Gauhati High Court
Page No.# 1/18 vs The State Of Assam And Anr on 23 October, 2025
Page No.# 1/18
GAHC010194172024
2025:GAU-AS:14066
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./308/2024
PINKU NAMO DAS
S/O. SRI. KALIPADA NAMO DAS, R/O. VILL. GORAIMARI, P/S.
BONGAIGAON, DIST. BONGAIGAON, ASSAM.
VERSUS
THE STATE OF ASSAM AND ANR
REP. BY THE PP, ASSAM
2:SMTI. CHANDANA MANDAL
W/O. KAMAL CHANDRA MANDAL
R/O. GORAIMARI
P/S AND DIST. BONGAIGAON
ASSAM
PIN-78339
Advocate for the Petitioner : MR. M KHAN, MR A K DAS,MS J AKTAR
Advocate for the Respondent : MR K BAISHYA, ADDL. PP, ASSAM, MR SARFRAZ NAWAZ,
AMICUS CURIAE (R2)
BEFORE
HONOURABLE MRS. JUSTICE MITALI THAKURIA
JUDGMENT (CAV)
Date : 23-10-2025
Heard Mr. M. Khan, learned counsel for the appellant. Also heard Mr. K. Baishya,
learned Addl. Public Prosecutor, Assam for the State respondent No.1 and Mr. S. Nawaz,
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learned Amicus Curiae appearing for the respondent No.2.
2. By filing this appeal under Section 415(2) of the Bharatiya Nagarik Suraksha Sanhita,
2023, the appellant has challenged the impugned judgment and order dated 03.09.2024,
passed by the learned Special Judge, Bongaigaon in Special (P) Case No. 68 (BGN)/2023,
whereby the learned Special Judge had convicted the appellant, namely, Pinku Namo Das
under Section 10 of the POCSO Act and sentenced him to undergo rigorous imprisonment for
seven (7) years and to pay a fine of Rs.10,000/- (Rs. Ten Thousands) only, in default of
payment of fine, simple imprisonment for three (3) months.
3. The case set up by the prosecution in brief is that on 20.03.2023, informant Smt.
Chandana Mandal lodged an FIR alleging inter alia that on 19.03.2023, at about 6:00 P.M.
while her minor daughter, aged about 10 years was riding her cycle, then near the house of
one Nirod Ch. Das, the accused Pinku Namo Das restrained her daughter and told her that he
will teach her how to ride the bicycle and took her forcefully to the betelnut garden near the
road and touched her breast and kissed her and also opened her wearing pants and touched
her vagina. Hence this case.
4. On receipt of the FIR, the North Bongaigaon PP GD Entry No. 522, dated 20-03-2023
was made and the same was forwarded to Bongaigaon Police Station for registering a case.
Accordingly, the Bongaigaon P.S. Case No. 138/2023 was registered under Section 354 of the
IPC, read with Section 8 of the POCSO Act, 2012 and S.I. Uttam Ray was entrusted to
investigate the case. Accordingly, the investigating officer examined the complainant and the
victim, visited the place of occurrence, recorded the statement of witnesses and prepared the
sketch map, arrested the accused, sent the victim for medical examination and recorded the
statement of the victim under Section 164 of the CrPC and after completion of investigation,
charge sheet for offence under Section 354 of the IPC, read with Section 8 of the POCSO Act,
2012 was submitted against accused Pinku Namo Das.
5. On production of the accused from jail hajot, copies were furnished to the accused
person and after going through the police report and hearing both sides, charge under
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Section 354 of the IPC, read with Section 8 of the POCSO Act, 2012 was framed against the
accused. Later on, the charge was altered and framed under Section 10 of the POCSO Act,
2012, as the victim was below 12 years of age. The charge was read over and explained to
the accused person, to which he pleaded not guilty and claimed to be tried. Later on, the
accused person was enlarged on bail.
6. During the trial, the prosecution examined as many as 7 (seven) witnesses in support
of its case. On the other hand, the defence declined to adduce any witness and the statement
of the accused was recorded u/s 313 Cr.P.C., wherein he pleaded innocence. And after
hearing the argument of learned counsel for the parties, the accused person was convicted
and sentenced by the learned trial Court, as stated above.
