Sriman Dev Sarma vs The State Of Assam And Anr
2023 Latest Caselaw 2627 Gua

                                                                           Page No.# 1/19

GAHC010127332021




                      THE GAUHATI HIGH COURT AT GUWAHATI
           (The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)

                              PRINCIPAL SEAT AT GUWAHATI
                                Crl. Appeal No. 140 of 2021
      SRIMAN DEV SARMA
      S/O- LATE GURU DUTTA DEV SARMA,
      R/O- BORGAON, MOUZA- NAMATI,
      UNDER TIHU P.S.,
      DIST.- NALBARI, ASSAM
                                                      ........Appellant
             VERSUS
      THE STATE OF ASSAM AND ANR.
      REP. BY THE P.P., ASSAM
      2:HEMEN DAS
      S/O- LANKESWAR DAS
      R/O- BORGAON
      UNDER TIHU POLICE STATION
      MOUZA- NAMATI, ASSAM.
                                                     ..........Respondents

Advocates for the appellant      :     Mr R Singha
                                      Mr J Borah.
Advocate for the respondent      :    Mr B Sarma, Addl. PP.
                                       BEFORE
                       HON'BLE MRS. JUSTICE MALASRI NANDI


Date of Hearing                  :    08.05.2023
Date of Judgment                 :    21.06.2023
                                                                                  Page No.# 2/19

                             JUDGEMENT AND ORDER (CAV)

Heard Mr R Singha, learned counsel appearing on behalf of the appellant. Also heard

Mr B Sarma, learned Additional Public Prosecutor appearing on behalf of the State of Assam.

2. Feeling aggrieved and dissatisfied with the Judgment and Order dated 30.03.2021,

passed by the learned Special Judge, (POCSO) Nalbari, in Special (POCSO) Case No. 32/18,

by which the accused appellant has been convicted under Section 448 IPC & Section 10 of

Protection of Children from Sexual Offences Act, 2012,(hereinafter, in brevity, referred to as

"the POCSO Act"), the accused has preferred this appeal. The appellant was sentenced to

undergo Rigorous Imprisonment for 7 (seven) years and to pay a fine of 25,000/-(Rupees

Twenty Five Thousand) only, and in default to undergo Simple Imprisonment for 5 (five)

months for the offence under Section 10 of the POCSO Act, and the accused appellant was

also sentenced to undergo Simple Imprisonment for a term of 1 (one) year and to pay a fine

of Rs. 1000/- (Rupees One thousand), and in default of payment of fine to undergo Simple

Imprisonment for 5 (five) days for the offence under Section 448 IPC. Both the sentences

were directed to run concurrently.

3. The case of the prosecution is that Hemen Das, who is the father of the victim lodged

an FIR before the Officer-In-Charge, Tihu Police Station, stating inter alia that the accused is

his adjacent neighbour. On 22.07.2018, at about 11:00 am, in absence of any person in his

house, the accused entered into his house. At that time, his minor daughter aged about 11

years was writing something inside the room. Suddenly, the accused embraced her and

kissed her on her cheeks and also touched her private parts. It is also alleged that the

accused also tried to commit rape on her. When his daughter raised alarm, the accused fled Page No.# 3/19

away from the scene.

4. On receipt of the FIR, a case was registered vide Tihu PS Case No. 129/2018, under

Sections 448/376/511 IPC, read with Section 10 of the POCSO Act, 2012, against the accused

appellant and investigation was initiated.

5. During investigation, the Investigating Officer visited the place of occurrence, recorded

the statements of the witnesses. The victim was also sent to the Court for recording her

statement under Section 164 CrPC by the Magistrate. She was also medically examined. After

completion of investigation, charge sheet was submitted against the accused appellant under

Sections 448/376/511 IPC, read with Section 10 of the POCSO Act.

6. During trial, on appearance of the accused appellant, charge was framed under Sections

448/376(2)(i)/511 IPC, read with Section 10 of the POCSO Act, which was read over and

explained to the accused/ appellant, to which he pleaded not guilty and claimed to be tried.

