Gauhati High Court
Crl.A./3/2023 on 2 March, 2026
Author: Michael Zothankhuma
Bench: Michael Zothankhuma
GAHC010211232022
2026:GAU-AS:3127-DB
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
CRL.A. NO. 3 OF 2023
Sajen Puma
S/o: Late Haren Puma
R/o: Bilampur (Faklihati)
P.S: Jagiroad, District: Morigaon,
PIN: 782410, State: Assam.
.......Appellant
-Versus-
1. The State of Assam.
Represented by the Public Prosecutor.
2. Kaleswar Pator
S/o- Late Monbor Pator,
R/o: Bilampur (Faklihati)
P.S: Jagiroad, District: Morigaon,
PIN: 782410, State: Assam.
....... Respondents
-BEFORE-
HON'BLE MR. JUSTICE MICHAEL ZOTHANKHUMA
HON'BLE MR. JUSTICE KAUSHIK GOSWAMI
For the Appellant(s) : Mr. D. K. Bhattacharjee, Advocate.
For the Respondent(s) : Mr. R. R. Kaushik, Additional Public
Prosecutor, for the respondent No. 1.
Ms. D. Ghosh, Legal Aid Counsel for the
respondent No. 2.
Page 1 of 24
Date on which judgment
is reserved : NA
Date of pronouncement
of judgment : 02.03.2026.
Whether the pronouncement
is of the operative part
of the judgment ? : No.
Whether the full judgment
has been pronounced : Yes.
JUDGMENT & ORDER (ORAL)
(Kaushik Goswami, J) Heard Mr. D. K. Bhattacharjee, learned counsel appearing for the appellant. Also heard Mr. R. R. Kaushik, learned Additional Public Prosecutor appearing for the respondent No.1 and Ms. D. Ghosh, learned legal aid counsel appearing for the respondent No. 2.
2] The present appeal is directed against the judgment & order dated 18.06.2022 passed by the learned Additional Sessions Judge cum Special Judge (POCSO), Morigaon, (hereinafter referred to as the "trial court"), in POCSO Case No. 79/2021, whereby the accused/appellant was convicted for the offence punishable under Sections 376(3)/506 of the Indian Penal Code, 1860 (hereinafter referred to as the "IPC"), read with Section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the "POCSO Act"), and sentenced to undergo rigorous imprisonment for a period of 20 (twenty) years with a fine of Page 2 of 24 Rs. 20,000/-, and in default of payment of the fine, to suffer simple imprisonment for a further 6 (six) months.
3] The brief case of the prosecution is that on 15.05.2021, PW-1 lodged an F.I.R., inter alia, alleging that on 14.05.2021, the accused/appellant had enticed his 14-year- old daughter, i.e., the victim, and took her to Bilampur Rubber Garden, where he raped the victim and had also torn her clothes and threatened to kill her if she disclosed the same to any of her family members. Accordingly, an F.I.R. being Jagiroad P.S. Case No. 300/2021 was registered under Section 376(3)/506 of the IPC, read with Section 4 of the POCSO Act against the accused/appellant. Being entrusted with the investigation, the Investigating Officer arrested the accused person, visited the place of occurrence, recorded the statement of the victim girl under Section 161 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the "Cr.P.C.") and before the jurisdictional magistrate under Section 164 of the Cr.P.C., and also got her medically examined at Morigaon Civil Hospital. Upon completion of the investigation, the charge-sheet was submitted against the accused/appellant under the aforesaid sections.
4] Thereafter, the case being taken up for trial by the learned trial court, charges under Section 376(3)/506 of the IPC, read with Section 4 of the POCSO Act against the accused/appellant were framed, to which he pleaded not guilty and claimed to stand trial. During the trial, 8 (eight) witnesses were examined as prosecution witnesses, including the victim, the Investigating Officer and the Medical Officer.
