Absence Of Medical Evidence Not Fatal To Prosecution Case, Victim Corroborated Her Testimony U/S 164 CrPC: Gauhati HC Upholds POCSO Conviction
The Gauhati High Court on Tuesday upheld the conviction of a person under Section 6 of the POCSO Act on the ground that the testimony of the victim girl before the trial court was corroborated by her statement recorded under Section 164 of CrPC and therefore, found to be trustworthy in the absence of a proper medical report.
However, the division bench of Justice Michael Zothankhuma and Justice Mitali Thakuria reduced the sentence imposed from life imprisonment to rigorous imprisonment of 20 years considering the age of the convict.
The case of the prosecution was that the informant (mother of the victim) lodged an FIR dated September 16, 2019, stating that at around 8 am on September 13, 2019, the accused-appellant had raped her minor daughter aged about 10 years in his bedroom. On the basis of the said FIR, a case under Sections 376AB, 506 of IPC and Section 6 of the POCSO Act was registered against the accused-appellant.
The Trial Court convicted the appellant under the aforesaid provisions and sentenced him to undergo life imprisonment and rigorous imprisonment for 2 years which were to run concurrently.
Hence, the present appeal was filed by the appellant challenging the conviction and sentence passed by the Trial Court.
The Amicus Curiae appearing for the appellant submitted that though the 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. It was further argued that there is no finding on the part of the Doctor that the victim was subjected to any penetrative sexual assault and the only evidence against the appellant is the testimony of the victim girl.
On the other hand, the Additional Public Prosecutor (APP) contended that the evidence of the victim girl had not been shaken or controverted during cross-examination. It was submitted that the testimony of the victim girl has been corroborated by the statement given by the victim under Section 164 CrPC. It was further argued that the medical report clearly stated that there was redness in the vulva of the victim girl, the same implied that the redness was caused due to the illegal act on the part of the appellant.
The Court noted that the only evidence against the appellant is the evidence of the victim, who has stated that the appellant had raped her.
“The medical examination report on the minor victim has not been properly done. It is unfortunate that the medical Doctor had not examined the hymen of the victim girl and/or made any comment with regard to the hymen of the victim girl. The medical report, by itself, does not indicate in any manner that there was any rape committed by the appellant on the minor girl,” the Court said.
The Court further observed that there is nothing to show that the victim girl had been tutored or that she had given false testimony and the statement of the victim under Section 164 CrPC corroborates the testimony given by her during trial.
“……it is reiterated that the medical evidence does not in any manner indicate that rape had been committed upon the victim by the appellant. The doctor did not make any comment with regard to the hymen of the victim, even though the examination of the hymen was important. Further, there appears to be no injuries on the private parts of the victim, though there was redness in the vulva. However, there is nothing to doubt the veracity of the testimony of the victim girl before the learned Trial Court, which has been corroborated by her statement recorded under Section 164 Cr.P.C,” the Court noted.
The Court remarked that there is no opinion made by the doctor with regard to the hymen of the victim, which cast doubt as to whether the doctor had even examined the hymen of the victim.
“….the lacuna/fault on the part of the doctor in allegedly not examining the hymen of the victim and/or not making a comment on the same in the Medical Report and in the evidence, cannot be said to support the case of the appellant, which is to the effect that no rape was committed by him upon the victim,” the court stated.
Thus, the Court upheld the conviction of the appellant.
“However, on considering the fact that the appellant is approximately 54 years old, we are of the view that justice would be served if the appellant is sentenced to undergo rigorous imprisonment for 20 years with a fine of Rs.5,000/-, in default, to undergo simple imprisonment for 2 months,” it said.
Citation: 2024 LiveLaw (Gau) 67
Case Title: Jiten Ray v. The State of Assam
Case No.: CRL.A(J)/8/2022