JUDGMENT AND ORDER : Budi Habung, J. 1. Heard Mr. D.K. Deori, learned counsel for the appellant. Also heard Ms. L. Hage, learned Addl. P.P for the State of Arunachal Pradeh and Ms. J. Doji, learned counsel for the respondent Nos. 2 to 4. 2. This criminal appeal is filed by the appellant/convict Priyo Dewan @ Hriday. He was convicted by the Court of Special Judge POCSO Act, Khonsa, Tirap district Arunachal Pradesh in Khonsa SC (POCSO) Case No.11/2021 arising out of Diyun Police Station Case No.09/2021, under sections 376/307/325/201 of IPC, along with section 4 of the POCSO Act. He was sentenced to 20 years of rigorous imprisonment for the offence under section 376(3) IPC and fined Rs.10,000, with default stipulations. He was also sentenced to 8 months of simple imprisonment and fined Rs.5,000/- for the offence under section 323 IPC, with default stipulations. Both the sentences are to run concurrently. 3. The prosecution story in brief is that on 2.8.2021, at about 16:40 hours, a joint written information was received from Shri Buddha Sadan Chakma (PW-2) and Natun Chandra Chakma (PW-3 alleging that on 1.8.2021, at around 1300 hours, the minor girl aged about 12 years-old went to fetch water from the Noa-Dihing river at Maitripur with a couple of plastics jars on a bicycle. When she did not return home by 17:30 hours, a search began and her bicycle was found against bamboo fencing, with a jar filled with water. Despite extensive searches, she was not found. The next morning, on 2.8.2021, at 06:00 hours, she was discovered by the relatives and villagers lying injured and in a semiconscious state in a gorge. She was found partially naked and she could barely speak. She informed the villagers that she had been raped and assaulted by the accused, Hriday Priyo Dewan of Maitripur village. She was subsequently referred to the district hospital, Namsai for treatment. 4. Based on the FIR, a case was registered at Diyun Police Station as Case No.09/2021 under section 376/307/325/201 of the IPC along with section 4 of the POCSO Act, and an investigation was carried out. Meanwhile, the accused, surrendered at the police station. During investigation penile swabs of the accused, the pubic hair, vagina swab and inner garments of both the victim and the accused were collected and was sent to FSL for expert opinion. 5. Meanwhile, the accused, surrendered at the police station. During investigation penile swabs of the accused, the pubic hair, vagina swab and inner garments of both the victim and the accused were collected and was sent to FSL for expert opinion. 5. Upon completion of the investigation, charge sheet was filed under section 376/307/325/201 IPC read with section 4 of the POCSO Act. Subsequently, the learned Trial Court framed charges under section 376/307/325/201 IPC & section 4 of the POCSO Act. The charges were read over and explained to the accused person, to which the accused pleaded not guilty and claimed to be tried. Accordingly, trial commenced. 6. To bring home the charges, the prosecution examined as many as 11 witnesses. After completion of the prosecution’s evidence, the accused was examined, and his statement was recorded under section 313 Cr.P.C, where he denied the allegations. The accused examined 2 witnesses in his defense. 7. After conclusion of the trial, the accused was convicted and sentences imposed. As recorded herein above the learned trial Court acquitted the accused of section 201 IPC but found him guilty under section 376 IPC and under section 4 of the POCSO Act as well as section 323 IPC. He was sentenced to 20 years of rigorous imprisonment for offence under section 376(3) IPC with a fine of Rs.10,000, and 8 months simple imprisonment with a fine of Rs.5,000/- for offence under section 323 IPC, with default stipulations. Both sentences to run concurrently, on 31.1.2023. 