Pashan Ali Vs the State of Assam and Anr.

2:NURJAHAN KHATUN W/O JAHAR ALI R/O LACHANGA P.S.- KALGACHIA P.O.- KALGACHISA DIST.- BARPETA ASSAM PIN- 781319. -----------Advocate for : MRS. B GOGOI Advocate for : PP ASSAM appearing for THE STATE OF ASSAM AND ANR.

¶12

Page No.# 2/12

¶13

BEFORE

¶14

HON’BLE MR. JUSTICE MICHAEL ZOTHANKHUMA HON’BLE MR. JUSTICE N. UNNI KRISHNAN NAIR

¶15

04/12/2025

¶16

(M. Zothankhuma, J)

¶17

Heard Mr. J I Borbhuiya, learned counsel for the appellant. Also heard Ms. B Bhuyan, learned Additional Public Prosecutor, Assam for the State respondent No. 1 and Ms. S G Baruah, learned Amicus Curiae for the respondent No. 2.

¶18

2. The appellant has put to challenge the impugned judgment dated 17.10.2023 passed by the learned Additional Sessions Judge-cum-Special Judge (POCSO), Barpeta, in Special (POCSO) Case No. 14/2019, by which the appellant has been convicted under Section 6 of the POCSO Act and sentenced to undergo Rigorous Imprisonment for 14 (fourteen) years with a fine of Rs.10,000/- (Rupees Ten Thousand), in default, Simple Imprisonment for 2 (two) years.

¶19

3. The conviction and sentence of the appellant had been occasioned due to the appellant, who was approximately 66 years of age at the relevant point of time, having inserted his finger into the private parts of the victim girl, who was approximately 4 years of age.

¶20

4. The appellant’s counsel submits that the impugned judgment should be set aside, as the learned Trial Court has convicted the appellant, only on the basis of the statement made by the victim girl under Section 164 Cr.P.C., which cannot be done in terms of the judgments of the Hon’ble Supreme Court. He also submits that the satisfaction of the learned Trial Court that the girl could understand the questions put to her and give rational answers to the same before recording the statement of the victim girl under Section 164 Cr.P.C. and her testimony during trial, could not have been arrived at by asking so few and simple questions, as reflected in the form used for recording the statement of the victim under Section 164 Cr.P.C. and the form used for recording her testimony during trial. Further, there was previous enmity

¶21

Page No.# 3/12

¶22

between the appellant and the family of the victim girl, with regard to the cattle of the appellant grazing into the victim’s family field. As such, a false case has been fabricated by the victim’s family due to enmity. This is proved by the evidence of PW1, who is the grandmother of the victim in her cross-examination.

¶23

5. The learned counsel for the appellant submits that as the appellant is an old man of 75 years as on date, who is suffering from various ailments, the impugned conviction should be set aside and he should be acquitted of the charge under Section 6 of the POCSO Act.

¶24

6. Ms. B Bhuyan, learned Additional Public Prosecutor, Assam, on the other hand, submits that the evidence of the victim girl has been corroborated by her statement made under Section 164 Cr.P.C. and as such, there is no reason to interfere with the impugned judgment. She also submits that the victim girl was subjected to questions by the learned Trial Court, prior to recording her statement under Section 164 Cr.P.C. and her evidence. The learned Magistrate having found that the victim was able to understand the questions put to her and give rational answers to the same, there was no reason to doubt the testimony of the victim girl or her statement made under Section 164 Cr.P.C. She further submits that the medical report and the evidence of the doctor corroborated the fact that the appellant had committed the offence of inserting his finger into the private parts of the victim, in violation of Section 5(m) of the POCSO Act, 2012.

¶25

7. The learned Additional Public Prosecutor, Assam submits that in a similar case, wherein, the accused therein had inserted his finger into the private parts of the victim girl and redness and swelling had been found by the doctor on the private parts of the victim, the accused, therein, had been convicted and sentenced under Section 6 of the POCSO Act. The accused in that case was also a person of around 66 years of age. As such, when there has already been a similar case of conviction involving a girl of 4 years by the Hon’ble Supreme Court on the basis of the statement made by the victim therein, no grounds for interference have been made out in this case. In this regard, the learned Additional Public Prosecutor, Assam has relied upon the judgment of the Hon’ble Supreme Court in the case of Nawabuddin Vs. State of Uttarakhand, reported in (2022) 5 SCC 419.

