The Gauhati High Court has asserted that in a rape case, conviction can be based on the sole testimony of the prosecutrix when such testimony is cogent, satisfying, and finds significant corroboration from other parts of the prosecution evidence such as the testimony of a minor sister, medical evidence, seizure evidence, and the testimony of the father.
The Court essentially ruled that the failure to hold a test identification parade does not make the evidence of identification in court inadmissible, and even if an accused is not named in the FIR, they can be held guilty if the prosecution leads reliable and satisfactory evidence, such as a valid Test Identification Parade (TIP) corroborating the dock identification, which proves their participation in the crime.
Under the POCSO Act, the prosecution has to prove the foundational facts of the offence based on a preponderance of probability, after which the burden shifts to the accused to rebut the statutorily presumed culpable mental state beyond reasonable doubt, added the Court, while upholding the conviction recorded by the Trial Court under section 376 D IPC read with Section 6 of the POCSO Act.
“In the instant case, considering the heinous nature of the crime of committing gang rape on a minor girl hailing from a poor family and the trauma that she underwent as revealed by the evidence – we are not persuaded to make any modification in the sentence on the lower side”, added the Court.
The Division Bench comprising Justice Michael Zothankhuma and Justice Pranjal Das observed that the victim girl was a minor aged below 18 years at the time of the incident, as established by the medical officer’s opinion, her statement under section 164 CrPC, and the FIR. The Bench found that the testimony of the victim regarding the commission of rape remained unshaken in cross-examination and received vital corroboration from the child witness (her cousin sister).
The medical evidence clearly revealed sexual assault in the nature of rape, with findings of injuries on private parts, laceration on the labia minora, signs of recent sexual intercourse, and the vaginal swab giving positive results for the presence of spermatozoa. The identity of appellant Basir Uddin was sufficiently proved through his naming in the FIR, the statement under section 164 CrPC, three rounds of the Test Identification Parade (TIP), and dock identification, added the Bench.
Regarding another appellant Ramjul Hussain, the Bench noted that although his name was not initially in the FIR, he was clearly identified by the victim as one of the assailants in all three rounds of the TIP conducted within a month of the incident, which was fortified by her clear identification in court.
The Bench observed that an FIR is not an encyclopaedia, and the non-disclosure of a fourth person who did not do anything against the victim does not vitiate the testimony of the informant or the contents of the FIR. The defence’s attempt to make out a story of false implication due to a dispute over grazing cows was found to be unconvincing and a faint attempt at denting the prosecution case.
Lastly, the Bench noted that the stringent punishment provided under section 6 of the POCSO Act is meant to indicate zero tolerance for child rape and is designed to send a chilling message to offenders.
Briefly, in March 2015, a telephonic information was received at Kalibari outpost that three boys had committed rape on a girl at Sunaicherra, leading to an FIR lodged by the informant stating that his daughter (the victim) and her cousin sister were returning from a Fair Price Shop, and when they reached near Hanuman Asthan at Sunaichara garden, the accused persons caught the victim, took her to the jungle forcibly, and repeatedly committed rape on her at knife point.
The cousin sister ran and informed the matter, whereupon the informant recovered his daughter in an unconscious state at the place of occurrence. The victim, aged between 13 to 14 years and studying in Class VII, stated that three boys, including accused Basir, pushed her, dragged her inside the jungle, removed her clothes, and committed rape one by one while holding her hands and legs and gagging her.
A fourth person was present at the scene but did not do anything against the victim. The police registered the case under section 6 of the POCSO Act, 2012, and the Trial court convicted the appellants under section 376 D IPC read with Section 6 of the POCSO Act 2012, sentencing them to imprisonment for the remainder of their natural life.
Appearances:
Advocates A. Ahmed and N. Mahajan, for the Appellants
Senior Advocate A. Begum, Additional Public Prosecutor, Assam and Advocates J. Saikia and S. Sharma, for the Respondents
