Gauhati High Court - Kohima
Abul Kasem vs The State Of Nagaland And Anr on 20 May, 2026
Page No.# 1/29
GAHC020000342024 2026:GAU-NL:283-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
KOHIMA BENCH
Case No. : CRAPL/1/2024
ABUL KASEM
S/O LATE HABIB ULLAH
R/O PERMANENT-BORDUA, JAMUGURI, P.S.-JURIA, DIST- NAGAON,
ASSAM-782124
PRESENT ADDRESS- VILLAGE-AHOZHE
P.S. NIULAND, NAGALAND-797116
VERSUS
THE STATE OF NAGALAND AND ANR
NAGALAND KOHIMA
2:SHRI SHETO SUMI
S/O SUIMON
R/O LUZEHTO VILLAGE
DISTRICT- DIMAPUR
NAGALAND-79710
Advocate for the Appellant : Mr. Z. Khalid
Advocate for the State respondent : Ms. S. Mere, P.P
Advocate for the Respondent No. 2 : Mr. Toshi O. Longkumer Page No.# 2/29
-BEFORE-
HON'BLE MR. JUSTICE KALYAN RAI SURANA HON'BLE MR. JUSTICE PRANJAL DAS Date on which judgment is reserved : 29.04.2026 Date of pronouncement of judgment : 20.05.2026 Whether the pronouncement is of the : No. operative part of the judgment ?
Whether the full judgment has been : Yes pronounced?
JUDGMENT & ORDER (CAV) (Pranjal Das, J)tra nscriptions Heard Mr. Z. Khalid, learned counsel for the appellant. Also heard Ms. S. Mere, learned Public Prosecutor and Mr. Toshi O. Longkumer, learned counsel for the Informant/respondent No. 2.
2. The convict/appellant, Abul Kasem invoking the provisions of Section 374(2) of the Cr.P.C, 1973 has preferred this appeal against the judgment and order dated 16/03/2023 passed by the learned Special Judge (POCSO) Dimapur, Nagaland arising out Dimapur Women P.S Case No. 003/2022 in Fast Track Special Court Case No. 003/2022.
3. By the impugned judgment and order, the appellant was convicted under Section 8 of the POCSO Act 2012 read with Section 354/377/506 IPC. For his conviction under Section 8 POCSO Act, he was sentenced to undergo rigorous imprisonment for 3 years Page No.# 3/29 and pay a fine of Rs. 2000/- (Rupees Two thousand), in default, undergo R.I for 1 year. For his conviction under Section 354 IPC, he was sentenced to rigorous imprisonment for 1 year and fine of Rs.1000/- (in default R.I for 6 months). Similarly, for his conviction under section 377 IPC, he was imposed with rigorous imprisonment for 10 years and fine of Rs. 5000/- (in default R.I. for 1 year). For his conviction under Section 506 IPC he was sentenced to suffer rigorous imprisonment for 1 year and fine of Rs. 500/- (in default undergo S.I. for 2 months). It was directed that the sentences shall run concurrently, except the punishment and sentence under Section 506 IPC; he was also given the benefit of set-off under Section 428 Cr.P.C.
4. Aggrieved by the said conviction and sentences, the convict/appellant is before this court with this appeal.
5. The prosecution case before the learned Trial Court was that on 06/03/2022 an FIR was lodged before the Niuland Police Station Dimapur by the Vice-Chairman, Luzheto Village Council, Dimapur with the allegations that on 20/02/2022, the accused Abul Kasem seduced and led a minor 7 year old girl to his residence and committed rape upon her and that it was also witnessed by two witnesses namely, Hurmuz Ali and Muslim Pastor M.D. Kotamiya Ali. It was alleged that the witnesses saw the accused holding the hand of the minor girl leading her to his room and later heard the minor girl screaming. It is alleged that the incident came to light only after 15 days when the said Muslim pastor confronted the victim's mother and upon questioning the minor girl, details of the incident was Page No.# 4/29 revealed leading the Village Council to summon the accused and forward the case to the police.
6. On the basis of the aforesaid allegations in the FIR, Dimapur Women Police Station Case No. 003/2022 was registered under section 354/376 AB/377 IPC read with section 6(1) of the POCSO Act and investigation started. After completion of investigation, the case was charged-sheet against the appellant under section 354/376 AB/377/506 IPC read with section 6(1) of the POCSO Act. The charge- sheet was filed vide Charge-Sheet No. 5 of 2022 dated 11/04/2022.
7. Subsequently after completion of the usual formalities, the learned Trial Court was pleased to frame charges against the appellant vide order dated 14/07/2022 under sections 354/376 AB/377/506 IPC r/w section 6(1) of POCSO Act. The charges being read over to the accused were denied by him, leading to commencement of the trial. During the trial, the prosecution examined 8 witnesses including the victim. After the closure of prosecution evidence, the accused was duly examined under section 313 Cr.P.C. The defense did not adduce any evidence.