Page 3 of 24Upon closure of the prosecution evidence, all the incriminating circumstances were put to the accused/appellant under Section 313 of the Cr.P.C., wherein he denied the allegations and explained that in the month of March, 2021, the informant had tried to construct his grocery shop on the land of his maternal uncle, and upon the son of his late maternal uncle not allowing the informant to do so, he entered into a quarrel with him and also threatened to institute a criminal case and take revenge, and hence, by depicting a fake incident, the instant FIR has been filed whereby the accused/appellant has been falsely implicated. In support of his defence, the accused/appellant adduced 4 (four) witnesses as defence witnesses.
5] Upon consideration and appreciation of the evidence, the trial court was pleased to convict the accused/appellant under the aforesaid charged sections and sentenced him thereof.
6] Mr. D. K. Bhattacharjee, learned counsel appearing for the appellant, submits that the prosecution having not produced the school certificate recording the birth of the victim, the age of the victim is not proved in accordance with Section 94(2)(i) of the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as the "JJ Act, 2015"). He further submits that there are gross infirmities and inconsistencies amongst the evidence of the different prosecution witnesses. He further submits that the victim has not in a consistent manner accounted for the incident of the sexual offence alleged. He accordingly submits that the victim Page 4 of 24 cannot be said to be a wholly trustworthy, credible, unblemished, reliable, and of sterling quality witness. He further submits that the medical evidence completely rules out the allegations of the sexual offence alleged by the prosecutrix. The medical examination of the victim clearly shows no injury to her private parts, no presence of spermatozoa in her vaginal smears, and her hymen being intact, over and above the conclusion that there is no sign of recent sexual activity on the victim girl. He further submits that the learned trial court had failed to comprehend the gravity of the allegations brought against the accused/appellant vis-à-vis the defence plea taken by the accused/appellant during his trial. The specific plea of defence during the examination under Section 313 of the Cr.P.C. relating to the quarrel between the accused/appellant and the informant in relation to the shop of his uncle, and the evidence adduced in support of the aforesaid defence having not been considered by the learned trial court, the impugned judgment of conviction is totally erroneous. He further submits that there has been a delay in lodging the F.I.R., and the reason for such delay has not been explained by the prosecution. Alternatively, he argued that at best the allegations may make out a case of sexual assault under Section 8 of the POCSO Act; however, no offence of penetrative sexual assault is made out under Section 4 of the POCSO Act. In support of the aforesaid submission, he relies upon the following decisions:
Page 5 of 24(i) Paramjeet Singh v. State of Uttarakhand, reported in (2010) 10 SCC 439,
(ii) Thulia Kali v. State of Tamil Nadu, reported in (1972) 3 SCC 393,
(iii) Prahlad v. State of Rajasthan, reported in (2019) 14 SCC 438,
(iv) Manirul Islam v. State of Assam & Anr, reported in (2021) 6 GLR 55,
(v) Hafizur Rahman v. State of Assam, reported in 2025 SCC OnLine Gau 3821,
(vi) Jarnail Singh v. State of Haryana, reported in (2013) 7 SCC 263.
7] Per contra, Mr. R. R. Kaushik, learned Additional Public Prosecutor, submits that the victim has remained consistent right from her initial statement before the police until her deposition during trial as regards the core spectrum of the act of sexual offence narrated by her. He further submits that other prosecution witnesses have also supported the prosecutrix as regards the surrounding circumstances deposed by her. He further submits that absence of injury in the body of the victim and/or her private parts is not a determinative factor to overrule an otherwise trustworthy testimony of a prosecutrix. He further submits that the birth certificate of the victim having been produced, the age of the victim as a minor is proved and established by the prosecution. He accordingly submits that the prosecution has proved the guilt of the accused beyond reasonable doubt, and Page 6 of 24 hence the impugned conviction and sentence warrant no interference from this court. In support of the aforesaid submission, he relies upon the following decisions:
(i) Wahid Khan v. State of M.P., reported in AIR 2010 SC 1 (Apex Court),
(ii) Dalip Kumar @ Dalli v. State of Uttaranchal, in Criminal Appeal No. 1005 of 2013 (Apex Court),
(iii) Saiful Islam v. The State of Assam & Anr., in Criminal Appeal No. 126/2023 (Gauhati High Court).