7. Being highly aggrieved and dissatisfied by the aforesaid judgment and order dated
03.09.2024, the accused/appellant has preferred the present appeal, inter alia, on the ground
that the learned Trial Court erred both in law and facts and as such, the impugned judgment
and order dated 03.09.2024, convicting the accused /appellant is bad in law and the same is
liable to be set aside and quashed. The evidence on record does not warrant conviction and
sentence of the accused/appellant under section 10 of the POCSO Act and the learned trial
court has failed to appreciate the evidences in its proper prospective and as such the
impugned judgment and order dated 03.09.2024 is bad in law and the same is liable to be set
aside and quashed. Furthermore, the evidence relied upon by the prosecution has not
conclusively proved the guilt of the accused/appellant beyond all reasonable doubts and as
such, the impugned judgment and order dated 03.09.2024 is liable to be set aside and
quashed. The appellant has been convicted only on the basis of sole testimony of the victim
and the informant where there was glaring omission and discrepancy on their
statement/evidences. It is also contended that the evidences of PW.2 to PW.6 are only
hearsay evidence and the whole case is based on the sole testimony of the victim.
Furthermore, there is a major contradiction of the victim statement under Section 161 of the
Cr.P.C. as well as deposition of PW-2. In her statement under Section 161 of the Cr.P.C., the
victim stated that while she was cycling, she met the accused/appellant who told her that he
will teach her cycling and thereafter keeping her cycle on the road side, she was taken to
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jungle wherein she was kissed and made her naked and touched her private part. On the
other hand, in her deposition of PW-2, she stated that the accused appellant came to her
while cycling and told her that he would teach her how to cycling but she ignored him and
moved away but on her coming back, she was restrained and hold the cycle and thereafter,
she was taken to nearby jungle where she was forcefully kissed and bite on her lips. In her
161 Cr.P.C. statement, she never told that she was initially ignored while the accused tried to
teach her, how to ride a cycle. For the first time, she has stated in her deposition as PW-2
that while she was initially restrained by the accused appellant, she ignored her and in her
coming back, she was again restrained and took her in the jungle. Therefore, the deposition
of PW-2 indicates major improvement of her earlier statement.
8. It is further contended that as per the allegation, it appears that the alleged incident
took place at 6:00 P.M. nearby road side. In that event, if such incident was actually had
happened, normally the nearby people could have heard/witnessed such incident but the
prosecution case is not supported by any independent witness. It is clearly mentioned that
the alleged incident took place near the house of Nirod Ch. Namo Das but neither Nirod Ch.
Das nor any members of his family was examined as a witness in support of the prosecution
case and as such, the impugned judgment and order dated 03.09.2024 passed by the learned
Special Judge, Bongaigaon is liable to be set aside and quashed.
9. Mr. M. Khan, learned counsel for the appellant further submitted that the medical report
of the victim also does not support the case of the prosecution and there is no eyewitness to
the occurrence and all other witnesses, except the minor victim/PW.2 are hearsay evidence.
He further submitted that it is a fact that conviction can be based solely on the testimony of
the prosecutrix if it inspires confidence but in the instant case it seen that there are sufficient
material contradictions in the evidence of the minor victim while adducing her evidence under
Section 161 as well as under Section 164 CrPC. Mr. Khan further submitted that the learned
Special Judge did not put any preliminary question to judge the capacity of understanding of
giving rational answers by the victim at the time of recording her statement. From the
evidence of the minor victim/PW.2, it is seen that before examining her maturity of
understanding, the evidence of the minor victim/PW.2 was recorded by the learned Special
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Judge. He further submitted that it is a well settled principle that the corroboration of
testimony of the child witness is not a rule but a measure of caution and prudence. More so,
it is very easy to tutor a child witness and hence, their evidence has to be scrutinized
carefully before accepting the same. At the same time, it is also the duty of the Judicial
Officer to put preliminary questions to ascertain the maturity of understanding before
examining any child witness. In this context, Mr. Khan, the learned counsel for the appellant
also relied on the decision of the Hon'ble Supreme Court in the case of Pradeep vs. State
of Haryana, reported in 2023 SCC OnLine SC 777, and basically emphasized in para 10,
11, 12, 13, 14 & 15 of the said judgment, which read as under:
"10. We have carefully considered the submissions. The fate of the case depends on the
testimony of the minor witness Ajay (PW-1). Under Section 118 of the Evidence Act, 1872 (for
short, "the Evidence Act"), a child witness is competent to depose unless the Court considers
that he is prevented from understanding the questions put to him, or from giving rational
answers by the reason of his tender age. As regards the administration of oath to a child
witness, Section 4 of the Oaths Act, 1969 (for short "Oaths Act") is relevant. Section 4 reads
thus:
"4. Oaths or affirmations to be made by witnesses, interpreters and jurors.--(1) Oaths or
affirmations shall be made by the following persons, namely:--
(a) all witnesses, that is to say, all persons who may lawfully be examined, or give, or be
required to give, evidence by or before any court or person having by law or consent of parties
authority to examine such persons or to receive evidence;
(b) interpreters of questions put to, and evidence given by, witnesses; and
(c) jurors:
Provided that where the witness is a child under twelve years of age, and the court or person
having authority to examine such witness is of opinion that, though the witness understands the
duty of speaking the truth, he does not understand the nature of an oath or affirmation, the
foregoing provisions of this section and the provisions of Section 5 shall not apply to such
witness; but in any such case the absence of an oath or affirmation shall not render
inadmissible any evidence given by such witness nor affect the obligation of the witness to state
the truth.