8. Mr. Z. Khalid, the learned counsel for the appellant submits that there are discrepancies in the testimony of the victim. It is also submitted that silence was maintained for 15 days after the incident and no explanation has been provided for such delay.
9. It is submitted that the impugned judgment and order suffers from infirmities and contradictions and that the guilt of the accused has not been convincingly proved. The learned counsel for Page No.# 5/29 the appellant prays for setting aside the impugned judgment and order and for acquittal of the appellant.
10. In support of his contentions, the learned counsel for the appellant cites the following decisions;
(i) State of M.P -versus- Dharkole @ Govind Singh, reported in (2004) 13 SCC 308, para-11.
(ii) Krishnan & Another -versus- State represented by Inspector of Police, reported in (2003) 7 SCC 56, para-22 & 23.
(iii) Shivaji Sahabrao Bobade & Another -versus- State of Maharashtra, reported in (1973) 2 SCC 793, para-6, 8 & 19.
(iv) Rai Sandeep @ Deepu -versus- State (NCT of Delhi), reported in (2012) 8 SCC 21, para-22.
(v) Mumtaz -versus- State (Govt. of NCT of Delhi), reported in 2013 Supreme (Del) 605, para-19.
(vi) Aman Kumar & Another -versus- State of Haryana, reported in (2004) 4 SCC 379, para- 7, 12, 13.
(vii) Uday Umesh Lalit, Bela M Trivedi J -versus- Attorney General for India, reported in 2021 0 SCC 701, para-17, 18, 25, 32, 33, 42 to 44.
11. On the other hand, Ms. S. Mere, the learned P.P appearing for the State of Nagaland, submits that the statements and the testimony of the victim have been consistent. It is submitted that the delay, if any, has been explained and the testimony of the victim has been rightly found to be trustworthy by the learned Trial Court.
12. In support of her contentions, the learned Public Prosecutor cites the following decisions;
(i) Bhanel Prasad @ Raju -versus- State of Himachal Pradesh, reported in 2025 INSC 934, para-6 to 9.
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13. Mr. Toshi O. Longkumer, the learned counsel for the informant, submits that the discussion of delay by the learned Trial Court in the impugned judgment is correct. It is submitted that the defense mechanism of every child is different. Therefore, these aspects of behavior cannot be generalized. It is submitted that the guilt of the accused was cogently proved by the prosecution during the trial and that there is no infirmity in the impugned judgment and order.
14. In support of his contentions, the learned counsel for the informant/respondent No. 2 cites the following decisions;
(i) Sushil Kumar Tiwari -versus- Hare Ram Sah & Others, reported in 2025 INSC 1061, para-36.
15. We have perused the impugned judgment, the evidence on record before the learned Trial Court and the submissions of the learned counsels on both the sides. We have also perused and considered the decisions cited at the bar.
16. 3PW1 Sheto Sumi is the informant of the case. He stated in his deposition that he lodged a case on 06/03/2022 with regard to the incident on 23/02/2022, on which day the accused Abul Kasem raped a seven year old minor girl. He testified that he was informed by the father of victim about the rape and then as the Vice Chairman of the Village, he along with rest of the Village Council called the victim witnesses and accused and after some inquiry confirmed from the victim that the accused had committed the offence and thereafter, they decided to hand over the case to the Police. He stated that the FIR was lodged immediately after the Village Council was informed by the victim's family on 06/03/2022.
Page No.# 7/29 He proved the FIR as Exhibit 1 and also proved his signature thereon. He identified the accused by name and face during his deposition. In re-examination by the prosecution, he clarified that he received the information from the elder paternal uncle of the victim. In cross-examination, he admitted that incident took place on 23/02/2022 and information was received from the victim's paternal uncle on 06/03/2022. Thereafter, the Village Council members intervened and lodged the FIR. He admitted that he had not seen the accused committing the offence, but he filed the FIR based on the statements of the witnesses.
17. PW2 is one Kotama Ali, who is stated to be a pastor in Luzheto B Mosque. He stated that on 23/02/2022, after the service in the church, he was taking rest, whereupon he heard a child screaming. Accordingly, he came out of the mosque and went towards the house from where the noise was coming and when he reached the place, he saw the door closed and there was a thatched house with gaps in between and upon peeping through the gaps of the house, he saw the accused putting saliva on the child's private part. He also saw the child's feet lifted up and the child was on the bed and the accused was standing beside the child. He also saw the hand of the accused on the mouth of the victim's child and that he heard the accused threatening the victim that he will kill her parents if she told anyone. He testified that after seeing the incident, his pressure shot up and thereafter, he told Hormuz Ali about it. He stated during his deposition that he can identify the accused by name and face. He also stated in his deposition that the accused Page No.# 8/29 requested him many times not to testify against him.
