A conviction for sexual assault may be sustained upon the credible and consistent testimony of a minor, corroborated by forensic evidence. Procedural irregularities in the initial reporting of an offense do not invalidate a trial unless they result in demonstrable prejudice to the defense.

JUDGMENT & ORDER (CAV)

(M. Zothankhuma, J)

1. Heard Mr. S. Borthakur, learned Senior Counsel assisted by Mr. S. Dey, learned counsel for the appellant. Also heard Mr. R.R. Kaushik, Additional Public Prosecutor, Assam for the State and Ms. S. Sharma, learned Legal Aid Counsel for the respondent no.2.

2. This appeal has put to challenge the conviction of the appellant under Section 4 of the POCSO Act, 2012, vide the impugned judgment dated 05/07/2023 passed by the Court of the learned Additional Sessions Judge, POCSO, Kamrup (M), Guwahati, in Sessions Case No. 207/2018, arising out of Khetri P.S Case No. 53/2008.

3. The appellant's counsel submits that the conviction of the appellant by the learned Trial Court, on the ground of having committed penetrative sexual assault on the victim girl, age 6 years, is liable to be set aside, inasmuch as, the GDE 1044 dated 29/03/2018 had been registered on the basis of a mobile call, made by the informant (PW-1), who is the mother of the victim. However, the Police and the Prosecution had taken the written FIR submitted by PW-1 on the same date, i.e. 29/03/2018 to be the FIR, which cannot be done in terms of the Division Bench judgment of this Court in the case of Lal Kalandi and Another vs. State of Assam , reported in (1997) 1 GLR 311. He submits that the GDE 1044 should be treated as the FIR and the contents of the subsequent written FIR submitted by the informant should be treated as a statement made under Section 161 Cr.P.C.

4. The appellant has also taken the stand that though the victim's statement under Section 164, Cr.P.C corroborates the victim's testimony made before the learned Trial Court, the learned Trial Court did not take into consideration the evidence of the three Defence Witnesses (DWs), which proved that the child could not have been raped. The learned Counsel for the appellant submits that the entire allegation of rape made against the appellant had been fabricated, which was a result of the appellant and other villagers having asked the informant to stop the business of selling local liquor in the village.

5. The appellant's counsel submits that the evidence tendered by the Defence Witnesses, cannot always be termed as a tainted one and that the Defence Witnesses are entitled to equal treatment and equal respect as that given to Prosecution Witnesses. In support of the above submission, the learned counsel has relied upon the judgment of the Supreme Court in the case of The State of Uttar Pradesh vs. Raghuvir Singh, which was decided on 23.01.2025 in Criminal Appeal No. 1588/2015 and in the case of State of U.P vs Babu Ram , reported in (2000) 4 SCC 515.

6. The learned counsel for the appellant further submits that the victim has been tutored to make a fabricated case against the appellant, due to the appellant and the other villagers having asked the informant to stop the business of selling local liquor. He submits that when the mother of the appellant (DW-1), has categorically stated in her testimony that the victim had been sleeping with her, during the time the child (victim) was in their house, there was no opportunity for the appellant to have slept with the child and committed any illegal act on the child.

7. The learned counsel