7. To prove the guilt of the accused/ appellant, the prosecution examined 8 (eight)

witnesses and exhibited ten documents. On the other hand, the accused appellant adduced

three witnesses in support of his defence. After completion of the trial, the statement of the

accused appellant was recorded under Section 313 CrPC, wherein he denied the evidence of

the witnesses made against him and pleaded his innocence. After hearing the arguments of

the learned counsel for the parties, the trial Court had delivered the Judgment convicting the

accused as aforesaid. Hence, this appeal.

8. It was urged by the learned counsel for the appellant that in the facts and

circumstances of the case, the trial Court has committed a grave error in convicting the

accused appellant under Section 10 of the POCSO Act, as the appellant could not have been Page No.# 4/19

convicted only on the basis of the sole testimony of the victim. Even considering the

prosecution case, as it is, at the best, the case would fall under sexual assault, punishable

under Section 8 of the POCSO Act.

9. It is also submitted by the learned counsel for the appellant that there are lots of

contradictions in the statements of the witnesses. The learned trial Court while convicting the

accused/ appellant relied on the sole testimony of the victim. However, the learned trial Court

has completely overlooked the fact that in her examination in chief, she has stated that on an

earlier occasion while the victim was on her way to shop, the accused had touched her

breasts, about which she had informed his mother but her mother told her that as the

accused appellant does not have daughter hence, he touched her breasts. The fact was never

corroborated by PW-3, who happened to be the mother of the victim. As such, the Judgment

and Order dated 30.03.2021, is liable to be set aside.

10. It is also the submission of the learned counsel for the appellant that the learned trial

Court has opined in the judgment that the DW-2 has stated in his evidence that the accused

was with him at the time of incident. It was also opined that PW-6 also stated that the

appellant was at his house and as such, it cannot be possible on his part to be present in two

places. However, the appellant did not place any supportive documents. The trial Court did

not give any opinion to disbelieve the testimony of DW-2 and as such, the impugned

Judgment and Order dated 30.03.2021, is bad in law and liable to be set aside.

11. On the other hand, learned Additional Public Prosecutor appearing on behalf of the

State, while opposing the present appeal has vehemently submitted that in the present case,

the prosecution has proved the case on the basis of the evidence of the victim and the other Page No.# 5/19

witnesses beyond reasonable doubt. It is further submitted that the accused in the present

case was a neighbour of the victim girl and he misused his position as a neighbour and he

has committed aggravated sexual assault on the minor girl. Under the facts and

circumstances of the case, it is prayed to dismiss the appeal.

12. Having heard the learned counsel for both the parties on either side and having

perused the materials on record, it is seen that the point arising for consideration is= whether

the prosecution has established the guilt of the accused/ appellant under Section 10 of the

POCSO Act!

13. Before I deal with the evidence in the case and also the submission of the learned

counsel for the parties, it is necessary to mention that there is no dispute in this case, as to

the age of the victim girl. Similarly, there is also no dispute to the fact that the accused is the

adjacent neighbour of the victim, who has access to the victim girl.

14. I shall now deal with the evidence in the case. As usual in similar cases, the only

evidence in the case as regards the sexual assault, is the evidence tendered by the victim girl,

who was examined as PW-1. She deposed in her evidence that during last summer vacation

of her school, one day, when she went to the grocery shop of her village, the accused asked

her where she was going, to that, she answered to the accused that she was going to her

village grocery shop and at that time, the accused touched her breasts. After touching her

breasts, the accused petitioner left the place and thereafter, she went to the shop and from

there she returned home and disclosed the incident to her mother. Her mother told her that

as the accused did not have daughter, so he touched her breast.

15. PW-1 also stated that on the next day, in between 11:00 am to 12:00 pm, the accused Page No.# 6/19

came to their house, and at that time, she was watching TV, accused asked her where her

mother had gone and then he touched her breasts and left the house. Thereafter, accused

again came on next day and on that day also she was watching TV and was writing poem.

Accused asked her where her mother was, and when she told that her mother visited

neighbour's house and she went inside the bedroom and the accused followed her and

pushed her and pulled down her on the bed, kissed her on the cheeks, touched her breasts.