18. The PW2 was re-examined by the prosecution during which he stated that he saw the victim's leg on the bed and her leg lifted up and the accused standing beside her threatening. In cross- examination, he stated that the incident happened on 23/02/2022. He reiterated about hearing the noise while he was taking a short nap. He also stated about being able to identify the face of the victim. However, he stated in his cross-examination that though he did not see the accused committing the offence but he heard that the accused was threatening the victim. He stated that he did not intervene as he was scared and after the incident he told Hormuz Ali.
19. The said Hormus Ali testified as PW3 in which he stated that he is a cultivator residing at Luzheto village. That, on 23/02/2022, in the afternoon while he was going to the Masjid to pray, he saw the accused holding the hand of the victim and taking her to his house. But at that time he did not suspect anything. After some days, the incident came to light that the victim was raped by the accused. PW3 further testified that the pastor told him that he saw the accused committing the offence and later some Muslim people of the area summoned the accused to the victim's house and though the accused denied but the victim child told that it was the accused who committed sexual assault upon her. Subsequently, the matter was informed to the village council. PW3 identified the accused by name and face. In cross-examination, he stated that the incident took place on 23/02/2022 and that he was the brother-in-law of the Page No.# 9/29 victim. He reiterated that he saw the accused holding her hand and taking her away and he also reiterated that he came to know about the incident from the pastor.
20. oPW4 is one Mohammad Basid Ali, a shopkeeper and resident of the same village, and he is also the paternal uncle of the victim. He testified that on 05/03/2022, his father had visited his younger brother's family and after returning told that something had happened in his family, but due to his age he could not understand. Thereupon, PW4 visited their house in the evening and when he asked his sister-in-law, who was the mother of the victim, then she told that the pastor had said something to her which she could not understand and told me to enquire. PW4 stated that initially they thought that pastor was lying about sexual assault upon his niece, but pastor said that he would not bear the burden of someone on his soldier and he would tell us what he saw. Thereupon they asked the child whether the accused committed sexual assault upon her and she replied positively. Upon asking as to why she had not told about the same, she said that she was threatened by the accused that he would kill her parents if she disclosed to anyone. PW4 further testified that thereupon he called the accused and asked the victim to identify him and she said that it was this accused who had committed the sexual assault upon her. Upon being asked, the accused admitted of his wrongdoings and asked for forgiveness. However, the matter was informed to the Village Council and later to the Police. PW4 stated that he can identify the accused by name and face during his Page No.# 10/29 deposition. In cross-examination, he admitted that he had not seen the offence committed by the accused but heard about the crime and that he had deposed as a witness based on the statements of other persons.
21. PW5 Nasir Uddin stated that he is the father of the victim girl and at the time of the incident he was working at Toluvi as a construction worker and upon returning from work he saw a lot of people at his house and came to know about the incident. He stated about his elder brother Basid Ali taking the initiative on the issue. He stated that he knew about his child being sexually assaulted and he also identified the accused by name and face during his deposition. He was re-examined by the learned P.P after cross- examination and he stated that his daughter was raped and sexually assaulted. He admitted, he stated that he was not present at the time of the incident but he heard from people that his daughter was raped. In cross-examination, he stated that he is the father of the victim and reiterated that he was not present at the time of the offence. He stated that he could not ascertain the date, month and time of occurrence but that the incident took place in the same year in which he had deposed, i.e. 2022. He stated that he did not ask his daughter about any injury or pain with regard to the incident and that when he reached home she was in good health.
22. During investigation, the victim girl was examined before the learned JMFC at the instance of the Police and the same is also confirmed by the I.O PW8 in her deposition. The said statement was exhibited by him by the I.O as Exhibit 9. Before proceeding to Page No.# 11/29 examine the victim, the learned Magistrate conducted preliminary questioning and after being convinced about her proper understanding, proceeded to record the statement. In her statement, the victim girl stated to be aged 7 years, said that on the day of the incident she had gone to eat fruit from a tree located near the house of the accused who had done bad things to her. That, upon reaching the tree while she was picking up the fallen fruits, he approached her and forcefully took her to a room inside a house where he pulled out her pants and put his saliva with his finger on her anus. That thereafter he proceeded to insert his private part inside her anus whereupon she screamed due to being hurt. She further stated that he then covered her mouth with his hands to stop her from screaming and told that he would kill if she narrated about the incident to anyone. She further stated that after saying this, he ran out of the room and she also ran back to her house. During the trial, the victim girl testified as PW6 and in her testimony she stated that on the day of the incident she was eating a fruit whereupon the accused got hold of her hand and took her to his house where he opened his trouser, opened her pant till her knee and did bad things to her. Elaborating, PW6 stated that the accused applied his saliva on her anus and did bad things to her; that he opened her legs, opened his flyers and belt and put her on a bed and did bad things to her.
