Reliability of witness testimony and medical evidence in cases of sexual assault under the POCSO Act.

JUDGMENT

1. Heard Ms. B Sarma, learned Amicus Curiae appearing for the appellant and Mr. MP Goswami, learned Addl. Public Prosecutor, Assam.

2. This appeal is directed against the judgment and order dated 20.02.2018 passed by the learned Sessions Judge, Dhemaji in Special Case No.7(DH)/2016, whereby the appellant was convicted under section 4 of the POCSO Act and sentenced to Rigorous Imprisonment for 10 (ten) years and fine of Rs.5,000/- with default stipulation.

3. As per the prosecution case, on 10.02.2016, at about 12.00o clock when the minor daughter of the informant (Pw-2) was playing, the appellant took her to a nearby bamboo grooves by inducing her and subjected her to sexual assault. On the basis of the said FIR, police registered Silapathar PS case No.36/2016 under section 376(1) IPC read with section 6 of the POCSO Act . During the course of investigation, police recorded the statement of the victim and other witnesses, got her examined by the doctor, seized certain articles and on completion of investigation submitted charge-sheet against the present appellant under section 376(1) read with section 6 of the POCSO Act.

4. In course of trial, learned Sessions Judge framed charge under section 4 of the POCSO Act to which the appellant pleaded not guilty. Nine witnesses were examined by the prosecution in order to bring home the charge against the appellant and on appreciation of evidence, learned Sessions Judge convicted the appellant under section 4 of the POCSO Act and awarded sentence as indicated above.

5. Aggrieved the appellant preferred the instant appeal.

6. Learned Amicus Curiae submits that except the victim being a small girl of 7 (seven) years, there was no other direct witness of the occurrence and her statement was also not consistent and therefore, learned trial Court ought to have recorded the conviction of the appellant on the sole testimony of the victim. Learned Addl. PP supporting the conviction and sentence contends that prosecution has proved the charge against the appellant beyond reasonable doubt and as such, the impugned conviction and sentence of the appellant calls for no interference.

7. I have considered the submissions made by the learned counsel for the appellant and scrutinised the evidence brought on record.

8. The first witness examined by the prosecution was one Pratibha Das who stated that about one year ago, while she went to graze her Goats, she noticed the victim, a small girl crying, who told her that a boy had done bad act with her. She further stated that she had seen blood on the pant of the victim and she was crying in pain. Accordingly she brought her home and handed her over to her mother. The evidence of this witness remained uncontroverted as no cross-examination was done.

9. The victim has been examined as Pw-3. As she was aged about 8 (eight) years only at the time of deposition, learned Sessions Judge tested her competence by a voir dire test and having been satisfied that she was capable to understand the question put to her and to give rational answer thereto, learned Special Judge recorded her deposition. The victim stated in her evidence that while she was playing near 'Bogori' tree, the accused asked her to go to the shop in order to bring bidi. She further stated that from the shop, the accused took her behind the rail line and asked her not to raise any hue and cry and took her inside the bamboo grooves. She further stated that the accused had done bad things with her and the old lady having seen her brought her back. She also stated that she had bleeding on her private part.

10. The mother of the victim has been examined as Pw-2. She also stated that the accused asked the victim to go to the shop for bringing bidi and thereafter he followed her and committed rape on her. According to her, Pw-1 brought her daughter from the place of occurrence and she had noticed bleeding on her private part and immediately she took her to the hospital. During cross-examination