8] Ms. D. Ghosh, learned legal aid counsel, by adopting the arguments made by the learned Additional Public Prosecutor, submits that minor discrepancies on trivial matters not touching the core of the case, a hyper-technical approach by taking sentences torn out of context here or there from the evidence, and attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. In support of her aforesaid submission, she relies upon the decision of the Apex Court in the case of State of U.P. -vs- M.K. Anthony, reported in 1985 (1) SCC 505.
9] 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. We have also duly considered the case laws cited at the bar.
Page 7 of 2410] The evidence of PW-1 (father/informant) is to the effect that on 14.05.2021, after PW-4 (wife) had called him to come home urgently, upon reaching, at about 7:30-8:00 p.m., she informed him that in the evening at about 6:30 p.m., when the victim had gone to the grocery shop of her sister at the village, the accused kidnapped her by gagging her mouth and thereafter raped her. Accordingly, on the next day, the F.I.R. was lodged. He further deposed that upon investigation, police recorded his statement and seized the wearing clothes of the victim, original birth certificate, etc. During cross-examination he clarified that there are several dwelling houses in between the shop and their residence. Nothing substantial has been elicited in the course of cross-examination to discredit his testimony.
11] The evidence of PW-2 (victim) is to the effect that her date of birth is 21.02.2007 and she is aged about 14 years. On 14.05.2021 at about 6:30 p.m. when she was going to the grocery shop of her aunt to help her, the accused by coming from behind pulled her to a rubber garden by gagging her mouth and thereafter laid her down on the earth therein and forcibly removed her clothes and thereafter committed rape. He threatened her with dire consequences if she disclosed the incident of rape to anyone. She thereafter put on her clothes, and having seen PW-3 (sister) on the road, she rushed to her and hugged her and started crying. Though she asked her as to what had happened, out of fear she could not tell her anything. Accordingly, they came back home, and later on she narrated the incident to PW-4 (mother).
Page 8 of 24Thereafter, PW-4 called PW-1, and narrated the incident as narrated by her, who later on lodged an F.I.R. She further deposed that police recorded her statement and got her statement recorded by a magistrate and also, she was medically examined by a doctor. She further exhibited her birth certificate as Exhibit-5. She further deposed that after the incident she had taken a bath with the help of her mother.
During cross-examination she denied the suggestion that the accused and her elder sister are having a love relationship. She further clarified that while the accused was committing rape upon her, she could not shout as her mouth was gagged at that time. Nothing substantial has been elicited from her to discredit her testimony.
12] The evidence of PW-3 (elder sister) is to the effect that around 6:30 p.m., on 14.05.2021, after the victim had gone to their shop, she followed her after a while. However, she did not see her, and while she was returning back, she met the victim, who hugged and cried upon seeing her. She accordingly brought her back home and later on disclosed to PW-4 that she was going to the shop; the accused caught her and pulled her to the nearby rubber garden, where he raped her by tearing her clothes. She further deposed that she was present while the victim narrated the incident to PW-4. She further deposed that upon coming to know about the incident, she went towards the shop looking for the accused, and after meeting him and questioning him, the accused, by using filthy language, stated "what the hell have I done?" and when he Page 9 of 24 tried to grab her hand, she slapped him twice and came back. She further stated that the accused also slapped her once. Notably, it was observed by the trial court that PW-3, while deposing the aforesaid, was crying.
During cross-examination, she clarified that the accused is almost of her age and that there are 2-3 households at the end of the rubber garden and a narrow lane runs through the garden, which is used by the fisherman to go for fishing. The subsequent events forming part of the incident, as narrated by the victim, stand duly proved through her testimony as PW-3.
