Johirul Islam @ Jahirul Ali Vs State of Assam… — Child Sexual Offences (POCSO) | Gauhati HC (2025)

Johirul Islam @ Jahirul Ali Vs State of Assam… — Child Sexual Offences (POCSO) | Gauhati HC (2025)

What the court decided

AI extract

Outcome

No relief to the appellant: the impugned conviction under Section 6 of the POCSO Act and the sentence of 10 years RI and fine of Rs.10,000/- stand affirmed; the appeal is dismissed with no order as to costs; Registry to send down the records to the Trial Court.

Issue for consideration

Whether the prosecution established that the victim girl was below 18 years of age at the time of the offence, so as to maintain the proceedings under the POCSO Act. +3 more

Court's answer

The prosecution established the age of the victim: she was a minor below 18 years, around 9 years old at the time of the sexual assault, and the proceedings under the POCSO Act are maintainable.

Ratio / Principle

The victim girl is consistent in her stand in both her Section 164 CrPC statement and her deposition as PW-1 at trial; no inconsistency exists.

Key takeaways

There is no ground to disbelieve the victim's testimony; no material on record demonstrates that her deposition was tutored.ratio¶¶95
The medical evidence does not discredit the victim's account: she felt pain when her private parts were touched; intact hymen and absence of injury do not disprove the assault.ratio¶¶95
The requirement of Section 118 of the Evidence Act (competency of the child witness) was satisfied by preliminary questions before recording the victim's testimony, and no cross-examination suggested tutoring; a competent and reliable child witness's evidence can be the basis of conviction.

Detailed headnote1 paragraphs

CRIMINAL APPEAL — POCSO Act, S.6 — conviction for penetrative sexual assault on the appellant's 9-year-old niece after picking her up from school (incident 25.10.2017) — appeal against Judgment and Order dated 21.12.2019 of the Special Judge, Chirang (Special (P) Case No.4 (Basu)/2018), sentencing the appellant to 10 years RI and fine of Rs.10,000/- — HELD: (i) Age of the victim duly established as below 18 (around 9 years) from the evidence of PW-2 (mother), PW-3 (father), PW-4 (informant/uncle), PW-9 (Medical Officer; radiological age above 9 and below 13) and the appellant's own statement under S.313 CrPC; proceedings under the POCSO Act maintainable. (ii) Conviction sustainable on the sole testimony of the child victim: her S.164 CrPC statement and trial deposition are consistent; preliminary questions were put as required under S.118 of the Evidence Act, 1872 (read with the proviso to S.4(1) of the Oaths Act, 1969), establishing competency; no material to show tutoring; no corroboration required (relying on State of Punjab v. Gurmit Singh, (1996) 2 SCC 384; Phool Singh Singh v. State of M.P., (2022) 2 SCC 72; Rai Sandeep alias Deepu v. State (NCT of Delhi), (2012) 8 SCC 21; Dattu Ramrao Shakhare v. State of Maharashtra, (1997) 5 SCC 341). (iii) Intact hymen and absence of bruise/redness/swelling do not disprove rape (relying on Wahid Khan v. State of M.P., (2010) 2 SCC 9); the victim felt pain on touch of her private parts. (iv) Plea of enmity over shops/land and false implication not believable; adverse inference drawable from denial and non-explanation (relying on Raj Kumar v. State of U.P., (2014) 5 SCC 353). (v) Conviction and sentence affirmed; appeal dismissed, no order as to costs.

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GAHC010042972020

2025:GAU-AS:15753

THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : Crl.A./114/2020

JOHIRUL ISLAM @ JAHIRUL ALI S/O- LATE JABED ALI, R/O- GHILAGURI, P.S. AND DIST.- BONGAIGAON, ASSAM, PIN- 783380.

