TRHC010003902025

2026:THC:890-DB

HIGH COURT OF TRIPURA

AGARTALA

CRL A (J) 20 OF 2025

Sri Amar Noatia,

S/o Padma Hari Noatia,

Resident of village-Nidaya,

P.S. Jatanpur, District-Gomati Tripura.

….Convict-Appellant.

Versus

The State of Tripura

….Respondent.

Present:

For the Appellant

:

Mr. Ratan Datta, Advocate.

Mr. A.Baidya, Advocate.

Ms. D. Debroy, Advocate.

Mr. A. Dey, Advocate.

For the Respondent

Date of hearing

Date of delivery of

judgment & Order

Whether fit for reporting

:

:

:

:

Mr. Raju Datta, P.P.

07.07.2026

14.07.2026

Yes No



HON’BLE JUSTICE DR. T. AMARNATH GOUD

HON’BLE MR.JUSTICE S. DATTA PURKAYASTHA

JUDGMENT & ORDER

[ Dr. T.Amarnath Goud, j]

This criminal appeal under Section 374 of CrPC is directed

against the judgment and order of conviction and sentence dated

06.02.2025, passed by learned Special Judge (POCSO), Gomati District,

Udaipur, in Special (POCSO) 04 of 2022, where-under learned Special

Judge found the accused-appellant guilty of committing offences under

Sections 363/376AB of IPC and under Section 6 of the POCSO Act and

sentenced him in the following manner:

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(i) Rigorous Imprisonment for 03 years and to pay a fine

of Rs.1,000/- (rupees one thousand) for commission of offence

punishable under Section 363 of IPC and in default of payment

of fine, he shall suffer further Rigorous Imprisonment for six

months.

(ii) Rigorous Imprisonment for 20 years and to pay a fine

of Rs.5,000/- (rupees five thousand) for commission of offence

punishable under Section 376AB of IPC and in default of

payment of fine, he shall suffer further Rigorous Imprisonment

for one year.

(iii) Rigorous Imprisonment for 20 years and to pay a fine

of Rs.5,000/- (rupees five thousand) for commission of offence

punishable under Section 6 of the POCSO Act and in default of

payment of fine, he shall suffer further Rigorous imprisonment

for one year.

All the sentences imposed upon the convict shall run

concurrently.

2. The facts of the case as emanated from the record may be

summarized thus:

On 02.01.2022, one Chaitra Kumar Debbarma lodged a written

complaint with the O.C., Kakraban Police Station alleging that on 21.12.2021

his minor daughter went to her maternal uncle’s house of the same locality

and at around 10 pm at night accused Amar Noatia deceitfully took his minor

daughter, the victim herein, to his house. On the following day, when the

wife of the informant searched for the victim, he came to know that the said

accused had taken her away forcefully after calling her and accordingly, the

said informant was registered as Kakraban P.S. Case No.2022/KKB/01.

Subsequently, the police recovered the victim along with the accused-

appellant and handed over the victim to the informant.

3. Based on the said FIR, police investigated the case and

submitted the charge sheet against the accused-appellant under Sections

363/376AB of IPC and Section 6 of the POCSO Act. Charges were also

framed under the aforesaid Sections to which he pleaded not guilty and

claimed to be tried. Charges as framed by the learned trial Court is

reproduced here-in-below for convenience:

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“CHARGE

I, Sri A. Paul, Special Judge, Gomati Tripura, Udaipur, do

hereby charge you:-

Sri Amar Noatia

As follows:-

Firstly: That, you on 21.12.2021 at about 10 P/M to 11

P.M. at Jagatrampur sadhu para, under P.S. Jatrapur, Dist-

Sepahijala kidnapped the victim girl a minor age of 11 years

from the lawful guardianship of her parents and you thereby

committed an offence punishable Under Section 363 of I.P.C.

and within cognizance of this court.

Secondly: That you in between 21.12.2021 to 03.01.2022

at Samukchara under P.S. Kakraban and subsequently on

different places in Tripura committed rape upon the victim girl

(Age about-11 years) and you thereby committed an offence

punishable Under Section-376(AB) of I.P.C. and within my

cognizane.