23. PW6 further stated that she felt pain and started to cry but the accused covered her mouth with hand and threatened to kill her and her father if she told about the incident to anyone. That, thereafter Page No.# 12/29 she left for home and did not tell anyone as accused threatened her. She identified the accused by name and face and identified him during the deposition. In cross-examination she stated that she reiterated that the accused took her to his place, took off her pants and inserted his private part into her anus but she still clarified that there was no bloodstain. She also stated about screaming and being heard by passerby. She also stated that after the incident she went to her place but did not inform her family members as she was threatened.
24. PW7 Dr. Neilasakuo Lenyu is the Doctor who examined the victim in the context of the incident. She proved the medical report as Exhibit 10 and her signature thereon as Exhibit 10A. In cross- examination she stated that the victim was around 7 years and she was accompanied by Women Police and guards. She stated in cross- examination that there was no injury on the victim but she clarified that she had not examined any such victim in the past. She stated that according to her findings no rape had been committed against the victim. She was further examined by the prosecution in which she stated that to examine such a patient brought for medical examination to the hospital, no authorization is required. She examined the victim in this case as she was brought by the Police.
25. PW8 Gloria Jami is the Investigating Officer of the case. She stated about lodging of the complaint and being endorsed to investigate the case. She stated that during investigation she found that the incident had come to light after 15 days of the incident whereupon and that as soon as they came to know about the Page No.# 13/29 incident an FIR was lodged. She stated about forwarding the victim for medical examination as well as for recording her statement before Magistrate. She also proved as Exhibit P9 the statement of the victim girl before the Magistrate. She stated in cross- examination that the incident took place at Luzheto village on 23/02/2022 at around 2-3 pm. She stated that rape was committed on the victim and that the Medical Report submitted by the doctor is not true. She stated about filing the charge sheet. In re-cross- examination she clarified that an FIR was lodged on 07/03/2022.
26. In her statement recorded before Magistrate, the victim child mentioned about being taken to a room by the appellant and after taking off her pants, he put saliva with his finger on her anus. During her testimony as PW6 also, the victim girl stated about the accused applying his saliva on her anus and doing bad things to her. In cross-examination, she has clearly stated that the accused took off her pants and inserted his private part in her anus, thereby lending corroboration to her statement before the learned Magistrate recorded during investigation.
27. In her examination-in-chief during trial PW6, the victim girl stated about the accused covering her mouth with his hand and threatening to kill her and her father if she tells about the incident to anyone. In her statement before Magistrate also, she stated about accused covering her mouth to stop her from screaming and threatened to kill her if she narrated the incident to anyone. This aspect therefore is in harmony between her statement before learned Magistrate and her deposition during the trial.
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28. Upon carefully perusing the statement of the victim girl before learned Magistrate and her deposition as PW6 during the trial, we find that the statement of the victim girl has been consistent through both the accounts and the nature of the incident described by her in both the statements is also almost identical. In Para 22 of the decision in Rai Sandeep Alias Deepu (supra), Hon'ble Apex Court has described the qualities of a sterling witness. The said paragraph -22 may be reproduced herein below:
"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 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, it can 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 Page No.# 15/29 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."
29. It is well settled that a conviction in a case of sexual offence can be based solely on the testimony of the victim provided the same is found to be inspiring and trustworthy by the Court. Therefore, it can be said that to base a conviction in a sexual offence case upon the sole testimony of the victim, such testimony has to fulfill the criteria pertaining to the evidence of a sterling witness in terms of the principles regarding the same explained by the Hon'ble Supreme Court in the aforesaid decision.
30. One of the most important attributes of a sterling witness would be consistency in the testimony through all the statements of the witness. In the instant case, as already mentioned, even if the victim is not labelled as a sterling witness, it is clear from the discussion so far that her testimony is very consistent from her statement before learned Magistrate and to her deposition during the trial.
31. The learned defence has raised the contention of delay of about 15 days in lodging the FIR and the said delay not being explained. From the materials, there is no dispute about the factual position that the FIR was lodged on behalf of the village council on 06.03.2022 and the incident had taken place on 23.02.2022.