(2) .. .. .. .. .. .. .. .. .. .. .. .. .."
11. Under the proviso to sub-Section (1) of Section 4, it is laid down that in case of a child
witness under 12 years of age, unless satisfaction as required by the said proviso is recorded,
an oath cannot be administered to the child witness. In this case, in the deposition of PW-1
Ajay, it is mentioned that his age was 12 years at the time of the recording of evidence.
Therefore, the proviso to Section 4 of the Oaths Act will not apply in this case. However, in view
of the requirement of Section 118 of the Evidence Act, the learned Trial Judge was under a duty
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to record his opinion that the child is able to understand the questions put to him and that he is
able to give rational answers to the questions put to him. The Trial Judge must also record his
opinion that the child witness understands the duty of speaking the truth and state why he is of
the opinion that the child understands the duty of speaking the truth.
12. It is a well-settled principle that corroboration of the testimony of a child witness is not
a rule but a measure of caution and prudence. A child witness of tender age is easily susceptible
to tutoring. However, that by itself is no ground to reject the evidence of a child witness. The
Court must make careful scrutiny of the evidence of a child witness. The Court must apply its
mind to the question whether there is a possibility of the child witness being tutored. Therefore,
scrutiny of the evidence of a child witness is required to be made by the Court with care and
caution.
13. Before recording evidence of a minor, it is the duty of a Judicial Officer to ask
preliminary questions to him with a view to ascertain whether the minor can understand the
questions put to him and is in a position to give rational answers. The Judge must be satisfied
that the minor is able to understand the questions and respond to them and understands the
importance of speaking the truth. Therefore, the role of the Judge who records the evidence is
very crucial. He has to make a proper preliminary examination of the minor by putting
appropriate questions to ascertain whether the minor is capable of understanding the questions
put to him and is able to give rational answers. It is advisable to record the preliminary
questions and answers so that the Appellate Court can go into the correctness of the opinion of
the Trial Court.
14. In the facts of the case, the preliminary examination of the minor is very sketchy. Only
three questions were put to the minor on the basis of which the learned Sessions Judge came to
the conclusion that the witness was capable of giving answers to each and every question.
Therefore, the oath was administered to him. Following are the questions put to him:
"Q. In which school you are studying?
Ans. I am studying in Govt. Primary School, Barwashni.
Q. What is occupation of your father?
Ans. My father is a Pujari in a Mandir named Hanuman, at Gohanba.
Q. Should one speak truth or false?
Ans. Truth."
15. We are of the view that the learned Sessions Judge has not done his duty. Nevertheless, we
have carefully scrutinised the evidence of the minor witness Ajay. In the examination-in-chief,
he stated that on the night of 30th December 2002, the
accused entered his house by breaking a window. While the appellant held his mother by his
hands, accused no.1 assaulted her with a knife. When he tried to rescue his mother, accused
no.1 gave a blow on his back by knife. He stated that he was hiding in the house after the
accused fled and he disclosed the incident to milkman Surender who came to the house at 5
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a.m. In the examination-in-chief, he deposed about the incident of cutting of crops on their
family land by accused nos.1 and 2, which had taken place 6 to 7 months prior to the date of the
offence. He stated that though the accused indulged in the said act, no action was taken as the
appellant's father apologised. In the cross-examination when the witness was confronted with
his statement recorded by the police, he admitted that this incident was not recorded therein. In
the cross-examination, the witness volunteered that the accused present in the Court had
murdered his mother and they were drunk. However, he accepted that the allegation that the
accused were drunk was not recorded in his statement recorded by the police".