Thirdly: That on the same date, time and place you

committed aggravated penetrative sexual assault upon the

victim girl (Ages about 11 years) and you thereby committed

an offence punishable Under Section 6 of the protection of

children from sexual offence Act,2012 and within my

cognizance.

And, I hereby direct that you be tried on the said charges

by this court.”

4. In course of trial, the prosecution examined total 21 nos. of

witnesses and after closure of prosecution evidence the accused-appellant

was examined under Section 313 CrpC to which he denied the allegations

brought against him by all the witnesses, and also declined to adduce any

defence witness.

5. Learned trial Court after considering the materials as placed in

the evidence held him guilty and finally convicted and sentenced him in the

terms as stated here-in-above.

6. Having felt aggrieved and dissatisfied with the impugned

judgment and order of conviction and sentence, the accused has preferred

this appeal.

7. Learned counsel, Mr. Ratan Datta for the appellant firstly raises

the issue that there was 13 days delay in lodging the FIR. He submits that

the incident occurred on 21.12.2021 but the FIR was lodged on 02.01.2022.

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According to Mr. Datta, learned counsel, there is serious contradiction in

between the FIR, 164 statements and the depositions of the prosecution

witnesses. He draws attention of the Court to the FIR that there is nowhere a

single whisper of rape, sexual assault or any physical relationship between

the alleged victim and the convict-appellant. The story of rape has been

subsequently developed by the alleged victim as tutored by the investigating

agency. In respect of medical examination of the victim, learned counsel

submits that there is material inconsistency in the report that she was never

subjected to question as time and place of rape, etc. though there was no

allegation of rape in the FIR. He emphasized his submission on the seizure

list dated 02.01.2022 stating that blood and swab sample of the victim was

collected at 21:00 hours i.e. 9:00 pm but the same were sent for forensic

examination on 17.01.2022 which is according to him a serious infirmity

because the possibility of tampering cannot be ruled out and thus missing

link also weakens the prosecution case. His plea is that how that sample has

been kept and where that has been preserved, no explanation is there.

8. Learned counsel, Mr. Datta strongly argues that the age of the

victim has not been proved in this case. There is no birth certificate or other

age proof or even, no ossification test has also been conducted. The alleged

school certificate of the victim [Exhibit-7] was issued on 21.02.2022 but the

same was seized on 18.01.2022 i.e. prior to the issuance of the said school

certificate. According to him, the very existence of the school certificate is

doubtful. Learned counsel further re-iterated that PW 7 and PW 18 are the

issuing authority and seizure witness respectively who categorically stated

that they cannot say the basis for recording the date of birth of the victim in

the said certificate.

9. Mr. Datta, learned counsel further submits that there is nothing

incriminating materials comes out from the DNA test report and accordingly,

the said DNA test report did not support the prosecution case. He

unequivocally argues that as per the medical examination report of the victim

in column no.16 regarding past history with regard to sexual experience,

vaginal discharge, venereal diseases, pregnancies & pelvic operations etc.,

it gives a significant history from the victim and the entry was made ‘multiple

times’ in that column.

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10. It is also submitted by learned counsel that the convict appellant

is a relative of the alleged victim and he is now peacefully residing with his

wife and two sons respectively. On the other hand, the victim is also married

and at present she is leading her life peacefully with her husband and one

child. He, therefore, prays for setting aside the impugned judgment and

order of the learned trial Court in view of the inconsistencies and defect in

the prosecution case.

