Gauhati HC Upholds 20 Year Sentence Under Section 4(2) POCSO Act | Finds Victim’s Testimony And Medical Evidence Credible Despite Minor Inconsistencies
Safiya Malik
The High Court of Gauhati Division Bench of Justice Sanjay Kumar Medhi and Justice Yarenjungla Longkumer upheld the conviction and sentence awarded by the learned Special Judge under the Protection of Children from Sexual Offences Act (POCSO). The Court dismissed the appeal filed by the convict, affirming the sentence of rigorous imprisonment for 20 years and a fine of Rs. 10,000, imposed under Section 4(2) of the POCSO Act. The Division Bench concluded that the learned trial court's judgment did not warrant any interference.
The prosecution commenced following an Ejahar lodged by the father of a minor girl on 12.04.2023, alleging sexual assault on his daughter aged 12. The victim disclosed to her friends that the appellant had been sexually assaulting her for the past 7 to 8 months and threatening her against revealing the matter. The appellant, a neighbour and known quack, allegedly committed the assault at his residence. The incident was brought to the family's attention by the victim's elder sister after they returned from a social event.
The FIR was registered under Lekhapani P.S. Case No. 33/2023. Following investigation, a charge-sheet was filed, and charges under Section 4(2) of the POCSO Act were framed. Nine prosecution witnesses were examined, including the victim, her family members, a doctor, and the investigating officer.
PW1, the informant and father of the victim, confirmed the incident based on his daughter's account and presented the victim's birth certificate showing her date of birth as 13.12.2010. PW2, the victim, deposed about the incident, stating that the appellant lured her to his house on the pretext of returning a pot and committed the offence. She corroborated her earlier statement recorded under Section 164 Cr.PC.
PW3, the victim's mother, testified that upon her return from Dodhia, her elder daughter informed her of the incident. When she confronted the victim, the latter confirmed it. She further stated that the appellant admitted his guilt in front of local residents, including PW5 and PW7.
PW4, a senior medical officer, conducted the medical examination and reported physical evidence of sexual assault, including old healed tears in the vulva and absence of hymen, consistent with forceful penetration. She opined that such injuries could not be caused by means other than forceful sexual contact.
PW5 and PW7 corroborated the occurrence of a village meeting where the appellant confessed. PW8, the elder sister of the victim, stated that her sister appeared disturbed upon their return, and after assurance, disclosed the incident to her. PW9, the investigating officer, detailed the procedural steps taken during the investigation, including arrest, recording of statements, and collection of evidence.
The defence argued that there was inconsistency in the dates of occurrence stated by the victim under Section 164 Cr.PC and that such discrepancies undermined the credibility of the prosecution. The appellant, in his statement under Section 313 Cr.PC, claimed false implication due to a land dispute but did not present evidence to substantiate the claim.
The Court recorded: "Though such dates, as stated above, are not consistent with the date stated in the Ejahar and the other witnesses, it clearly appears that the same is an inadvertent error committed by the victim."
On the testimony of the prosecutrix, the Court stated: "The victim as PW2, had clearly narrated the events. This Court has also taken note of the fact that, prior to recording her substantive statement, the learned Trial Court had duly put preliminary questions to the victim in order to come to a satisfaction that the victim was in a proper state of mind to make the deposition."
The Bench further observed: "The deposition of the mother of the victim as PW3 is consistent with the version of PW8 as well as PW2."
Regarding the defence's claims, the Court stated: "This Court has, however, seen that apart from making a mere statement in his response, the appellant had chosen not to adduce any evidence. Even in the cross-examination, no foundation was tried to be laid to make out a case of defense."
On the aspect of presumption and reverse burden under the POCSO Act, the Court noted: "In a matter pertaining to the POCSO Act, there is a provision of presumption and reverse burden in the form of Sections 29 and 30. However, it is well settled that such reverse burden would apply only after the prosecution is successful in laying the foundational facts and proving the same."
The Court stated that the prosecution had successfully proved the foundational facts, noting: "It is seen that the foundational facts were successfully established beyond all reasonable doubt by the prosecution."
Addressing the reliability of medical evidence, the Court observed: "So far as the age of the victim is concerned, apart from the Birth Certificate which was proved by the PW1 as Mat. Exhibit 1, the Doctor in her deposition had stated that as per Radiological Report, the age of the victim was found to be 10 to 12 years."
The Court referenced precedents, including State of UP Vs. Chottey Lal and Bhupen Kalita Vs. State of Assam, stating: "The testimony of the prosecutrix can be the sole basis of a conviction and corroboration may not be necessary if such testimony appears to be trustworthy and inspires confidence."
Regarding the extra-judicial confession, the Court recorded: "Though extra-judicial confession may be a weak piece of evidence, it can certainly be used for corroboration with the other materials on record."
The Court concluded: "We are of the view that the conclusion arrived at by the learned Special Judge (POCSO), Tinsukia in POCSO Case No. 50/2023 under Section 4(2) of POCSO Act arising out of Lekhapani P.S. Case No. 33/2023 vide judgment dated 10.01.2024 does not warrant any interference. Accordingly, the appeal stands dismissed."
The Division Bench further directed: "Send back the TCRs."
Additionally, the Court acknowledged the Legal Aid Counsel's contribution: "We deem it appropriate to place on record our appreciation for the valuable assistance rendered by Ms. M. Barman, the learned Legal Aid Counsel for the respondent no. 2. She would be entitled to the prescribed fee."
Advocates Representing the Parties:
For the Appellant: Shri A.K. Hussain, Advocate; assisted by Mr. A. Haque and Mr. B. Hussain
For the Respondents: Ms. B. Bhuyan, Senior Advocate and Additional Public Prosecutor, Assam; Ms. M. Barman, Legal Aid Counsel for Respondent No. 2
Case Title: XXX v. The State of Assam and Anr.
Neutral Citation: GAHC010025002024
Case Number: Crl.A./40/2024
Bench: Justice Sanjay Kumar Medhi, Justice Yarenjungla Longkumer
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