______________________________________________________________
HON'BLE JUSTICE DR. T. AMARNATH GOUD
HON'BLE MR. JUSTICE S. DATTA PURKAYASTHA
J U D G M E N T & O R D E R (ORAL)
[Dr.T. Amarnath Goud, J]
[1] Heard Mr. Sankar Lodh, learned counsel appearing on behalf of
the appellant. Also heard Mr. Raju Datta, learned P.P. representing the State
respondent.
[2] The present appeal is filed under Section 374(2) of the Code of
Criminal Procedure, 1973, against the impugned Judgment of Conviction and
Order of Sentence dated 26.11.2024, passed by the learned Special Judge,
South Tripura, Belonia, in Special (06) POCSO of 2023, whereby the learned
Special Judge, South Tripura, Belonia, convicted the appellant for committing
offences, punishable under Sections 376 AB of Indian Penal Code and Sections
6 and 10 of POCSO Act, and sentenced him to suffer Rigorous Imprisonment
for 20 (twenty) years and to pay a fine of Rs. 10,000/- with default stipulations
for committing offence, punishable under Section 6 of POCSO Act; and further
sentenced him to suffer Rigorous Imprisonment for a period of 5(five) year and
to pay a fine of Rs. 2,000/- with default stipulations for committing offence,
punishable under Section 10 of POCSO Act. It has been further ordered by the
learned Court below that both the sentences shall run concurrently.
[3] The prosecution story in brief is that on 17.03.2023, the mother of
the victim lodged a written complaint before the Officer-in-Charge of Sabroom
police station alleging inter alia that her daughter, aged about 4 years, used to
call the appellant as 'Mama' (maternal uncle) as he is one of the neighbours of
the informant and on 16.03.2023 at around 12.30 p.m. the victim on returning to
their dwelling house informed the informant that the accused, appellant herein
gave bite on her nipples and the informant observed reddish bite marks therein.
The victim further narrated the informant that the appellant got his finger with
his saliva and penetrated the finger into the private part of the victim and
thereafter the informant reported the matter to one local elderly, namely, Rabin
Chandra Pal seeking redress but, nothing was done and thereafter, she lodged
the written complaint before the Officer-in-Charge, Sabroom police station.
[4] On receipt of the aforesaid complaint, Officer-in-Charge of
Sabroom PS registered a case against the appellant vide Sabroom PS case No.
2023/SBM/015, under Sections 376(3) of the Indian Penal Code and Section 6
of the POCSO Act. It is contended in the present appeal that after registration of
the case, police arrested the appellant on 17.03.2023 and forwarded him before
the learned Court below on 18.03.2023 and he was in custody for a substantial
period.
[5] Investigation of the case was endorsed to an SI hereinafter referred
as the I/O. It is seen from the impugned order dated 26.11.2024 that during
investigation, medical examination of accused as well as the victim was
arranged by I/O. The informant and victim, being produced before the Court of
learned Sub-Divisional Judicial Magistrate, Sabroom, South Tripura, their
statements were recorded under Section 164(5) of Cr.P.C. After completion of
investigation, police filed charge sheet on 30.04.2023 against the appellant for
committing offences punishable under Sections 376(3) of the Indian Penal Code
and Section 6 of the POCSO Act. On receipt of the charge sheet, learned Court
of Special Judge (POCSO) framed charge against the appellant for committing
offences punishable under Sections 376 AB of the IPC and Sections 6 and 10 of
the POCSO Act.
[6] To prove the case, the prosecution side examined as many as 15
(fifteen) witnesses and on the other hand, from the side of the appellant, he did
not adduce any witness.
[7] Thereafter, learned Court below upon hearing the arguments
advanced by the parties and on perusal of material evidence on record, has
decided the case vide its impugned Judgment of Conviction and Sentence dated
26.11.2024 passed in Special (06) POCSO of 2023, in the following manner:
".......O R D E R
[7] In the result, the convict Rupak Debnath is sentenced to suffer
rigorous imprisonment for 20 (twenty) years and to pay a fine of 10,000/-for
the offence punishable under Sec.6 of POCSO Act, in default, to suffer
simple imprisonment for two months. The convict is further sentenced to
suffer rigorous imprisonment for 05 (five) years and to pay a fine of 2,000/-
for the offence punishable under Sec. 10 of POCSO Act, in default, to suffer
simple imprisonment for one month. Both the sentence shall run
concurrently. If the fine money is paid, the same be handed over to the victim
as compensation.
[8] The period of detention undergone by the convict during
investigation, enquiry and trial shall be set off from the sentence so
awarded. ......................"