11. In support of his submission, learned counsel, Mr. Datta relies

on the following decisions:

i. 2026 SCC OnLine SC 664, Debraj Dutta vs. State of West

Bengal & Anr.;

ii. AIR 1995 SC 2169, Shyam and Anr. vs. State of

Maharastra;

iii. Criminal Appeal (J) 29 of 2024, Babul Das vs. State of

Tripura;

iv. (1996) 11 SCC 685, Sahib Singh vs. State of Punjab;

v. 2025 SCC OnLine SC 78, State (GNCT of Delhi) vs. Vipin

alias Lalla;

vi. 2023 LiveLaw (SC) 538, P. Yvaprakash vs. State, Rep. by

Inspector of Police;

vii. 2023 INSC 959, Manak Chand @ Mani vs. The State of

Haryana;

viii. Criminal Appeal (J) 56 of 2024, Sri Rajib Karmakar vs. the

State of Tripura;

ix. [2023] 14 S.C.R.959, Indrakunwar vs. the State of

Chhattisgarh;

x. (2014) 5 SCC 509, Dharam Deo Yadav vs. State of Uttar

Pradesh;

xi. AIR 2013 SC 3150, Raj Kumar Singh alias Raju alias Batya

vs. State of Rajasthan;

12. Learned P.P., Mr. Raju Datta on the other hand at the very

outset vehemently contends that the victim was 11 years of old at the time of

her abduction by the accused and thereafter the accused -appellant

committed rape upon her several times on several places. Learned P.P.

further contends that though at the first instance in the FIR the informant did

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not allege about rape but the victim stated about the lascivious behaviour of

the accused in her subsequent statement recorded by the Magistrate and in

her deposition as well that the accused-appellant committed rape on her

several times. Therefore, according to learned P.P. there is no contradiction

in the statement of the victim in respect of rape by the accused-appellant

upon her. He argues that the victim clearly stated in her deposition that the

accused had committed sexual intercourse with her for eleven times without

her consent and the accused-appellant gagged her mouth with a gamcha so

that she could not raise any alarm. There was nothing incriminating

materials in the cross-examination dealt with by the defence.

13. Regarding the minor age of the victim, learned P.P. relies on the

sole testimony of the parents of the victim i.e. PWs 2 and 3 who categorically

stated about the minor age of the victim at the relevant date and time of the

occurrence. He pointed out that there is even no suggestion in the cross-

examination of PW-7, the Headmaster concerned that at the time of incident

her age was not 11 or 12 years or she is more than 18 years old.

14. Learned P.P. regarding the medical evidence argues that PW-

13, the medical officer clearly in her final report opined that her hymen was

ruptured and the swab analysis report was positive for spermatozoa which

suggest that there was sexual intercourse. He strongly submits that in the

cross-examination of the medical witness, the defence could not make out

any substantive piece of evidence in their favour but completely declined the

cross-examination. His contention is that it is not necessary that in each and

every case where rape is alleged there has to be an injury to the private

parts of the victim and such injuries on the private parts of the victim are not

always fatal to the case of the prosecution. According to him, in such cases

solitary testimony of the prosecutrix would be sufficient to base the

conviction and no such corroboration is required unless there are compelling

reasons which necessitate the Court to insist for corroboration of the

statement of the victim.

15. Learned P.P. also argues that the victim was under the age of

12 years and certainly the charge as framed under POCSO Act, has been

well proved against him as the said Act does not permit him to commit any

sexual offence upon a minor girl.

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16. Further, learned P.P. argues that learned trial Judge placed

implicit reliance on the statement of the victim as well as her parents and

arrived at a conclusion of guilt of the accused and since there is evidence on

record in support of coming to the conclusion of guilt, such finding of the trial

Court may not be disturbed in appeal. Accordingly, he prays for upholding

the judgment and order of conviction and sentence passed by the learned

trial Court.

17. In support of his submissions, learned P.P. placed reliance upon

the following judgments:

i. 2025 SCC OnLine SC 1610, Deepak Kumar Sahu vs. State

of Chattisgarh;

ii. 2023 SCC OnLine Sc 1396, Birbal Nath vs. State of

Rajasthan & Ors.;

iii. (2021) 3 SCC 12, Anversinh alias Kiransinh Fatesinh Zala

vs. State of Gujarat;

iv. (1981) 1 SCC 560, Harpal Singh & Anr. vs. State of

Himachal Pradesh;

v. (2018) 17 SCC 658, State of Madhya Pradesh vs. Preetam;

18. To assess the contentions of the parties, let us go through the

evidence of the vital witnesses first.