VERSUS

STATE OF ASSAM AND ANR REP. BY THE PUBLIC PROSECUTOR, ASSAM. 2:INNUS ALI S/O- MOHOR ALI R/O- NAMALPUR P.S. BONGAIGAON DIST.- CHIRANG ASSAM PIN- 783394

Advocate for the Petitioner : MR. N AHMED, MR A ISLAM,MR F HAQUE,MR. N J DUTTA,MR. S K M ALOMGIR,MR R A AHMED

Advocate for the Respondent : PP, ASSAM, MR. A R SIKDAR (R-2),M M ZAMAN (R-2),MR. S I TALUKDAR (R-2)

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BEFORE

HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR

ORDER

Date : 03.11.2025

Heard Mr. F. Haque, learned counsel for the appellant. Also heard Mr. B. Sarma, learned Additional Public Prosecutor, appearing for the State, as well as Mr. A.R. Sikdar, learned counsel, appearing for the respondent no.2/informant.

2. The present appeal has been instituted assailing the Judgment and Order dated 21.12.2019 passed by the learned Special Judge, Chirang, Kajalgaon, in Special (P) Case No.4 (Basu)/2018, convicting the appellant, herein, under Section 6 of the POCSO Act and sentencing him to undergo Rigorous Imprisonment for a period of 10 (ten) years and to pay a fine of Rs.10,000/- in default to undergo further Simple Imprisonment for 6 (six) months.

3. The prosecution case in brief is that the informant Ennus Ali, lodged an FIR on 25-10-2017 before the Officer-In-Charge, Bidyapur Police Outpost, Bidyapur, inter alia, alleging therein that the appellant herein, while bringing his 9 (nine) year-old niece, (Miss X) from school, had forcefully committed sexual assault on her in a jungle, near the railway track. It was further alleged that the appellant had threatened his niece that he would kill her if she disclosed the incident of sexual assault to anyone. The said Ejahar on being received, a GD Entry No.394 dated 25-10-2017 came to be made at the Bidyapur Police Outpost. Thereafter, the same was forwarded to the Bongaigaon Police Station, wherein the same was registered as Bongaigaon P.S. Case No.789/17, under Section 4 of the POCSO Act, 2017. Later on,

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the case was transferred to Basugaon P.S. as the place of occurrence was found to fall within the jurisdiction of Basugaon P.S. Accordingly, the same was registered as Basugaon P.S. Case No.99/2017, under Section 4 of POCSO Act.

The police, on completion of investigation, laid a charge-sheet against the appellant, herein, under Section 6 of POCSO Act.

The learned Trial court, on appreciating the materials coming on record, proceeded to frame a charge under Section 6 of the POCSO Act, against the appellant, herein. The charge on being read over and explained to the appellant, he having pleaded not guilty and claimed to be tried, a trial ensued in the matter.

The prosecution during the trial examined 11 (eleven) witnesses. Thereafter, the appellant was examined under Section 313 CrPC. The appellant, during his examination under Section 313 CrPC, had admitted that he had taken the victim from the school and had dropped her in front of her house. He also admitted to have taken the victim from the school prior to the incident. He also stated that due to fear, he had confessed about the commission of the offence before the villagers.

The appellant adduced the evidence of one Mohammed Sobahan Ali, as defence witness. The learned Trial Court, upon appreciating the evidences coming on proceeded vide Judgment dated 21-12-2019 to convict the appellant, herein, under Section 6 of the POSCO Act and sentence him as noticed hereinabove.

Being aggrieved, the appellant has instituted the present proceedings. 4. The learned counsel for the appellant, at the outset by referring to the evidence adduced by PW-9, the Medical and Health Officer who

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had examined the victim girl, has submitted that the evidence of the said doctor had brought on record that the hymen, of the victim girl was intact. It was also brought on record that there was no bruise, redness and swelling on the private part of the victim. The learned counsel submits that the hymen being intact and there being no sign of any injury on the private part of the victim girl, the allegation made against the appellant of having committed sexual assault on the victim girl cannot be held to have been established beyond reasonable doubt. He has also submitted that the evidence of PW-9 does not conclusively establish that the victim girl was subjected to rape.

The learned counsel for the appellant, by referring to the evidence adduced by PW-11, i.e., the Scientific Officer, Serology Division, Directorate of Forensic Science, Kahilipara, Ghy-19, Assam, who had examined the green coloured skirt, worn by the victim wherein, a stain which was suspected to be of semen, was found.

