1. Heard Mr. B. Boruah, learned Amicus Curiae appearing for the appellant and also heard Mr. D. Das learned Addl. Public Prosecutor appearing on
behalf of the State of Assam.
2. The informant Chandra Mech lodged an ejahar/First Information Report (FIR) before the I/c, Demow P.S. alleging inter alia that on 12.10.2013, his
daughter about 9/10 years of age, went to the house of their close relative namely, Gunamala Mech to stay overnight there. After having dinner at
about 9.00 P.M when his daughter went outside the house to feed the pet dog then the accused suddenly dragged her into the toilet (bathroom) and he
committed rape upon her, with threatening of dire consequences. On that night, his daughter stayed at the house of her aunt and on the following day,
when everyone noticed blood stain on the frock of the victim girl, she revealed the incident how the accused committed rape upon her. Then, he
lodged an Ejahar/FIR at the aforementioned police station.
3. On receipt of the aforesaid FIR dated 13.10.2013 lodged by the informant before the Officer-in-Charge, under Demow P.S., the same was
registered as Demow P.S. Case No.200/2013 under Section 376(f)/506 IPC.
4. During the course of investigation, the victim girl was medically examined by the doctor. The statement of the victim girl was also recorded under
Section 164 of CrPC. Other witnesses were also examined during investigation under Section 161 CrPC. The Police on completion of investigation
filed charge-sheet against the accused namely, Gyan Ranjan Gogoi under Section 376(f)/506 of IPC.
5. As the case is exclusive triable by the Special Court, the case was committed to the Court of Sessions.
6. Learned Special Judge on consideration of records and the documents framed the charge against the accused under Sections 376[1](f)/506 of IPC,
to which, the accused pleaded not guilty and instead wanted to face the trial.
7. In course of the trial, prosecution examined as many as 8(eight) witnesses including the victim, father of victim/informant of the case, the Medical
Officer and the I.O. On completion of prosecution evidence, statement of the accused was recorded u/s. 313 of CrPC wherein, the accused had
denied all the incriminating evidence that emerged against him.
8. At the conclusion of the trial, the learned Court finds and hold the accused guilty under Sections 376[2](f) of IPC and sentenced him to rigorous
imprisonment for 10(ten) years and also to pay a fine of Rs.50,000/-(Rupees Fifty Thousand), in-default of payment of fine, to suffer further R/I for
6(six) months.
9. As against the aforesaid order of conviction, present appeal has been preferred by the accused from the jail.
10. It is argued by the learned Amicus Curiae that no explicit reliance can be given upon the evidence of the victim who is a very much minor because
of her conduct itself. It has been pointed out that immediately after the occurrence she made no complaint and remained silent till the mark of blood
was found on her cloths. She also gave different explanation as about the occurrence at different time so it is unsafe to base conviction on such
evidence of the minor victim.
11. On the other hand, learned Addl. P.P. contends that the Trial Court has rightly convicted the accused and there is no infirmity in the aforesaid
order and conviction and there is no reason to disbelieve the evidence of victim. Nothing emerges that the version of the victim was tutored one but it
was found very natural and she was under the threat by the accused. No any interference in the impugned judgment and order and is called for.
12. Let us examine the evidence on records which is as follows:
13. P.W-1/Chandra Mech, informant, who is the father of minor girl disclosed stated that on 12.10.2013, the victim girl went to the residence of a
close relative namely, Gunamala Mech to stay overnight, which was situated about 50 mtrs. from his house. After having dinner, his daughter went
outside to feed the pet dog, the accused suddenly dragged her into the toilet (bathroom) and he committed rape upon her daughter and threatened her
of dire consequences if she disclose the same. At that night, his daughter stayed at the house of her aunt and on the following day, when everyone
noticed blood stained on the frock of the victim girl, she revealed the incident how the accused committed rape upon her. Then, he lodged an
Ejahar/FIR vide Ext.-1. He also handed over the blood stained cloth of his daughter/victim to the police vide Ext.-2. is the seizure list.
. In cross-examination, the P.W-1 disclosed that his residence was situated about 50 mtrs away from the house of Gunamala Mech. His daughter had
told him, on being asked about the blood stain in her frock it was caused by the accused when he wiped his injured hand on her frock. The accused
used to stay with Gunamala Mech since long time.
14. P.W-2/Karabi Mech mother of the victim stated that on 12.10.2013, her daughter who was a student of Class-V, went to the house of her aunt
namely, Gunamala Mechto and stayed there. On the same night, when her daughter went outside to feed the pet dog, the accused dragged her into the
toilet (bathroom) and committed rape upon her daughter. She came to know about the incident on the following day when she noticed blood stain in
the frock of her daughter. At that time, the victim girl was having tea at the house of Suwala Mech/PW-3 and she had first noticed the blood stain on
her frock. The victim told Suwala that the accused had cut a chicken and had rubbed his blood stained hands in her frock. She asked the victim girl
whether she had attained her puberty? When the victim girl was pressurised, she revealed that the accused had taken her to the bathroom and
committed rape upon her. The accused also promised her of Rs.100/- if she did not intimate the matter to others. She has further stated about the
seizure of the dress of the victim through Ext.2 seizure list.