19. PW-1, victim of the case deposed that at about 8 months back

from the date of her deposition, one day she went to her maternal uncle’s

place/house along with her elder brother. She had a dinner on that night and

after dinner when she went on nature’s call, accused Amar Noatia suddenly

gagged her mouth with a gamcha and took her to the nearby Monai Pathar

school boarding on a bike and thereafter he forcibly removed all her clothes

and committed sexual intercourse. She again stated that the accused

committed repeated sexual intercourse in different places on different times

without her consent. Thereafter she was rescued by police from the clutches

of the accused and handed over her to her parents.

In cross-examination, the defence took no incriminating

materials except some denial.

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20. PW-2, the father, i.e. the informant stated that on 21.12.2021 his

daughter, i.e. the victim herein went to his father-in-law’s house along with

her brother Ranabir Debbarma and the son of the accused. But, on the next

day his daughter went missing. He also heard that accused Amar Noatia

was also missing. He went to the house of Amar Noatia and could gather

information from his parents that Amar came there with a girl. But he could

not contact with them and subsequently he lodged a missing diary at

Jatrapur P.S. The informant further stated that after about 12 days, i.e. on

02.01.2022 police recovered his daughter and when she was asked as to

what happened with her, she told them that when she went on nature’s call

in the house of her maternal grandfather said Amar Noatia suddenly gagged

her mouth with a gamcha and took her to the nearby Monai Pathar School

and there he forcibly raped her. PW-2 further stated that the victim told him

that the accused committed rape at various places in different times without

her consent. PW-2 also stated that he signed in the consent form bearing

medical examination of his daughter and he identified his signature in the

consent form which was marked as Exbt.P5.

In cross-examination, defence took an admission that PW-2 did

not state to police that Amar Noatia was also missing, the parents of Amar

also admitted that he came there with a girl, he could not contact with Amar

on 24.12.2021 and accordingly he lodged the missing diary at Jatrapur P.S.

Nothing more could be elicited from the cross-examination by the defence.

21. PW-3, the mother of the victim deposed in the same tune of

PW-2 and in cross-examination, defence only put some suggestions.

22. PW-4, being the grandfather deposed that the victim came to

their house about nine months back from the date of his deposition and she

went missing on the next morning and subsequently he learnt that she was

kidnapped by Amar Noatia. PW-5 being an uncle of the victim also stated

likewise PW-4 that the victim was missing from the house of her grandfather

and later he learnt that she was kidnapped by Amar Noatia and took her at

many places. She was recovered after 12 days by the police.

23. PW-6, an aunt of the victim also stated in the same tune of

PWs-4 and 5.

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24. PW 7, the Headmaster of the school of the victim in his

deposition stated that on requisition of police he issued the school certificate

in the name of the victim where the date of birth was given as 26.02.2010

basing on the school admission register.

In cross-examination, PW 7 stated that there is no mention in

the admission register on the basis of which document the date of birth was

recorded.

25. PW-8, a neighbour of the grandfather of the victim stated that

the victim was missing about nine months back from the date of his

deposition and subsequently she was recovered by the police after 12 days

of the incident and on being asked by him, the victim told him that she was

taken to various places by Amar where she was raped.

26. PW-9 also stated similar statement made by PW-8.

27. PW-12 is the seizure witness and he stated that he signed on a

seizure list of the bike of Amar Noatia by which he kidnapped the victim.

28. PW-13, the medical officer, deposed that the victim was 11

years old at the time of examination. There was history of multiple times of

sexual experience and on prevaginal examination, the hymen was found old

torn. She was of the opinion that her hymen was ruptured and no visible sign

of injury was found in her body and private part. After receiving the SFSL

report, she gave final opinion that swab analysis report was positive for

spermatozoa suggestive of sexual intercourse.

The cross-examination of said medical witness was declined by

the defence.

29. PWs 14 & 17 are the seizure witnesses of the blood sample and

vaginal swab of the victim. PW-16 is the seizure witness of the blood sample

of the accused Amar Noatia. All the witnesses have proved their signatures

during their depositions.