[8] Aggrieved by the aforesaid impugned Judgment of conviction and
sentence dated 26.11.2024 passed by the learned Special Judge, South Tripura,
Belonia, in Special (06) POCSO of 2023, the appellant herein has preferred the
instant appeal seeking the following reliefs:
" Under the circumstances stated above it is most humbly prayed that Your
Lordships would be graciously pleased to admit the appeal, call for the records, and
thereafter, set aside the impugned Judgment of Conviction and Sentence dated 26.11.
2024, passed by the Ld. Special Judge, South Tripura, Belonia, in SPECIAL (06)
POCSO of 2023, whereby the Ld. Special Judge, South Tripura, Belonia, convicted
the appellant for committing offences, punishable under Sections 376 AB of Indian
Penal Code and Sections 6 and 10 of POCSO Act, and sentenced him to suffer
Rigorous Imprisonment for 20 (twenty) years and to pay a fine of Rs.10,000/-, in
default of payment of fine he shall suffer Simple Imprisonment for 2(two) month for
committing offence, punishable under Section 6 of POCSO Act; and further
sentenced him to suffer Rigorous Imprisonment for a period of 5(five) year and to
pay a fine of Rs 2,000/-, in default to suffer further Simple Imprisonment for 1(one)
year for committing offence, punishable under Section 10 of POCSO Act, and acquit
the appellant from the charges, and pass any other Order(s) as may be deemed fit and
proper for fair ends of justice;......... .............................."
[9] Mr. Sankar Lodh, learned counsel for the appellant submits that
learned Court below committed error while passing the impugned Judgment of
Conviction and Sentence. He contends that learned Court below failed to
appreciate that the prosecution has failed to bring home the charges brought
against the appellant and according to him, the learned Court below ought to
have acquitted the appellant since the prosecution has failed to prove the
charges beyond the shadow of reasonable doubts. He further contends that
learned Court below misread the evidences on record and held that the
appellants had committed offences punishable under Section 376 AB of Indian
Penal Code and Sections 6 and 10 of POCSO Act. He submits that in the
deposition of witness as P.W.2, it was mentioned that the witness is a minor and
she is not in a position to understand the meaning of oath and so oath is not
given to her. In the cross-examination part of the said deposition, it is reflected
that the witness is not in a position to say that whether she is tutored by her
mother or not and learned counsel wants to give denial and the witness of such
a tender age cannot understand denial also. But, while recording the victim‟s
statement under Section 164(5) of Cr.PC, the victim faced no difficulty due to
her tender age.
[10] It is contended on behalf of the appellant that learned Court below
failed to appreciate the contradictions of the evidences of the prosecution
witnesses in accepting the prosecution version. Mr. Lodh, learned counsel
submits that from the story of the prosecution, it is found that there are so many
contradictions, but, the learned Court below failed to appreciate the same and
passed the impugned judgment of conviction and sentence. He further submits
that learned Court below committed serious error in accepting the version of
PW-1 (informant), PW-2 (alleged victim) and PW-3(aunt). In spite of there
being contradictions, the learned Court below accepted the contradictory
versions of PW-1, PW-2 and PW-3 and convicted the appellant for allegedly
committing offences punishable under Section 376AB of the IPC and Sections
6 and 10 of the POCSO Act.
[11] Mr. Lodh, learned counsel submits that the medical evidence does
not support the prosecution version since if the version of medical evidence is
accepted then it would be found that the deposition of PW-1, PW-2 and PW-3
are concocted and not true. As per PW-1 and PW-3, they found bite marks on
the nipple of the alleged victim but, on the next day when the alleged victim
was examined by the Doctor i.e. PW-11, he did not find any bite injury on the
breast/nipple and/or private part of the victim girl. As per the version of PW-1
and PW-3, the victim girl informed them that she was feeling pain in her private
part but, at the time of medical examination by PW-11, he did not find any
injury on the private part of the alleged victim. It is submitted on behalf of the
appellant that that as the victim is aged about 4 years, she ought to have
sustained injuries on her private part if an adult man did fingering on her private
part. Learned counsel for the appellant submits that on the aforesaid analogy, it
appears that the story of the prosecution is not trustworthy and the learned
Court below failed to appreciate the same and convicted the appellant. He
further contends that learned Court below committed serious mistake in
accepting the version of the alleged victim (PW-2) since she was aged about 4
years and she could easily be tutored by any person and in the instant case none
of the prosecution witnesses except PW-1, PW-2 and PW-3 supported the
prosecution case. PW-1 stated that she informed the aforesaid incident to local
elderly, namely, Rabin Chanda Pal (PW-7) but, said Rabin Chandra Pal did not
support the prosecution case and hence version of the prosecution witness
creates a serious doubt but, learned Court below failed to appreciate the same
and convicted the appellant for committing the offences punishable under
Section 376AB of the IPC and Sections 6 and 10 of the POCSO Act. It is also
submitted on behalf of the appellant that since prosecution has not been able to
prove their case, provisions of Sections 29 and 30 of the POCSO Act is not
applicable but, in convicting the appellant, learned Court below heavily relied
upon Sections 29 and 30 of the POCSO Act.
