Altaf Ali Vs the State of Assam and Anr.

2. This is an appeal filed under Section 374(2) of the Cr.P.C., 1973 challenging the judgment and order dated 12.08.2021 passed by the learned Special Judge (POCSO), Nalbari in Special(P) Case No.16/2018 (Arising out of Nalbari P.S. Case No. 247/2018, convicting the appellant/accused 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. 50,000/- (Fifty thousand), in default to SI for 10 (ten) months.

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3. On 14/04/2018 informant Latifa Bibi lodged an ejahar before the O/C, Nalbari PS, stating inter alia that, on that day at about 3:00 PM, when her 7- year-old daughter (hereinafter referred to as victim or X') went to see TV in the house of Altaf Ali, taking the advantage of absence of other people in the house, the accused raped the victim. Hence, this case.

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4. On receipt of the FIR, police registered the case as Belsor PS Case No. 247/2018 u/s 376 IPC r/w s. 4 of Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as POCSO Act) against the accused person Altaf Ali. The police went to the place of occurrence and examined the available witnesses. Once the victim was recovered, her medical examination was done and her statement u/s 164 Cr.PC. was duly recorded. On completion of the investigation, a prima facie case having appeared against the accused Altaf Ali, the Investigating Officer (hereinafter referred to as IO or I/O) submitted chargesheet against the accused u/s 376 IPC r/w s. 4/6/10 POCSO Act.

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5 . Cognizance was taken u/s 376 IPC r/w s. 4/6/10 POCSO Act and on receiving summon, the accused Altaf Ali appeared before the court to face trial.

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Page No.# 3/6

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After considering the materials available on case record and case diary and prima facie case having appeared u/s 4/6/10 POCSO Act, charge was framed and the content of the charge were read over and explained to accused Altaf Ali, to which he pleaded not guilty and claimed to be tried.

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6. To prove the offence u/s 4/6/10 POCSO Act against the accused/appellant, the prosecution side examined 10 witnesses and exhibited 11 documents. To substantiate his claim, defence did not examine any witness. The accused/appellant’s case, as could be ascertained from cross-examination of the prosecution witnesses & accused/appellant statement u/s 313 CrPC, was that of total denial.

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7. On conclusion of the trial, the appellant was convicted and sentenced as above, hence this appeal.

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8. The Evidence: PW 1 deposed that the accused called her to his home & at his home he touched her 'nunu' (vagina) entered his penis into it. In her evidence, PW-1 further deposed that it pained & bled because of the said act. PW-1 also stated that she told her mother. PW-1 stated that the accused entered into her 'nunu', and that, she bled.

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9. PW – 2 deposed that she went to the house of the accused in search of the victim & found the victim unconscious in the bed & saw the accused come out. PW-2 also saw sperm on the floor near the bed. She brought the victim back home & saw that PW-1 was bleeding from her private parts. On being asked, PW-1 told that the accused entered his penis into her vagina. PW-2 told the neighbours Sahida Begum, Rahima Bibi & Meriza. PW-2 also told her husband when he reached home. During cross-examination PW-2 stated that, in the morning of the day of incident her husband, accused and few others went to buy fish. She also stated that he accused returned at around 2-3 PM. PW-2 also

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Page No.# 4/6

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stated during the cross-examination that, when she went to the pond to inform the incident to her husband, she saw the accused there. Later, PW-2 says that she called her husband home and informed him about the incident & showed him injuries of the victim. PW-2 denied the suggestion that she didn't tell the I/O or in her statement u/s 164 Cr.P.C. that when she went in search of the victim, she found her unconscious in the house of accused, and that, the accused came out from the room, and that, sperm was on the floor near the bed.

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10. It appears that there is a slight discrepancy between her evidence in Court and the statement of the PW 2 recorded under Section 164 Cr.P.C, where she stated that she saw the victim semi conscious in the house of the accused and that the accused was naked. However, during her deposition in Court, she stated that she saw the accused coming out of the room. This in my considered view is not to be taken as totally discrediting the evidence of PW 2. Witnesses are prone to make some improvements/variations in their evidence before the Court and on that account alone, the entire evidence cannot be discarded.

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11. Learned counsel for the appellant has pointed out that whereas PW-1 had deposed during her cross-examination that she herself went to the house of the accused and found her mother when she reached there, her mother as PW-2 deposed that she went to the house of the accused and found her daughter there and also saw the accused. This in this submission of the learned counsel for the appellant is sufficient to discredit the testimony of the witness. While it cannot be denied that in this aspect, the evidences of PW 1 and 2 are contradictory to each other, what must not be lost sight of is that the victim PW 1 was aged only 7 years and being a very young child, some variation in her deposition can not only be accepted but also disregarded. This is specially so,

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Page No.# 5/6

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when so far as the evidence with regard to the prime factum of the offence is concerned, the same has been consistent throughout from the stage of recording of her statement before the Magistrate, Police and before the Court in most material particulars. Furthermore, the Medical Officer, who examined the victim on the day of the offence, would also reveal that the victim sustained injuries on her private parts. It is to be noted that the Medical Officer, who was examined as PW 3 deposed that in the labia minora of the victim there was an abration of redish colour measuring 1 cm X 1 cm on the right side. She also deposed that the hymen was intact and no sperm could be detected and an attempt at insertion can be said to have taken place. Therefore, the medical evidence also corroborates the evidence of PW 1 and 2, rightly held by the learned trial Court. With reference to the definition of penetrative sexual assault, even slightest amount of penetration is sufficient to constitute the offence of penetrative sexual assault and it is not necessary that full insertion must take place. Therefore, the evidence of the FSL expert, who was examined as PW 9, that the examination gave negative tests for human semen, is not any significance. Furthermore, it appears from the evidence of PW 5, that the PW 2 immediately after the incident knocked on her door and reported to her that the accused committed a bad act on her daughter and that her daughter had told her about the incident. She also deposed that she examined the private part of the victim and saw read mark on her urinal part. Her evidence could not be shaken in cross-examination. Therefore, the evidence of PW 5 also corroborates the evidence of the victim PW-1 as well as PW- 2. As held by the Hon’ble Supreme Court in the State of Punjab –vs- Gurmit Singh & Others, reported in 1996 2 SCC 384 , the Court is required to consider the board probabilities of the case and disregard minor omissions and embellishments.

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Page No.# 6/6

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12 . As already discussed above, what is before the Court is not only the deposition of the victim, but also the corroborating evidence of the PW 2 and PW 5 as well as the medical evidence.

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13. Therefore, upon consideration of the board probabilities of the case too, there appears to be no escape from the conclusion that the appellant had committed penetrative sexual assault upon the victim who was a minor girl of 7 years.

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14 . In view of the above, I do not find any infirmity in the impugned judgment and sentence, which is hereby affirmed. The appeal stands dismissed. Send back the case record.

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JUDGE

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Altaf Ali v. the State of Assam and Anr.

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Altaf Ali v. the State of Assam and Anr.

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