Gauhati High Court
CRL.A(J)/44/2020 on 2 August, 2024
Page 1 of 21
GAHC010097272020
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
Crl. Appeal (J)/44/2020
1. Shyamal Barman
Barpeta, Assam.
.....Appellant
-Versus-
1. The State of Assam
Represented by the P.P. Assam
2. Soma Arjya
W/o- Indrajit Arjya
R/o- Kalah Bhanga
W/No. 4
P.S.- Barpeta Road
......Respondents
For Appellant : Ms. B. Sarma, Amicus Curiae
For Respondent(s) : Mr. K. K. Parasar, Additional Public Prosecutor
Ms. L. Devi, Legal Aid Counsel
(Informant/Respondent No.2)
Date of Judgment : 02.08.2024
Crl. Appeal (J)/44/2020 Page 1
Page 2 of 21
BEFORE
HON'BLE MR. JUSTICE MRIDUL KUMAR KALITA
JUDGMENT
1. Heard Ms. B. Sarma, learned Amicus Curiae for the appellant.
Also heard Mr. K. K. Parasar, learned Additional Public
Prosecutor for the State of Assam as well as Ms. L. Devi,
learned Legal Aid Counsel, representing the
informant/respondent No.2.
2. This Jail Appeal was registered on receipt of an appeal petition
from the appellant, namely, Shyamal Barman, through the
Superintendent District Jail, Barpeta, impugning the judgment
dated 08.08.2019 passed by learned Special Judge, Barpeta in
Special POCSO Case No. 81/2018, whereby the appellant was
convicted under Section 6 of the POCSO Act, 2012 and has
been sentenced to undergo rigorous imprisonment for 10 years
with a fine of Rs. 1,000/- and in default of payment of fine to
undergo further simple imprisonment for 3 months.
3. The facts relevant for consideration of the instant Jail Appeal,
in brief, are as follows:
i. On 30.06.2018, the mother of the victim girl lodged an
FIR before the Officer-in-Charge of Barpeta Road Police
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Station, inter-alia, alleging that on that day, at about
11.30 am, during the absence of her husband, when the
informant was attending the cloth store of her husband
and the minor daughter/victim, aged about 2 years 6
months old, was also with her, while the minor
daughter/victim was playing in the shop, the appellant,
who was an employee in the nearby shop, under the
name and Style of Gungun Dresses, took her daughter to
his cloth shop, namely, "Gungun Dresses", and
committed rape on her. It was also alleged in the FIR,
that when the victim cried aloud, the informant and the
other people present in the market went there and
caught the appellant red-handed, when he was
committing the bad acts.
ii. On receipt of the aforesaid FIR, Barpeta P.S. Case No.
314/2018 was registered under Section 6 of the POCSO
Act, 2012 and investigation was initiated.
iii. The appellant was arrested and the statement of
witnesses were recorded under Section 161 of the Code
of Criminal Procedure, 1973.
iv. The Investigating Officer also seized the jeans pant of
the appellant as well as one sky-coloured half pant of the
victim girl containing stains of suspected human semen.
The victim girl was also medically examined.
Crl. Appeal (J)/44/2020 Page 3
v. Ultimately, on completion of the investigation, a charge
sheet was laid against the above-named appellant under
Section 12 of the POCSO Act, 2012.
vi. On 12.10.2018, the appellant was granted bail by the
Trial Court and he was released on bail after furnishing of
bail bonds and sureties by him. He faced the trial
remaining on bail.
vii. On 08.11.2018, after hearing both the sides and after
perusing the materials available on record, the Trial Court
framed the charge under Section 6 of the POCSO Act,
2012, against the appellant. When the said charge was
read over and explained to him, he pleaded not guilty to
the same and claimed to be tried.
viii. To bring home the charge against the appellant, the
prosecution side examined as many as twelve (12)
prosecution witnesses and exhibited eight (8) documents.
ix. The appellant was examined under Section 313 of the
Code of Criminal Procedure, 1973 during which he denied
the truthfulness of the testimony of prosecution
witnesses and pleaded his innocence. However, he
declined to adduce any evidence in defense.
x. The Trial Court framed following point for determination:
a. Whether on 30.06.2018, at about 11.30 am, the
accused committed aggravated penetrative sexual
Crl. Appeal (J)/44/2020 Page 4
assault on the victim girl aged about two-and-a-half
years in the clothes store under the name and style
"Gungun Dresses", as alleged?
xi. Ultimately, by the judgment which has been impugned in
this appeal, the Trial Court convicted and sentenced the
appellant in the manner as already described
hereinbefore in Paragraph No. 2 of this judgment.