· In cross-examination, P.W-2 has stated that her housed situated about 50 mtrs away from the house of Gunamal Mech. Accused used to stay with
Gunamala as he was related to her. The accused used to run their mill. The son and daughter-in-law of Gunama was not present at home on the day
of incident.
15. P.W-3/Suwala Mech another relative of the victim’s family. Although this witness was declared hostile by the prosecution, but she had
admitted about the statement before the police that about two and half years ago while she was about to leave the house then she met the victim
girl/P.W-6 along with Gunamala Mech/P.W-5 and while talking, she noticed some blood stain on her/victim’s frock then she asked whether she
had periods. Then the victim/P.W-6 reported that the accused wiped his blood stain hands in her frock. And that time P.W-4 also arrived and upon
asking by all, P.W-6 disclosed that while she went to give food to the pet dog then the accused taken her into the toilet (bathroom) and committed rape
upon her. The accused also threatened her not to disclose the incident to anybody and promised to give her Rs.100/-.
16. P.W-4/Nilu Mech stated that on 12.10.2013, she went to the house of the victim girl as she came to know that the girl had attained puberty. But on
being asked, the victim girl said that she has not attained puberty and she revealed that the accused had raped her on the previous night when she was
staying in the house of her aunt/P.W-5.
17. Smt. Gunamala Mech/P.W-5 (aunt of the victim), in whose house, the victim stayed for the night, on the date of incident, in her evidence has also
stated that P.W-6/her niece stayed with her in her house as her son and daughter-in-law were not present at home. Her niece/victim slept with her on
that night and on the next morning she went to drop her niece at her home. Then Suwala Mech/P.W-3 noticed blood stain in the frock of her niece, on
being asked whether the victim had attained puberty or not, the victim denied the same. Then only the victim told them that the accused had
committed rape upon her.
· In cross-examination, she has stated that the victim did not tell her about the incident when she slept with her on the previous night.
18. Now let us examine the star witness of prosecution i.e, the victim girl:
19. P.W-6/victim (name withheld) was a student of Class-VII aged about 13 years on the day of giving evidence on 16.08.2016 and she was student
of Class-V on the day of occurrence. In her evidence, she has stated that on 12.10.2013, she had gone to the residence of her aunt/P.W-5 to stay
overnight there. The residence of her aunt is situated near their house. On that day at about 9.00 PM she had gone outside of house to feed the pet
dog. Then the accused came there and strangled her neck and took her to the toilet (bathroom). Thereafter, the accused opened his pant and also
opened her panty and committed rape upon her by pining her against the wall. She was gagged by the accused so she could not shout for help. The
accused had also threatened to kill her if she raised an alarm. Next morning when she returned home, Suwala Mech/P.w-3 noticed the blood stain in
her frock and asked her if she had attain puberty. On being asked by the other persons, she revealed the incident. Her statement was recorded before
the learned Magistrate on 19.10.2013 u/s 164 CrPC vide Ext.-3.
· In cross-examination, she has stated that she used to go to the residence of her aunt Gunamala frequently. The bathroom was situated near the
house. She stayed and the food was given to the pet dog was situated near the bathroom. She has denied the suggestion that as she afraid to give the
food to the dog so she called the accused and then the accused got injured in his hand so he wiped his blood stain hands in her frock.
20. P.W-7/Dr.Prosana Pratim Sarma, Medical Officer has examined the victim girl on 14.10.2013 and the result of her physical examination is as
follows:
· Weight:-24 KG, height:-52 inches, teeth:- 12 x 12, development of auxiliary and pubic hair, development of breast:- absent and others:- normal.
· The internal examination was not done.
· He has opined that the victim girl was below the age of 11 years, there was no mark of violence on her body nor there was any sign of recent
sexual intercourse. The medico legal report is exhibited vide Ext.4.
21. Lastly, the Investigation Officer, P.W-8 (Sangthan Syam) has narrated all about the course of investigation. He examined the informant as well as
the victim at the police station itself and the victim girl was sent to the doctor for medico legal check-up. He also produced the informant and victim
girl before the Magistrate, and their statements were recorded u/s 164 CrPC. He had recovered and seized the bold stained frock as handed over to
him by P.W-1, vide Ext. 2 is the seizure list. It is also stated that he prepared the Sketch Map vide Ext.-5 and he also submitted charge-sheet u/s
376(f)/506 of the IPC against the accused vide Ext.-6.
22. The learned trial Court considering the above evidence on record concluded that the victim girl was minor at the time of occurrence and the
accused/appellant was found and hold guilty under Section 376(1)(f) of IPC of IPC and convicted him as aforesaid.
23. I have perused the discussion made by the Trial Court and find that the every relevant factor required for arriving a just conclusion about the age
of the victim and all other evidence on record has been elaborately discussed. Though, the Ld. Amicus Curiae attempted to find fault at the said
conclusion by making reference to the evidence of the victim about her conduct but having regard to the totality of the evidence, the Ld. Trial Court
has relied upon the evidence of the victim.