[12] Learned counsel for the appellant further submits that the appellant
was entitled to get a sum of Rs.8,000/- from the informant and as he pressurized
the informant to return Rs.8,000/-, she in connivance with PW-3, who is her
close relative, may have tutored PW-2 and lodged a false case against the
appellant, but, learned Court below failed to appreciate the same. He, therefore,
urges this Court that the impugned judgment of conviction and sentence passed
by the learned Court below is liable to be interfered with/set aside
[13] During the course of argument, to support his contention, Mr.
Lodh, learned counsel for the appellant has placed reliance on the judgments of
the Hon‟ble Apex Court, the relevant contents from the said judgments referred
by the learned counsel is extracted as under:
I. Aejaz Ahmad Sheikh v. State of Uttar Pradesh and another reported in 2025
SCC OnLine SC 913:
"..........10. 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.
(emphasis added)..........."
II. Agniraj and others etc. v. State through Deputy Superintendent of
Police CB-CID reported in AIR 2025 SC 2674:
".........25. Now, we come to the evidence of PW-9 (Nikila). The law is well
settled that before proceeding to record the evidence of a minor witness,
preliminary questions must be asked by the Court to ascertain whether the
witness is able to understand the questions and answer the same. The Court
must be satisfied about the capacity of the minor to understand the questions
and answer the same. In this case, the age of PW-9 (Nikila) was 10 years.
However, preliminary questions were not put to the witness. The Court did
not ask any question to the witness to ascertain whether she understands the
importance of an oath. Without satisfying himself that the witness
understands the importance of an oath, the learned Trial Judge administered
oath to her. It is very well known that child witnesses are susceptible to
tutoring and therefore, not asking preliminary questions to the minor witness
makes her evidence very vulnerable.
26. The witness states that she was able to identify the persons who attacked
them on that day. She stated that she had not identified the persons earlier
whom she was now identifying in the Court. The witness identified some of
the accused sitting in the Court. She stated that she was seeing them for the
first time after the date of the incident. Admittedly, test identification parade
was not conducted. She stated that her mother told her in detail what had
happened to her and how many days she was in the hospital.
27. As noted earlier, PW-9 (Nikila) was 10 years old on the date of
recording of evidence. The Trial Court has not followed the condition
precedent before examining a minor witness. Before administering oath, the
learned Trial Judge did not satisfy himself that the witness understood the
importance of the oath.
28. Moreover, she deposed that after the date of occurrence, for the first
time in the Court, she identified several accused. But test identification
parade was not held. From the answers given in the cross-examination that
her mother told her the details of what happened to her, the possibility of
tutoring the witness cannot be ruled out. Minors are prone to tutoring and in
this case, we are dealing with a minor child who was 10 years
old.*********************
31. As far as PW-9(Nikila) is concerned, we have already recorded
reasons for discarding her testimony. Since the condition precedent for
recording of statement of PW-9 (Nikila) for evidence has not been satisfied,
her testimony has to be kept out of consideration..................."
III. Yerumalla Latchaiah v. State of A.P. reported in (2006) 9 SCC 713:
".........3. In the present case, age of the victim was only eight years at the
time of alleged occurrence. Immediately after the occurrence, she was
examined by Dr. K. Sucheritha (PW7) who has stated in her evidence that no
injury was found on any part of the body of the victim, much less on private
part. Hymen was found intact and the doctor has specifically stated that there
was no sign of rape at all. In the medical report, it has been stated that
vaginal smears collected and examined under the microscope but no sperm
detected. The evidence of the prosecutrix is belied by the medical evidence.
In our view, in the facts and circumstances of the present case, the High
Court was not justified in upholding the conviction......"