4. Before considering the rival submissions made by the learned
counsel for both the sides, let me go through the evidence
available on record.
5. PW-1, who is the mother of the victim girl, has deposed before
the Trial Court that the incident occurred on 30.06.2018 at
about 11.30 am to 12 noon. At that time, she was in her
clothes shops at Barpeta Road, however her husband was not
there at that time. She has also stated that her daughter (the
victim) was also with her in the shop room and it was raining.
PW-1 has also deposed that the appellant came to her shop
and told her that he can console the daughter of the
informant, who was crying at that time, by taking her to some
other shop and showing something there. On good faith, the
PW-1 allowed the appellant to take her daughter. After some
time she heard crying of her daughter from other shop,
namely, Gungun Dresses when the PW-1 ran to that shop to
inquire about her daughter she noticed that the pant of her
Crl. Appeal (J)/44/2020 Page 5
daughter was wet. When she asked the appellant as to how
the pant of daughter got wet the appellant showed his
ignorance, but the daughter of the informant told her that the
appellant made the pant wet. PW-1 has also deposed that on
scrutinizing properly, she saw semen inside the pant of the
daughter and then she immediately called the husband over
phone and other people there. PW-1 has also deposed that the
appellant was again called and was shown the pant worn by
the daughter having semen, however, the appellant denied
doing anything, and thereafter, he ran away. After some time
the local people apprehended him from behind the Namghar
and the PW-1 lodged the FIR which is exhibited as Exhibit-1.
She has also deposed that her daughter was thereafter, taken
to Fakhruddin Ali Ahmed Medical College and Hospital at
Barpeta for medical examination and police seized the pant of
her daughter which she was wearing at that time during cross-
examination. PW-1 has deposed that the appellant's clothes
shop is beside the shop of the informant and on the day of
incident, the daughter of the PW-1 was wearing a three-
quarter pant and a top and police seized the same on the day
of the incident. She also deposed that the police also seized a
black jeans and underwear belonging to the appellant. She has
answered in negative to a suggestive question put to her that
the appellant had offered water to her daughter out of love
Crl. Appeal (J)/44/2020 Page 6
and affection and while taking water it fell on her pants. She
has also answered in negative to the suggestive question that
she filed case against the appellant only out of suspicion.
6. PW-2, who is the victim girl, who was aged about three years
when her testimony was recorded, has deposed that she know
the appellant and the appellant took her inside the shop room
and made her pant wet inside the shop by doing something.
She also deposed that the appellant made her pant wet on her
back and thereafter, he took her on his lap.
7. During cross-examination, the victim has deposed that her
parents told her to say in the Court whatever is asked to her.
She also deposed that her father taught her how to speak in
the Court and what to speak.
8. PW-3, Shri Sujit Kumar Saha, has deposed that he has a
furniture shop in front of Barpeta Road Police Station and on
the day of incident at around 12 noon to 1.00 p.m., he was
called to police station where he saw the appellant. He has
stated that the appellant confessed before them that he
committed mistake against the daughter of the informant. He
has also deposed that the police seized one jeans pant of the
appellant and one half pant of the girl and prepared one
seizure list, wherein he put his signatures, which is exhibited as
Exhibit-2(1). He also deposed that there was a video-graph of
the scene of occurrence and the video-graph was also seized
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and police prepared a seizure list which is exhibited as Exhibit-
3 and his signatures thereon as Exhibit-3(1).
9. PW-4, Shri Santosh Saha, has deposed that on the date of
incident i.e, on 30.06.2018, he was at his residence and on
reaching his shop, he was called to the shop of the informant.
