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GAHC010146872024

2026:GAU-AS:1051-DB

THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : Crl.A./259/2024

RANJAN DEKA

S/O LATE BIPIN DEKA, R/O DOLONGDIA, P.S.- GARESWAR, DIST.- BAKSA

(BTAD).

VERSUS

THE STATE OF ASSAM AND ANR.

REP. BY THE P.P., ASSAM.

2:DIPAK BARMAN

S/O DHARMESWAR BARMAN

R/O BORAGAON

GANDHIPARA

P.S.- GARCHUK

DIST.- KAMRUP METRO

ASSAM

Advocate for the appellant : Mr. B.M. Deka, Advocate.

Advocate for the respondent : Ms. A. Begum, Addl. P.P., Assam.

BEFORE

HON’BLE MR. JUSTICE MICHAEL ZOTHANKHUMA

HON’BLE MR. JUSTICE KAUSHIK GOSWAMI

Date on which judgment is reserved : 05.01.2026

Date of pronouncement of judgment : 30.01.2026

Whether the pronouncement is of the : No

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operative part of the judgment ?

Whether the full judgment has been : Yes

pronounced?

JUDGMENT & ORDER (CAV)

(M. Zothankhuma, J)

1. Heard Mr. B.M. Deka, learned counsel for the appellant. Also heard Ms.

A. Begum, learned Addl. P.P., Assam. No one appears for the respondent No.2,

though office note dated 18.03.2025 states that service report has been

received from the O/c of the Garchuk Police Station, West Guwahati, to the

effect that notice had been duly served on the respondent no.2.

2. This criminal appeal has been filed under Section 374(2) of the Cr.P.C.

against the impugned judgment and order dated 04.12.2023 (which has been

incorrectly mentioned as 04.11.2023), passed by the Court of the learned Addl.

Sessions Judge-cum-Special Judge(POCSO), Kamrup(M) in Sessions Case

No.300/2017, by which the appellant had been convicted under Section 4 of the

POCSO Act, 2012 and sentenced to undergo rigorous imprisonment for 25

years and to pay a fine of Rs.10,000/-, in default, to undergo simple

imprisonment for 3 months, for raping a 7 year old girl.

3. The learned counsel for the appellant submits that the evidence of the

victim (PW-2) does not state that the appellant’s private parts had been

inserted/penetrated the private parts of the victim. Further, there was no

evidence given by the victim that the appellant had manipulated any part of the

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body of the victim to cause penetration into the private parts of the victim. As

such, when there was no evidence given by the victim which could attract the

provisions of Section 3 of the POCSO Act, 2012, the learned Trial Court could

not have convicted the appellant for penetrative sexual assault under Section 4

of the POCSO Act. He submits that the evidence recorded by the learned Trial

Court could have, at best, resulted in the conviction of the appellant under

Section 10 of the POCSO Act, 2012, inasmuch as, the victim had testified to the

effect that the appellant lay on top of the victim. He submits that there was no

evidence to show that the appellant and the victim were naked at that time. As

the appellant had apparently raised an alarm, the appellant had fled from the

place of occurrence.

4. Ms. A. Begum, learned Addl. P.P., on the other hand, submits that

though the victim (PW-2) has not specifically testified in Court that the

appellant’s private parts had penetrated the private parts of the victim, the

medical evidence of PW-12 showed that there was redness present in the

hymen, besides redness and tenderness being present around the vaginal

opening.

5. The learned Addl. P.P submits that though the victim in her testimony

does not say that there was penetration or that the appellant or the victim were

naked, the victim in her statements given under Section 161 and 164 Cr.P.C had

stated that the private parts of the appellant had penetrated the private parts of

the victim. As such, the above clearly proved that there had been penetration of

the private parts of the victim by the appellant’s private parts. The learned Addl.

P.P also submits that the evidence of PW-3, who is the mother of the victim, is

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to the effect that the victim had told her (PW-3) that the appellant had opened

the panty of the victim and thereafter touched her private parts with his penis.