10. Mr. Khan, the learned counsel for the appellant further submitted that the accused was
also of very tender age of 19 years at the relevant time of incident and considering all these
aspects of the case, the accused/appellant may be acquitted from this case. More so, till date,
he is 16 months 8 days in custody which may be considered as a sufficient period of
detention for the accused/appellant.
11. Mr. K. Baishya, learned Addl. Public Prosecutor, Assam for the State respondent No.1
submitted in this regard that the evidence of the prosecutrix/minor victim is consistent in
every stage of her evidence and there is nothing to disbelieve the statement of the minor
victim, who was sexually assaulted by the accused/appellant. The learned Special Judge also
passed the judgment after appreciating the evidence on record in its true prospective and
hence, there cannot be any reason to make any interference in the judgment and order
passed by the learned Special Judge. He further submitted that there was no eyewitness to
the prosecution but the facts remain unrebutted that the accused/appellant had sexually
assaulted the victim by restraining her on the road while she was returning from the shop by
riding a bicycle. He further submitted that there are catena of judgments passed by the
Hon'ble Supreme Court and various High Courts that conviction can be based on the sole
testimony of the prosecutrix/victim, if it inspires confidence and in the instant case, it is seen
from the evidence on record that there is nothing to disbelieve the minor victim and except
some minor contradictions, there is no such materials contradictions in her evidence to
discard her evidence.
12. Mr. S. Nawaz, learned Amicus Curiae appearing for the respondent No.2 submitted that
even the testimony of the child witness can be the basis of conviction if it inspires confidence
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and if the testimony of the child witness is trustworthy. He further submitted that a child may
be tutored and it is also very easy to tutor a child witness but here in the instant case, there
is no suggestion to that aspect that she was tutored while cross-examining the child witness.
He further submitted that though the preliminary questions were not put to the minor victim
at the time of recording her evidence but it is seen that the defence has not challenged or
questioned about her competency while cross-examining her. She also gave a detail account
of the incident while adducing her evidence and there is nothing to disbelieve the victim who
had given her consistent statement in every stage of recording her evidence. Mr. Nawaz,
learned Amicus Curiae further submitted that there is no evidence in regards to previous
enmity to lodge a false case against the accused/appellant and at the same time, it is a fact
that the victim was minor at the time of the incident.
13. Mr. S. Nawaz, the learned Amicus Curiae further submitted that the prosecution could
establish the foundational fact of the case and thus the burden lies upon the
accused/appellant to rebut the prosecution case. But the defence did not adduce any
evidence to substantiate his plea of innocence and simply took the plea that he has not
committed any such offence. Thus, the defence also failed to discharge their burden to prove
his innocence. Mr. Nawaz accordingly submitted that the learned Special Judge has not
committed any error or mistake while convicting and sentencing the accused/appellant and
hence, there is no reason for any interference of this Court.
14. Hearing the submission advanced by learned counsel for the parties and I have perused
the case record. To arrive at a just decision, I find it necessary to scrutinize the evidence on
record.
15. PW.1 is the mother of the victim who lodged the complainant and as per her deposition,
on the day of incident at about 6:00 P.M., her minor daughter went out by cycling towards
the shop and then the accused met her on the road near the house of one Nirod Ch. Das and
also told her that he would make her learn how to ride a cycle. Her daughter replied that she
already knew how to ride a cycle and she rode away. But at the time of returning back, the
accused again met her daughter and again stated the same thing and thereafter, the accused
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restrained her from going away by catching hold her cycle and took her in a nearby jungle
and forcibly kissed her on her lips, thereby shifting the gutkha that was in his mouth into her
mouth and thereafter also opened her wearing apparels, touched her breasts and her private
part (vagina). At that time the mobile phone of the accused rang and he could not complete
the act further and left her and gave her 10 rupees, asking her not to disclose anything to her
parents. On returning home, she saw her daughter put water on her head and was vomiting
and on repeated asking, she narrated the story. Hearing the same, the PW.1 went to the
house of the accused to inform his parents but they scolded her and also sent the accused
away from their house. She further submitted that at the time of incident, her husband was
not at home, who was a fish vendor by profession. Thereafter, she informed her other family
members, who assured that they will come and they will hold a bichar on the next day.
Though she pressed the villagers to take a decision but she was also apprehensive that the
accused may escape and after discussing with his family members, she went to the Police
Station along with her victim daughter and verbally communicated the incident in the police
station. Thereafter the police sent her daughter for medical examination and she lodged the
FIR accordingly. She also produced the original birth certificate of her daughter before the
police.