¶26

Page No.# 4/12

¶27

8. Ms. S.G. Baruah, learned Amicus Curiae for the respondent No. 2 reiterates the submissions made by the learned Additional Public Prosecutor, Assam. She submits that in POCSO matters, conviction can be based on the sole testimony of the victim, provided the same is found trustworthy, credible and inspires the confidence of the Court. In this aspect, she had relied upon the judgment of the Phool Singh Vs. State of Madhya Pradesh, reported in (2022) 2 SCC 74. She also submits that conviction can be based on the sole deposition of a child witness under Section 118 of the Evidence Act. However, the only precaution that a Court should bear in mind is that the witness should be a reliable witness and in this regard, she has relied upon the judgment of the Hon’ble Supreme Court in the case of Rai Sandeep alias Deepu Vs. State (NCT of Delhi), reported in (2012) 8 SCC 21, wherein the traits of a “sterling witness” are enumerated.

¶28

9. The learned Amicus Curiae for the respondent No. 2 accordingly submits that there being no reason to disbelieve the evidence of the child witness, the conviction and sentence should not be interfered with.

¶29

10 . We have heard the learned counsels for the parties.

¶30

11. In this case, FIR was submitted on 25.12.2016 by the Grandmother of the victim (PW1), who stated that on 24.12.2016 at around 12 O’clock, her 4 years old granddaughter was playing in the courtyard of the appellant. The appellant dragged her granddaughter into the nearby kitchen of Sahid Jamal and inserted his finger inside her private parts and tried to have sexual intercourse with her. On the basis of the FIR, Kalgachia P.S. Case No. 932/2016 under Section 4 of the POCSO Act was registered. After investigation of the case by the Investigating Officer (PW5), charge-sheet was submitted against the appellant, who had found a prima-facie case under Section 6 of the POCSO Act, 2012 against the appellant.

¶31

12. The learned Trial Court, thereafter, framed charge under Section 6 of the POCSO Act against the appellant, to which he pleaded not guilty and claimed to be tried. The learned Trial Court thereafter examined 5 (five) prosecution witnesses and 2 (two) Court witnesses.

¶32

13. After examining the appellant under Section 313 Cr.P.C., wherein, the appellant had given a blanket denial to all the evidence that was adduced against him , the learned Trial

¶33

Page No.# 5/12

¶34

Court came to a finding that the appellant had inserted his finger into the private parts (vagina) of the victim and thereby, committed aggravated penetrative sexual assault. As such, the appellant was convicted and sentenced accordingly.

¶35

14. The evidence of PW1, who is the informant and grandmother of the victim, is to the effect that while her granddaughter, who was 4 years in the year 2016, was playing in the courtyard of the appellant with other children, she heard the screams of her granddaughter. On going to the house of the appellant, she was told by her granddaughter that the appellant had called the victim inside his house and inserted his finger into the private parts of the granddaughter. On informing the villagers, who immediately came, the appellant fled.

¶36

PW1 also stated that she noticed redness in the vagina of the victim girl. On the next day, the FIR was lodged and the police took the victim girl for medical examination. She also informed the parents of the victim girl, who stayed in another house, a little distance away from her house. The victim, however, stayed with her. The matter was placed before a village meeting (Mel), but the appellant refused to come to the village meeting (Mel). She also stated that she informed the elder brother of the appellant about the incident.

¶37

In her cross-examination, PW1 stated that she had a field near the house of the appellant and that the cattle of the appellant used to enter her field occasionally, due to which, altercation used to take place between herself and the appellant. PW1 further stated that her husband’s younger sister, Sumi had been married to the appellant many years ago, though they were now separated. She denied the suggestion that because of the previous altercations, a false case had been filed against the appellant.