32. It has been revealed from the prosecution evidence that initially the incident had not emerged from the mouth of the victim Page No.# 16/29 girl and she has also stated in her testimony about being threatened not to disclose about the incident. It has emerged from the testimony of PW4, the paternal uncle of the victim that when the incident emerged, he asked the victim, who was his niece, as to why she had told about the incident. Then the victim is stated to have told him that the accused had threatened to kill her parents if she disclosed about the incident to anyone. From the testimony of PW8, the Investigating Officer, also it has emerged that the incident came to light after 15 days and as soon as it came to light, the FIR was lodged. Therefore, we hold that though there is a time gap between the lodging of the FIR and the date of the incident, the evidence and circumstances revealed satisfactorily explain the said and the same delay would not damage the prosecution case.
33. In any case, in sexual offences cases, the aspect of delay has to be seen on a somewhat different footing because of the nature of these offences. As far as the general principle is concerned, it is well settled that if the delay in initiating criminal proceeding is satisfactorily explained, that the same would not damage the prosecution case, unless the quantum of the delay is of such a nature that such delay itself throws doubt upon the prosecution case.
34. PW2, Khotam Ali is a vital witness. It is well known that in sexual offences, it is very difficult to find, eyewitnesses apart from the victim because of the very nature of these offences. Nevertheless, PW2 in the instant case claims to be an eyewitness to the incident. He was a religious leader of a religious institution and Page No.# 17/29 upon hearing the screams of the victim, he went towards the house from where the scream was coming and he found the house and upon peeping through the gap, he saw the accused putting saliva on the child's private part. He has also stated about the accused putting his hand on the mouth of the victim and heard the accused threatening the victim that he will kill her parents if she told anyone.
35. This aspect of the testimony lends direct corroboration to the testimony of the victim girl during trial and in her statement before learned Magistrate. In the deposition of PW2, the word 'private part' has been used rather than 'anus' which was mentioned in the testimony of the victim girl and in her statement before Magistrate. Regarding the aspect of threatening, the statements are almost identical in the testimony of the victim and that of PW2.
36. In her testimony and in her statement before learned Magistrate, the victim girl has stated about screaming as she was hurt and in her testimony also, she stated in her cross- examination that she had screamed and passerby could hear her screams. This lends corroboration to the testimony of PW2 that he went to the place of occurrence upon hearing the screams of the victim. PW2, the eyewitness stated that he saw the child's feet lifted up, the child on the bed and the accused was standing beside the child.
37. The victim as PW6 in her testimony stated that the accused opened her legs, opened his flyers and belt and put her on the bed and did bad acts to her. This part of the testimony of PW2 and PW6 corroborate each other. Both the victim as PW6 and eyewitness PW2 Page No.# 18/29 have identified the accused during their deposition.
38. One aspect that has emerged from the testimony of PW2 is that he told about the incident one Hormuz Ali and the said Hormuz Ali testified as PW3. One important aspect that emerges from the testimony of PW3 Hormuz Ali is that on the day of the incident while going to the religious place, he saw the accused holding the hand of the victim and taking her to his house and later he heard about the incident of rape. He has also testified that after the incident people gathered and summoned the accused to the victim's house where he denied about the incident, but the victim stated that it was the accused who committed sexual assault upon her.
39. In cross-examination PW3 has reiterated that he saw the accused holding the hand of the victim and taking her away and he has also mentioned about PW2 telling him about the incident. One aspect that has emerged from the testimony of PW2 Khotam Ali is that he did not intervene at the time seeing the incident as he was scared. In cross-examination he stated that when he saw the incident his blood pressure shot up and he stood still.
40. PW4 Mohammad Basid Ali whose testimony has been discussed above in another context has stated in his deposition that upon hearing about some incident he went to his relative's place and asked the mother of the victim who was his sister-in-law and he has also testified that upon asking the victim's girl she stated in the affirmative about the accused committing sexual assault upon her. PW4 also identified the accused in the Court during the time. PW5 is the father of the girl. He is not an eyewitness and his Page No.# 19/29 knowledge about the incident is based on what he came to know from others. However, he has also stated about PW4 Mohammad Basid Ali taking the initiative in the matter thereby corroborating the testimony of PW4 in this regard.
41. From the medical evidence of PW7, it is revealed through our cross-examination that the victim was aged about 7 years. In her statement recorded before learned Magistrate her age is mentioned as 7 years. In our examination in chief as PW6 the victim girl mentioned her age to be 8 years at the time of deposition. We also find that no cross-examination has been done with regard to the prosecution witnesses including the father of the victim assailing her age.
42. For the testimony of the I.O, it is revealed that he exhibited birth certificate of the victim stating that it is the Xerox copy and that the original is identified.
43. One infirmity in the prosecution case emerges from the testimony of the Doctor as PW7 in which she stated in her cross- examination that according to our findings and examination, no rape was committed upon the victim. The Doctor has not elaborated as to why she arrived at the finding though she has mentioned that there was no injury on the victim.