The learned counsel for the appellant has submitted that although the stain had given a positive result for human semen, he submits that there being no sample taken from the body of the appellant sent along with the said wearing apparel of the victim girl, no comparison was permissible to be made and accordingly no presumption can be drawn that the semen found on the wearing apparel of the victim girl was that of the appellant, herein.

5. The learned counsel for the appellant, thereafter, has submitted that the conviction of the appellant, herein, has been made on the sole testimony of a child witness, however, it is seen that the necessary preconditions requisite for recording the evidence of a child victim was not followed in the matter. He submits that it was not enquired as to whether the deposition made by the victim was so made on being

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tutored. He submits that there is no evidence brought on record by the prosecution to corroborate the evidence adduced by the victim girl. 6. In the above premises, the learned counsel for the appellant submits that the doubt arising in the matter is to be answered in favour of the appellant, herein, and he is entitled to be acquitted from the charge as framed against him under Section 6 of the POCSO Act. 7. Per contra, Mr. B. Sarma, learned Additional Public Prosecutor appearing for the State respondent has submitted that the victim girl is found to be consistent in her statement recorded under Section 164 CrPC as well as during her deposition before the Trial Court. Mr. B. Sarma, has further submitted that both before recording the statement of the victim girl under Section 164 CrPC and also during her deposition before the Trial Court, necessary enquiries as mandated to appreciate as to whether the victim girl was in a position to make a statement was carried out and accordingly he submits that the deposition of the victim girl cannot be ignored. The victim girl having found to have given rational answers to the questions put to her, there is no reason to doubt the testimony of the victim girl including the statement given by her under Section 164 CrPC. She submits that the medical evidence coming on record on examination of the victim girl is inconsequential, inasmuch as, it is a settled position of law that an injury is not a sine quanon for deciding whether rape has been committed. The evidence of the victim girl being credible, no corroboration thereon is necessary.

Accordingly, he submits that the charge against the appellant under Section 6 of the POCSO Act stood established beyond reasonable doubt.

8. Mr. A R Sikdar, learned counsel for the respondent

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no.2/informant, submits that he adopts the submissions made by the learned Additional Public Prosecutor. Mr. A. R. Sikdar, further submits that the factum of finding of an injury on the private part of the victim girl cannot be the sole factor for deciding as to whether rape has been committed on her. He submits that the evidence adduced by the victim girl being credible, no corroboration thereon is called for and the conviction of the appellant can be based on the deposition of the victim girl under Section 118 of the Evidence Act.

9. I have heard the learned counsel for the parties and also perused the materials available on record.

10. The appellant having been convicted under Section 6 of the POCSO Act, this Court at the outset would consider as to whether the prosecution had established the age of the victim girl to be below 18 (eighteen) years of age. The victim girl during her deposition before the learned Trial Court had disclosed her age to be around 10 (ten) years at the relevant point of time. The evidence of the informant who is the uncle of the victim girl, who had deposed as PW-4, the evidence of the father of the victim girl who had deposed as PW-3 and the evidence of the mother of the victim girl who had deposed as PW-2, had all brought on record that the victim girl at the time of commission of the offence upon her by the appellant, herein, was a minor. The evidence of the Medical Officer examining the victim who had deposed during the Trial as PW-9 in her evidence had brought on record that the age of the victim girl was above 9 years but below 13 years.

Further, from the evidence of DW-1, it is brought on record that the age of the victim girl during the time of commission of offence upon her was around 7/8 years.

11. The appellant, herein, during his examination under Section

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313 CrPC on a question being put to him with regard to the age of the victim had stated that victim girl was aged about 9 years old and was studying in class III. From the evidences coming on record and noticed hereinabove, including the admission of the appellant during his examination under Section 313 CrPC, this Court is of the view that the girl was a minor girl below 18 years of age i.e., she was around 9 (nine) years at the time when she was subjected to sexual assault by the appellant, herein. Accordingly, the proceedings instituted against the appellant under the POCSO Act is maintainable.