16. From her cross-evidence it is seen that the police did not seize the wearing apparel of
her victim daughter and she denied the suggestion that she made false statement before the
Court. She denied when suggested that she made a false statement before the learned Trial
Court.
17. PW.2 is the victim of this case, who categorically deposed that on the day of incident at
about 6:00 P.M., while she was cycling towards a shop the accused met her on the road near
the house of one Nirod Ch. Das and told her that he would make her learn how to cycle. She
replied that she knows how to ride a cycle and rode away from the place of occurrence. But
when she returned home, the accused met her again on the same place and again narrated
the same thing. Thereafter, the accused restrained her from going away by holding her
bicycle and then he took her into the nearby jungle and made her lay down on a dried betel
nut leaf and then he got upon her body and forcibly kissed and bite her on her lips, thereby
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shifting the gutkha that was in his mouth into her mouth. Thereafter, he also opened her
wearing apparels, pressed on her breasts which causing her pain and thereafter, he also
opened his pant and touched his penis on her private part (vagina). When she screamed and
cried for help, he grabbed on her mouth and at the same time, his mobile phone rang and
then he left the place giving her a 10 rupee note, asking not to disclose anything to her
parents. But after returning home, she went to the open bathroom and put water on her
head and vomited and thereafter she narrated the whole incident to her mother. Her
statements were recorded by Police as well as Magistrate. During cross evidence, she dined
all the suggestion that she did not narrate the entire story as she stated before the Court.
She also denied to the suggestion that due to previous enmity, she narrated the incident as
tutored by her parents.
18. PW.3 is the brother of the informant,PW.1 and the victim is his niece. He deposed that
the incident occurred on 19.03.2023 and at about 10:00 P.P., while he was sleeping, his
younger brother rang him up and asked him what had happened to his child. Then he replied
him that she was alright and sleeping with him. Thereafter, his maternal uncle again rang him
up from Goalpara and also asked about the wellbeing of his daughter. Then he being
confused, as to what had happened but after sometime, his younger brother again rang him
up and asked him to make a call to his elder sister who stays in Goraimari. Thereafter, he
immediately made a contact with his sister and then she asked him to go to her place at
Goraimari. He immediately reserved a car and rushed to the house of the complainant and
came to know about the incident as to how the accused dragged the victim to the nearby
bagaan and touched her breast and her private parts. They asked for village help but as it
was already late night, there was no decision and on the next day, considering the condition
of the victim, he immediately went to the police station and the mother of the victim lodged
the FIR. He was also present at the time of seizing the birth certificate of the victim. From his
cross-evidence, it is seen that he came to know about the entire incident from his elder sister
i.e. the complainant and saw the victim vomiting when he reached home. To the Court, he
answered that the family members of the accused is harassing them for compromising the
case and lured them with money.
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19. PW.4 is also the uncle of the victim and is the younger brother of the complainant. He
also narrated the same story corroborating the evidence of PW.3. On the same night, he also
went to the house of his elder sister and came to know about the entire incident from her.
From his cross-evidence, it is seen that he also went with the complainant to the police
station and also to the hospital.
20. PW.5 is the Doctor, who examined the victim on being produced before him on
20.03.2023. As per the Doctor also, the victim gave a history of sexual assault on her at
around 6:00 P.M., on 19.03.2023 near Goraimari. From his evidence, it is seen that he found
no external injury on the body or on her private parts at the time of examination and from his
cross-evidence also it is seen that he did not find any redness or swelling on her vagina.
Apart from that, no perennial tear was seen at the time of her examination, hymen was intact
and no bleeding was seen from her vagina.
21. PW.6 is the husband of the informant and father of the victim and he also came to
know about the incident from his wife. As per him also, after the incident, his
wife/complainant called her brothers (PW.3 & PW.4) and with her brothers, they went to the
police station and hospital. He further stated that his daughter is still sick and she was also
admitted in the Bongaigaon Hospital for six days. A suggestion was put to him that he did not
state before the police that the accused touched the private parts of his daughter and also
bite on her lips.
22. PW.7 is the investigating officer of this case who investigated the case on receipt of an
FIR and making a G.D. Entry, he transmitted the ejahar to Bongaigaon Police Station for
registration of the case. The case was accordingly registered as Bongaigaon P.S. Case No.
138/2023, under Section 354 of the IPC, read with Section 8 of the POCSO Act. The case was
endorsed with him after registration and accordingly, he started the investigation of the case.