As such, all the above proved that there was penetration of the private parts of

the victim by the private parts of the appellant. There being no infirmity with

the decision of the learned Trial Court in convicting the appellant under Section

4 of the POCSO Act, the decision of the learned Trial Court should not be

interfered with.

6. We have heard the learned counsels for the parties.

7. The prosecution case in brief is that an FIR dated 03.03.2015 was

submitted by PW-1, who is the father of the victim, to the O/C of Garchuk Police

Station, stating that around noon on 01.03.2015, while the victim was playing

near the gateway of their house, the appellant, a tenant residing in the house of

his neighbour, Montu Sen, lured the victim away by showing her chips and

sweets. He then took her to his rented house and forcibly committed bad act on

her. On the victim informing her mother and their neighbours about the pain she

was experiencing in her private parts, they learnt about the incident. Pursuant

to the FIR dated 03.03.2015, Garchuk P.S. Case No.89/2015 under Section

376(i) IPC read with Section 4 of the POCSO Act was registered on 03.03.2015.

After investigation of the case, the Investigating Officer (PW-14) submitted a

charge-sheet, on finding a prima facie case under Section 4 of the POCSO Act

against the appellant.

8. The learned Trial Court thereafter framed charge under Section 4 of

the POCSO Act, 2012 against the appellant, without specifying the

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particular/applicable sub-section of Section 4 of the POCSO Act, to which the

appellant pleaded not guilty and claimed to be tried. Section 4 of the POCSO

Act, 2012 states as follows :-

“4. Punishment for penetrative sexual assault.(1) Whoever commits

penetrative sexual assault shall be punished with imprisonment of either

description for a term which shall not be less than [ten years] but which

may extend to imprisonment for life, and shall also be liable to fine.

(2) Whoever commits penetrative sexual assault on a child below sixteen

years of age shall be punished with imprisonment for a term which shall

not be less than twenty years, but which may extend to imprisonment for

life, which shall mean imprisonment for the remainder of natural life of

that person, and shall also be liable to fine.

(3) The fine imposed under sub-section (1) shall be just and reasonable

and paid to the victim to meet the medical expenses and rehabilitation of

such victim.”

9. The learned Trial Court thereafter examined 14 prosecution

witnesses. The appellant was also examined under Section 313 Cr.P.C, in which

he denied the evidence adduced against him, besides stating that he did not

want to adduce any evidence. The learned Trial Court thereafter, vide the

impugned judgment dated 04.12.2023, came to a finding that the appellant was

guilty of having committed an offence under Section 4 of the POCSO Act, 2012

and convicted him accordingly. The learned Trial Court came to a finding that

the medical examination report and the fact that the evidence of the victim was

to the effect that the appellant had lain over the victim, and though the memory

of the occurrence may not be intact added with question of shyness of the

victim girl, all attract the provision of section 4 of the POCSO Act.

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10. However, in the evidence adduced by the victim, there is no mention of

the appellant’s penis touching or penetrating or being inserted into the private

parts of the victim. There is also nothing stated in the testimony of the victim to

the effect that the appellant had kissed the victim’s cheeks, lips or her private

parts.

11. The evidence adduced by PW-2 in the learned Trial Court, is as

follows :-

“The occurrence took place about three years ago. I was a student of

Class-III. It took place in the day time. My mother and my parents went

to our price hotel in the morning. They used to go there every day in the

morning and they used to come back some times at 5 P.M. and some

times at 6 P.M. I know the accused person. On the day of occurrence, I

was alone in the house and was playing with my friend Sangita

Rajbongshi. Her father's name is Bipul Rajbongshi. The accused person

was residing in a rented house near our house and did not know his good

name. But he was being called in the neighbourhood as Bharti He is

present today in the court and sitting in the chair. While I was playing

with my friends, the accused person came there and called me to his

house. He told me that he would give me chocolate. Accordingly I went

to his rented house. After taking me to his room, the accused person took

me to his bed and thereafter got over me. I asked him not to do that, but

he did not hear me. I could not remember what had happened thereafter.