12. To appreciate the rival contentions brought on record by the parties to the proceedings and as well as the conclusions drawn by the learned Trial Court in the matter, this Court would proceed to examine the evidences coming on record during the Trial. The evidence of the victim girl who had deposed as PW-1 during the Trial reveals that on the date of the incident while she had come out of her school after the same was over, she had seen the appellant waiting near the gate with a bicycle. She deposed that the appellant was her brother and he also had a daughter. She further deposed that the appellant had told her that her mother had asked him to pick her up. She further deposed that the appellant had also on earlier occasions taken her home from school. She also deposed that she sat on the bicycle of the appellant and they after proceeding for some distance, the appellant took the bicycle into the jungle. The victim girl had then told the appellant that she would tell her mother. The victim girl deposed that even before the said incident, the appellant had committed bad act on her. The victim girl deposed that the appellant had threatened her that if she told her mother, he would throw her under the train and kill her. The victim girl thereafter deposed that the appellant took off his pants and committed

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bad act on her. She further deposed that the appellant took off his pants and committed sexual intercourse with her on the ground and she had screamed. But the appellant gagged her mouth. She deposed that the appellant had inserted his penis into her vagina and kept doing bad act on her for a long time. She again reiterated that prior to the incident, the appellant had committed sexual intercourse with her for three times on three different occasions. After completion of the act, the victim girl deposed that the appellant had taken her on his bicycle and dropped her near their shop and asked her not to tell anyone about the incident. She deposed that she had walked home from the shop crying and told her mother about the incident and thereafter, her uncle had lodged the case. Her father was deposed to be not present at the time. She also exhibited her statement as made before the Magistrate under Section 164 Cr.P.C. She deposed that the doctor had examined her and the police had seized her school uniform and panty. She further deposed that she was not instructed by anyone to depose in a particular manner. The cross examination of the victim girl by the appellant had not dislodged the deposition made by her.

PW- 2, Ful Bibi, is the mother in the matter. She deposed that the age of the victim girl was about 9 (nine) years and was studying at class IV in Basugaon Town J. B. School. The incident was deposed to have taken place on 25-10-2017. She deposed that the grandmother of the victim girl had gone to her school to bring her back but the school authority had informed that one person had taken her daughter prior to the visit of her grandmother. The grandmother had come home and reported the matter to her. Thereafter they had searched for their daughter at various places and had found their daughter on their way back home and she was found to be crying. On being asked

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it was deposed that the victim girl had stated that the appellant had taken her on his bicycle from her school and took her to Garu bazaar area and entered into the jungle and thereafter the appellant had taken off her panty and committed sexual intercourse with her. The PW-2 further deposed that she had seen the wearing apparels of the victim girl to be stained with semen like substances and it was dirty. She deposed that the police had seized the wearing apparels of the victim girl. She further deposed that the police had seized the birth certificate of her daughter which was subsequently released to her.

During her cross-examination PW-2 deposed that the appellant had a shop on the other side of the road opposite to her shop. She further deposed that the appellant did not have any landed property except his dwelling house. She further deposed that there is no dispute between the families regarding the tea shop. She deposed that she had a grocery shop and not a tea shop. She further deposed that she had seen blood was oozing from the private parts of the victim girl. She denied that they had permitted the appellant to bring her daughter from school on the day of occurrence of the incident.

PW-3, Jinnat Ali, is the father of the victim girl. He deposed that his wife i.e., PW-2 had informed through mobile phone that their daughter was missing from school. He deposed that on returning home he had gone to Bidyapur Police Outpost and had found their daughter along with his elder brother. He deposed that on being asked the victim girl had disclosed to him about the commission of sexual intercourse committed upon her by the appellant. He reiterated the deposition made by the PW-2. Nothing material was elicited during the cross-examination of PW-3 by the appellant.

PW-4, Md. Ennus Ali, is the informant of the case and he

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deposed that the victim girl was his niece. He further deposed that he had come to learn about the incident from the mother of the victim girl i.e., the PW-2. He reiterated the facts as deposed by PW-2 and PW-3. He further deposed that on reaching the home of his brother he had noticed the victim was weeping.