44. In the instant case, the victim was examined on 03.03.2022 about 10 days after the incident. More importantly, in view of the cogent and consistent testimony of the prosecutrix from her statement before the Magistrate, to her deposition during the trial which also finds important and vital corroboration from the Page No.# 20/29 testimony of PW2 and PW3--there is no reason why such testimony should be allowed to be defeated by the solitary statement of the Doctor that no rape was committed.
45. In this regard, a reference may be made to the decision............ thus, if the testimony of a victim of sexual crime is found to be cogent and reliable the same can be relied upon even if there is some variance with the medical evidence as is the case here unless --the testimony of the victim and the medical evidence are so contradictory that the testimony of the victim cannot stand altogether. As already stated the same is not the case here and the testimony of the victim has been found to be quite cogent and reliable.
46. The decision in Dharkole (supra) would not be of much assistance to the appellant side as the relevant paragraph-11 for the purpose of this adjudication explains the concept of reasonable doubt as a doubt which is not imaginary trivial or a merely possible doubt but a fair doubt based upon reason and common sense and growing out of the evidence of the case. In the instant case, the testimony of the victim together with PW2 and PW3 primarily have been found to be cogent and reliable and not suffering from such reasonable doubts. The decision in Krishnan (supra) is also on the issue of doubts and upon perusing the relevant paragraph- 22 and 23 pointed out by the learned counsel for the appellant. We are of the opinion that the said decision would not be of assistance to the appellant side in setting aside the impugned judgment. The relevant para-23 may be reproduced herein below:
Page No.# 21/29 "22. Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an over emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and commonsense. It must grow out of the evidence in the case."
47. In the case of Shivaji Sahabrao Bobade (supra), the Hon'ble Apex Court speaking through Krishna Iyer, J cautioned against the dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social interest and the community demands, in the contemporary context of escalating crime and escape. The relevant para-19 may be reproduced herein below:
"19 Now let us sum up the whole case in the light of the evidence we have found to be of worth. We must observe that even if a witness is not reliable, he need not be false and even if the Police have trumped up one witness or two or has embroidered the story to give a credible look to their case that cannot defeat justice if there is clear and un- impeachable evidence making out-the guilt of the accused. Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ,may be' and 'must be' is long and divides vague conjectures from sure conclusions. Informing ourselves of these important principles we analyse the evidence found good by us. In our view there is only one eye-witness, P.W. 5, Vilas. Even if the case against the accused hangs on the evidence of a single eye-witness it may be enough to sustain the, conviction given sterling testimony of a competent, honest man, although as a rule of prudence courts call for corroboration. It is a platitude to say that witnesses have to be weighed and not counted since quality matters more than quantity in human affairs. We are persuaded that the PW 5 is a witness for truth but in view of the circumstances that he is interested, we would still want corroboration in this case to reassure ourselves. And that we have in this case."
48. In the case of Mumtaz (supra) relied upon by the appellant Page No.# 22/29 side, the Hon'ble Apex Court referring to an earlier decision in Dattu Ramrao Sakhare -versus- State of Maharashtra reported in (1997) 5 SSC 341, dealt into the issue of competency of child witness and testimony of such a child witness. The relevant paragraph-5 of Dattu Ramrao Sakhare (supra) may be reproduced herein below:
"5. The entire prosecution case rested upon the evidence of Sarubai (PW 2) a child witness aged about 10 years. It is, therefore, necessary to find out as to whether her evidence is corroborated from other evidence on record. A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored. There is no rule or practice that in every case the evidence of such a witness be corroborated before a conviction can be allowed to stand but, however as a rule of prudence the court always finds it desirable to have the corroboration to such evidence from other dependable evidence on record. In the light of this well-settled principle we may proceed to consider the evidence of Sarubai (PW 2)."
49. The decision in Aman Kumar (supra) lays down in paragraph-7 that penetration is the sine qua non for an offence of rape. There is no doubt about the aforesaid proposition laid down by the Hon'ble Apex Court. However, it has also been held that penetration howsoever slight is sufficient to constitute the offence of penetrative sexual assault. In this regard, reference may be made to the decision in Dattu Ramrao Ramrao Sakhare (supra) and the Page No.# 23/29 relevant paragraph-7 may be reproduced herein below;
"7. Penetration is the sine qua non for an offence of rape. In order to constitute penetration, there must be evidence clear and cogent to prove that some part of the virile member of the accused was within the labia of the pudendum of the woman, no matter how little (See Joseph Lines IC & K 893). It is well-known in the medical world that the examination of smegma loses all importance after twenty four hours of the performance of the sexual intercourse. (See Dr. S.P. Kohli, Civil Surgeon, Ferozepur v. High Court of Punjab and Haryana thr. Registrar (1979) 1 SCC 212). In rape cases, if the gland of the male organ is covered by smegma, it negatives the possibility of recent complete penetration. If the accused is not circumcised, the existence of smegma round the corona gland is proof against penetration, since it is rubbed off during the act. The smegma accumulates if no bath is taken within twenty four hours. The rupture of hymen is by no means necessary to constitute the offence of rape. Even a slight penetration in the vulva is sufficient to constitute the offence of rape and rupture of the hymen is not necessary. Vulva penetration with or without violence is as much rape as vaginal penetration. The statute merely requires evidence of penetration, and this may occur with the hymen remaining intact. The actus reus is complete with penetration. It is well settled that the prosecutrix cannot be considered as accomplice and, therefore, her testimony cannot be equated with that of an accomplice in an offence of rape. In examination of genital organs, state of hymen offers the most reliable clue. While examining the hymen, certain anatomical characteristics should be remembered before assigning any significance to the findings. The shape and the texture of the hymen is variable. This variation, sometimes permits penetration without injury.
