12. In any case as we have already stated above that the testimony of the prosecutrix
does not inspire confidence, under these circumstances, we are not inclined to
interfere with the well considered order of the Trial Court and the High Court..."
11. Applying the law laid down by this Court in the aforesaid decisions to the facts of
the case on hand and as observed hereinabove, we see no reason to doubt the
credibility and/or trustworthiness of the prosecutrix. She is found to be reliable and
trustworthy. Therefore, without any further corroboration, the conviction of the
accused relying upon the sole testimony of the prosecutrix can be sustained.
26. Considering the cumulative effect of these factors,material contradictions in
witness statements, the unreliability of the sole testimony of the victim, the lack of
corroborative medical evidence, inconsistencies in the alleged timeline, non-
examination of natural witnesses, and the motive for false implication, a reasonable
doubt arises in the prosecution‟s case. In a criminal trial, such doubt must be
resolved in favor of the accused.
27. Upon a careful and comprehensive appraisal of the entire evidence, this Court
finds that the prosecution‟s case suffers from fatal infirmities, making a conviction
unsafe. The inconsistencies in the testimonies of PW-1, PW-2, and PW-3, combined
with the improbabilities in the narrative, render the victim‟s solitary, uncorroborated
testimony insufficient to sustain a conviction. Consequently, the benefit of doubt is
extended to the accused. Further the Judgments as cited by the learned P.P., herein is
not relevant to the fact of this case."
11. Stating thus, learned counsel urged this Court to allow this
appeal and quash and set aside the impugned Judgment and order of conviction.
"5.5 In cases of offences committed under Section 376, IPC,
when the story of the victim girl as told in the evidence is found credit-worthy, the
apparent insufficiency of medical evidence pitted against acceptable testimony of
the victim, the latter would prevail. In State of Punjab vs. Gurmit Singh [(1996) 2
SCC 384] it was observed:
In the absence of injury on the private part of the prosecutrix, it cannot be
concluded that the incident had not taken place or the sexual intercourse was
committed with the consent of the prosecutrix. The prosecutrix being a small child
of about nine years of age, there could be no question of her giving consent to
sexual intercourse. The absence of injuries on the private part of the prosecutrix
can be of no consequence in the facts and circumstances of the present case.
5.5.2. This Court observed that if the evidence of the victim does not suffer from
any basic infirmities and the factor of probability does not render it unworthy
evidence, the conviction could base solely on the evidence of the prosecutrix. It was
further observed that as a general rule there is no reason to insist on the
corroboration accept in certain cases, it was stated.
5.5.3 The medical evidence may not be available in which circumstance, solitary
testimony of the prosecutrix could be sufficient to base the conviction.
"The conviction can be sustained on the sole testimony of the prosecutrix, if it
inspires confidence. The conviction can be based solely on the solitary evidence of
the prosecutrix and no corroboration be required unless there are compelling
reasons which necessitate the courts to insist for corroboration of her statement.
Corroboration of the testimony of the prosecutrix is not a requirement of law; but
a guidance of prudence under the given facts and circumstances. Minor
contractions or small discrepancies should not be a ground for throwing the
evidence of the prosecutrix."
5.5.6 The credible and reliable evidence of prosecutrix could not be jettisoned for
want of corroboration including the corroboration by medical report or evidence.
The Court observed in Manga Singh (supra) that "in absence of injury on the
private part of the prosecutrix, it cannot be concluded that the incident had not
taken place or the sexual intercourse was committed with the consent of the
prosecutrix". It was stated that it is well settled that in the cases of rape it is not
always necessary that external injury is to be found on the body of the victim.\
5.6.1 It was further asserted that corroboration is not an essential requirement for
conviction in the cases of rape. It is well settled by a catena of decisions of the
Supreme Court that corroboration is not a sine qua non for conviction in a rape
case. If the evidence of the victim does not suffer from any basic infirmity and the
"probabilities factor" does not render it unworthy of credence. As a general rule,
there is no reason to insist on corroboration except from medical evidence.
However, having regard to the circumstances of the case, medical evidence may
not be available. In such cases, solitary testimony of the prosecutrix would be
sufficient to base the conviction, if it inspires the confidence of the court.