When she raised alarm, the accused ran away. After 10 minutes of the last incident, when her

mother came home, she was found crying and when she asked her what had happened,

then she disclosed the whole incident to her mother. Her mother informed her father about

the incident and her father lodged the FIR. Her statement was recorded by Police and

thereafter, she was produced before the Magistrate. Accordingly, her statement was recorded

vide Exhibit-1.

16. In her cross-examination, PW-1 replied that on the date of incident, she was present

alone at her house. She shouted when accused hold her and pulled her down and touched

her breasts . After 10 minutes her mother came home but none came immediately when she

raised alarm. She had narrated the entire incident to her mother.

17. PW-2 is the informant, who is the father of the victim girl. From his deposition, it

reveals that on the date of incident, he was not present at home. When he was coming from

Bhutan and reached Kenduguri, he received phone call of his wife Pranita, and she told him

over phone that the accused/ appellant entered into their house, hold his daughter, kissed her

and touched her breasts and pulled her down on the bed. When he came back home, he took

his daughter to the Police Station and lodged the FIR vide Exhibit-2.

Page No.# 7/19

18. PW-3 was the mother of the vicctim who was also not present at the time of incident.

According to PW-3, on the date of incident, she herself along with the accused were taking a

cup of tea in the house of one of her neighbour. At that time, the accused asked about her

daughter and she told him that her daughter was watching TV and writing something.

Thereafter, the accused came to her house. When she reached home, she saw her daughter

was crying. On being asked, her daughter disclosed that the accused touched her breasts,

kissed her and pulled her down on the bed. Thereafter, she narrated the incident to one of

her neighbour and told her husband about the incident. PW-3 also stated that about 10 days

back from the date of incident, when her daughter went to nearby shop, accused stopped

her near the Shiv Mandir and he touched her breasts. Her daughter had disclosed the

incident to her.

19. From the evidence of PW-2 and PW-3, it appears that the accused is their adjacent

neighbour.

20. PW-4 is the Medical Officer, who examined the victim girl. The Medical Officer took the

history of the incident from the victim, wherein she stated before the Medical Officer that a

person known to her touched her breasts at around 3:00 PM on 22.07.2018. According to

PW-4, the radiological evidence shows that the victim was above 10 years and below 13 years

of age, on the date of examination.

21. PW-5 is the neighbour of the informant. She deposed in her evidence that on the date

of incident, she was planting paddy in her own land, near the house of one Barun Talukdar. At

that time, wife of the informant, Hemen Das told her that accused entered into the house of

Hemen Das and touched the breasts of informant's daughter.

Page No.# 8/19

22. PW-6 is Rina Talukdar. From her deposition, it reveals that on the date of incident, she

along with mother of the victim, Pranita and accused were taking cup of tea in her house.

After taking cup of tea, the accused left her house. Thereafter, Pranita also left her house to

cook food. After some time, Pranita again came back to her house and told her that accused

went to her house and sexually assaulted her daughter by touching her breasts.

23. PW-7 is also another neighbour of both the victim and the accused. According to her,

the incident took place on 22.07.2018 during daytime. She stated that there is a long pending

boundary dispute between the accused and the informant. She also knew that the accused

was beaten by the family members of the informant.

24. In her cross-examination, PW-7 replied that wife of the accused lodged a case for

assaulting her husband by the informant, which is pending at Tihu Court. On 22.07.2018,

Pabitra Rajbongshi was working as labour in the house of the accused. She did not know any

incident with regard to the daughter of the informant.

25. PW-8 is the Investigating Officer. She deposed in her evidence that on 22.07.2018, she

was working as DSP (Probation) and posted as Officer-In-Charge of Tihu Police Station. On

that day, on receipt of the ejahar from one Hemen Das, she registered a case vide Tihu PS

Case No. 129 of 2018, under Sections 448/376/511 IPC, read with Section 10 of the POCSO

Act and started investigation. The informant Hemen Das was accompanied by his wife and

victim, i.e., his daughter to the Police Station. She recorded the statement of the informant,

his wife and the victim girl. She visited the place of occurrence, which is the house of the

informant, situated at Village Borganon under Tihu Police Station and drew sketch map of the

place of occurrence, vide Exhibit-6. She also recorded the statements of other witnesses. The Page No.# 9/19

victim girl was sent for medical examination and produced before the Magistrate for recording

her statement under Section 164 CrPC. She seized one birth certificate of the victim girl, on

being produced by her mother, vide Exhibit-3, Seizure List. The accused was arrested. After

completion of investigation, charge sheet was submitted against the accused under Sections

448/376/511 IPC, read with Section 10 of the POCSO Act, vide Ext-7.