During his cross-examination he deposed that he had not seen any injury on the person of the victim. He also deposed that there was no dispute in between the family of the victim and the appellant regarding business and/or their landed property. Nothing further was found to be elicited from the PW-4 during his cross-examination.

PW-5, Md. Akbar Ali, a villager, deposed that he had heard about the incident from one Mohor Ali. On reaching the house of the victim girl, he had found that the villagers had cordoned the appellant and he had confessed that he had committed sexual intercourse with the victim girl and had pleaded for mercy. He deposed that he had heard the confession made by the appellant before the villagers. He deposed that he had seen blood stain on the wearing apparel of the victim girl. He further deposed that the victim girl had reported to him that she was taken by the appellant forcefully and the appellant had committed sexual intercourse with her. He deposed that the blood stained clothes were seized by the police.

Nothing material is seen to be elicited from the cross-examination of PW-5 during his cross-examination.

PW-6, Md. Sabed Ali, also deposed that he had heard about the incident from his father Akbar Ali. He further deposed that on reaching the house of the victim girl, he had found that the villagers had cordoned the appellant, herein, and the appellant had confessed his guilt before the villagers. He deposed that the appellant had confessed

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of having committed sexual intercourse upon the victim girl after she was taken from the school. He deposed to have heard the said confession made by the appellant. He also deposed that no one had beaten the appellant. He deposed that the school uniform of the victim was stained with blood and other materials and the same was seized by the police.

Nothing material is seen to be elicited from the cross-examination of the PW-6 during his cross-examination.

PW-7, Abu Sama Ali, also deposed in the line of the deposition as made by the PW-6.

Nothing material is seen to be elicited from the cross-examination of the PW-7 during his cross-examination.

PW-8, S.I., Nobin Boro, during the Trial deposed that he was working at the relevant point of time as Sub-Inspector of Police at Basugaon Police Station and the Officer-in-Charge, had handed over to him the Case Diary for further investigation. He submitted that he had collected the medical report of the victim and also send the wearing apparels of the victim to the Forensic Science Laboratory and had collected the report of Forensic Examination of the same. He submitted that upon completion of the investigation, he had submitted a charge-sheet under Section 6 of the POCSO Act, against the appellant, herein.

During his cross-examination he deposed that he had not collected the semen from the appellant as well as blood sample from the victim girl. He deposed that PW-7 had not stated before him that when he noticed the victim she was weeping and there was blood stain and other stain on her uniform. He further deposed that the PW-7 had not stated before him that the victim girl had reported before him that she was

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taken by the appellant from her school after school hours and instead of coming to their house, she was taken to the nearby jungle in another way and was subjected to sexual intercourse. He deposed that he did not visit the school of the victim girl and had not collected her school certificate. He also deposed that he did not examine the person who had issued the birth certificate. He denied of having submitted the charge-sheet without proper investigation.

PW-9, Dr Rajneeta Das, deposed that on 26.10.2017, she was working as a Medical & Health Officer, under NHM, at Bongaigaon Civil Hospital. She deposed that on that day at around 1.10 p.m, she had examined the victim girl aged 9 (nine) years on being identified by her mother PW-2 and being escorted by a police personnel. She deposed that there was history of sexual assault by a neighbor on 25.10.2017. The doctor during her examination had brought on record the result of the medical examination carried upon the victim girl as follows:

“ Tenderness in the genital area. Mucous present in and around the introitus. Hymen – intact.

Per vagina – admits tip of one finger. No external injury seen. Investigation –

(1) X-ray for age determination- As per radiological examination, the age is above 09 years and below 13 years.

(2) Vaginal Smear - No spermatozoa seen.

(3) Pregnancy test - negative.”

PW-9, deposed that from the history and findings it could not be said

if the victim girl was subjected to rape or not.

During her cross-examination PW-9 deposed that she had examined the victim girl within 24 hours from the alleged incident and when she touched the private part, the victim girl felt pain for which she had mentioned it as tenderness in her report. She further deposed that she

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did not find any bruise, redness and swelling on the private part of the victim girl. She also deposed that in case of forceful penetration there could be some redness, bruise or swelling on private part. She further deposed that in case of more than one time penetration, hymen could not be intact. She also deposed that in case of penetration hymen can be remained intact.