5.6.4 From a recent decision in Raju alias Umakant vs. State of Madhya Pradesh,
(2025 SCC OnLine SC 997), following observations could be noticed: "a woman or
a girl subjected to sexual assault is not an accomplice but a victim of another
person's lust and it will be improper and undesirable to test her evidence with
suspicion.
13. Heard learned counsel appearing for both the parties.
14. Let us examine some important witnesses and well as evidence
on record.
15. P.W.-1, who is the informant of this case and the mother of the
victim deposed that, she lodged this case against the accused who is her uncle-in-
law and identified the accused who was present before the court on that day. PW-1
continued to depose that, on 20th July, 2019 around 11.30 am, she was cooking in
their kitchen at that time, her daughter, aged about 4 and ½ years was outside their
dwelling house and when the informant called her, then her minor daughter came
out from the room of accused. PW1 further deposed that, blood were oozing and
were lying down from her private part and she was crying. This witness also stated
that, on her asking, her minor daughter told her that the accused pushed his penis
into her vagina. PW-1 continued to state that, immediately she raised alarm and on
hearing her alarm her neighbours rushed to their house and then she washed out the
blood which were oozing from the private part of her daughter. This witness again
deposed that, thereafter, she along with her sister-in-law took her daughter to the GB
Hospital for treatment and at the hospital, her daughter was treated by the medical
officers. Thereafter, she went to Bodhjungnagar PS along with her daughter and her
sister-in-laws Sarbani Bhowmik and Kaberi Dey. PW-1 further deposed that, she
also lodged a complaint in writing with the PS and the complaint was prepared by as
per her dictation and she put her signature on the written complaint. P.W.-1 also
deposed that, on the day of lodging complaint police visited their house and seized
the wearing pant of her daughter and photocopy of Birth Certificate of her daughter.
P.W.-1 further stated that, during investigation of this case she herself and her
daughter were also produced in a Court wherein her statement and the statement of
her daughter were recorded.
When subjected to cross-examination, PW 1 stated that on the
day of incident police visited her house around 12.30 to 1.00 pm. This witness also
deposed that, at the time of lodging the complaint her daughter was also present in
the PS and she was examined at the PS and her daughter was also examined by the
police. PW-1 in her cross-examination also deposed that, their family and the family
of accused comprising of his wife, son, wife of his son have been residing in the
same house and on the day of alleged incident her mother was also present in their
house. PW 1 denied the fact that the Exhibit-MO.1 was not the wearing pant of her
daughter. This witness further denied the fact that she was not cooking on the
alleged day and time or that her daughter was also not outside their dwelling house
or that she did not call her or that her daughter also did not come out from the room
of accused or that no blood was oozing or coming down from the private part of her
daughter or that her daughter was also not crying or that her daughter never told her
that the accused pushed his penis into the vagina of her daughter. PW 1 further
deposed that, she stated to the Magistrate that on the alleged day and time she was
cooking and that when she called her she came out from the room of accused and
that on hearing her alarm neighbouring people rushed to their house (attention of the
witness being drawn to the statement recorded by Magistrate, the witness admits
that such statements were not there). PW 1 further denied the fact that, they have a
land dispute with the accused or that, therefore, they implicated accused falsely in
this case or that she tutored her daughter to depose falsely against the accused. In
her cross examination, PW 1 also denied the fact that she made false statement
before the Magistrate or that the written complaint was not prepared as per her
dictation.
The said PW-1 was re-examined on 29th April, 2022 and she
stated to have submitted the original birth certificate of her victim-daughter by way
of firisty before the Court. She also stated that the Xerox copy of birth certificate
was seized on 20.07.2019. The date of birth of her victim-daughter is 09.03.2015
and on her identification the original birth certificate was marked as Exhibit-14
(subject to objection by the defence).
Accordingly, PW1 faced re-cross-examination by the defence.
During her cross-examination she denied the suggestion of the defence that the birth
certificate submitted by her is not genuine one or it is subsequently manufactured.
She also denied the suggestion that the date of birth of her victim daughter as stated
by her is not true. Witness in her cross-examination further stated that at the time of
alleged incident, her daughter was a student of Nursery KG-1 of Maa Sarada Sishu
Niketan School. Again the witness denied the suggestion given her by the defence
that her daughter while playing either in the school or at home used to get abrasions
and swelling. Further the witness stated that she accompanied her daughter to the PS
when she was examined by the police, as well as, while her statement was recorded
by the Magistrate.