During his investigation, he examined the victim as well as the complainant and other
witnesses of the case, inspected the place of occurrence and also sent the victim for medical
examination. After completion the investigation and collecting the medical report etc., the
case was accordingly charge sheeted against the accused/appellant under Section 354 of the
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IPC, read with Section 8 of the POCSO Act. He further submitted that during investigation, he
also made contact with the CWC Members and the victim was also sent for recording her
statement under Section 164 of the CrPC. The original birth certificate of the PW.2/victim was
also seized by him in presence of the witnesses.
23. In his cross-evidence, he stated that except the birth certificate, he had not seized any
other wearing apparels of the victim. It further reveals from his cross-evidence that the PW.1
did not give the detail description as to how the victim was sexually assaulted by the accused
and how he also shifted the gutkha from his mouth to the mouth of the victim and in the
same time, it is also seen that she did not stated before the I.O. regarding the illness of her
daughter and vomiting by her. It also reveals that the PW.1 did not give a detail discussion as
to how she approached the family members of the accused as well as the villagers and as to
how lodged the FIR on the next day, finding no other alternative etc., as she deposed before
the Court. It also reveals from his cross-evidence that the victim did not specifically stated
about pressing of her breasts or laying down her on the dried betel nut leaf, etc. and also
touching of her private parts by the accused, while giving her statement before the I.O. under
Section 161 of the CrPC. From his cross-evidence, it also reveals that the PW.3 and PW.4 have
not stated before him that they heard about the incident from the complainant/PW.1.
24. The PW.6 has also not stated before him regarding touching of private parts of his
daughter and also regarding the sickness of his daughter. On the query made by the Court, it
is replied by the I.O./PW.7 that the PW.1 stated before him that the victim (PW.2) was cycling
and then she was taken to the Battle Nut bagaan, where the accused kissed her, opened the
clothes of the victim and also touched her chest and vagina. At the same time, he also replied
that the PW.2 stated that the accused touched her chest and private parts. He also made an
explanation that the private part means a female body's upper part as well as the lower part.
25. So from the discussion of the testimonies of the prosecution witnesses, it is seen that
admittedly there is no eyewitness to the prosecution case and the PWs. 1, 3, 4 and 6 are
hearsay witnesses. PW.1 heard about the incident from her daughter while she returned
home and the other prosecution witnesses have heard about the incident from the PW.1.
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Thus, it is seen that there is no eyewitness to the prosecution case and the entire case is
based on the evidence of the victim/prosecutrix, who was a 10 years old child at the time of
relevant incident. But all the prosecution witnesses corroborating with each other had
narrated the incident that the victim was sexually assaulted by the accused/appellant when
she was returning home by cycling and near the house of one Nirod Ch. Das, she was
restrained by the accused and then he dragged her to the nearby jugnle/battle nut garden,
where he touched her private parts, pressed on her breasts and also touched her vagina. This
part of evidence of the other prosecution witnesses i.e. the PWs. 1, 3, 4 & 6 also could not be
rebutted by the defence neither by cross-examining them nor by adducing any evidence. But
it cannot be denied that all these witnesses are hearsay who heard about the incident from
the victim as well as from the PW.1.
26. PW.5 is the Doctor, who examined the victim on the next day of incident and he did not
find any injury mark on her private parts or the body of the victim. Hymen was also found
intact and there was no bleeding from her vagina and he also did not find any redness or
swelling on her vaginal area. So the most vital witness of the entire prosecution case is the
victim/PW.2, who was admittedly a minor at the time of incident. Her minor age is also not
disputed and the birth certificate is also seized by the police during investigation of the case,
which was accordingly exhibited by the prosecution witnesses.