26. The defence took the plea of alibi that the accused appellant was not present on that

day in his house. In support of the fact, the defence adduced 3 (three) witnesses. DW-1 is

the wife of the accused appellant. She stated in her evidence that on the date of incident, her

husband was working with a labour, namely, Pabitra Rajbongshi in their compound and after

having meal, her husband left for Barama to sell biscuits and at that time, Hemen Das

assaulted her husband and snatched away Rs. 10,000/-, from him and gave false allegation

of committing rape on his daughter. On the next day, she lodged one FIR against Hemen Das

for assaulting her husband and snatching away the money, which is pending in Tihu Court.

27. In his cross-examination, DW-1 replied that there is no case pending regarding the

boundary dispute between her husband and the informant. She lodged the FIR against

Hemen Das after filing of case by Hemen Das against her husband.

28. DW-2 is Pabitra Rajbongshi. From his deposition, it reveals that on 22.07.2017, the

incident took place. On that day, he had gone to the house of the accused to work as daily

labour. The accused was working with him. Around 2'o clock, the accused went to collect

money payable to him in connection with some business. Near Namghar, the accused was

beaten by Hemen Das. Hearing hue and cry, he rushed to the place and saw the incident.

Thereafter, accused returned home.

Page No.# 10/19

29. In his cross-examination, DW-2 replied that at about 12'o'clock, Hemen Das left him

and went for lunch. He did not know where the victim was at the time of incident.

30. DW-3 is the accused appellant, Deba Sharma. He deposed in his evidence that he was

working in his property, along with his helper, Pabitra Rajbongshi. There was a boundary

dispute between him and the informant for a long time. At about 12:30 pm, he was on his

way and near a Mandir, Hemen Das accosted him and physically assaulted him. His wife

lodged an FIR against the informant Hemen Das, regarding the said incident. An absolutely

false case has been lodged against him. He has no contact with the victim at any point of

time. Their boundary dispute has not yet been settled.

31. Though the wife of the accused appellant, i.e., DW-1 stated that on the date of incident

after having meal at about 04:00 pm, her husband left for Barama, to sell biscuits, but on the

way Hemen Das assaulted him and snatched away Rs. 10,000 from him. But the accused did

not utter a single word that the informant Hemen Das snatched away Rs. 10,000/- from him,

rather on the date of incident, according to DW-3, i.e., the accused, at about 12:30 pm, when

he was on his way Hemen Das accosted him and physically assaulted him. DW-2 stated that

around 2'o clock, the accused went to collect money in connection with his business. Near the

namghar, the accused was beaten by Hemen Das and having heard the hue and cry, he went

to the spot.

32. From the evidence DW-1, DW-2 and DW-3, it appears that there was a time gap of

around 2 hours in each of the statements given by DW1, DW-2 and DW-3. So, plea of alibi is

not proved. Though the defence plea is that there is a long standing boundary dispute

between the parties, this false case has been instituted, but according to the wife of the Page No.# 11/19

appellant (DW-1), no case is pending between the parties regarding boundary dispute. They

did not file any case against the informant regarding boundary dispute. So, probability of

false implication is also not proved in the case.

33. In cases concerning offences under the POCSO Act, the sheet anchor of the arguments

made on behalf of the State is the presumption that operates against the accused under

Section 29 of the POCSO Act. It is contended in cases pertaining to the POCSO Act, as

contended in the present case by the learned Additional Public Prosecutor on behalf of the

respondent State that the Court has to presume that the accused has committed the offence

for which he is charged under the said Act, unless the contrary is proved. On this basis, it is

submitted on behalf of the respondent State that in the present case, it was for the appellant

to have proved to the contrary and that the burden was entirely on him, which he had failed

to discharge and that therefore, the conviction and sentence imposed by the trial Court could

not be disturbed. 34. In this backdrop, it is first necessary to examine the effect of

presumption under Section 29 of the POCSO Act and the manner in which the accused could

rebut such presumption. Section 29 of the POCSO Act reads as follows:-

"29. Presumption as to certain offences -

Where a person is prosecuted for committing or abetting or attempting to commit any

offence under Sections 3,5,7 and section 9 of this Act, the Special Court shall presume, that

such person has committed or abetted or attempted to commit the offence, as the case may

be unless the contrary is proved."