(The witness started to weep). I raised alarm and then the accused

person fied away immediately. I also came out from the room. There is a

Public Health Sub-Center. I rushed there and Informed a lady in said Sub-

Center. The lady asked me about the Incident and I reported her about

the incident. Then she examined me and thereafter informed my mother

to come to the house. Getting the Information, my mother immediately

came and took me to Garchuk P.S. The lady of the Public Health Sub-

Center also accompanied us to the Police Station. I forgot what happened

thereafter. After the incident, I developed illness. I suddenly fell down and

became unconscious. I am under regular treatment. Every week I have to

take medicine.

X X X

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One lady asked me about the incident at the police station. The accused

person used to offer me chocolate. Previously also I took chocolate from

him. He used to like me as sister. I never entered into his room before. I

do not know whether the accused person takes meal at the hotel of my

father. I do not know whether he has got any debt towards my father. It

is not a fact that no such incident had taken place, as deposed by me. It

is also not a fact that the accused person did not call me to his room on

the pretext of giving me chocolate. It is also not a fact that he did not get

over my body. It is not a fact that I did not state at the Police Station all

the facts as stated by me today before the court. It is not a fact that the

illness, as reported by me today, is from my childhood. It is not a fact that

I am deposing before this court on being tutored by my parents. It is not

a fact that my father filed the case against the accused falsely. It is not a

fact that I have no illness of unconscious and falling down. It is not a fact

that I received injury on my private part while playing with my friends.”

12. On the other hand, the statement of the victim under Section 161

Cr.P.C which had been recorded on 03.03.2015, is to the effect that the

appellant had removed her panty and thereafter, he pressed his penis into her

private parts and touched it. The appellant further kissed her cheeks, lips and

vagina. However, it is settled law that statements made under Section 161 Cr.P.C

are not admissible in evidence.

13. In her statement under Section 164 Cr.P.C, the victim had stated that

the appellant had removed her panty, kissed her and pressed her, besides

touching her chest and thereafter he inserted his penis into her vagina. She

experienced pain and it hurt her while urinating for a few days.

14. Though the statements of the victim under Section 161 Cr.P.C. and 164

Cr.P.C specifically states that there was penetration of her private parts by the

penis of the appellant, no such statement had been made during her testimony

before the learned Trial Court. Further, as stated earlier, there is no evidence

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given by the victim in her testimony before the Court that the appellant had

kissed her cheeks, lips and vagina.

15. The evidence of the mother of the victim (PW-3), is to the effect that

she was told by the victim that the appellant had opened the panty of the victim

and touched the victim’s private parts with his penis. Here too, there is nothing

to show that there was any penetration of the victim’s private parts by the

private parts of the appellant, though it can be speculated that there was

penetration. However, speculation is not tantamount to proof. In our view, the

touching of the victim’s private parts by the appellant’s private parts, without

penetration, cannot attract the provisions of Section 3 of the POCSO Act, 2012,

which states as follows:-

“3. Penetrative sexual assault.- A person is said to commit “penetrative

sexual assault” if—

(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra

or anus of a child or makes the child to do so with him or any other

person; or

(b) he inserts, to any extent, any object or a part of the body, not being

the penis, into the vagina, the urethra or anus of the child or makes the

child to do so with him or any other person; or

(c) he manipulates any part of the body of the child so as to cause

penetration into the vagina, urethra, anus or any part of body of the child

or makes the child to do so with him or any other person; or

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(d) he applies his mouth to the penis, vagina, anus, urethra of the child or

makes the child to do so to such person or any other person.”

16. Though there was manipulation on the body of the victim, due to the

appellant lying on the top of the body of the victim, there is no evidence to

prove that there was any intention to cause penetration into the vagina,

urethra, anus or any part of the body of the victim. Though it may be assumed

that their private parts were exposed at the relevant point of time, assumption

or suspicion cannot take the place of proof, as it is settled law that the guilt of

an accused has to be proved beyond any reasonable doubt. The evidence of the

victim does not show that the appellant or the victim were in an undressed

state at the time the appellant lay over the victim on his bed. Though the

medical evidence is the effect that there was redness around the private parts

of the victim, redness alone cannot be proof, for coming to a finding that there

was any penetration of the victim’s private parts. The redness could be due to

rubbing also. Further, we have to keep in mind the fact that while the incident

occurred on 01.03.2015, the medical examination was done on 04.03.2015.