This is possible because of the peculiar shape of the orifice or increased elasticity. On the other hand, sometimes the hymen may be more firm, less elastic and gets stretched and lacerated earlier. Thus a relatively less forceful penetration may not give rise to injuries ordinarily possible with a forceful attempt. The anatomical feature with regard to hymen which merits consideration is its anatomical situation. Next to hymen in positive importance, but more than that in frequency, are the injuries on labia majora. These, viz. labia majora are the first to be encountered by the male organ. They are subjected to blunt forceful blows, depending on the vigour and force used Page No.# 24/29 by the accused and counteracted by the victim. Further, examination of the females for marks of injuries elsewhere on the body forms a very important piece of evidence. To constitute the offence of rape, it is not necessary that there should be complete penetration of the penis with emission of semen and rupture of hymen. Partial penetration within the labia majora of the vulva or pudendum with or without emission of semen is sufficient to constitute the offence of rape as defined in the law. The depth of penetration is immaterial in an offence punishable under Section 376 IPC."
50. Going back to the issue of reasonable doubt as discussed in the two decisions referred to by the appellant side, the Hon'ble Apex Court again dealt into the issue in the recent case of Sushil Kumar Tiwari (supra) relied upon by the learned counsel for the informant. The relevant paragraph-36 may be reproduced herein below:
"36. Before closing, we deem it fit to observe that noticeably, the principle of beyond reasonable doubt has been misunderstood to mean any and every doubt in the case of the prosecution. Often, we come across cases wherein loose acquittals are recorded on the basis of minor inconsistencies, contradictions and deficiencies, by elevating them to the standard of reasonable doubts. A reasonable doubt is one that renders the version of the prosecution as improbable, and leads the Court to believe in the existence and probability of an alternate version of the facts. It is a serious doubt which must be backed by reason. The underlying foundation of the principle of beyond reasonable doubt is that no innocent should face punishment for a crime that he has not done. But a flipside of the same, of which we are conscious, is that at times, owing to a mis-application of this principle, actual culprits manage to find their way out of the clutches of law. Such misapplication of this principle, resulting into culprits walking free by taking benefit of doubt, is equally dangerous for the society. Every instance of acquittal of an actual culprit revolt against the sense of security of the society and acts as a blot on the criminal justice system. Therefore, not only should no innocent face punishment for something that he has not done, but equally, no culprit Page No.# 25/29 should manage an acquittal on the basis of unreasonable doubts and misapplication of procedure."
51. Again, with regard to the testimony of child witness, the decision in Bhanel Prasad (supra) relied upon by the prosecution is relevant and the relevant para-6, 7, 8 and 9 may be reproduced herein below:
"6. It is now well settled that the testimony of a child victim, if found credible and trustworthy, requires no corroboration. The Courts below have not merely accepted the victim's account, they have validated it through unimpeachable scientific evidence. The DNA report sealed the evidentiary chain and has dispelled all doubts in the prosecution case which is sought to be assailed by the petitioner.
7. The argument raised before us is that the petitioner was falsely implicated due to strained domestic relationships and disapproval of romantic alliances of his daughters is completely hollow. No daughter, however aggrieved, would fabricate charges of this magnitude against her own father merely to escape household discipline.
8. This Court has repeatedly underscored that in offences involving sexual abuse, especially against children, the trauma suffered by the victim is lifelong. The scars are not merely physical but psychological, cutting across every fibre of trust, safety, and dignity. When the perpetrator is none other than the father, the natural guardian, the crime assumes a demonic character.
9. Such offences deserve nothing but the severest condemnation and deterrent punishment. To pardon such depravity under any guise would be a travesty of justice and a betrayal of the child protection mandate embedded in our constitutional and statutory framework."