He has deposed that in the shop of the informant he saw the
appellant along with the Officer-in-Charge of Barpeta Road
Police Station and thereafter, they proceeded to Barpeta Road
Police Station along with them. A cameraman was present who
recorded the videography of the place of occurrence. He
deposed that the police seized the clothes of the appellant i.e.,
a jeans pant and a half pant of the victim girl and prepared
one seizure list which is exhibited as Exhibit-2 by the PW-4. His
signatures were exhibited as Exhibit-2(2) on the said seizure
list. Police also prepared a seizure list after seizing the
videography and said seizure list is exhibited as Exhibit-3,
wherein the signatures of the PW-4 has been exhibited as
Exhibit-3(2).
10. During cross-examination, he deposed that the appellant has
been newly employed by his owner Gokul Saha. He has also
deposed that he does not know the content of the seizure list
over which he has put his signature.
Crl. Appeal (J)/44/2020 Page 8
11. PW-4 has also stated that in the police station, the appellant
confessed before them that he subjected the minor daughter
of the informant to sexual assault.
12. PW-5, who is the father of the victim girl, has deposed that on
the date of incident i.e., 30.06.2018, he was working at
Sorbhog. At that time, his wife called him over phone and
called him back informing him that something has happened to
his daughter. When the PW-5 came back and reached his
shop, he saw his wife and a gathering of some people along
with his daughter and his wife told him that she saw the semen
of the appellant on the pants of her daughter. PW-5 also
deposed that his wife told her that the appellant took his
daughter from the shop of the PW-5 to the shop of Gokul
Saha and committed sexual assault and ejected sperm in the
pants of her daughter. He has also deposed that the appellant
confessed his guilt before him and during the course of his
confession, the police recorded the same in videography. He
exhibited the seizure list as Exhibit-4.
13. During cross-examination, the PW-5 has deposed that at the
time of incident it was raining. He has also deposed that he
came to know about the incident from his wife. He has also
answered in negative to a suggestive question that the
appellant was assaulted by the people who gathered there and
due to the assault he confessed his guilt.
Crl. Appeal (J)/44/2020 Page 9
14. PW-6, Shridhar Sarma has deposed that he has business
establishment at Barpeta Road market in front of Barpeta Road
Police Station and on the date of incident, police brought the
appellant to the police station and called him to the police
station. PW-6 has also deposed that in the police station the
appellant confessed that he committed offence against the
minor girl. Police video-graphed the entire scene.
15. PW-7, Sri Sujit Kumar Saha has deposed that on the date of
incident he was called to the place of occurrence, and when he
went there he saw some other persons of locality were grilling
the appellant and the appellant confessed his guilt before
them. Thereafter, police was informed and accordingly, police
reached his shop. He also deposed that the appellant
confessed that he committed sexual assault against the girl.
The police video-graphed the entire scene and seized the Micro
SD Card where the videography was recorded and prepared a
seizure list. The PW-7 exhibited his signatures as Exhibit-3(3)
on the seizure list.
16. During cross examination, PW-7 has deposed that he did not
noticed as to whether videography was done through a camera
or by a mobile phone. He answered in negative to a suggestive
question that the appellant did not confess his guilt before
them.
17. PW-8, Shri Shankar Acharjee has deposed that on the date of
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incident, he was called by police of Barpeta Road Police Station
to do some videography regarding the incident. Accordingly, he
rushed to the Barpeta Road Police Station and took video-
graph of the appellant, who gave his statement before police in
presence of several other persons that he did sexual offence
against the minor girl in his clothes shop and then, he was
caught by business community. PW-8 has deposed that he had
not seen the incident himself but heard about it from the other.
He has deposed that on completion of the videography, Police
Officer took the memory card from him and seized the same by
preparing a seizure list which is exhibited as Exhibit-3. He also
exhibited his signatures on the said seizure list as Exhibit-3 (4).
18. During cross-examination, PW-8 has deposed that he did the
videography by using his HD camera of Sony company.