24. On close observation of the evidence of the victim would go to show that she was a student of class-V on the day of occurrence aged about 10 to
11 years and obviously she was of very tender age, not to speak of any maturity and she has no knowledge of sex. Suddenly, she was subjected to
such sexual conduct by the accused by overpowering her with a threatening to kill her if she disclose the same to others. Certainly, in such a
sequence, she was under perplex situation so as to course of action to be taken by her. It was a night hours while her aunt PW-5 already fallen asleep
after taking alcohol so she also silently slept for the night and in the morning she returned to her house along with said PW-5 (her aunt) and on the
way she met PW-3 & PW-4 who observed mark of blood stain on her cloths and although she immediately did not disclose the incident but on
repeated query made by those witnesses she narrated the whole incident. The PW-5 was also present while the victim narrated the facts, otherwise
they thought that the victim has attained puberty. In the given background, it can be held that the victim was swayed by the threatening given by the
accused person for which she did not reveal the matter immediately. Moreover, such a minor of tender age can’t be expected to behave like a
matured person, they always moved by their own impulse not by reasoning. On the other hand, the victim of such tender age cannot have any other
reason whatsoever for false implication of the accused person. Nothing emerges that the version of the victim is tutored one, rather she is said
spontaneously as soon as asked by the PW-3 & PW-4 who were their neighbour. The Trial Court has considered the every relevant factors while
arriving at the conclusion and there appears no any infirmity in the decision so arrived.
25. The victim girl was examined by the Medical Officer after 2 (two) days of occurrence and no mark of injury was found on her person. Having no
mark of injury itself cannot be  ground to discuss the evidence of the victim which is otherwise found to be reliable by other facts and circumstances
and evidence on record. The accused was a relative of PW-5 and resides along with her and by taking the chance he indulged with such sexual
conduct upon the victim and in the process there may not be full penetration, but in the legal parlance even the penetration amounts to offence of rape.
In the instant case, presence of bleeding from the private parts of the victim indicates the penetration but the extent of penetration cannot be explained
by the victim girl by virtue of her tender age. It can also be inferred had there been full penetration, there would be mark of injury in her private parts.
26. From overall appreciation of evidence on record, there appears nothing to disbelieve the prosecution case neither there appears any reason for
false implication of the accused. Defence rather fails to scatter the evidence on record, except giving some mere suggestions. The evidence of child
witness/ the victim is found inspiring without any exaggeration or manipulation and hence reliable.
27. In (1996) 2 SCC 384 State of Punjab Vs. Gurmit Singh, it is held that the testimony of sexual assault is vital and unless there are compelling
reasons which necessities looking for corroboration of her statement the court should not find difficulty in acting on the testimony of the victim of
sexual assault alone to convict of accused when her testimony inspire confidence and found reliable. Seeking corroboration of her statement before
relying upon the same as a rule in such cases amounts to insult the injury. The same principle still followed in (2016) 0 SC 992 while it says victim of
rape is not an accomplice and her evidence can be acted upon without corroboration. She stands a higher pedestal than an injured witness.
28. In the anvil of the legal proposition as well as from the totality of the evidence on record, it can be held that that the prosecution has been able to
prove the charge of rape against the accused/appellant. Now the things to be noted that the Ld. Trial Court has not taken note of the prevalent
position of law while framing the charge as well as inflicting sentence. In the given case the incident is of 13.10.2013 and charge sheet was submitted
thereafter u/s 376(f)/506 IPC and the case was decided as on 30.5.2017. On the other hand, the Protection of the Children from Sexual Offences Act
2012 come into force w.e.f 9.11.2012, with a Special provision mentioned in Sec. 42 for providing alternate punishment of the offences 376 IPC (other
offences mentioned therein) that notwithstanding anything contained any law for the time being in force, the offender found guilty of such offence
shall be liable to punishment under this Act or under the Indian Penal Code as provides for punishment which is greater in degree. But in the instant
case charges were framed under the provision of Indian Penal Code and punishment is also awarded accordingly which, however, now be converted
to Section 4 of POCSO Act in terms of the Sec. 42 of the POCSO Act, 2012 (punishment in both the offence is same). However, the punishment that
was awarded u/s 376 (2) (f) IPC is not applicable in the sense that the accused/appellant is no way related to the victim or the informant in any
capacity.
29. Ld. Amicus Curiae has drawn the attention of this Court that the accused is also a young boy and he was of 21 years at the time of recording the
statement u/s 313 CrPC in the year 2017 while the occurrence is of 2013. Taking note of all the facts and circumstances converting the conviction u/s
4 of the POCSO Act the sentence is reduced to R/I for 7 (seven) years and to pay a fine of Rs. 10,000/- (ten thousand), in default S/I for 2 (two)
months.
30. District Legal Service Authority is directed to conduct an enquiry as to the necessity of awarding compensation to the victim as per the Victim
Compensation Scheme and to award compensation as per law, if so advised.
31. The appeal stands disposed of with the modification as indicated above. Return the LCR.
32. For the assistance rendered by the learned amicus curiae, a sum of Rs 7,500 (Rupees seven thousand, and five hundred) be paid to Mr. B.
Baruah, Amicus Curiae by the State Legal Services Authority.