52. Thus, it follows from this decision, recognizing the settled Page No.# 26/29 position of law that if the testimony of the child victim as a witness is found credible and trustworthy, it can be relied upon even without corroboration. Coming back to the facts of the instant case and keeping in mind the principles of law discussed above, we find that the testimony of the prosecutrix, the victim girl, is consistent throughout regarding the identity of the accused as well as the nature of the incident. Her testimony is consistent through her statement before learned Magistrate as well as her deposition before court. The testimony of PW2 lends vital corroboration to the testimony of the victim and the claim of PW2 regarding about being an eyewitness does not suffer from any contradictions and can be accepted. PW2 apart from lending corroboration to the incident, also describes the incident on lines which are very similar to the description by the victim herself.
53. The testimony of PW3 also lends corroboration to the testimony of PW2 and the victim. The testimony of PW4 lends broad corroboration to the testimony of the victim and PW2 and PW3. As already discussed above, the aspect of delay has not been found to be fatal and has been found to be adequately explained by the circumstances revealed by the evidence.
54. Further, the finding of the medical evidence about lack of rape would not demolish the prosecution case in view of the cogent testimony of the victim supported by the testimony of other witnesses and in view of the principle indicated in Wahid Khan
-versus- State of M.P., reported in (2010) 2 SCC 9 and the relevant parapgraph-20 is reproduced herein below;
Page No.# 27/29 "20. It is appropriate in this context to reproduce the opinion expressed by Modi in Medical Jurisprudence and Toxicology (22nd Edn.) at p. 495 which reads thus:
"Thus, to constitute the offence of rape, it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite sufficient for the purpose of the law. It is therefore quite possible to commit legally, the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case, the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape is a crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is to the effect whether there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one."
Thus, the basis of the prosecution evidence, we come to the considered finding that at the time of the incident, on the day of the incident, the accused took the victim child to the room, sexually assaulted her by putting his saliva on her anus and inserting his private part there. He also threatened her not to reveal about the incident, failing which he threatened to kill her and her parents. The age of the victim girl was about 7-8 years. The learned Trial Court convicted and sentenced the appellant under section 4(2) of the POCSO Act for the act of penetrative sexual assault as well under section 8 of the POCSO Act for sexual assault and sentenced him under both these penal provisions. The criminal act of the appellant in putting his saliva on the anus of the victim by his hand was undoubtedly an act of sexual assault with sexual intent. His criminal act of inserting his private part into her anus was also an act of penetrative sexual assault upon a girl who was aged less than 12 Page No.# 28/29 years. Accordingly, the conviction of the appellant under section 4(2)/8 of the POCSO Act 2012 is hereby upheld and confirmed.
55. The aforesaid sexual and criminal acts of the appellant undoubtedly also amounted to outraging the modesty of the victim girl. Minor girls of tender age are also equally entitled to protection of their modesty and dignity like adult women. Therefore, the conviction of the appellant under section 354 IPC is also upheld and confirmed.
56. As regards the conviction and sentence under section 377 IPC, the said penal provision already stood decriminalized for consenting adults by the decision of the Hon'ble Supreme Court in the case of Navtej Singh Johar & Others -versus- Union of India, reported in (2018) 10 SCC 1. However, in this case, the victim is a child. The evidence on record also clearly proved that the appellant subjected the victim to criminal intimidation and therefore, his conviction under section 506 IPC is upheld and confirmed. As regards the sentence, we would go back to what has been said in Bhanel Prasad (supra) relied upon by the prosecution.
57. The Hon'ble Apex Court recognized in para-8 thereof that sexual abuse of children can leave long-term trauma and emotional scars. In para-9, it was held that such offences deserve nothing but severe condemnation and deterrent punishment. Therefore, in terms of these principles, there is no scope for any misplaced sympathy as regards sentence for the despicable criminal act of the appellant against a minor girl of such tender age.
Therefore, the sentences imposed by the learned Trial Court are also Page No.# 29/29 upheld and confirmed, except for the fact that all the sentences will run concurrently, including the sentence under section 506 IPC which was directed by the learned Trial Court to run consecutively.
58. Summing up the discussion and the finding, we come to the considered opinion that the impugned judgment and order dated 16.03.2023 passed by the learned Special Judge POCSO, Dimapur in Fast Track Special Court Case No. 3 of 2022 (arising out of Dimapur Women PS Case No. 03 of 2022) convicting and sentencing the appellant does not suffer from infirmity.
59. Accordingly, the said judgment and order is upheld and confirmed, subject to the slight modification with regard to concurrent sentence vis-à-vis section 506 IPC.
60. Resultantly, the criminal appeal fails and is accordingly dismissed.
61. Return back the TCR to the learned Court below.
JUDGE JUDGE Comparing Assistant