19. PW-9, Dr. Anima Boro has deposed that on 02.07.2018, she
was working at Fakhruddin Ali Ahmed Medical College and
Hospital, Barpeta as Medical and Health Officer. On that day
she examined one minor girl (victim), who was aged about two
years seven months at that time in connection with Barpeta
Road P. S. GD Entry No. 700 dated 30.06.2018. During
examination, she found the vulva and hymen of the victim girl
intact and no spermatozoa was seen on microscopic
examination of the vaginal swab. She also found no sign of
recent sexual intercourse and no injury mark over the body of
Crl. Appeal (J)/44/2020 Page 11
the victim girl.
20. During cross-examination, no question was asked in respect of
the opinion given by the PW-9 in her medical examination
report. She has stated that before examining the victim girl she
took the consent of the mother of the victim girl.
21. PW-10, Dr. Shankar Chandra Rabha has deposed that on
03.07.2018 he was working as Scientific Officer in the Serology
Division Directorate of Forensic Science Assam, Kahilipara,
Guwahati. On that day, he received a parcel from the Director
of Forensic Laboratory in connection with Barpeta Road P. S.
Case No.314/2018. The parcel contained two exhibits namely,
one sky and white colour half pant containing stains of
suspected semen and one black colour jeans long pant
containing stains of suspected semen. On examination, it was
found that both the exhibit gave positive test for human
semen.
22. During cross-examination, PW-10 has deposed that he had
examined the material exhibit after three to four days of the
receipt of the same.
23. PW-11, Shri Bidhan Singh Basumatary has deposed that on
30.06.2018, he was working at Barpeta Road Police Station as
Sub-Inspector of Police and on that day, he received a phone
call from one Prakash Mitra, whereby it was informed that a
boy had committed sexual offence against a minor girl and said
Crl. Appeal (J)/44/2020 Page 12
boy has been detained by the public. On receipt of the said
information, PW-11 made a GD Entry No.700 dated 30.06.2018
and proceeded to the place of occurrence. On reaching the
place of occurrence he inspected the place of occurrence, drew
the sketch map of the place of occurrence and recorded the
statement of witnesses. Thereafter, he brought the appellant
and the victim girl to the police station and seized the half pant
of the victim girl as well as black colour jeans pant worn by the
appellant. He also seized the videography done by Shankar
Acharjee during the time of interrogation of the appellant. He
has also deposed that he has been and he was entrusted to
investigate the case by the Officer-in-Charge of Barpeta Road
Police Station and during investigation, he sent the victim girl
for medical examination and also sent the victim girl for
recording her statement under Section 164 of the Code of
Criminal Procedure, 1973. He has deposed that after
completion of the investigation having found sufficient
evidence against the appellant he laid the charge sheet against
the appellant, bearing charge sheet No.160 dated 22.09.2018
under Section 12 of the POCSO Act, 2012. He exhibited the
sketch map as Exhibit-7, the FIR as Exhibit-1, Seizure List as
Exhibit-2 and Exhibit-4, and the charge sheet as Exhibit-8.
24. During cross-examination, PW-11 was asked some general
questions, which does not have much bearing on the testimony
Crl. Appeal (J)/44/2020 Page 13
of PW-1 or other witnesses. However, PW-11 has deposed that
PW-1, i.e., the mother of the victim, did not state before him
that she noticed the pant of her daughter wet and on careful
examination found the stains of semen on her pants.
25. PW-12, Shri Utpal Kalita, has deposed that on 02.07.2018, he
was serving as the Bench Assistant of the Court of learned
Judicial Magistrate, 1st Class, Barpeta. On that day, the learned
Judicial Magistrate, 1st Class, Barpeta, had recorded the
statement of victim girl, who was at that time aged about two
and a half years. The statement was recorded under Section
164 of the Code of Criminal Procedure, 1973. However, PW-12
has deposed that being the Bench Assistant of the said Court,
he was familiar with the handwriting and signatures of the
concerned Judicial Officer. He exhibited the statement of the
victim girl recorded under Section 164 of the Code of Criminal
Procedure, 1973 as Exhibit-7 and the signature of the
Magistrate as Exhibit-7 (1).
26. During cross-examination, PW-12 has deposed that though, he
was serving in the said Court, however, he had not brought
along any proof of his identity to show that he was serving in
the said Court. He has also submitted that no seal has been
put under the signature of the Officer in the document which
has been exhibited as Exhibit-7.