27. The appellant mainly took the plea that her evidence was not trustworthy and she
made some statement for the first time while recording her evidence as she was tutored by
her parents. But from the perusal of the statement recorded under Section 164 CrPC, which
was also exhibited by the prosecution as well as from the statement recorded under Section
161 CrPC, that the basic version of the prosecution that she was sexually assaulted by the
accused/appellant by restraining her on the road, while she was returning home by cycling
near the house of one Nirod Ch. Das, goes unrebutted and the victim not only explained as to
how she was sexually assaulted in her statement made under Section 164 CrPC but also
made a complete corroborative statement while adducing her evidence as PW.2. There is
nothing to disbelieve the statement of the victim which was narrated by her at the time of
recording her statement under Section 164 CrPC as well as recording her testimony before
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the Court. It is submitted by the learned counsel for the appellant that the PW.2/victim of this
case made contradictory statement in her statement recorded under Section 161 and 164
CrPC that while she was cycling, she met the accused/appellant who told her that he will
teach her how to cycling and then she was forcibly taken to the nearby jungle and committed
sexual assault on her. But while adducing evidence, she improved her statement and stated
that while she was going to the shop, she met the accused and the accused also stated that
he will teach her how to cycling. But she rode away from the place of occurrence saying that
she know the cycling and while returning only, the accused restrained her and committed the
offence. But the basic version of the prosecution that the accused restrained her on the road
near the house of one Nirod Ch. Das, while she was coming on her bicycle and dragging her
towards the jungle had committed the offence could not be rebutted and thus, the basic
version of the prosecution case could not be shaken by the defence. The minor contradiction
that she did not explain as to what time she was restrained on the road does not go to the
root of the prosecution case or to disbelieve the victim who was consistent in every stage,
while recording her statement.
28. Coming to the issue raised by the learned counsel for the appellant Mr. M. Khan that
the victim was not put any preliminary question to judge the maturity of understanding at the
time of recording her evidence. It is an admitted fact that the Special Judge did not put any
preliminary question to judge her capacity of understanding to give the rational answer to
question put to her and directly recorded her statement by administering oath to her which is
admittedly not permissible to record the statement of the victim below 12 years of age. But
from the record it reveals that at the time of recording her statement made under Section
164 CrPC, she was put some preliminary questions and considering her capacity to give the
rational answers, her statement was recorded by the learned Magistrate and it is also seen
that her statement made before the Magistrate under Section 164 CrPC and the evidence
adduce before the learned Special Judge completely corroborates to each other and her
evidence remains consistent in every stage. Thus, only for not following the procedure of
putting preliminary questions, her evidence cannot be discarded who was also cross-
examined at a length and the defence also did not raise the issue at the time of her cross-
examination nor there was any question regarding her capacity of understanding. Rather,
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from her evidence, it is seen that she denied to the suggestion that she made her statement
as tutored by her family and gave false statement for any previous enmity with the accused/
appellant.
29. It is also well settled position that a child witness can be easily tutored and hence, their
evidence is to be scrutinized carefully. But in the same time, it cannot be the reason to
disbelieve the child witness who is otherwise considered as a competent witness.
30. In regards to the acceptance of evidence of child witness, the Hon'ble Supreme Court in
case of Hemmat Sukhadeo Wahurwagh Vs State of Maharashtra , reported in (2009)
6 SCC 712 (FB), has held that "... though it is an established principle that child witnesses
are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and
molded, but it is also accepted norm that if after careful scrutiny of their evidence the court
comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way
of accepting the evidence of a child witness."
31. Here in the instant case, from the discussion made above, it is seen that there is
nothing to disbelieve the minor victim of this case and there is no rebuttal evidence to
disprove the case of the prosecution or to disbelieve the child witness who is a victim of a
sexual assault.
32. In a landmark judgment reported in 2020 (3) GLT 403 (Bhupen Kalita Vs. State of
Assam), this Court had discussed the legal position concerning the provision of POCSO Act,
2012, and paragraph No. 71 of the said judgment reads as under:-
" 71. In the light of the discussions above, the following legal positions emerge in any
proceeding under the POCSO Act.
(A) The prosecution has to prove the foundational facts of the offence charged against
the accused, not based on proof beyond reasonable doubt, but on the basis of
preponderance of probability.
(B) Accordingly, if the prosecution is not able to prove the foundational facts of the
offence based on preponderance of probability, the presumption under Section 29 of
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the Act cannot be invoked against the accused.
(C) if the prosecution is successful in establishing the foundational facts and the
presumption is raised against the accused, the accused can rebut the same either by
discrediting the prosecution witnesses through cross-examination or by adducing his
own evidence to demonstrate that the prosecution case is improbable based on the
principle of preponderance of probability. However, if it relates to absence of culpable
mental state, the accused has to prove the absence of such culpable mental state
beyond reasonable doubt as provided under Section 30(2) of the Act.
(D) However, because of legal presumption against the accused, it may not suffice by
merely trying to discredit the evidence of the prosecution through cross-examination,
and the defence may be required to adduce evidence to dismantle the legal
presumption against him and prove that he is not guilty. The accused would be
expected to come forward with more positive evidence to establish his innocence to
negate the presumption of guilt."