13] The evidence of PW-4 (mother) is to the effect that on 14.05.2021, after the victim returned back with PW-3 from the shop where she had gone with her permission, she informed her by crying that the accused/appellant, after forcibly taking her to the rubber garden, committed rape on her by tearing her clothes. She thereafter helped the victim to bathe and washed her torn clothes, which got dirty in the rubber garden. She further deposed that she informed PW-5 (sister-in-law) and PW-6 (brother-in-law) about the incident and PW-1 upon coming to learn about the incident, later on lodged the F.I.R.
During cross-examination she clarified that as the accused had gagged her, she could not shout at the time of the occurrence.
14] PW-5 (aunt-in-law) similarly deposed that upon learning of the incident when she had gone to the house of Page 10 of 24 the victim, she had also heard the victim telling her mother about the incident, and she noticed that the victim's hair was disheveled and her clothing was covered with dust. PW-6 (uncle) supported the testimony of PW-5 to the effect that upon returning home, she informed him about the incident of rape committed by the accused upon the victim as heard from her while she was telling the same to PW-4.
Nothing substantial had been elicited from them during their cross-examination to discredit their testimonies.
15] The evidence of PW-7 (Investigating Officer) is to the effect that on 15.05.2021, PW-1 lodged an F.I.R. at Jagiroad Police Station alleging that on 14.05.2021 at about 6:30 p.m., the accused/appellant induced the daughter of PW-1 and took her to Bilapara Rubber Garden and forcibly raped her and threatened her not to disclose the matter to others. Accordingly, the F.I.R. was registered and upon commencement of the investigation, the earlier investigating officer who was entrusted with the case visited the place of occurrence, drew a sketch map of the place of occurrence, recorded the statement of the witnesses, including the victim under Section 161 of the Cr.P.C., seized the top and a half pants of the victim, which she was wearing at the time of occurrence, got her examined by a doctor at Morigaon Civil Hospital, collected the Birth Certificate of the victim, and took her before the jurisdictional magistrate to get her statement under Section 164 of the Cr.P.C. Thereafter, he submitted the case diary to the O/C of Jagiroad P.S., who then handed over the case diary to PW-7 for completing the investigation.
Page 11 of 24Accordingly, he collected the examination report of the victim and, after completion of the investigation, submitted the charge-sheet against the accused/appellant under Section 376(3)/506 of the IPC, r/w Section 4 of the POCSO Act.
During cross-examination, he clarified that the occurrence took place on 14.05.2021 at about 6:30 p.m., and the F.I.R. was received on 15.05.2021 at 12:10 p.m. He further clarified that the delay of lodging the F.I.R. was neither mentioned in column No. 8 of the F.I.R. prescribed form, nor was the delay explained in the F.I.R. by the informant. He further clarified that the undergarment of the victim was not seized. He further clarified that no independent witness was examined in the case.
16] The evidence of PW-8 (Medical Officer) is to the effect that on 15.05.2021 at 12.30 p.m., while she was working as Medical & Health Officer-I at Morigaon Civil Hospital, she examined PW-2 and found the following:
"No evidence of injury on her body or private parts was found at the time of examination;
No evidence of struggles (tears/loss of buttons etc.) was found;
No evidence of stains (blood/semen/saliva etc.) was found;
General Mental Condition- normal;
Co-opeartion and behavior- co-operative and well behaved;
Intelligence and memory- normal;
Gait- normal.
On physical examination/Laboratory/Radiological investigation done on 15.05.2021, I opined that no evidence of recent sexual intercourse found at the time of examination. No evidence of any injury or violence Page 12 of 24 mark seen in the private parts of the body during examination."
She further deposed that if a victim of rape washes her body and her genital parts after an incident of rape, or if she takes precautions at the time of sex, and if no ejaculation takes place, and if such a victim of rape is brought to medical for examination, then no evidence of rape can be found at the time of her medical examination.