Crl. Appeal (J)/44/2020 Page 14
27. It is pertinent to mention herein that the marking in this case
by the Trial Court of Exhibit of the statement of the victim girl
under Section 164 of the Code of Criminal Procedure, 1973 has
been erroneous, as it had already marked the sketch map,
which was exhibited by the PW-11 as Exhibit-7 and it has again
allowed marking of the statement of the victim girl recorded
under Section 164 of the Code of Criminal Procedure, 1973 as
Exhibit-7.
28. Ms. B. Sharma, learned Amicus Curiae appearing for the
appellant has stated that on the date when the statement of
the appellant was recorded under Section 313 of the Code of
Criminal Procedure, 1973, i.e., on 10.07.2019, his age has
been shown as 18 years, whereas, the incident had occurred
on 30.06.2018, i.e., about more than a year before the date on
which the statement of the appellant was recorded under
Section 313 of the Code of Criminal Procedure, 1973.
Therefore, the learned Amicus Curiae has submitted that there
is every likelihood that the appellant was a juvenile when the
incident had occurred.
29. She has also submitted that the evidence of PW-1, who is the
mother of the victim girl as well as the informant of the case,
cannot be relied upon as she has not seen the alleged incident
herself and had only claimed to have seen stains of semen on
the half-pant of her daughter. Learned Amicus Curiae,
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appearing for the appellant, has also submitted that even the
victim girl, in her testimony as PW-2, has not whispered
anything about penetrative sexual assault. Rather, she only
deposed that the appellant made her pant wet on her back. It
is also submitted by learned Amicus Curiae that considering the
age of the victim girl as well as considering the fact that she
had deposed before the Court after lapse of about six months
after the date of the alleged incident, there is every likelihood
that she might have been tutored by her parents.
30. Learned Amicus Curiae has also submitted that the victim girl
had admitted during her cross-examination that her father
taught her as to how to speak in Court and what to speak.
31. Learned Amicus Curiae has also submitted that none of the
other witnesses have deposed that they had seen the incident
themselves. Rather, all of them have deposed on the basis of
hearsay. It is also submitted that though, the remaining
witnesses have also stated that the appellant has confessed
before them, however, it appears that the appellant had
allegedly confessed about his guilt in the police station and
what he exactly stated while confessing his guilt as alleged has
not been deposed by any of the witnesses. Learned Amicus
Curiae has also submitted that any confession made before
police is inadmissible.
32. Learned Amicus Curiae has also submitted that the Trial Court
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has ignored the testimony of the doctor who examined the
victim girl, wherein, the PW-9 (Doctor) had categorically stated
in her testimony that no injury mark was found over the
victim's body and no recent sign of sexual intercourse was
there.
33. Learned Amicus Curiae for the appellant submits that the
medical evidence on record negates the possibility of any
penetrative sexual assault on the victim girl.
34. On the other hand, learned Additional Public Prosecutor has
submitted that the prosecution witnesses have given
implicating evidence against the appellant and considering the
fact that semen were found on the half pant of the victim girl
when her mother recovered her from the shop room of the
appellant where the appellant was also found, there remains
no doubt regarding the guilt of the appellant. Learned
Additional Public Prosecutor has also submitted that there is no
infirmity in the findings of the Trial Court and therefore, prays
that no interference should be made with the judgment of
conviction and sentence imposed on the appellant by the Trial
Court.
35. Ms. L. Devi, learned Legal Aid Counsel appearing for the victim
girl has deposed that the victim was traumatized at the young
age of two and a half years only and all the witnesses have
implicated the appellant and therefore, she prays that no
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mercy should be shown to the appellant and the Trial Court
judgment should not be interfered with in this appeal.
36. Ms. L. Devi, learned Legal Aid Counsel has also cited a ruling of
the Supreme Court of India in the case of "Radha Krishna
Nagesh Vs. State of Andhra Pradesh" reported in (2013)
11 SCC 688, where the Apex Court has held that if the hymen
of the victim girl was found intact it may not be a conclusive
proof of the fact that the victim girl was not subjected to rape
as under Section 375 of the Indian Penal Code, the
requirement of complete penetration is not there. She also
submits that no leniency should be shown to the appellant,
considering the fact that a small girl of two and a half years
was subjected to the lust of the appellant.
