IMPORTANT POINTS
(1) Rape – It will be perilous to convict appellant on sole testimony of victim when evidence is bristled with contradictions.
(2) When two views are possible, view in favour of accused is to be taken.

JUDGMENT

Heard Ms B Sarma, learned Amicus Curiae for the appellant and Mr P Borthakur, learned Additional Public Prosecutor, Assam.

2. This appeal is directed against the judgment and order dated 23.07.2019, passed by the learned Special Judge POCSO, Udalguri in connection with Special (POCSO) Case No.03 of 2018, convicting Umesh Baraik (hereinafter referred to as the appellant) under Section 376(2)(l) of the Indian Penal Code (IPC for short) to undergo Rigorous Imprisonment for 10 years and to pay a fine of Rs. 10,000/- with default stipulation.

3. The brief facts leading to this appeal are that the appellant committed rape on a 13 year old victim, say-X on 7.11.2017 at about 03:00 p.m. The victim’s father is the informant, say-Y, who has also stated that his daughter was physically challenged.

4. The FIR was registered as Rowta PS Case No.134 of 2017, under Section 4 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act for short). The Investigating Officer (IO in short) embarked upon the investigation and on finding sufficient materials laid charge sheet against the appellant under Section 6 of the POSCO Act.

5. At the commencement of trial, copies were furnished and after hearing both the parties, a formal charge under Section 6 of the POCSO Act was framed and read over and explained to the appellant and the appellant abjured his guilt and claimed innocence.

6. To connect the appellant to the crime, the prosecution adduced the evidence of 8 (eight) witnesses, including the Medical Officer (‘MO’, for short) and the Judicial Magistrate, who recorded the statement of the victim under Section 164 CrPC. On the circumstances arising against him, several questions were asked to the appellant under Section 313 of the Code of Criminal Procedure (‘CrPC’ for short) and the responses of the appellant were recorded.

7. The learned counsel for the appellant laid stress in her argument that the evidence clearly reveals that the key witnesses PW-5 and PW 6 cannot speak either Assamese or Bodo. Their statements have been interpreted without following the proper procedure of the Oaths Act, 1969. Oath was not administered to the interpreter nor the advocate who was also present when the statements of the witnesses were interpreted by the interpreter. There is no medical evidence of rape. The findings of the doctor clearly reveals that the victim did not suffer from any sexual assault. Her hymen was found to be intact. The learned counsel also relied on the decision of a coordinate Bench of this court in Ranjit Hazarika versus State of Assam, reported in 2018 (2) GLJ 585, wherein the appellant Ranjit Hazarika was acquitted, because despite the allegation of sexual assault against the appellant, the evidence of the doctor revealed absence of any injury on the private parts of the victim and the hymen of the victim was found to be intact. No sign of penetration was significant, casting a shadow of doubt over the veracity of the victim’s evidence. It is further submitted that in this case at hand, witnesses PW-5 and PW-6 have admitted in the Court through their depositions that their parents have tutored them and the witnesses deposed according to the narrative of their parents. It is submitted that the appellant deserves the benefit of doubt.

8. Per contra, the learned Additional Public Prosecutor laid stress in his argument that although the medical evidence does not support the offense of rape, yet the testimony of the victim cannot be discarded. It is submitted that the evidence of a victim is sufficient to prove a case of sexual assault even though the hymen of the victim at times is found to be intact. It is submitted that the statement of the victim is found to be reliable and her statement is corroborated by the deposition of her sister, PW-5. The decision of the learned trial court is sustainable and does not require any interference. It has been held by the learned trial court that—

“24. In the instant case the evide