During cross-examination she clarified that the hymen of a woman is torn or ruptured if full penetration into her private parts is done. Mere insertion of a penis into the vagina without full penetration cannot rupture the hymen of the woman. She further clarified that the hymen can also be ruptured if a woman does cycling or physical labour, viz., running or jumping, etc. She further clarified that as per the laboratory report of the victim, no spermatozoa are seen. She further upon a query being posed by the trial court as regards the age of the victim, clarified that since the total number of teeth of the victim was found to be 28, in her opinion the age of the victim was below 18 years.
17] Upon closure of the prosecution witnesses and the accused/appellant being examined under Section 313 of the Cr.P.C., apart from denying the incriminating circumstances, he explained that due to the dispute regarding the grocery shop on his uncle's land, the informant falsely implicated him in the present criminal case, and in support of the said defence plea, he adduced the evidence of 4 (four) witnesses, who are his co-villagers.
Page 13 of 2418] The evidence of DW-1 is to the effect that he had heard that almost 5 years back a land dispute took place between the informant, and the dispute once again took place in the month of March, 2021.
During cross-examination he clarified that a meeting was held in the village wherein the accused was charged for kidnapping the victim.
19] The evidence of DW-2 is to the effect that due to the construction of a shop by the informant on the land of the uncle of the accused, a quarrel had taken place almost five years back, and last year also a quarrel took place between them for the same reason. He further clarified that one day the informant came to his house carrying a dao and was searching for the accused, alleging that the accused had committed rape upon his daughter.
20] The evidence of DW-3 is to the effect that on 14.04.2021 at about 2 p.m. a quarrel had taken place between the accused and the victim regarding mobile messages between them for which a bichar had also taken place on the following day; however, the matter could not be resolved as the accused/appellant denied the same and instead accused her of sending him messages. He further deposed that on the same day at 4:00 p.m., a quarrel had also taken place between the sister of the victim and the accused/appellant wherein she accused him of sending messages to her sister; however, the accused denied the same and threw away her mobile handset on the road. He Page 14 of 24 further deposed that he had heard that the village bichar took place on 15.04.2021 and that though the informant along with the other family members of the victim were present therein, they did not disclose that the accused had committed rape upon the victim.
During cross-examination, he clarified that no village bichar took place regarding rape upon the victim by the accused/appellant.
21] The evidence of DW-4 is to the effect that almost one year back a quarrel took place between the victim and her sister on the ground of the victim's sister sending messages to the accused in front of their paternal aunt's shop. Though he had not witnessed the said quarrel, he had come to know from one Debajit Patar. He further deposed that a village bichar had taken place regarding the issue of sending of the mobile messages between the accused and the victim, and in the bichar the victim told them that on the previous evening when she was coming from their shop to home, the accused/appellant gagged her mouth and took her to the rubber garden where he committed rape upon her. However, the accused/appellant denied the said allegation. He further deposed that after the bichar was over, upon the sister of the victim accusing the accused of sending messages to the victim, he slapped her.
His cross-examination was declined.
22] What transpires from reading the testimonies of the prosecution witness is that the victim had clearly deposed Page 15 of 24 before the trial court that the accused/appellant had taken her to the rubber garden by gagging her mouth while she was going to the shop of her aunt, and after tearing and opening her clothes, he raped her. Though she tried to resist, she could not, and after the accused/appellant let her loose, she immediately wore her clothes and came to the road where she had seen her sister coming, and by hugging her, she cried, whereafter she was taken home by her sister, and after reaching home, she narrated the incident to PW-4. It appears that PW-3 and PW-4 have corroborated the surrounding circumstances narrated by the victim. It is further proved by PW-4 that she had bathed the victim and washed her dirty clothes. PW-5 has also corroborated the testimony of the prosecution witnesses that the clothes of the victim were dirty when she had come back home. The corroboration of the surrounding circumstances by the prosecution witnesses reinforces the testimony of the prosecutrix.
