and above. In view of the above facts, it is quite apparent that the victim's age can be taken to be around 12 years, keeping in view the evidence of the prosecution witnesses mentioned above.
22. The next question to be decided is whether the appellant had raped the victim girl and whether the same would amount to aggravated penetrative sexual assault, which could entail conviction under Section 376-AB of the IPC and/or Section 6 of the POCSO Act
23. Section 376-AB of the IPC states as follows-
"376AB. Punishment for rape on woman under twelve years of age.-
Whoever, commits rape on a woman under twelve years of age 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 that person's natural life, and with fine or with death:
Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim:
Provided further that any fine imposed under this section shall be paid to the victim.]
24. Section 5(l), 5(m) and Section 6 of the POCSO Act, 2012 states as follows:-
"5. Aggravated penetrative sexual assault.-
(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"
"6. Punishment for aggravated penetrative sexual assault.-
Whoever, commits aggravated penetrative sexual assault, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine."
25. The evidence of the victim girl (PW-3) is to the effect that the appellant had penetrated his penis into her private parts. In her cross-examination, PW-3 further denied the suggestion that she had not Page No.# 9/14 told the Police that the appellant had gagged her mouth and had penetrated her anus. The statement of the victim under Section 164 Cr.P.C. is to the effect that the appellant had inserted his penis into her anus. In her statement under Section 161 Cr.P.C. the victim stated that upon being made to lie on the bed she was undressed and the appellant lay on top of her. Thereafter, she noticed some substance was on her clothes, which she washed. The above statement made by the victim corroborates her testimony before the learned Trial Court that she was raped. However, the problem lies with the medical report and the evidence of the Medical Officer, who is PW-6, who testified that there was no mark of rape and in his opinion, the victim was not raped. He also stated that there was no external or internal injury detected on the victim at the time of her examination. In his medical examination report held on 06.06.2021 at 8:20 p.m. it has been shown that there was no injury seen in the hymen and no spermatozoa was found. Thus, in terms of the medical report and the opinion of the Doctor, it appears that rape had not been committed. On the other hand, there is nothing to doubt the evidence of the victim, who was approximately between 10-12 years of age at the relevant point of time.
26. In the case of State of Himachal Pradesh vs. Manga Singh reported in (2019) 16 SCC 759, the case revolved around the offence of rape on a 9 year old girl. The Supreme Court held that though the evidence of the medical Doctor spoke about the absence of external injury marks on the genitals of the victim, the proposition that the corroboration from medical evidence was not a sine-qua-non when cogent evidence of the victim was available, was reiterated.
27. In the case of State of Tamil Nadu Vs. Ravi @ Nehru reported in (2006) 10 SCC 534, the Supreme Court considered another of its judgement i.e. Madan Gopal Kakkad vs. Naval Dubey reported in (1992) 3 SCC 204 and page 369 of Modi's Medical Jurisprudence and Toxicology (21 st Edition) and held that even the slightest penetration of the penis into the vagina without rupturing the hymen or emission of semen would constitute rape. It also held that it was quite possible to commit legal the offence of rape without producing any injury to the genitals or leaving any seminal stains. It also held that the Medical Officer should mention the negative facts in his report, but should not give his opinion that no rape has been committed. Rape is a crime and not a medical condition. Rape is a legal term and not a diagnosis made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one.
28. In the case of State of Haryana Vs. Ram Singh reported in (2002) 2 SCC 426 and Ghulam Page No.# 10/14 Hassan Beigh Vs. Mohammad Maqool Magrey [(2022) 12 SCC 657], the Supreme Court has held that medical evidence is only an evidence in opinion, which is advisory in nature and not decisive in a case. In the present case, though the Doctor (PW-6) had opined that the victim had not been raped and that there was no mark of rape or external or internal injury on the victim, we are not convinced that the victim had not been raped even though it is surprising that there were no marks of injury on or around the victim's anus and the Doctor's evidence does not support the testimony, we are of the view that penetration to an extent would amount to rape. Further, we have not been showed anything to doubt the truthfulness of the victim's testimony.