16. P.W.-2, who is the victim in the instant case deposed that,
accused Matilal Bhowmik is her grandfather and earlier he was very good. This
witness continued to depose that one day in the day time her mother was taking
meal when she went to Varanda of their house and at that time, her grandfather
called her and took her to their kitchen. PW2 further deposed that, the accused laid
her down in the bed in the kitchen and put off her wearing pant and thereafter
pushed his 'Pakhi' to her 'Pakhi'. (The witness uttered the word 'Pakhi' indicating her
private part) and as a result, she suffered pain and blood started oozing from her
'Pakhi. PW2 identified the accused when his picture was shown to her through the
Mobile Phone of Bench Clerk. PW 2 further stated that, earlier she came to the
Court and one aunty asked her about the incident and accordingly, she narrated the
incident.
When confronted with cross-examination, PW2 denied the fact that
accused never called her and took her to the Kitchen or that he also did not lay her
down in the bed or that he also did not put off her wearing pant or that he also did
not push any part of his body to her 'Pakhi' or that she also did not suffer pain or that
blood never was oozing from her 'Pakhi'. PW2 further denied the fact that she made
statement under Section 164(5) Cr.P.C, as well as, before this Court on being
tutored by her mother. This witness also deposed that, she could identify police on
the basis of their dress and after the incident she had conversation with police
having their dress and she went to the PS after the incident. PW2 also further denied
the fact that her parents had quarrel with the accused.
17. PW 11 being the Medical Officer in this case deposed that, on
20.07.2019, she was posted as the Assistant Professor, AGMC & GBP Hospital,
Agartala and on that day, she examined the victim who was, 4 years 5 months
female in connection with Budhjungnagar PS Case No.2019/BJN/057 who was
brought before the hospital with an alleged history of rape. PW11 continued to
depose that, on examination, she had found her conscious, well oriented and
physical structure at par her age but, however, during examination of her private
parts, the hymen is found intact and the vaginal opening reddish in colour inflamed
and swollen. This witness further deposed that, the victim also experienced pain
while parting her thigh apart and Vulval and vaginal swab of the victim was
collected for forensic examination and on receipt of the reports, she could finally
opined that presence of seminal stain/spermatozoa/ blood stain in the samples were
'negative'. PW11 also stated that, on examination of the genital area of the victim,
attempted vaginal penetration by adult erected penis/finger or like objects cannot be
ruled out.
Being confronted with cross-examination, PW11 deposed that,
on her examination, she did not find any sign of complete penetration through the
vagina of the victim nor there was any sign of bleeding.
18. PW15, being the another medical officer of this case, deposed
that, on 20-07-2019, she was posted as Medical Officer at Ranirbazar PHC and on
that day, at about 7 p.m., she examined the accused person namely Matilal
Bhowmik who was brought by SI of police, in connection with Bodhjungnagar PS
Case No. 2019/BJN/057 for giving his potency test report. PW15 further deposed
that after examination of the accused on the same day, she had collected penile
swab, blood sample, urethral swab and urine sample and handed over the same to
the police who seized it by preparing a seizure list dated 20-07-2019. PW15 also put
her signature on the forwarding. This witness also stated that, on 26-07-2019, she
submitted her preliminary report whereupon, she opined that, there is nothing to
suggest that the alleged accused was incapable of doing sexual intercourse and on
identification the report was marked as Exbt. 12 and the signatures on the said report
on identification were marked as Exbt. 12/1 and 12/2 respectively.
PW 15 continued to depose that, finally, she had submitted her
final report after obtaining the SFSL report dated 28-09-2019 and the result of her
examination was: (1) seminal stain/spermatozoa/blood stain of human origin could
not be detected in the Exhibits A,B,C,D,E,I,GI and G2, (2) vaginal Epithelial cell
could not be detected in the Exhibits- E and F and after examination, she finally
opined that, Seminal stain/spermatozoa/blood stain of human origin could not be
detected but recent sexual intercourse could not be ruled out. The report was
prepared by her in her handwriting and she put her signature.
When confronted with cross examination, PW15 denied the fact
that she did not enquire about the age of the accused being about 54 years and also
she had not conducted any medical examination to determine the age of the accused
or that she opined that, there was nothing to suggest that the alleged accused was
incapable of doing sexual intercourse or that due to the old age of the accused, he
was incapable of performing any sexual act.
