IMPORTANT POINT
A victim's testimony can be sufficient for conviction in sexual assault cases if it is credible, even if medical evidence is inconclusive.

JUDGMENT :

(M. Zothankhuma, J)

1. Heard Mr. M. Dutta, learned Amicus Curiae appearing for the appellant and Mr. K.K. Das, learned Addl. P.P., Assam appearing for the State.

2. The appellant has challenged the judgment dated 25.03.2021 passed by the Court of the Addl. Sessions Judge/Special Judge, Dhubri in Special Case No.81/2019, by which the appellant has been convicted under Sections 376AB/506 of IPC read with Section 6 of the POCSO Act. Thereafter, in terms of Section 42 of the POCSO Act, 2012, the appellant was sentenced to undergo rigorous imprisonment for life with fine of Rs.5000/-, in default, to undergo simple imprisonment for 6 months under Section 6 of the POCSO Act. Further, the appellant was sentenced to undergo rigorous imprisonment for 2 years in terms of Section 506 of IPC. Both the sentences were to run concurrently.

3. The prosecution case, in brief, is that the informant, who is the mother of the victim and prosecution witness No.1 (PW 1), had lodged and FIR dated 16.09.2019, stating that at around 8 a.m. on 13.09.2019, the appellant had raped her minor daughter aged about 10 years in his bedroom. On asking her daughter why she was crying at around 10 p.m., the victim informed PW 1 about the rape and stated that the appellant had threatened her with death, if she disclosed the matter to anyone. PW 1 also stated that the lodging of the FIR was delayed, inasmuch as, she was waiting for an extra judicial settlement in the village. Pursuant to the FIR dated 16.09.2019, Golokganj P.S. Case No. 1081/2019 under Sections 376AB/506 IPC read with Section 6 of the POCSO Act was registered against the appellant.

4. After investigation of the case by the case I.O. and after having the victim’s statement recorded under Section 164 Cr.P.C. besides having the victim examined by a Doctor, the case I.O. filed the charge-sheet, having found a prima facie case under Sections 376AB/506 IPC read with Section 6 of the POCSO Act against the appellant. .

5. The learned Trial Court thereafter framed 3 charges against the appellant under Sections 376AB/506 of IPC and under Section 6 of the POCSO Act, to which the appellant pleaded not guilty and claimed trial.

6. During trial, the evidence of 9 prosecution witnesses and 2 defence witnesses were recorded by the learned Trial Court. Thereafter, the appellant was examined under Section 313 Cr.P.C. The appellant was thereafter found to be guilty of the charges framed against him and accordingly, convicted under Section 376AB/506 of IPC and Section 6 of the POCSO Act. The sentence imposed upon the appellant was thereafter awarded by the learned Trial Court as stated in the foregoing paragraphs.

7. Mr. M. Dutta, learned Amicus Curiae appearing for the appellant submits that though the medical Doctor had examined the victim, there is nothing to show that the hymen of the child was ruptured by any act allegedly done by the appellant. He submits that there is no finding on the part of the Doctor that the victim was subjected to any penetrative sexual assault. He also submits that the only evidence against the appellant is the testimony given by the victim girl. Further, the case was fabricated against the appellant due to the fact that there was a land dispute between the family of the victim and family of the appellant, even though they were close relatives. He submits that the appellant is the grand uncle of the victim. As there is no corroboration with regard to the allegation of rape made against the appellant in the medical Doctor’s evidence and report, the impugned judgment is not sustainable and the same has to be set aside.

8. Mr. K.K. Das, learned Addl. P.P., on the other hand, submits that the evidence of the victim girl (PW 2) has not been shaken or controverted during cross-examination. There is nothing to show that the evidence of the victim girl is fabricated, inasmuch as, the appellant has till date not been able to show that any land dispute case has been filed before any Civil Court i