PW-10, Ajay Kumar Saha, in-charge , Bidyapur Out post under Bongaigaon P.S, deposed that on 25-10-2017 at around 9.20 p.m, the informant Ennus Ali, had lodged an FIR before him alleging that the victim girl was taken by the appellant from her school at Basugaon and on the way he had taken her through a different road and committed sexual assault upon her. He deposed of having made G.D. Entry No.394 dated 25.10.2017 on receipt of the said FIR and also deposed of having forwarded the FIR to Bongaigaon P.S. He deposed that he started the investigation and recorded the statement of the complainant. The statement of the complainant having brought on record that the place of occurrence falls within the jurisdiction of the Basugaon P.S, he on recording the statement of the victim sent her to Bongaigaon Civil Hospital for Medical Examination. He also deposed to have sent the girl to the Court for recording her statement. After deposing with regard to the steps taken by him in course of investigation, deposed that he has seized the uniform of the girl and her birth certificate and a seizure list was published. The seizure list was exhibited as Exhibit-2.

During his cross-examination, the PW-10 deposed that on 30.10.2017, he had filed a petition before the Special Judge, Bongaigaon to transfer the case to Basugaon P.S. He deposed that the wearing apparels of the victim girl were kept at Bongaigaon P.S. He further deposed that during his deposition he did not find any enmity between the family of the

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appellant and the victim.

PW-11, Shankar Chandra Rabha , deposed that on 14-12-2017 he was working as a Scientific Officer, Serology Division, at Directorate of Forensic Science Laboratory, Kahilipara. He deposed of having receipt a parcel through the Director of the Forensic Science Laboratory, Kahilipara, in connection with Basugaon P.S Case No.99/2017 under Section 4 of the POCSO Act in a sealed cover. The parcel was sealed with cloth cover consisting of one Exhibit. After opening of the parcel he deposed that he found one green coloured skirt containing stain of suspected semen marked as ‘A’. On examination of the sample, PW-11 deposed that the sample gave positive test for human semen and negative test for blood. He deposed that the DNA analysis of the sample was not permissible without there being a control sample. His report was exhibited as Exhibit-8.

During his cross-examination he deposed that no any sample was sent along with the exhibit or later for which it was not possible to compare the exhibit with the sample.

Thereafter, the appellant, herein, was examined under Section 313 CrPC. The appellant during his examination under the Section 313 CrPC stated that the victim girl was around 9 years old and she was studying in class III. He also admitted of having gone to the school and waiting at the gate on the date of the incident. He also deposed that he had often brought the victim from school. He deposed that he had dropped the victim girl near the shop and had not taken her to the jungle or committed sexual intercourse with her. With regard to the confession of his guilt by him before the villagers he stated that he had confessed the crime only because he was shown a ‘dao’ and had made the confession out of fear. He deposed that there was no jungle in the area wherein

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the incident was alleged to have been committed by him.

DW-1 , Sobahan Ali, deposed that on being informed by one Darbesh Ali about a quarrel between the appellant and the informant he had reached the place immediately. He deposed of having heard from the villagers gathered at the place of occurrence that the appellant had committed rape upon the victim girl. He deposed that he then proceeded to the house of the appellant and found that some persons had cordoned him in the compound. He deposed that he had asked the victim, who had reported that the appellant had committed rape, however he deposed that he had found the victim girl in well state of health. He deposed to have informed the matter to the police. He further deposed that prior to the incident both families used to quarrel regarding their shops. He deposed of not having seen the appellant taking the victim from her school prior to the incident. He deposed that the appellant was a married person having a wife and 2 (two) children. He also deposed that the police had seized the school uniform of the victim and when he had seen her she was not wearing her uniform. He also deposed to be a seizure witness.

13. The statement of the victim girl was recorded under Section 164 CrPC, on 27.10.2017 by the Additional Chief Judicial Magistrate, Bongaigaon.

