IMPORTANT POINT
Allegation of survivor of sexual abuse is to be taken seriously.

JUDGMENT (ORAL)

Sanjib Banerjee, C.J.—Two principal grounds are urged in this appeal. The first is that the trial court erred in completely relying on the statement of the survivor to convict the appellant herein under Section 6 of the Protection of Children from Sexual Offences Act, 2012 read with Section 506 of the Penal Code, 1860.

2. The second ground raised is that several other persons who would have been key witnesses were not examined by the prosecution, including another student who apparently attended the tuition classes along with the survivor. The appellant also says that the brother of the appellant should have been examined.

3. The first information report in this case was lodged by the father of the survivor on April 10, 2017 at the Pasteur Beat House in Shillong. The de facto complainant asserted that his son, then aged 9 and a student in Class III at St. Xavier Secondary School, Polo Hills, Shillong, had been sexually molested by the appellant herein, to whom the survivor used to go for tuition.

4. According to the FIR, on April 10, 2017, when the boy’s mother asked the boy to go for tuition and he was not interested to go, the mother enquired of the boy and discovered that the appellant herein would keep the survivor back at the end of every session and sexually abuse him. The FIR also referred to the boy complaining of pain in his rectum.

5. The nine-year-old survivor rendered a statement on oath under Section 164 of the Code of Criminal Procedure, 1973. He recollected that he went for tuition every day to the house of the appellant herein and the appellant herein “does dirty acts with me only.” He recounted that there were two students in the tuition, the other being a boy by the name of Babuji. He asserted that the appellant would tie his hands with a handkerchief, cover the survivor’s mouth with his hand and “penetrated his penis into my anus.”

6. The boy narrated that he had complained to his mother but the mother did not give him any attention or take note of his grievance. He claimed that every time he went for tuition, the act was repeated whenever the appellant’s mother was not around. He recalled that he had been threatened by the appellant to not reveal the matter to any person, or else the boy would be beaten up. Indeed, the boy recounted that he had actually been beaten up by the appellant herein and this scared him from revealing the matter to others. He stated that since it was getting very painful for him and he felt a burning sensation, he had to tell his mother.

7. The survivor was medically examined at Ganesh Das Hospital, Shillong on the same evening that the FIR was lodged. Before conducting the medical examination, the description of the incident in the words of the survivor was recorded. As per such recording, on Saturday, April 8, 2017 the survivor had gone for tuition and the accused penetrated his penis into the survivor’s anus after covering the mouth of the survivor with the hand of the accused so that the survivor could not shout. The survivor also stated that he was sexually assaulted for the past two months and he reported the matter to his mother but the mother did not react to the same till he recounted the latest incident which had taken place.

8. In course of the examination, the medical expert found a laceration and tear in the anus. This was indicated both in the sketch and in words. The opinion rendered by the medical examiner was as follows:—

“Sexual assault may have taken place.”

9. In course of the trial, the survivor repeated, in substance, what he had indicated previously in his statement under Section 164 of the Code and in his brief description to the medical practitioner at the time of his examination. No anomaly of any kind is pointed out on behalf of the appellant in the evidence.

10. However, the appellant suggests that despite the de facto complainant indicating that the boy would go for tuition at around 5 or 5:30 pm and return at 9 or 9:30 pm and t