23] The legal position regarding the testimony of a child victim in cases involving sexual offences is well settled. In State of Punjab -vs- Gurmit Singh, reported in (1996) 2 SCC 384, the Apex Court held that the testimony of a victim of sexual assault stands on par with that of an injured witness and does not require corroboration unless there are compelling reasons. The relevant paragraph of the aforesaid judgment reads as under: -
"21. Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating woman's rights in all spheres, we show little or no concern for her honour. It Page 16 of 24 is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. 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."
24] Similarly, in Ganesan vs State, reported in 2020 (10) SCC 573, the Apex Court held that where the testimony of the victim is found consistent, reliable, and trustworthy, conviction on the basis of such testimony is permissible. Likewise, in Rai Sandeep vs State (NCT of Delhi), reported in 2012 (8) SCC 21, the Apex Court explained the concept of a "sterling witness", emphasizing that a truthful victim requires no corroboration. The relevant paragraph of the aforesaid judgment reads as under: -
Page 17 of 24"22. In our considered opinion, the „sterling witness‟ should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a „sterling witness‟ whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting Page 18 of 24 materials for holding the offender guilty of the charge alleged."
25] As a necessary corollary to the above, reading the decisions of the Apex Court, in a case of sexual abuse/assault, the sole testimony of the victim is sufficient to convict the accused/appellant without seeking corroboration whatsoever, provided such testimony is trustworthy, unblemished, credible, and of sterling quality.
26] PW-2's testimony in the present case is natural, spontaneous, and remains unshaken in cross-examination. She has been consistent right from the very beginning. Though the learned counsel for the appellant has contended that there are inconsistencies in the narration of the alleged incident, we find that the prosecution has remained consistent with regard to the core substratum of the prosecution case. From her initial statement recorded under Section 161 of the Cr.P.C. to her statement made before the Judicial Magistrate under Section 164 of the Cr.P.C. and finally in her deposition before the trial court, she has consistently maintained the essential particulars of the offence constituting sexual penetrative assault. The minor discrepancies, if any, do not detract from the credibility of her testimony. That apart, the prosecution case stands further fortified by the immediate disclosure made by the prosecutrix to PW-3 and PW-4, and as well as by the observation recorded by them contemporaneously. PW-1 and PW-5 have lent support to the surrounding circumstances as unfolded by the prosecutrix.
Page 19 of 2427] In such a view of the matter, the testimony of PW-2, being wholly trustworthy, credible, and reliable, does not require any further corroboration for sustaining the conviction of the accused/appellant. Her evidence cannot be discarded merely on the ground that no external injury was noted on her body or private parts by the medical officer. It is trite law that absence of injuries is not, by itself, decisive of the question of whether the offence was committed, particularly when the testimony of the prosecutrix inspires confidence and is otherwise found to be reliable. The Apex Court has repeatedly emphasized that even the slightest penetration to any extent whatsoever is sufficient enough to bring home a charge under Section 3 of the POCSO Act, which requires "penetration to any extent."
28] Section 3 of the POCSO Act 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 20 of 24
29] Apt in this regard to refer to the decision of the Apex Court in the case of Phool Singh vs State of M.P., reported in (2022) 2 SCC 74, wherein the Apex Court reiterated that reliable ocular testimony cannot be disregarded merely on the ground that the medical evidence is absent or inconclusive.
30] In Santosh Kumar vs State of Maharashtra, reported in 2015 7 SCC 641, and State of H.P. vs Gyan Chand, reported in 2001 6 SCC 71, the Apex has held that even the slightest penetration is sufficient to constitute the offence.
31] Similarly in Bhupen Kalita vs State of Assam, reported in (2020) 5 GLR 153, this court has observed and held that in a given case, even superficial penetration may amount to rape, which may not necessarily involve full penetration or injury to the female sexual organ; if the testimony of the victim child is credible and trustworthy, the offence of sexual assault may be established.