35. A perusal of the above quoted provision does show that it is for the accused to prove

the contrary and in case he fails to do so, the presumption would operate against him leading Page No.# 12/19

to his conviction under the provisions of the POCSO Act. It cannot be disputed that no

presumption is absolute and every presumption is rebuttable. It cannot be countenanced that

the presumption under Section 29 of the POCSO Act is absolute. It would come into operation

only when the prosecution is first able to establish facts that would form the foundation for

the presumption under Section 29 of the POCSO Act to operate. Otherwise, all that the

prosecution would be required to do is to file a charge sheet against the accused under the

provisions of the said Act and then claim that the evidence of the prosecution witnesses

would have to be accepted as gospel truth and further that the entire burden would be on

the accused to prove to the contrary. Such a position of law or interpretation of the

presumption under Section 29 of the POCSO Act cannot be accepted as it would clearly

violate the constitutional mandate that no person shall be deprived of liberty except in

accordance with procedure established by law.

36. The manner in which a presumption would operate against an accused has been

analysed and deliberated upon by Courts because such a presumption is also provided for in

various statues, including the Prevention of Corruption Act, 1988. In the case of Babu .vs.

State of Kerala; (2010) 9 SCC 189, while examining as to in what manner presumption

under a statute would operate against the accused, the Hon'ble Supreme Court has held as

follows:-

"(IV) Burden of Proof and Doctrine of Innocence

27. Every accused is presumed to be innocent unless the guilt is proved. The

presumption of innocence is a human right. However, subject to the statutory exceptions, the

said principle forms the basis of criminal jurisprudence. For this purpose, the nature of the Page No.# 13/19

offence, its seriousness and gravity thereof has to be taken into consideration. The courts

must be on guard to see that merely on the application of the presumption, the same may

not lead to any injustice or mistaken conviction. Statutes like Negotiable Instruments Act,

1881; Prevention of Corruption Act, 1988; and Terrorist and Disruptive Activities (Prevention)

Act, 1987, provide for presumption of guilt if the circumstances provided in those Statutes are

found to be fulfilled and shift the burden of proof of innocence on the accused. However,

such a presumption can also be raised only when certain foundational facts are established

by the prosecution. There may be difficulty in proving a negative fact.

28. However, in cases where the statute does not provide for the burden of proof on

the accused, it always lies on the prosecution. It is only in exceptional circumstances, such as

those of statutes as referred to hereinabove, that the burden on proof is on the accused. The

statutory provision even for a presumption of guilt of the accused under a particular statute

must meet the tests of reasonableness and liberty enshrined in Articles 14 and 21 of the

Constitution."

37. In the case of Sachin Baliram Kakde .vs. State of Maharashtra , 2016 ALL MR

(Cri) 4049, the Hon'ble Supreme Court in the context of presumption under Section 29 of

the POCSO Act, after quoting the said provision, has held as follows:-

"18. Thus, when a person is prosecuted for commission of the offence specified

in the said section, the Court is required to presume that the said person has

committed the said offence unless the contrary is proved.

19. The presumption, however, cannot be said to be irrebuttable. In-fact, no

presumption is irrebuttable in law, as this cannot be equated with conclusive proof.