33. Here in the instant case, from the discussion made above, it is seen that the
prosecution has been able to prove the foundational facts of the case to discharge the
burden. As per Section 29 of the POCSO Act, the burden of rebutting the presumption is upon
the accused and he could not discharge his burden by adducing any rebuttal evidence.
Section 29 of the POCSO Act mandates legal presumption against the accused for offence
under Sections 3, 5, 7 & 9 of the POCSO Act, 2012. Unlike other criminal prosecution wherein
it is first presumed that an accused is innocent until proven guilty under Sections 29 & 30 of
the POCSO Act, 2012, there is an adverse presumption of certain offence and culpable mind
against the accused and the accused has to discharge that burden. It also empowers the
Special Judge to have presumption about the guilt of an accused and the doctrine of reverse
burden is applicable in such cases.
34. For ready reference, Sections 29 & 30 of the POCSO Act is quoted here-in-below:
"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.
30. Presumption of culpable mental state.--(1)In any prosecution for any offence
under this Act which requires a culpable mental state on the part of the accused, the
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Special Court shall presume the existence of such mental state but it shall be a
defence for the accused to prove the fact that he had no such mental state with
respect to the act charged as an offence in that prosecution.
(2) For the purposes of this section, a fact is said to be proved only when the Special
Court believes it to exist beyond reasonable doubt and not merely when its existence
is established by a preponderance of probability."
35. In State of Himachal Pradesh v. Raghubir Singh , reported in (1993) 2 SCC 622;
1993 SCC (Cri) 674, the Hon'ble Supreme Court held that there is no legal compulsion to
look for any other evidence to corroborate the evidence of the prosecutrix before recording
an order of conviction. Evidence has to be weighed and not counted. Conviction can be
recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and
there is absence of circumstances which militate against her veracity. A similar view has been
reiterated by the Hon'ble Supreme Court in Wahid Khan v. State of Madhya Pradesh
reported in (2010) 2 SCC 9; AIR 2010 SC 1, placing reliance an earlier judgment in
Rameshwar S/o Kalian Singh v. State of Rajasthan , reported in AIR 1952 SC 54.
Thus the law that emerges on the issue is to the effect that the statement of prosecutrix, if
found to be worthy of credence and reliable, requires no corroboration. The Court may
convict the accused on the sole testimony of the prosecutrix.
36. Coming to the medical evidence of the Doctor/PW.5, it is seen that at the time of his
examination, the Doctor did not find any injury mark on the body or private parts of the
victim nor he found any bleeding from the vagina of the victim and the hymen was found
intact at the time of examination. From his evidence, it also reveals that he did not find any
redness or swelling in the vaginal area of the victim.
37. But it is not the case of the prosecution that there was any penetrative sexual assault
on the victim nor there is any evidence that the accused forcibly put his penis into the vagina
of the victim to find any medical evidence and injury on her private parts or redness or
swelling in the vaginal area. The case of the prosecution is that she was sexually assaulted by
kissing her on her lips and also he put the gutkha from his mouth inside the mouth of the
victim, pressed the breasts of the victim as well as he also touched her vagina. So it is very
obvious that the Doctor would not find any such medical evidence of penetrative sexual
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assault. The case is also registered under Section 8 of the POCSO Act and the conviction and
sentence was passed under Section 10 of the POCSO Act.
38. Thus, non-finding of injury mark on the private parts of the victim or vaginal bleeding
etc., the prosecution case cannot be disbelieved, which is based only on the allegation of
sexual assault on the victim/prosecutrix.
39. So from the entire discussions made above, it can be seen that the prosecution could
establish the case against the accused/appellant that he sexually assaulted the victim, who
was aged about 10 years at the relevant time of incident and accordingly, it is seen that that
learned Special Judge had rightly passed the impugned judgment and order, convicting the
accused appellant under Section 10 of the POCSO Act.
40. In view of detail discussion made here-in-above, this Court is of the view that while
convicting the accused appellant under Section 10 of the POCSO Act, the learned Special
Judge committed no error and mistake and there is no reason for any interference.
Accordingly, I find no merit in this appeal and consequently, the appeal stands dismissed.
41. Before parting, I put on record the appreciation for the valuable assistance rendered by
Mr. S. Nawaz, learned Legal Aid Counsel for the respondent No.2, and I recommend that he is
entitled to a fee, as per the notified rate, to be paid by the State Legal Services Authority
42. Return back the Trial Court Record with a copy of this judgment immediately.
JUDGE
Comparing Assistant