37. I have considered the submissions made by both the sides and
also have gone through the materials available on record
carefully.
38. There is no dispute to the fact that at the time of occurrence of
alleged incident the victim girl was of only two and a half years
of age and she deposed before the Court during the trial only
after about six months had already passed.
39. She had stated that the appellant made her pant wet on her
back and he took her in his lap. She had not stated anything
from which it can be inferred that the appellant subjected her
to penetrative sexual assault. Though, the evidence on record
Crl. Appeal (J)/44/2020 Page 18
would suggest that the appellant did some act with the victim
girl, with sexual intent which involves physical contact,
however, there is no evidence of penetration by the appellant
while doing the said act.
40. None of the witnesses for the prosecution side have stated
anything regarding penetrative sexual assault, though, the
evidence on record clearly suggests that there was sexual
assault of the victim girl within the meaning of Section 7 of the
POCSO Act, 2012. Though, there is no dispute that semen was
found on the half pant of the victim girl and the appellant was
also found with the victim girl, which suggests that the semen
was of the appellant and thus, he might have committed some
act with the victim girl with sexual intent.
41. However, considering the evidence of the doctor, who
examined the victim girl, which suggests no sign of any
penetration on the victim girl and as well as the fact that none
of the witnesses for the prosecution have stated anything
regarding penetrative sexual assault, this Court is of considered
opinion that there is no sufficient evidence on record to come
to the finding that the victim was subjected to penetrative
sexual assault by the appellant.
42. If we peruse the impugned judgment, it appears that the Trial
Court assumed that unless the appellant touches his penis to
the vagina of the victim, there could not have been any
Crl. Appeal (J)/44/2020 Page 19
ejaculation of the semen, which in the considered opinion of
this Court does may not be always correct. Though, the
evidence on record does suggest that there was sexual assault
of the victim girl within the meaning of Section 7 of the POCSO
Act, 2012, and as victim girl was only of two and half years of
age, when the alleged offence was committed, the sexual
assault would be considered as of aggravated nature within the
meaning of Section 9 (m) of the POCSO Act, 2012. However,
there is no sufficient evidence on record to come to the finding
that the appellant committed aggravated penetrative sexual
assault on the victim girl within the meaning of Section 5 of the
POCSO Act, 2012.
43. Though, it is no longer res integra that complete penetration is
not necessary for committing penetrative sexual assault,
however, there must be some evidence on record to suggest
that any of the act as mentioned in Section 3(a), (b), (c) and
(d) of the POCSO Act, 2012, have been committed to come to
the finding that there was penetrative sexual assault, and in
the instant case, none of the witness has deposed anything to
bring the offence committed by the appellant within the
meaning of Section 3 of the POCSO Act, 2012.
44. Though, there is sufficient evidence to bring the act committed
by the appellant within the meaning of Section 7 as well as
Section 9 (m) of the POCSO Act, 2012.
Crl. Appeal (J)/44/2020 Page 20
45. In view of above, this Court is of opinion that the impugned
judgement is required to be interfered with by altering the
conviction of the appellant from Section 6 of the POCSO Act,
2012 to Section 10 of the POCSO Act, 2012.
46. Accordingly, the conviction of the appellant is modified to
Section 10 of the POCSO Act, 2012.
47. Further, as the Section 10 of the POCSO Act, 2012 prescribes
punishment which shall not be less than 5 years, but which
may extend to 7 years, the sentence imposed on the appellant
is also modified from rigorous imprisonment for 10 years and
fine of Rs. 1,000/- with default stipulation as imposed by the
Trial Court to rigorous imprisonment of 5 years and a fine of
Rs. 1,000/- under Section 10 of the POCSO Act, 2012 and in
default of payment of fine to undergo simple imprisonment for
3 months.
48. The appeal is accordingly, partly allowed, by modifying the
conviction and sentence imposed on the appellant as indicated
hereinbefore.
49. Send back the records of Trial Court to the Court of learned
Special Judge, Barpeta along with a copy of this judgment,
immediately.
JUDGE
Comparing Assistant
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