A perusal of the said statement would reveal that on preliminary questions put to the victim girl she was found to have given reasonable answers thereto. A further perusal of the statement recorded of the victim girl under Section 164 CrPC reveals that she had stated that on proceeding from her school with the appellant on his bicycle, the appellant was found to have told her that he has to first go and bring a carton of refined oil and ‘horta’ (knife used for cutting betel nut) before

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he takes her home. She stated that she would tell her mother and asked him where he is taking and kept shouting. She stated that the appellant had asked her not to shout and he would bring these things from a nearby place. She stated however that she was taken to the jungle and therein the appellant had done bad activity with her. She deposed that he had opened her panty and she had shouted. She further stated that the appellant had asked her not to shout and said that if she shouts the people would hear her shout and he would kill her. She further deposed that the appellant had forcefully made her to lie down on the ground and then he opened his pant and inserted his ‘susu’ into her ‘susu’. She deposed that on shouting the appellant had threatened to kill her. She further deposed that after doing the bad activity with her, he had taken her with him and dropped her near a shop and threatened her that if she discloses about the said incident in her house then he would kill her. She then stated that on reaching home she was crying and had disclosed about the incident to her mother. She further stated that this was the 4^th time that the appellant had done this bad activity with her. She stated that he had inserted his private part into her private part and had threatened her that if she tells anybody he would kill her. A perusal of the said statement made by the victim during her examination under Section 164 CrPC with the deposition of the appellant during the Trial, this Court does not find any inconsistency existing therein. The victim girl is found to be consistent in her stand in both her statement under Section 164 CrPC as well as during her deposition as PW-1 in the Trial.

14. This Court further finds that the victim was put some preliminary questions both during recording of her statement under Section 164 CrPC as well as during her deposition in the Trial. The

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answers given by the victim girl was found to reflect that the victim girl understood the questions and had given proper answers and recollected the incident that had happened to her.

On a due and proper examination of the testimony of the victim girl, this Court does not find any ground to disbelieve the same, more particularly when there is no material available on record to demonstrate that such deposition of the victim was a tutored one. Medical evidence brought on record by PW-9, also reflects that the private parts of the victim girl when touched, she had felt pain.

15. 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.

16. 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.

17. In the case of Phool Singh Singh Vs. State of Madhya Pradesh , reported in (2022) 2 SCC 72 and in the case of Rai Sandeep alias Deepu Vs. State (NCT of Delhi) reported in (2012) 8 SCC 21 , the Hon’ble Supreme Court has held that conviction can be made on the sole evidence of the prosecutrix.

18. As stated above, there exists no 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 ,

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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 girl (victim) was 9 years old at the time of giving her testimony. However, she gave her testimony with clarity, to an incident which happened 2 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.

19. In the examination of the appellant under Section 313 Cr.P.C, the appellant had denied that at the place of occurrence there was no jungle and also stated of a dispute existing between his family and family of the informant with regard to the running of shops by them and also that the family of the informant required him to sell his land and leave the place. The said aspect of the matter was not established by the appellant by adducing cogent and reliable evidence. The prosecution witnesses when put with questions in this connections had categorically denied the same. In the case of Raj Kumar Vs. State of

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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.

20. 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 the family of the victim girl and the appellant, it is not believable that a false case under POCSO Act has been made involving a 9 year old girl, only because altercations may have occurred regarding two shops and/or landed property of the family of the victim and the appellant. This Court finds 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, this Court does 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 9 years old.

21. Having upheld the conviction of the appellant, herein, this Court is of the considered view that the sentencing of the appellant as ordered by the learned Trial Court would also not mandate any interference. Accordingly, the sentencing of the appellant stands affirmed.

22. In view of the above discussion, the impugned order dated 21.12.2019 passed by the learned Special Judge, Chirang, Kajalgaon, in Special (P) Case No.4 (Basu)/2018, would not mandate any

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interference. The appeal is accordingly held to be devoid of any merit and the same stands dismissed. However there would be no order as to costs.

23. Registry to send down the Records of the case to the Trial Court.

JUDGE

Comparing Assistant