30. PW 18 is the seizure witness of the school certificate of the

victim and he proved his signature in the seizure list as Exbt.P-6/1/PW18.

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31. PW 19 is the Scientific Officer-cum-Asst. Chemical Examiner in

the SFSL. She deposed that some exhibits were endorsed to her for

investigation in connection with this case and after examination she

submitted report. She identified the report and her signature on it was

marked Exbt.P-11/PW19.

32. PW 21, Inspector Sukanta Tripura is the first investigating officer

of this case. On being endorsed, he took up the investigation, examined and

recorded statement of the available witnesses, visited the place of

occurrence, seized the wearing apparels of the victim, arranged for medical

examination of the victim, seized blood sample and vaginal swab of the

victim, also seized blood sample of the accused, arranged for recording

statement of the victim under Section 164 of Cr.P.C. and also arrested the

accused. Subsequently, he handed over the case docket to W/I Madhabi

Debbarma, as per instruction of the higher authority.

33. PW 20, WSI Madhabi Debbama, being the second I.O. of the

case, took up rest part of the investigation, arranged for sending the blood

samples of the victim as well as the accused to be examined by the forensic

department.PW 20 also examined available witnesses and recorded their

statement, seized one motor bike along with its papers, collected SFSL

reports. After completion of investigation, she submitted charge-sheet

against the accused Amar Noatia for commission of offence punishable

under Sections 363/366/376AB of IPC and Section 6 of the POCSO Act.

34. These are the core evidences of the prosecution witnesses.

Now, here in the present case, the first and foremost submission of learned

counsel for the appellant is that there is no whisper in the FIR about the

commission of any rape upon the victim by the accused person. We find in

the evidence of the victim as well as from the evidence of the parents that

the victim was abducted by the accused after being gagged her mouth with a

gamcha from her grandfather’s house and he committed rape upon her

several times against her will. She vividly described that the accused took

her to different places to fulfil his sexual desire and ultimately she was

forcefully raped by him. The victim made a clear statement that she was

raped by the accused and in her statement recorded under Section 164 of

CrPC also, which is marked as Exbt.P1, the victim categorically stated that

the accused committed rape upon her. She being a girl of aged about 11

11

years may be of short of average intelligence, but so far her statement is

concerned, she was matured to understand the meaning of ‘rape’. The fact

of the incident is also corroborated by the parents of the victim. From the

evidence of PW 8 and PW 9, the neighbours of her maternal grandfather, it

also revealed that the victim told them that she was taken to various places

and several times the accused committed rape upon her without her

consent. Therefore, there is ample corroboration that she was being raped

by the accused.

35. It is the contention of the learned counsel for the appellant that

there was no injury found in the private parts of the victim and the report

speaks about the sexual experience of the victim as ‘multiple times’. Further,

he pointed out that though the semen/spermatozoa found in her inner, outer

vaginal swab of the victim as well as in her dried blood sample collected

during investigation, but that was not well convincing as it comes to light

from the deposition of the forensic expert because the spermatozoa/semen

etc. as detected by the forensic expert in the body of the victim girl are

contrary to the medical jurisprudence where the doctors opinion cannot be

accepted as there was no occurrence of commission of rape, they only said

that intercourse has been taken place. He further pointed out that so far the

spermatozoa is concerned, the span of life of spermatozoa is 6 to 12 hours

for analysis and the test conducted after so many days which bears no

reasonable explanation.

36. From the medical evidence it has come to light that though the

hymen of the victim was torn and old, but swab analysis report was positive

as spermatozoa was detected. From the statement of the victim recorded

under Section 164, CrPC and the deposition of the victim it is clearly and

convincingly evident that accused forcefully took her to different places and

raped upon her several times. Therefore, it cannot be ruled out that there

was no recent sexual intercourse.