29. Though the Doctor's evidence is to the effect that rape had not been committed on the victim due to there being no injury on the victim, we are of the view that there is nothing to suggest that there was no penetration of the private part of the appellant into the anus of the victim. Penetration, to whatever extent, would constitute penetrative sexual assault as provided under section 3 of the POCSO Act. As such, the penetration could be minimum and to a very small extent, which may not have caused any injury to the anus area of the victim. On considering the fact that we find the evidence of the victim to be truthful and as the same inspires our confidence, we do not find any reason to doubt the veracity of her testimony, which is to the effect that the victim had been raped by the appellant. Further, as held by the Supreme Court, the absence of injury on the victim, in our view, does not prove that no penetrative sexual assault had been committed on the victim. The evidence of the medical officer, in our view, is not acceptable to us wherein he had stated that no rape has been occurred on the victim, as rape is a crime and not a medical condition. Further, even though there are minor discrepancies in the statement made by the victim under section 161 Cr.P.C. and 164 Cr.P.C., we find the discrepancies do not go to the core of the issue and they, in fact, corroborate the testimony of the victim.
30. We also find that there is no major discrepancy with the statement of the victim under Section 161 and 164 Cr.P.C vis-a-vis her testimony. There is nothing to show that the victim had ever taken a stand that there had been penetration in any other part of her body other than her anus. The next issue to be decided is whether there was any enmity between the family of the victim and the appellant, which could have resulted in a false case being foisted upon the appellant. The evidence of the father of the victim, i.e. PW-1 in his cross-examination, is to the effect that a dispute had occurred in the year 2017 with regard to the grinding of rice by means of a tractor by the appellant. However, PW-1 thereafter denied the suggestion that any rivalry had been going on between their families since then. The dispute that occurred in the year 2017 does not appear to be serious, inasmuch as, there is no Page No.# 11/14 mention of the same by any of the defence witnesses. The only stand taken by DWs-1, 2 and 3 is to the effect that a few days after the occurrence of the event, the appellant and the victim girl had demanded Rs.5 lakhs for withdrawing the case and that prior to 5/6 months of the occurrence of the allegation of rape, there was a quarrel between the family of the appellant and the family of the victim.
31. In the examination of the appellant under Section 313 Cr.P.C, the appellant has not made any statement that there was any enmity between the family of the appellant and the family of the victim. There is also nothing in the evidence of DWs-1, 2 & 3 with regard to the nature of the quarrel between the respective families and whether it could be related to anything serious. On account of the absence of specifics, we are of the view that a bald statement without any specifics, does not prove that there was any existing enmity between the family of the appellant and the victim, for which the informant would have fabricated the present case against the appellant by being tutored.
32. In the case of State (GNCT of Delhi) Vs. Vipin @ Lalla, Criminal Appeal No.94/2025, the Supreme Court has held that although in a case of rape conviction can be made on the sole testimony of the victim, as her evidence is in the nature of an injured witness, which is given a very high value by the Courts, the Courts are bound to be careful in examining such a witness. The testimony of such a witness must inspire the confidence of the Court.
33. In the case of Santosh Prasad @ Santosh Kumar (supra), the Supreme Court has held that conviction can be based solely on the evidence of the victim which should be reliable and trustworthy. Further, in the case of Raju vs. State of M.P., reported in (2008) 15 SCC 133, it has been held that insofar as allegations of rape are concerned, the evidence of prosecutrix must be examined as that of an injured witness whose presence at the spot is probable, but it can never be presumed that the statement should be, without exception be taken as the gospel truth. Additionally, her statement can, at best, be adjudged on the principle that ordinarily no injured witness would tell a lie or implicate a person falsely.
34. In the case of Rai Sandeep vs. State (NCT of Delhi), reported in (2012) 8 SCC 21, the Supreme Court explained what a sterling witness should be. It held in paragraph-22, as follows :
"22. In our considered opinion, the 'sterling witness' should be of a very high quality and caliber 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 Page No.# 12/14 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 everyone 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 similar such 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."