17. In the case of R. Shaji Vs. State of Kerala, reported in (2013) 14

SCC 266, the Supreme Court has held that statements under Section 164

Cr.P.C can only be used for corroborating or contradicting the testimony of a

witnesses. In the above case of R. Shaji (supra), the Supreme Court had also

held that a statement under Section 161 Cr.P.C is not admissible in evidence

and can only be used for contradicting the testimony of a witness.

18. The facts of this case, on the other hand, goes to show that while a

picture of penetrative sexual assault had been made out in the victim’s

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statements under Sections 161 and 164 Cr.P.C, her testimony before the learned

Trial Court does not, in any manner, attract Section 3 of the POCSO Act, i.e, a

case of penetrative sexual assault has not been made out in her testimony.

19. The extract of the medical examination report dated 04/03/2015 of the

victim, pertaining to the redness on her private parts and opinion of the Doctor,

besides the cross-examination, is reproduced below as follows:-

“17. Genital Examination-

(A) Genital organs- Healthy, well developed.

(B) Vulva- Labia majora and labia minora well appeared on abducing the

thighs.

(C) Hymen- Circular with redness present.

(D) Vagina- Healthy.

(E) Cervix-Not visible.

(F) Uterus- Not palpable per abdomen.

(G) Evidence of venereal disease- Not detected at time of examination.

(H) Vaginal swabs collected from- Around the vaginal opening.

18. Injury on the body- Redness and tenderness is present around the

vaginal opening.

26. Opinion: on the basis of physical examination and laboratory

investigations done on victim girl. I am of the opinion that :

1. Her age is above 6 years and below 8 years.

2. There is no evidence of recent sexual intercourse on her person

however, there is redness and tenderness around the vaginal opening

which has been described in page 2 column 17 C and column 18.

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3. Marks of injury on her person have been described in page 2 column

and 17 C and column 18.

P. exhibit 3 is my medical examination report and P. exhibit 3(1) is my

signature.

Xxxx Cross examination xxxxxxx

The incident took place on 01.03.2015 and the victim girl was examined

on 04.03.2015.

It is not a fact that the injuries mentioned in point no. 17 are sustained

due to falling of her on any substance.

The injuries that are mentioned in point No. 17 are due to attempted

sexual act.”

20. Though the Doctor has opined that the redness on the hymen was due

to an attempted sexual act, we have to bear in mind that the Doctor’s opinion is

only advisory in nature. It may be accepted by a Court. However, on

considering the testimony of the victim in the learned Trial Court, we cannot say

that the opinion of the Doctor proved that penetration had occurred.

21. The failure on the part of the learned Trial Court to specify the precise

sub-section of Section 4 of the POCSO Act, while framing charge against the

appellant, would not invalidate a conviction unless the error or omission in the

charge actually misled the accused and led to a failure of justice. In the present

case, though the learned Trial Court failed to specify the precise charge framed

against the appellant, the evidence recorded by the learned Trial Court would

go to show that Section 4 of the POCSO Act is not attracted.

22. For the reasons stated above the impugned judgment and order dated

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04.12.2023 is not sustainable and is accordingly set aside.

23. The other question that has to be decided is with regard to whether

the appellant can be can be said to have committed the offence under Section

9(m) of the POCSO Act, 2012, which states that sexual assault on a child below

12 years would amount to aggravated sexual assault, thereby being liable for

conviction under Section 10 of the POCSO Act, 2012.

24. Section 7 and 9(m) of the POCSO Act, 2012 states as follows:-

“7. Sexual assault.- Whoever, with sexual intent touches the vagina, penis,

anus or breast of the child or makes the child touch the vagina, penis,

anus or breast of such person or any other person, or does any other act

with sexual intent which involves physical contact without penetration is

said to commit sexual assault.”

“9. Aggravated sexual assault.—

…………………… ..

…………………… ..

(m) whoever commits sexual assault on a child below twelve years; or”

is said to commit aggravated sexual assault.