37. In this aspect, we may gainfully refer here the decision of

Deepak Kumar Sahu vs. State of Chattisgarh, 2025 SCC OnLine SC

1610 as relied upon by learned P.P., wherein, the Apex Court at paragraph

no.5.5.4 held thus-

“5.5.4. It may be true that in the present case the evidence of the

medical officer (PW-17) spoke about absence of external injury marks on

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the genitals of the victim. However, the proposition that the corroboration

from the medical evidence is not sine qua non when the cogent evidence of

the victim is available, was reiterated in a recent judgement of this Court in

Lok Mal alias Loku vs. State of Uttar Pradesh, [(2025) 4 SCC 470],

observed:

“Merely because in the medical evidence, there are no major injury

marks, this merely cannot be a reason to discard the otherwise

reliable evidence of the prosecutrix. It is not necessary that in each

and every case where rape is alleged there has to be an injury to the

private parts of the victim and it depends on the facts and

circumstances of a particular case. We reiterate that absence of

injuries on the private parts of the victim is not always fatal to the case

of the prosecution.”

38. Learned counsel for the appellant put a question before this

Court that in the case of rape conviction cannot be made on the sole

testimony of the victim unless the testimony of the victim inspire confidence

of the court. In that regard, learned counsel has relied upon a decision of the

Hon’ble Supreme Court in the case of State (GNCT of Delhi) vs. Vipin alias

Lalla, 2025 SCC OnLine SC 78 wherein, the apex Court at Paragraph

No.10 observed thus:

“10. Although it is absolutely true that in the case of rape,

conviction can be made on the sole testimony of the prosecutrix as

her evidence is in the nature of an injured witness which is given a

very high value by the Courts. But nevertheless when a person can be

convicted on the testimony of a single witness the Courts are bound to

be very careful in examining such a witness and thus the testimony of

such a witness must inspire confidence of the Court…..”

39. Here, in the present case, there is substantive oral evidence

given by the victim that the accused-appellant Amar Noatia inserted his male

organ into her urethra and also had sex with her several times. Her such

evidence was substantially corroborated by the medical officer and forensic

experts i.e. PW 13 and PW 19.

40. In Deepak Kumar Basu (supra), Hon’ble Supreme Court at

paragraph nos. 5.5.6 and 5.5.7 observed thus:

“5.5.6 The credible and reliable evidence of prosecutrix could

not be jettisoned for want of corroboration including the corroboration

by medical report or evidence. The Court observed in Manga

Singh (supra) that “in absence of injury on the private part of the

prosecutrix, it cannot be concluded that the incident had not taken

place or the sexual intercourse was committed with the consent of the

prosecutrix”. It was stated that it is well settled that in the cases of

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rape it is not always necessary that external injury is to be found on

the body of the victim.

5.5.7 In Wahid Khan vs. State of Madhya Pradesh, [(2010) 2 SCC 9],

this Court repelled the contention of the appellant that since the

hymen of the prosecutrix was found to be intact, it cannot be said that

an offence of rape has been committed. The Court refused to accept

such contention in light of the definition of offence of rape in Section

375 of the Indian Penal Code. It was further observed that it is the

consistent view of this Court that even the slightest penetration is

sufficient to make out an offence of rape.”

41. Hon’ble Supreme Court further reiterated in paragraph no. 5.6.1

of that judgment that the solitary statement made by the victim would be

sufficient to record a conviction. For the sake of convenience, the said

observation may be reproduced here-under:

“5.6.1. It was further asserted that corroboration is not an

essential requirement for conviction in the cases of rape.

It is well settled by a catena of decisions of the Supreme Court

that corroboration is not a sine qua non for conviction in a rape

case. If the evidence of the victim does not suffer from any basic

infirmity and the "probabilities factor" does not render it unworthy

of credence. As a general rule, there is no reason to insist on

corroboration except from medical evidence. However, having

regard to the circumstances of the case, medical evidence may

not be available. In such cases, solitary testimony of the

prosecutrix would be sufficient to base the conviction, if it

inspires the confidence of the court.”

42. Learned counsel for the appellant also pointed out that in the

examination under Section 313, CrPC, the accused-appellant categorically

stated that there was financial transactions between the father of the victim

i.e. PW 2 and him wherein the accused had advanced Rs.20,000/- as loan to

the father of the victim which he had borrowed from the Bandhan Bank and

when the same amount demanded, the PW 2 filed a false case against him.