32] Upon an anxious and independent reappreciation of the entire evidence on record, we find that the testimony of the prosecutrix inspires full confidence. Though certain minor inconsistencies were sought to be highlighted by the learned counsel for the appellant, the same do not touch the core substratum of the prosecution case. From her statement recorded under Section 161 of the Cr.P.C. to her statement under Section 164 of the Cr.P.C. and finally in her deposition before the trial court, she has remained consistent as regards the essential particulars of the occurrence. The surrounding Page 21 of 24 circumstances, as spoken to by the prosecution witnesses, lend assurance to her version. It is well settled that minor discrepancies, which do not go to the root of the matter, cannot be a ground to discard otherwise reliable testimony.
33] The contention regarding delay in lodging the F.I.R. also does not merit acceptance. The F.I.R. in the present case was lodged within 24 hours of the incident. In cases involving sexual offences, some degree of hesitation or delay is neither unnatural nor uncommon. In the facts of the present case, the reporting cannot by any stretch be termed as inordinate or unexplained. On the contrary, the prompt lodging of the F.I.R. lends assurance to the prosecution version. As regards the age of the prosecutrix, the prosecution has relied upon the Birth Certificate (Ext.-5) issued by the competent statutory authority under the Registration of Births and Deaths Act, 1969. The said certificate is an entry in a public register maintained in discharge of official duty and is admissible under Section 35 of the Indian Evidence Act, 1872. It carries a statutory presumption of correctness under Section 79 of the Indian Evidence Act, 1872. The defence has not brought any material on record to rebut the presumption attached to the said document. On the basis of the recorded date of birth and the date of commission of the offence, the prosecutrix was about fourteen years of age at the relevant time and, therefore, a minor in the eye of law. Once minority is established, the question of consent becomes legally inconsequential for the purpose of the offence alleged. [Refer: - Birad Mal Singhvi v. Anand Purohit, reported in Page 22 of 24 1998 Supp SCC 604, Ravinder Singh Gorkhi vs. State of Uttar Pradesh, reported in (2006) 5 SCC 584, Harpal Singh v. State of Himachal Pradesh, reported in (1981) 1 SCC 560, Manoj v. State of Haryana, reported in (2022) 6 SCC 187, and Saiful Islam (supra)] 34] We have also carefully examined the defence taken by the appellant in his examination under Section 313 of the Cr.P.C. As laid down by the Apex Court in Reena Hazarika v. State of Assam, reported in 2019 13 SCC 289, Section 313 of the Cr.P.C confers a valuable right upon the accused to explain the incriminating circumstances appearing against him, and such defence must be duly considered by the Court. The accused is not required to prove his defence beyond a reasonable doubt but only to probabilise it on the touchstone of preponderance of probabilities. In the present case, however, the plea of false implication on account of the construction of a shop on the land belonging to his uncle was neither suggested to the prosecution witnesses during cross- examination nor supported by any contemporaneous circumstance. The defence version surfaced only after the closure of the prosecution evidence and remains unsubstantiated. The learned trial court has considered the defence evidence and assigned cogent reasons for rejecting the same. We find no perversity or infirmity in such appreciation.
35] Viewed cumulatively, this court is of the considered opinion that the prosecution has succeeded in establishing the charges beyond reasonable doubt. The chain of evidence Page 23 of 24 stands complete and is wholly consistent with the guilt of the appellant. The defence plea fails to create any reasonable doubt in the prosecution case. Consequently, it stands proved that the accused/appellant has committed penetrative sexual assault upon the PW-2 (victim) within the meaning of Section 3 of the POCSO Act, attracting punishment under Section 4 thereof.
36] Accordingly, we find no illegality, perversity, or infirmity in the judgment and order of conviction passed by the learned trial court. The appeal, being devoid of merit, stands dismissed.
37] Send back the TCR.
JUDGE JUDGE
Comparing Assistant
Pranab Digitally signed
by Pranab
Chand Chandra Das
Date: 2026.03.02
ra Das 13:28:45 +05'30'
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