25. The evidence of PW-2(victim) is to the effect that while playing with

her friends, the appellant had called her to his place, stating that he would give

her chocolate. On going to his house, the appellant took her to his room and

put her on the bed and thereafter got on top of her. The victim asked him not

to do that, but he did not listen. The victim could not remember what had

happened thereafter (the witness started weeping). When the victim raised an

alarm, the appellant fled away and the victim came out from the room.

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Thereafter, the victim rushed to the Public Health Sub-Center. The lady in the

Public Health Sub-Center asked her about the incident and she reported the

incident to her. The lady then examined the victim and informed the victim’s

mother to come to the house. On getting the information, the victim’s mother

immediately came and took the victim to Garchuk P.S. The lady of the Public

Health Sub-Center also accompanied them to the police station. After the

incident, the victim developed illness and suddenly fell down and became

unconscious. She was under regular treatment and every week she had to take

medicine.

26. There is a gap in the evidence of PW-2, inasmuch as, she had rushed

out from the room/place of occurrence to the Public Health Sub-Center, wherein

she told a lady therein about the incident. On being examined by the lady of

the Public Health Sub-Center, her mother was informed. Thereafter, the mother

arrived and they went to the Garchuk Police Station. The evidence of the victim

suggest that the incident and the reporting of the incident to the Police,

happened on the same day. However, the chain of events suggest otherwise.

The incident occurred on 01.03.2015 and the FIR being filed on 03.03.2015,

there appear to be holes in the chain of events which has not been explained,

inasmuch as, there is a gap between the happening of the incident and the

filing of the FIR. PW-1 in his evidence had also stated as follows:-

“The occurrence took place in 2014/2015. On the date of occurrence, I

myself and my wife were in our Hotel situated at Paschim Boragaon. My

daughter Sushmita Barman was alone in the house. At about 1:00pm one

Bihari boy, who was residing near our house as tenant, came to my Hotel

in his cycle and told me that something had happened to my daughter

and asked me to go to the house immediately. He saw my daughter

crying at our doorstep. Then immediately we closed the hotel and rushed

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to our house. A medical sub-center is there near our house and the

nurses working there called my wife at the sub-center. They reported my

wife everything and asked her to go to the Police Station. Then my wife

told me to rush to the Police Station. I along with my wife went to

Gorchuk PS. We took our daughter with us. At the Police Station I lodged

FIR against Ranjan Deka. My wife told me what she had heard at the

medical center and I wrote the FIR in my own handwriting. Ext. 1 is my

FIR and Ext. 1(1) is my signature with my address and phone number.

Ext. 2 is the printed copy of the FIR and Ext. 2(1) is my signature. My

daughter told me that the accused person offered her chocolate and

thereafter committed rape on her. After filing of the case Police took her

to GMCH and she was examined by the doctor. Her statement was also

recorded in the court. After 3/4 days of the occurrence, once she

suddenly fell down on the floor and received head injury. I arranged for

her treatment, but till now, she gets unconscious time to time. Her

treatment is going on. I have a monthly income of about Rs.15000/-(net).

I spent about Rs.1,30,000/- for the treatment of my daughter till date

and she requires medicine worth Rs.750 per week. I did not get any

compensation either the legal service authority or from anyone.

X X X X

I narrated the incident in my FIR, on being stated by my wife. I

personally did not ask my daughter, as my wife asked her. The accused

person never visits my Hotel. He also does not go to my house. I have no

connection with him. It is not a fact that I developed enmity with the

accused person for non payment of his bills after having meal in my

Hotel. It is not a fact that my daughter had problem since before the

incident. It is not a fact that as I had previous enmity with the accused,

implicated him falsely in this case. I went to the Police Stalon about

3:30/4:00pm. Police took her to the GMCH on the next day. It is not a

fact that no such occurrence, as reported by me had taken place with my

daughter, I do not know whether at the medical sub-center, any entry

was given by the nurses. One Ashakarmi accompanied us to the Police

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Station. It is not a fact that I did not visit the medical sub center, nor any

Ashakarmi accompanied me. It is not a fact that the present illness of my

daughter has no relationship with the alleged incident. It is not a fact that

the case has been lodged by me falsely.”