In that aspect, learned counsel for the appellant could not show any

substantive proof that the accused had given loan to the father of the victim.

43. Regarding the age of the victim, we find that PW 7, the

Headmaster of a school of the victim categorically stated that as per

admission register of the school he issued the school certificate in the name

of the victim and the age of the victim was shown as 26.02.2010. The

seizure of said certificate was also confirmed by PW 8. Though in his cross-

examination of PW-7 he stated that he cannot tell on which basis the date of

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birth on the certificate has been mentioned, but he categorically stated that

as per admission register of the school the date of birth of the victim is

mentioned 26.02.2010. The incident occurred on 21.12.2021, so, on the date

of occurrence definitely the victim was 11 years old. There was no effort

either from the prosecution or from the trial Court that the person who has

admitted the victim in the school had to be examined. However, learned trial

Court did not disbelieve the said school certificate and rightly come to the

conclusion that the victim was aged about 11 years at the time occurrence.

In our considered view, in each and every case the prosecution cannot be

expected to examine the person who has admitted a student in the school.

Thus, the school registers are the authentic documents being maintained in

the official course. In view of the above, the school certificate as proved by

PW 7, the Headmaster concerned, the age of the victim has to be

determined in this case at the time of occurrence as 11 years.

44. Viewed in the above perspective, we can safely arrive at the

conclusion that on the date, time and place of occurrence the accused-

appellant kidnapped the minor daughter of the informant from her maternal

grandfather’s house after gagging her mouth with a gamcha and kept under

his custody. Thereafter, he shifted her once place to another to meet his

lascivious behavior with her and several times he forcibly committed rape

upon her which circumstances amply inspire confidence of the Court. Thus,

the learned trial Court rightly came to the findings that the accused is guilty

for committing offences under Sections 363/376AB of IPC.

45. It is also proved from the circumstantial evidence and direct

evidence of the PWs 1, 2 and 3 including the neighbours of the grandfather

of the victim i.e. PWs 8 and 9 that the victim was under the age of 12 years

and the accused committed aggravated penetrated sexual assault upon the

victim as we discussed in the preceeding paragraphs, for which he is liable

to be punished for commission of offence under Section 6 of the POCSO

Act.

46. We may gainfully refer here the decision of a case of Nipun

Saxena v. Union of India, (2019) 2 SCC 703, wherein the Apex Court has

observed that a minor who is subjected to sexual abuse needs to be

protected even more than a major victim because a major victim being an

adult may still be able to withstand the social ostracization and mental

15

harassment meted out by society, but a minor victim will find it difficult to do

so. Most crimes against minor victims are not even reported as very often,

the perpetrator of the crime is a member of the family of the victim or a close

friend. Therefore, the child needs extra protection. Therefore, no leniency

can be shown to an accused who has committed the offences under

the POCSO Act, 2012 and particularly when the same is proved by

adequate evidence before a court of law.

47. In the present case, it is to be noted that the accused being an

adult person is a close relative of the victim i.e. husband of her cousin sister.

He took advantage of the absence of her parents, when she went to her

grandfather’s house on an invitation. In the night of occurrence when she

came out of her nature’s call, he suddenly appeared there and gagged her

mouth with a gamcha and kidnapped her, took her to several places and

committed rape upon her several times. The victim was aged about 11 years

old at the time of occurrence. These circumstances demonstrate the mental

state or mindset of the accused. As a close relative, in fact, it was the duty of

the accused to protect the victim girl when alone rather than exploiting her

innocence and vulnerability. He made her the victim of lust. It is a case

where trust has been betrayed and social values are impaired. Therefore,

the accused as such does not deserve any sympathy and/or any leniency.

48. In view of the above, we find no infirmity in the impugned

judgment and order of conviction and sentence passed by learned Special

Judge in Special (POCSO) case No. 04 of 2022 and we accordingly affirm

the same.

Hence, the appeal being devoid of merit is thus dismissed.

49. Send back the LC records along with a copy of this judgment.

S.DATTA PURKAYASTHA, J DR.T. AMARNATH GOUD, J

sanjay