IV. Radhu V. State of Madhya Pradesh reported in (2007) 12 SCC 57:
"...........6. It is now well settled that a finding of guilt in a case of rape,
can be based on the uncorroborated evidence of the prosecutrix. The very
nature of offence makes it difficult to get direct corroborating evidence. The
evidence of the prosecutrix should not be rejected on the basis of minor
discrepancies and contradictions. If the victim of rape states on oath that she
was forcibly subjected to sexual intercourse, her statement will normally be
accepted, even if it is uncorroborated, unless the material on record requires
drawing of an inference that there was consent or that the entire incident
was improbable or imaginary. Even if there is consent, the act will still be a
"rape", if the girl is under 16 years of age. It is also well settled that absence
of injuries on the private parts of the victim will not by itself falsify the case
of rape, nor construed as evidence of consent. Similarly, the opinion of a
doctor that there was no evidence of any sexual intercourse or rape, may not
be sufficient to disbelieve the accusation of rape by the victim. Bruises,
abrasions and scratches on the victim especially on the forearms, wrists,
face, breast, thighs and back are indicative of struggle and will support the
allegation of sexual assault. The courts should, at the same time, bear in
mind that false charges of rape are not uncommon. There have also been
rare instances where a parent has persuaded a gullible or obedient daughter
to make a false charge of a rape either to take revenge or extort money or to
get rid of financial liability. Whether there was rape or not would depend
ultimately on the facts and circumstances of each case..............."
[14] On the contrary, Mr. R. Datta, learned P.P. appearing for the State
vehemently opposes the submissions made on behalf of the appellant. He
contends that learned trial Court below on perusal of all the relevant records and
examining all the relevant witnesses has decided the case by its judgment of
conviction and sentence dated 26.11.2024 passed in Special (06) POCSO of
2023 and the same should not be interfered with. He submits 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 can be
formed basing upon only the sole testimony of the victim. In the present case,
the age of the victim is only 4 years and her deposition as P.W.2 and the
statement recorded under Section 164(5) Cr.PC are almost identical and there
has been no serious contradiction. Moreso, the medical reports also clearly
indicate that the minor victim was sexually assaulted by the accused appellant.
He, further submits that recording of statement under Section 164(5) Cr.PC and
cross-examining a 4 years old minor girl by the defence wanting her to give
denial, stand entirely on a different footing. A child of such tender age is highly
susceptible to fear and confusion and therefore cross-examination for a minor
child of 4(four) years cannot be equated with a mature. He, therefore, urges this
Court to dismiss the instant appeal filed by the appellant.
[15] To support his contention, learned P.P. has placed reliance on
paragraphs No.5.5, 5.5.2, 5.7.2 & 5.7.3 of the Hon‟ble Apex Court‟s judgment
passed in Deepak Kumar Sahu v. State of Chattisgarh reported in 2025 SCC
OnLine SC 1610, which reads as under:
" 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 v
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.********************************************
5.7.2. Insignificance of minor discrepancies was pointed out by
this Court in State of Himachal Pradesh v. Lekh Raj, [(2001) 1 SCC 247].
By referring to earlier judgment in Ousu Varghese v. State of Kerala,
[(1974) 3 SCC 767], it was observed that minor variation in the accounts of
the witnesses are often the hallmark of the truth of their testimony and the
discrepancies are found to be of minor character not going to the root of the
prosecution story, they need not be given undue importance.
5.7.3. It was observed in Jagdish v. State of Madhya Pradesh,
[1981 SCC (Cri) 676), that mere congruity or consistency is not the sole test
of truth of depositions. The discrepancies have to be such which could be
characterized as material, which are not normal and of the nature not
expected from the normal person................"
[16] Heard the submissions made at the Bar. Perused the material
evidence on record.
[17] It is seen from record that, in her deposition as P.W.2, the minor
victim girl deposed that Rupak mamu, accused herein (the victim used to
address him as „Mamu‟) inserted his finger in her private part and also touched
her breast. It was also deposed by her that by using mouth saliva his finger was
inserted in her private part and she was also bitten by him on her breast. She
further deposed that the accused asked her not to disclose the fact to her mother.
[18] In her statement recorded under Section 164(5) of Cr.P.C. also, the
victim girl stated that the accused bit her on her chest. Indicating her lower
portion of her body, the victim child also stated that the accused put his finger.
[19] P.W.11, the Doctor deposed that on 17.03.23, she was posted as
Medical Officer at Sabroom SDH. On that day, police brought the victim girl
for medical examination in connection with Sabroom PS case No.2023SBM015
registered under sec.376(3) of IPC read with sec.6 of POCSO Act. On
examination of the aforesaid victim medically, she found the following:
"1) The hymen was not ruptured and there is no injury mark or
redness present over vulva or vagina.