Page No.# 14/19

The provisions of section 29 of the POCSO Act mandates the Court to draw the

presumption unless contrary is proved"

38. In a recent judgment, again in the context of presumption under Section 29 of the

POCSO Act, in the case of Amol Dudhram Barsagade .vs. State of Maharashtra; 2018

0 Supreme (Bom) 2023, Hon'ble Supreme Court has held as follows:-

"5. The learned Additional Public Prosecutor Shri S.S. Doifode would strenuously

contend that the statutory presumption under Section 29 of the POCSO Act is

absolute. The date of birth of the victim 12.10.2001 is duly proved, and is indeed not

challenged by the accused, and the victim, therefore, was a child within the meaning

of Section 2(d) of the POCSO Act, is the submission. The submission that the statutory

presumption under Section 29 of the POCSO Act is absolute, must be rejected, if the

suggestion is that even if foundational facts are not established, the prosecution can

invoke the statutory presumption. Such an interpretation of Section 29 of the POCSO

Act would render the said provision vulnerable to the vice of unconstitutionality. The

statutory presumption would stand activated only if the prosecution proves the

foundational facts, and then, even if the statutory presumption is activated, the

burden on the accused is not to rebut the presumption beyond reasonable doubt.

Suffice it if the accused is in a position to create a serious doubt about the veracity of

the prosecution case or the accused brings on record material to render the

prosecution version highly improbable."

39. In this context after quoting and referring to presumption under Section 29 of the POCSO

Act, the Calcutta High Court in the case of Sahid Hossain Biswas vs. State of West Page No.# 15/19

Bengal; 2017 SCC OnLine Cal 5023, has held as follows:-

"23. A conjoint reading of the statutory provision in the light of the definitions,

as aforesaid, would show that in a prosecution under the POCSO Act an accused is to

prove the contrary, that is, he has to prove that he has not committed the offence and

he is innocent. It is trite law that negative cannot be proved [see Sait Tarajee

Khimchand vs. Yelamarti Satyam, (1972) 4 SCC 562, Para-15]. In order to prove a

contrary fact, the fact whose opposite is sought to be established must be proposed

first. It is, therefore, an essential prerequisite that the foundational facts of the

prosecution case must be established by leading evidence before the aforesaid

statutory presumption is triggered in to shift the onus on the accused to prove the

contrary."

40. Being a child witness of tender age and the sole direct witness in support of the

prosecution case, the evidence of the said PW2 has to be evaluated with great care and

circumspection. In this context, the Hon'ble Supreme Court in the case of Radhey Shyam

vs. State of Rajasthan; reported in 2014 2 Supreme 363, has held as follows:-

"12. In Panchhi, (1998 SCC (Cri) 1561) after reiterating the same principles, this

Court observed that the evidence of a child witness must be evaluated more carefully

and with greater circumspection because a child is susceptible to be swayed by what

others tell him and, thus, a child witness is an easy prey to tutoring. This Court further

observed that the courts have held that the evidence of a child witness must find

adequate corroboration before it is relied upon. But, it is more a rule of practical

wisdom than of law. It is not necessary to refer to other judgments cited by learned Page No.# 16/19

counsel because they reiterate the same principles. The conclusion which can be

deduced from the relevant pronouncements of this Court is that the evidence of a child

witness must be subjected to close scrutiny to rule out the possibility of tutoring. It

can be relied upon if the court finds that the child witness has sufficient intelligence

and understanding of the obligation of an oath. As a matter of caution, the court must

find adequate corroboration to the child witness's evidence. If found, reliable and

truthful and corroborated by other evidence on record, it can be accepted without

hesitation. We will scrutinize PW-2 Banwari's evidence in light of the above principles."

41. It has been further held in the case of Lallu Manjhi and another .vs. State of

Jharkhand; (2003) 2 Supreme Court Cases 401 by the Hon'ble Supreme Court as

follows:-

"10. The Law of Evidence does not require any particular number of witnesses

to be examined in proof of a given fact. However, faced with the testimony of a single

witness, the Court may classify the oral testimony into three categories, namely (i)

wholly reliable,

(ii) wholly unreliable, and (iii) neither wholly reliable nor wholly unreliable. In

the first two categories there may be no difficulty in accepting or discarding the

testimony of the single witness. The difficulty arises in the third category of cases. The

court has to be circumspect and has to look for corroboration in material particulars by

reliable testimony, direct or circumstantial, before acting upon testimony of a single

witness."