¶38

15. The evidence of PW2 (victim) was recorded on 28.04.2022, when she was 10 years old. In her evidence, the victim stated that she was studying in Class-IV and that the incident happened in the afternoon a long time ago. While playing with other children in the courtyard of the appellant, the appellant called her inside the house. He took off his lungi and inserted his finger into her vagina. She came to her grandmother screaming and told her about the incident. She also appeared in the Court where she narrated the incident to the Magistrate.

¶39

In her cross-examination, the victim girl denied the suggestion that the appellant had

¶40

Page No.# 6/12

¶41

not inserted his finger into her vagina after taking off her pants. She also denied the suggestion that she had fallen down while playing and hurt her private parts.

¶42

16. The evidence of PW3, who is the Medical Officer at the Department of Forensic Medicine, Fakharuddin Ali Ahmed Medical College & Hospital, Barpeta, is to the effect that on 26.12.2016, the victim was brought into the hospital in connection with Kalgachia P.S. Case No. 932/2016 under Section 4 of the POCSO Act. In her evidence, PW3 stated that her medical examination of the genital area of the victim showed:-

¶43

“Pubic hairs: Not yet appeared.

¶44

Vulva (Labia Majora & Minora) : Labia Majora Swollen, red and tender to touch.

¶45

Hymen: Intact, margin red in colour.

¶46

Vagina: Healthy

¶47

Cervix & Uterus : Healthy.

¶48

Fourchette & Perineum : Swollen, red, tender to touch.

¶49

Result of vaginal swab smear examination : Microscopic examination of vaginal and vulva smears reveals no spermatozoa.”

¶50

In her evidence PW3 stated that the victim was above 5 years and below 6 years of age and evidence of recent sexual intercourse was not detected. However, genital findings were suggestive of recent penetration. Further, no injury or marks of violence was detected except the genital findings.

¶51

17. The evidence of PW4 is to the effect that he did not know anything about the case.

¶52

18. The evidence of PW5 is to the effect that he had taken up the investigation and submitted the charge-sheet.

¶53

19. The evidence of Court Witness – 1 is to the effect that he was working as Bench Assistant in the Court of the learned Judicial Magistrate First Class, Barpeta. At that time, the Presiding Officer was Smti. Monika Missong. On 26.12.2016, Smti. Monika Missong recorded the statement of the victim girl under Section 164 Cr.P.C. CW-1 also exhibited the said

¶54

Page No.# 7/12

¶55

statement as Ext. C-1.

¶56

20. The evidence of Court Witness – 2, who is the Headmistress of 1668 Dakhin Lachanga L.P. School is to the effect that as per the admission register of the school, which she had brought to the learned Trial Court, the victim got admission in the school on 03.01.2019 in Class-I. Her date of birth, as per the admission register, was 08.08.2012 and that the said date of birth was recorded on the basis of the documents issued by the National Rural Health Mission, which was produced by the parents at the time of her admission.

¶57

21. The records show that prior to recording the testimony of the victim (PW2), the learned Trial Court had put a few questions to her, to test her capacity to understand the questions and answer the questions rationally. The learned Trial Court after putting questions to the victim had observed that the victim could answer the questions rationally. Further, she understood the necessity of speaking the truth and the meaning of speaking the truth. However, no oath was administered to her. Besides the above testimony of the victim, the statement of the victim under Section 164 Cr.P.C. shows that there is no contradiction or discrepancy in her statement recorded under Section 164 Cr.P.C. and her testimony. The statement of the victim under Section 164 Cr.P.C. had been recorded on 26.12.2016, i.e., two days after the incident. The victim was also asked some preliminary questions by the learned Magistrate. The learned Magistrate was thereafter of the opinion that the victim girl was fit enough to give a statement. Accordingly, the statement of the victim girl was recorded under Section 164 Cr.P.C., the contents of which are similar to the testimony given in the Court. However, it is surprising to note that the Judicial Officer, Smt. Monika Missong, who had recorded the statement of the victim girl under Section 164 Cr.P.C., has not been made a prosecution witness in this case. Though the said statement has been exhibited as Ext. C-1 by CW-1, we do not accept the same as admissible evidence as CW-1 has nothing to do with the said document.