19. The relevant statement made by the victim under Section 164(5)
of Cr.P.C. are as follows:-
"Two days back, grand-father put me on bed, and rubbed his private
part on my private part(pakhi). The body part through which I pass urine is „pakhi‟.
Grand-father pressed my mouth for which I could not raise voice. I told my mother.
Grand father stays at our resident along with us. I was in a lot of pain."
20. This Court has carefully considered the entire evidence on
record, the impugned judgment of conviction and sentence, the submissions
advanced by the learned counsel for the appellant, as well as the learned Addl.
Public Prosecutor appearing for the State.
21. The victim, was aged about four and half years at the time of
occurrence, in her statement made under Section 164 Cr.P.C., she clearly described
the act committed upon her by the appellant. Her version, though narrated in child-
like expression, indicates inappropriate sexual conduct by the appellant. During her
deposition before the Court, she reiterated the core allegation. It is true that in her
deposition she mentioned bleeding, which is not reflected in the medical report.
However, this Court is of the view that such variation constitutes only an
embellishment and not a material contradiction going to the root of the prosecution
case. Minor inconsistencies are natural when a child of tender years recounts a
traumatic incident.
22. The medical evidence assumes significance. P.W.-11, the
Medical Officer, stated that upon parting the thighs of the child, she cried due to
pain and there was reddish inflammation/swelling over the genital area. Although
the hymen was found intact and no spermatozoa or seminal stain was detected, the
Doctor opined that attempted vaginal penetration by an adult erected penis, finger,
or similar object could not be ruled out. Thus, the medical findings do not negate the
prosecution case; rather, they confirms that some form of sexual assault had indeed
taken place.
23. It is settled law that absence of rupture of hymen or
absence of semen does not ipso facto disprove sexual assault. Penetration, even to
the slightest extent, is sufficient to constitute the offence. However, in the present
case, the medical evidence does not conclusively establish completed penetrative
sexual assault. The injuries noted are suggestive of sexual assault but do not
definitively prove full penetration.
24. Having regard to the totality of circumstances, this Court
is of the considered view that while the prosecution has successfully established the
foundational facts that the appellant subjected the minor victim to sexual assault, the
evidence falls short of proving completed aggravated penetrative sexual assault
beyond reasonable doubt. The facts proved would appropriately fall within the
ambit of attempt to commit aggravated penetrative sexual assault.
25. Accordingly, while maintaining the finding of guilt, the
conviction of the appellant under Section 6 of the POCSO Act is altered to one
under Section 18 read with Section 6 of the POCSO Act.
26. It is not in dispute that the occurrence took place on
20.07.2019, prior to the amendment to Section 6 of the POCSO Act which came
into force on 16.08.2019 vide Act 25 of 2019. At the time of commission of the
offence, the punishment prescribed under Section 6 was rigorous imprisonment for a
term not less than ten years, which could extend to imprisonment for life. Section 18
of the POCSO Act provides that whoever attempts to commit any offence
punishable under the Act shall be punished with imprisonment which may extend to
one-half of the imprisonment for life or one-half of the longest term of
imprisonment provided for that offence. Applying Section 18 to the pre-amended
punishment under Section 6, the maximum sentence that may be imposed would be
one-half of ten years, i.e., five years of rigorous imprisonment.
27. Therefore, the sentence of rigorous imprisonment for twenty
years imposed by the learned Special Judge is modified. The appellant is sentenced
to undergo rigorous imprisonment for five years. The fine amount and default
stipulation imposed by the trial Court shall remain unaltered. The period of
detention already undergone by the appellant during investigation, trial, and
pendency of this appeal shall be set off. The appellant shall be released forthwith
upon completion of five years of imprisonment, if not required in connection with
any other case.
28. The appeal stands allowed in part to the extent indicated above.
Stay if any stands vacated. Pending application(s), if any, also stand disposed of.
S. DATTA PURKAYASTHA, J DR. T. AMARNATH GOUD, J
Suhanjit
RAJKUMAR RAJKUMAR SUHANJIT SINGHA
SUHANJIT SINGHA Date: 2026.02.18 10:36:21
+05'30'