42. Applying the aforesaid principles pertaining to appreciation of evidence of witnesses, Page No.# 17/19

particularly a child witness, it will have to be first examined as to under which category would

the testimony of PW-1 (victim) fall in the present case. If the testimony is found to be wholly

reliable, there would be no necessity of corroboration and if it was found to be wholly

unreliable, it would have to be discarded. But, if it was found neither wholly reliable nor

wholly unreliable, it would definitely require corroboration. A close scrutiny of the evidence of

PW-1 shows that it was alleged by the victim that prior to the incident, i.e., on 22.07.2018,

the accused touched the breast of the victim, while she was going to the shop and

subsequently, on the next day, when the accused came to the house of the victim, she was

alone and watching TV and accused touched her breasts and left the place. On the date of

incident, accused pushed her and pulled down her on the bed, kissed on her cheeks and

touched her breasts. The victim disclosed about the incident to her mother, which was

supported by the mother of the victim also. It also appears that the victim was consistent in

her statement before the Investigating Officer and when her statement was recorded by the

Magistrate under Section 164 CrPC. The other witnesses, i.e., PW-5 and PW-7, are the

neighbours of the informant and the accused, who also supported the fact that the mother of

the victim informed them about the incident immediately after the occurrence.

43. The accused was convicted under Section 10 of POCSO Act, which deals with

punishment for aggravated sexual assault. Aggravated sexual assault describes in Section 9 of

POCSO Act and the present case deals with Section 9 (l) which says whoever commits sexual

assault on the child more than once or repeatedly, is said to commit aggravated sexual

assault. The sexual assault describes in Section 7 of POCSO Act, which reads as follows:-

"7. Whoever, with sexual intent touches the vagina, penis, anus or breast of the

child or makes the child touch the vagina, penis, anus or breast of such person or any Page No.# 18/19

other person, or does any other act with sexual intent which involves physical contact

without penetration is said to commit sexual assault."

44. Learned counsel for the appellant submits that the accused appellant was convicted

under Section 10 of POCSO Act and he was sentenced to undergo Rigorous Imprisonment for

7 years which is the maximum punishment prescribed under Section 10 of the POCSO Act.

Under the facts and circumstances of the case the punishment be reduced to 5 years.

45. Section 10 of POCSO Act says that -

"10. Punishment for aggravated sexual assault. Whoever, commits

aggravated sexual assault shall be punished with imprisonment of either description

for a term which shall not be less than five years but which may extend to seven

years, and shall also be liable to fine.

46. Regarding quantum of sentence, learned counsel for the appellant has contended that

the convict is having family consisting of his wife and children and he is the sole earning

member of his family. It is further submitted that he has been detained in custody since the

date of the Judgment, i.e., for last two years and is a first offender. It is also submitted that

the offence under Section 10 of the POCSO act carries maximum imprisonment for seven

years with fine and since the convict is a first time offender, a lenient view be taken by

imposing minimum sentence to 5 (five) years.

47. Learned Additional Public Prosecutor has opposed the contention of the learned counsel

for the appellant on the ground that the convict has been found guilty of heinous offence

under Section 10 of the POCSO Act, which carries minimum sentence of five years and,

therefore, having regard to the gravity of the offence and to the fact that offences against girl Page No.# 19/19

child are on the rise in the society, no leniency should be showed to the convict.

48. I have considered the submissions on the point of sentence.

49. The mitigating circumstances in favour of the convict is that he is the first time

offender.

50. The aggravating circumstance against the convict is that he had sexually assaulted the

girl child aged about 11 years by touching her breasts repeatedly. The other circumstance is

that number of cases of girl child abuse are on rise in the society.

51. On balancing the mitigating and aggravating circumstances, it is apparent that

aggravating circumstances far outweighs the mitigating circumstances.

52. The offence under Section 10 of the POCSO Act carries maximum sentence of seven

years imprisonment and fine. Therefore, interest of justice will be met if convict is sentenced

to minimum punishment of 5 (five) years. Fine imposed by the learned trial Court will remain

as same.

53. In the result, appeal is partly allowed to the extent as aforesaid.

54. Accordingly, the Criminal Appeal stands disposed of.

55. Send down the LCR.

JUDGE

Comparing Assistant