27. In his cross-examination, PW-1 had denied the suggestion that he had

developed enmity with the appellant for nonpayment of his bills after having

meals in his hotel.

28. The evidence of PW-3 is as follows :-

“We have a price hotel at Artfed, Boragaon. Victim Susmita is our

daughter. We used to go out in the morning to our price hotel, leaving

our daughter in the house. She also used to go to school. The incident

took place about four years ago. On the day of occurrence also, I myself

and my husband went to our price hotel. My daughter was in the house.

Around 2.00 P.M. 2.30 P.M., one person of Bihari community went to my

price hotel and told me that something had happened in our house and

my daughter was crying. He asked me to rush to the house immediately.

There were seven customers in my price hotel and I was giving meal to

them. But hearing the person of the Bihari community, I rushed to my

house. I found my daughter in the Medical Sub-Center. The nurse was

present at the Sub-Center and she told me that she had checked my

daughter and had seen her private part and found redness there. She told

me that this was a case of police and asked me to go to the police

station. Then I went to the police station. The nurse also accompanied

me. My daughter was also with me. The nurse reported the incident to

police. Police immediately came to our house, but did not find the

accused person. He had already fled away. Police took her to Medial

College for her examination. I forgot whether on the same day or on the

next day, she was taken to the Medical College. Police also brought my

daughter to the court for recording her statement. In the court also, one

lady Magistrate recorded the statement of my daughter. I did not ask my

daughter on that day, but at night I asked her about the incident and

then she told me that the accused person opened the panty and

thereafter touched his penis to her private part. My daughter also told me

that it was washed by cloth On the next day also one lady police officer

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asked my daughter whether there was anything after the occurrence at

her private part and she told that there was wet substance and it was

removed with a cloth. The police officer took the cloth with her.

After the incident, my daughter has become permanently ill. Often she

fell down and got unconscious. Sometimes when she remains alone, she

starts to cry. Treatment of my daughter is going on from then.

X X X

Police asked me about the incident. I could not remember the time, when

I was asked by police. It is not a fact that the accused person used to

take meal in our price hotel. I do not know him. I do not know the name

of the person from the Bihari community, who had informed me first. He

used to take rice in my price hotel. I met my daughter at Sub-Center first

after the incident. I do not know who took her to the Sub-Center. On the

night of occurrence itself, I asked her about the incident. It is not a fact

that my daughter told me that the accused person opened the panty and

thereafter touched his penis to her private part. I could not remember

whether I stated the same before police. It is not a fact that I deposed

falsely before the court that my daughter reported me that the accused

person opened her panty and thereafter touched his penis to her private

part. It is not a fact that no such incident had taken place, as deposed by

me. It is not a fact that my daughter received injury at her private part

while playing with her friends.”

29. We are of the view that as there was a time gap of more than 3½ years

between the date of the incident, filing of the FIR and the recording of the

evidence of PW-1, minor discrepancies can arise at the time of adducing

evidence. The same can be ignored, as per the law laid down by the Hon’ble

Supreme Court, as they do not go to the root of the matter. We are of the view

that the minor contradictions with regard to the actual date of filing of the FIR

and the actual sequence of events in this case do not take away the fact that

the appellant had committed aggravated sexual assault on the victim. This is

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due to the fact that the victim in her evidence had clearly stated that the

appellant had laid himself on top of her. This action on the part of the appellant,

in our view, amounts to doing an act with sexual intent without penetration in

terms of Section 7 of the POCSO Act, 2012.

30. Thus, while we are of the view that Section 3 of the POCSO Act, 2012 is

not attracted to the facts of this case; the appellant has committed the offence

of sexual assault on the victim, who was 7 years old. Accordingly, in terms of

Section 9(m) of the POCSO Act, the appellant is liable to be convicted and

sentenced under Section 10 of the POCSO Act. The charge under Section 4 of

the POCSO Act is accordingly altered to Section 10 of the POCSO Act as per

Section 216 Cr.P.C.

31. Section 216 and 217 of the Cr.P.C states as follows:

“216. Court may alter charge. - (1) Any Court may alter or add to any

charge at any time before judgment is pronounced.