¶58

22. A reading of the evidence of the victim and the satisfaction of the learned Trial Court shows that the victim understood that she was able to give proper answers and recollect the incident that had happened with her. We do not find any ground to disbelieve the testimony of the victim girl, especially when there is no suggestion put to the victim girl that she had

¶59

Page No.# 8/12

¶60

been tutored about what she had stated in her testimony.

¶61

23. The evidence of the doctor, who stated that the fourchette & Perineum were swollen, red, tender to touch, besides Labia Majora & Minora being swollen, red and tender to touch, also corroborates the testimony of the victim girl that the appellant had put his finger into her private parts.

¶62

24. In the case of State of Punjab Vs. Gurmit Singh and Others, reported in (1996) 2 SCC 384, the Hon’ble Supreme Court has held that the evidence of a victim of sexual assault is enough for conviction and it does not require any corroboration, unless there are compelling reasons for seeking corroboration. The Hon’ble Supreme Court has also held that as because there is no sign of injury on the body of the victim, it does not mean that rape has not been committed.

¶63

25. In the case of Wahid Khan Vs. State of Madhya Pradesh, reported in (2010) 2 SCC 9, the Hon’ble Supreme Court has held that it cannot be said that rape has not been committed, only because the hymen has not been ruptured.

¶64

26. In the case of Phool Singh (supra) and in the case of Rai Sandeep alia Deepu (supra), the Hon’ble Supreme Court has held that conviction can be made on the sole evidence of the prosecutrix.

¶65

27. In Rai Sandeep alia Deepu (supra), the Hon’ble Supreme Court observed as to what a sterling witness should be and at para 22, it has observed as follows:-

¶66

“22. In our considered opinion, the “sterling witness” should be of a very high quality and caliber, whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It

¶67

Page No.# 9/12

¶68

should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all 12 other such similar tests to be applied, can it be held that such a witness can be called as a “sterling witness” whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.”

¶69

28. In the case of Nawabuddin (supra), a 4 year old child had been raped by a 65 year old man and in the process, had inserted his finger into the private parts of the victim girl. The conviction of the accused therein had been upheld by the Hon’ble Supreme Court. The conviction had been passed on the basis of the evidence of the victim, which was fully supported by the doctor.

¶70

29. In the present case, while the victim girl has stated that the appellant had inserted his finger into her private parts, the evidence of the doctor is to the effect that according to the alleged mother of the victim, the appellant tried to have forceful intercourse with the victim. There is nothing mentioned with regard to the inserting of a finger in the victim’s

¶71

Page No.# 10/12

¶72

private parts in the Doctor’s evidence. However, the victim’s mother is not a prosecution witness in this case, to clarify the said issue. However, as we find the testimony of the victim to be cogent and truthful, the minor discrepancy with regard to the hearsay evidence of the Doctor, is not material, as there is nothing to suggest that there was no penetration of the appellant’s finger into the victim’s private parts.

¶73

30. As stated above, we do not find any reason to doubt the testimony of the victim girl, as it had been held in the case of Dattu Ramrao Shakhare Vs. State of Maharastra, reported in (1997) 5 SCC 341, that a child witness if found competent to depose the facts and is reliable, such evidence could be the basis of conviction. In the present case, the child (victim) was 10 years old at the time of giving her testimony. However, she gave her testimony with clarity, to an incident which happened 6 years ago. Under Section 118 of the Evidence Act, 1872, a child witness is competent to depose unless the Court considers that he/she is prevented from understanding the questions put to him/her, or from giving rational answers by reason of tender age. The proviso to Section 4(1) of the Oaths Act, 1969 provides 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. It is because of the above that the learned Trial Judge had asked preliminary questions from the victim, to satisfy the Court that the child was able to understand the questions and give rational answers to the same, as the same was a requirement under Section 118 of the Evidence Act. As stated earlier, the requirement of Section 118 has been made prior to recording the testimony of the victim. Further, there is no cross-examination of the witnesses to the effect that the victim had been tutored.