35. In the present case, the deposition of the victim appears to be truthful and inspires the confidence of this Court, we do not find any material contradictions in relation to her testimony qua her statement made under Section 164 Cr.P.C. The only fly on the wall is the evidence of the Doctor, who stated that in his opinion, the victim was not raped. However, as has been held by the Supreme Court in the case of in the case of Deepak Kumar Sahu Vs. State of Chhattishgarh reported in AIR 2025 SC 3763, in case of an offence under section 376 IPC, when the story of the victim girl as told in the evidence is found trustworthy, the apparent insufficiency of medical evidence pitted against acceptable testimony of the victim, the latter would prevail.
36. In the case of State of Punjab Vs. Gurmit Singh and another reported in (1996) 2 SCC 384, it was held that it cannot be concluded that rape had not occurred or that sexual intercourse was committed with the consent of the prosecutrix, in the absence of injury on the private parts of the prosecutrix.
37. In the case of Lok Mal alias Loku Vs. State of Uttar Pradesh reported in (2025) 4 SCC 470, the Supreme Court observed that merely because there was no major injury marks in the medical evidence Page No.# 13/14 cannot be a reason to discard the otherwise reliable evidence of the prosecutrix. It held that it is not necessary that in each and every case where rape is alleged, there has to be an injury to the private parts of the victim and it depends on the facts and circumstances of a particular case. It thus held that the absence of injuries on the private parts of the victim is not always fatal to the case of the prosecution. In Deepak Kumar Sahu (Supra), the Supreme Court held that corroboration is not a sine-qua-non for conviction in a rape case. As a general rule, there is no reason to insist on corroboration, except from medical evidence. However, having regard to the circumstances of a case, medical evidence may not be available.
38. The above being said, the further issue that has to be answered is as to whether the learned Trial Court could have convicted the appellant under section 6 of the POCSO Act for having committed aggravated penetrative sexual assault on the victim, which according to the victim, had been done only once by the appellant. Section 5(m) of the POCSO Act, 2012 states as follows:-
"5(m) Whoever commits penetrative sexual assault on the child more than once or repeatedly."
39. The seizure list which was exhibited as Exbt. P-2 during trial shows that the victim's original Birth Certificate which had been issued on 22/05/2017, showing her date of birth as 23/05/2011, has been seized by the Police. However, the said Birth Certificate has not been exhibited. When the original Birth Certificate of the victim has not been exhibited by the prosecution, it cannot be said that the victim was blow 12 years of age at the time of the incident. As such, when there is nothing to prove the age of the victim at the time of the incident, the appellant could not said to have violated section 5(m) of the POCSO Act, 2012, which provides that aggravated penetrative sexual assault can be said to be committed on a children below 12 years. However, section 4(2) of the POCSO Act provides for punishment for penetrative sexual assault on a child below 16 years of age, which should not be less than 20 years, but may extend to imprisonment for life and shall also be liable to fine.
40. Here also, the problem lies in the fact that there is no proof of the age of the victim at the time of the incident. As such, we are of the view that it would not be safe or fair to apply section 4(2) of the PCOSO Act. This is due to the fact that the prosecution has to prove it's case beyond all reasonable doubt. However, section 4(1) of the PCOSO Act would apply wherein, the minimum punishment is for a term of not less than 10 years but which may also extend to imprisonment for life and liable to fine.
41. In view of the fact that we find that there has been penetrative sexual assault on the victim without there being any proof of age of the victim at the relevant point of time, we alter the charge and consequential conviction of the appellant from section 6 of the POCSO Act to section 4(1) of the Page No.# 14/14 POCSO Act, 2012. Accordingly, we convict the appellant under section 4(1) of the PCOSO Act, 2012 and sentence him to undergo rigorous imprisonment for 12 (twelve) years with a fine of Rs. 20,000/-, in default, to undergo simple imprisonment for 2 (two) months. The impugned judgement and sentence dated 14/11/2024 passed by the learned Special Judge, Udalguri, in Special (POCSO) Case No. 21/2022, is hereby modified to the extent indicated above.
42. The criminal appeal is allowed to the extent indicated above.
43. Send back the TCR.
JUDGE JUDGE
Comparing Assistant
Sukham Digitally signed
by Sukhamay Dey
ay Dey Date: 2025.11.14
12:07:01 +05'30'