(2) Every such alteration or addition shall be read and explained to the

accused.

(3) If the alteration or addition to a charge is such that proceeding

immediately with the trial is not likely, in the opinion of the Court, to

prejudice the accused in his defence or the prosecutor in the conduct of

the case, the Court may, in its discretion, after such alteration or addition

has been made, proceed with the trial as if the altered or added charge

had been the original charge.

(4) If the alteration or addition is such that proceeding immediately with

the trial is likely, in the opinion of the Court, to prejudice the accused or

the prosecutor as aforesaid, the Court may either direct a new trial or

adjourn the trial for such period as may be necessary.

(5) If the offence stated in the altered or added charge is one for the

prosecution of which previous sanction is necessary, the case shall not be

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proceeded with until such sanction is obtained, unless sanction has been

already obtained for a prosecution on the same facts as those on which

the altered or added charge is founded.

217. Recall of witnesses when charge altered.- Whenever a charge

is altered or added to by the Court after the commencement of the trial,

the prosecutor and the accused shall be allowed-

(a) to recall or re-summon, and examine with reference to such alteration

or addition, any witness who may have been examined, unless the Court,

for reasons to be recorded in writing, considers that the prosecutor or the

accused, as the case may be, desires to recall or re-examine such witness

for the purpose of vexation or delay or for defeating the ends of justice;

(b) also to call any further witness whom the Court may think to be

material.”

32. Keeping in view Section 216(3) Cr.PC., we are of the view that the

alteration of the charge from Section 4 of the POCSO Act, 2012 to Section 10

does not cause any prejudice to the accused in his defence or the prosecution

in the conduct of the case, as the said Section 10 is a less serious charge than

Section 4. However, Section 217 of the Cr.P.C. provides that whenever a charge

is altered or added to by the court after the commencement of the trial, the

prosecutor and the accused shall be allowed to recall or re-summon any witness

with regard to alteration or addition of the charge or call any further witness

whom the court may think to be material. In the case of Madhusudan & Ors.

Vs. The State of Madhya Pradesh in Criminal Appeal No. 1509/2010,

the Supreme Court has held that a court may alter or add any charge before

judgment is pronounced but when charges are altered, opportunity must be

given under Section 217 of the Cr.P.C, both to the prosecution and the defence

to re-call or re-examine witnesses in references to such altered charges more

importantly, in case, charges are altered by the court and reasons for the same

are recorded.

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33. On asking the learned counsel for the appellant and the learned

Additional Public Prosecutor as to whether they would like to recall or re-

examine witnesses in reference to the alteration of charge to Section 10 of the

POCSO Act, 2012, they submit that they do not want to recall or re-examine

any witness, whose evidence has been adduced during trial.

34. In view of the reasons stated above, we convict the appellant for having

committed aggravated sexual assault on the victim under Section 9(m) of the

POCSO Act.

35. On hearing the question of sentence to be awarded to the appellant,

keeping in view that the minimum sentence under Section 10 is 5 years, up-to a

maximum of 7 years, the learned counsel for the appellant submits that the

appellant’s wife is living alone as their only son has abandoned them. He

accordingly prays that only the minimum sentence should be awarded to the

appellant. On the other hand, learned Addl. PP prays that the maximum

sentence should be awarded to the appellant.

36. On considering the submissions of the learned counsels for the parties,

we are of the view that justice would be served, if the appellant is sentenced to

undergo Rigorous Imprisonment for 6 years. We accordingly sentence the

appellant to undergo Rigorous Imprisonment for 6 (six) years with fine of Rs.

10,000/-, in default, Simple Imprisonment for 3 (three) months.

37. The impugned conviction and sentence imposed upon the appellant, vide

the impugned judgment & order dated 04.12.2023 passed in Sessions Case No.

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300/2017 by the learned Addl. Sessions Judge-cum-Special Judge (POCSO),

Kamrup (M), is hereby modified to the extent indicated above.

38. The appeal is accordingly disposed of.

39. Send back the LCR.

JUDGE JUDGE

Comparing Assistant