¶74

31. In the examination of the appellant under Section 313 Cr.P.C., the appellant has given a blanket denial to the evidence that had been adduced against him. He has completely denied that there was any village ‘Mel’ that was held to decide the allegation made against him. In the case of Raj Kumar Vs. State of U.P., reported in (2014) 5 SCC 353, the Supreme Court has held that complete denial, silence and non-explanation of incriminating materials would entitle a Court to draw an adverse inference against an accused, as may be permissible in law.

¶75

Page No.# 11/12

¶76

32. In the present case, though an attempt has been made by the appellant to show that a fabricated case had been made, on the ground of there being an enmity between PW-1 and the appellant, we do not believe that a false case under POCSO Act has been made involving a 4 year old child, only because altercations may have occurred because of entry of the appellant’s cattle into the land of PW1. We find the evidence of the victim to be truthful and inspires the confidence of the Court, as safeguards have been taken by the learned Trial Court, before recording her testimony. It should also be remembered that minor contradictions, inconsistencies and improvements cannot be a ground to reject the prosecution evidence in it’s entirety, if it does not affect the core of the prosecution case. On considering the facts of this case, we do not find any reason to doubt the testimony of the victim, as she could remember with clarity what has happened to her when she was 4 years old.

¶77

33. In the case of State of U.P. Vs. Krishna Master, reported in (2010) 12 SCC 324, the Supreme Court has held that it would be doing injustice to a child witness possessing a sharp memory to say that it is inconceivable for him to recapitulate facts in his memory witnessed by him long ago. A child of tender age is always receptive to abnormal events which take place in his life and would never forget those events for the rest of his life. The child would be able to recapitulate correctly and exactly when asked about the same in future. Keeping in mind the decision of the Hon’ble Supreme Court in Krishna Master(Supra), it is apparent that the victim was able to recapitulate correctly and exactly what had happened to her in the past, as the same was not a normal event in her life. The competency of the victim to give evidence having been ascertained by the learned Trial Court and keeping in view the fact that there is nothing to show that the child had been tutored, we are of the view that the incident had occurred, as stated by the victim. Further, the Doctor’s evidence also corroborates the evidence of the child victim. Thus, we find no grounds for interfering with the conviction of the appellant under Section 6 of the POCSO Act.

¶78

34. The above being said, we are of the view that the sentence inflicted upon the appellant should be lessened, keeping in view the old age of the appellant. Interest of justice would be served even if the appellant is awarded the minimum sentence in terms of Section 6

¶79

Page No.# 12/12

¶80

of the POCSO Act, prior to the amendment of Section 6 on 16.08.2019. Accordingly, we set aside the sentence awarded to the appellant by the learned Trial Court and instead, sentence him to undergo rigorous imprisonment for 10 years with a fine of Rs.10,000/-, in default, to undergo simple imprisonment for 2 months. The impugned judgment dated 17.10.2023 passed by the learned Additional Sessions Judge-cum-Special Judge (POCSO), Barpeta, in Special (POCSO) Case No. 14/2019 is accordingly modified to the extent indicated above, i.e., while the conviction is upheld, the sentence is modified.

¶81

34. Send back the TCR.

¶82

35. In appreciation of the assistance provided by the learned Amicus Curiae, her fee should be paid by the Assam State Legal Services Authority.

¶83

JUDGE JUDGE

¶84

Comparing Assistant

Pashan Ali v. the State of Assam and Anr.

Case brief

What is this about?

What did the court decide?

Pashan Ali v. the State of Assam and Anr.

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Aijul Ali @ Aijul Rahman @ Kalia Vs the State of Assam and Anr.

Sri Biki Thapa Vs the State of Assam

Assam Andolon Sangrami Mancha Vs the Union of India and 13 Ors.

Pashan Ali Vs the State of Assam and Anr.

Sanjib Mazumder Vs the State of Assam and 6 Ors.

Taijuddin Bhuyan, Vs the State of Assam and Anr.