2) There was small pin point abrasion over mons pubis measuring
about 0.1 X 0.1 cm.
3) There was mark of redness above and lateral to left areola."
[20] As per the forensic report, the final opinion was prepared by the
said Doctor who examined the victim girl which on identification by the
witness, was marked as Exbt.P-13/PW-11 and the same indicates as follows:
"1) There are no signs suggestive of recent vaginal penetration as
> hymen is not ruptured
>Redness present above and lateral to left areola
>no injury mark or redness present over vulva and vagina
>small pin point abrasion over mons pubis approx (0.1 X 0.1 )cm.
> No evidence of application of force or restrainment.
>No semen/spermatozoa/blood of human origin could be detected in
exhibit A,B, C, D as stated in the SFSL report."
[21] In a prosecution under the POCSO Act, it is a well settled principle
that minor discrepancies, trivial contradictions or insignificant omissions in the
testimony of the victim child do not shake the root of the prosecution case,
provided the core of the allegation remains intact. A child witness who is a
four- year old girl cannot be expected to give a perfect narration and minor
omissions due to fear, trauma or tender age, are natural. From the deposition of
witness P.W.2 i.e. the victim girl & her statement recorded under Section
164(5) of Cr.P.C. and the deposition of P.W.11 i.e. the medical officer and her
final opinion as discussed above, this Court finds that there was sexual assault
upon the victim girl by the convict since from the medical report, it is evident
that redness was present above and lateral to left areola and small pin point
abrasion over mons pubis approx (0.1 X 0.1)cm was also detected. This Court is
of the view that due to minor procedural lapse, the entire prosecution case
cannot be discarded which is supported by the medical evidences. The
judgments of the Hon‟ble Apex Court as referred by the learned counsel for the
appellant in this regard are not applicable to the facts and circumstances of the
present case.
[22] However, to test the present case, this Court feels it necessary to
extract the provisions of Section 6 of the Protection of Children from Sexual
Offences Act, (POCSO Act for short) and accordingly, the same is extracted as
under:
"6. Punishment for aggravated penetrative sexual assault.- (1) Whoever
commits aggravated penetrative sexual assault shall be punished with
rigorous imprisonment for a term which shall not be less than twenty years,
but which may extend to imprisonment for life, which shall mean
imprisonment for the remainder of natural life of that person and shall also
be liable to fine, or with death.
(2) The fine imposed under sub-section (1) shall be just and reasonable and
paid to the victim to meet the medical expenses and rehabilitation of such
victim."
[23] As per the medical report, no aggravated penetrative sexual assault
can be proved since hymen of the victim was not ruptured and no injury mark
or redness was present over vulva & vagina and also no
semen/spermatozoa/blood of human origin could be detected. This Court is of
the view that in the absence of any proof of aggravated penetrative sexual
assault, Section 6 of the POCSO Act cannot be applied to the fact and
circumstances of the present case. However, since the sexual assault upon the
victim girl has been proved and undisputedly, the minor victim girl was only 4
years of age at the time of the alleged offence, this Court is of the considered
opinion that ends of justice would be met if the provisions of Section 9(m) of
the POCSO Act are applied in the present case and the convict appellant is
sentenced to suffer imprisonment for 5 years for commission of offence
punishable under Section 10 of the POCSO Act instead of Section 6 of the
POCSO Act imposed by the learned Court below.
[24] In view of the above observations, this Court orders that the
convict appellant shall undergo 5(five) years imprisonment under Section 10 of
the POCSO Act. It is made clear that the punishment with regard to
imprisonment would be 5 years only instead of 20 years as imposed by the
learned Court below and that the period of detention already undergone by the
convict shall be set off from the sentence period. Apart from the observations
made above by this Court in the present judgment and order, all other aspects of
the impugned judgment and order dated 26.11.2024 passed in Special (06)
POCSO of 2023 by the learned Special Judge, South Tripura, Belonia shall
remain unaltered.
[25] Accordingly the impugned judgment and order dated 26.11.2024
passed in Special (06) POCSO of 2023 by the learned Special Judge, South
Tripura, Belonia is modified to the extent as indicated above.
[26] Thus, the present appeal filed by the appellant is partly allowed
and accordingly the same is disposed of.
[27] As a sequel, miscellaneous application(s), pending if any, shall
also stand closed.
[28] Send down the LCR forthwith.
S. DATTA PURKAYASTHA, J DR.T. AMARNATH GOUD, J
Sabyasachi G.
SABYASACHI GHOSH GHOSH
Date: 2026.02.27 16:06:28 +05'30'