8. The learned counsel for the petitioner while assailing the judgment and sentence dated 31.01.2023 argues the following: I. That the learned trial Court failed to appreciate that there is insignificant inconsistencies, discretion and material contradictions in the statement of the victim. There is no 164 Cr.P.C statement of victim but there is deliberate improvement before the court from in her police statement on the material points which necessitates the Court for corroboration of the victim’s statement with other prosecution witnesses, as the version of the prosecutrix cannot be accepted on its face value; II. That the learned Court has not justified for relying only on the deposition of the victim prosecutrix without corroboration with material particulars and deposition of other witnesses; III. That the learned Court has not justified for relying only on the deposition of the victim prosecutrix without corroboration with material particulars and deposition of other witnesses; III. The Court failed to appreciate that in the given facts and circumstances of the present case if the evidence of the victim/ prosecutrix is read and considered in totality of the circumstances along with evidence of other prosecution witnesses on record, deposition of prosecutrix does not inspire confidence as there are large number of material contradictions, improvement, embellishment and inconsistencies with other prosecution witnesses; IV. The trial Court failed to appreciate that the medical evidence does not positively support the case of the prosecution as Dr. Mrinal Kanti Thakuria (PW- 8) who deposed that during clinical examination, it is found that the findings are consistent with recent sexual assault but recent forceful intercourse cannot be ascertained. V. The trial Court failed to appreciate that the most material contradiction between the evidence of PW-1 victim and the medical evidence and ocular evidence of Dr. Mrinal Kanti Thakuria (PW-8) had recorded in the report. According to victim (PW-1), the accused/convict had inserted his male organ inside the vagina due to which she suffered pain, whereas in medical report and evidence of Doctor (PW-8) stated that recent sexual forceful intercourse cannot be ascertained; VI. The trial Court failed to appreciate that the deposition of the prosecutrix is not corroborated by medical evidence and deposition of other prosecution witnesses and it completely rules out the possibility of prosecution case. VII. The learned trial Court failed to appreciate that there is material contradictions and embellishments and improvement in the case of the prosecution between the narration of events by PW-1 to PW-2, PW-4, PW-9 and PW-10. The version of PW-2, PW-4, PW-9 and PW-10 is that the appellant/convict had assaulted the victim girl as narrated by her. Thus, the evidence of the victim on which the conviction is rested is not of sterling quality; VIII. The learned trial Court failed to appreciate that neither the medical evidence nor the prosecution witnesses PW-2, PW-4, PW-9 and PW-10 substantiate even remotely, the offence of rape being committed on the victim girl. According to them as per discloser made by PW-1 victim girl, the appellant/convict had only assaulted her; IX. The learned trial Court failed to appreciate that neither the medical evidence nor the prosecution witnesses PW-2, PW-4, PW-9 and PW-10 substantiate even remotely, the offence of rape being committed on the victim girl. According to them as per discloser made by PW-1 victim girl, the appellant/convict had only assaulted her; IX. The learned trial Court failed to appreciate that as per prosecution witnesses, PW-2, PW-4, PW-9 and PW-10 on enquiry by PW-10 from PW-1 victim girl what had happened to her, PW-1 had narrated that Priyo (Appellant/convict/accused) has assaulted her and nothing has been stated about rape been committed by the appellant therefore, the allegation of rape is required to be tested by Doctor who examined the girl immediately on the next date of the incident; X. The learned trial Court failed to appreciate that the prosecution had failed to establish the injury sustained are sufficient to establish rape; XI. In support of his submissions, the learned counsel for the appellant has relied upon the following decisions of the Hon’ble Supreme Court: - State of A.P vs Punati Ramulu and Others reported in 1994 Supp (1) SCC 590 Dorai alias Mariappan vs State of T.N reported in (2004) 11 SCC 742 ., K. Ashokan and Others vs State of Kerela reported in (1998) 3 SCC 570 . 9. Per contra Ms. L Hage, learned, learned Addl. P.P, argues the following: I. There is no any infirmity in the conviction and sentence passed by the learned Special Judge POCSO, thus no need for interference. II. The victim and the victim’s testimony is credible, and the absence of any significant inconsistencies supports its reliability. III. In sexual offence cases, eye witnesses are rare. In the instant case, the victim clearly identified the convict as her assailant and remained consistent in her statements. Additionally, there was no suggestion during cross examination that the convict did not sexually assault the victim. IV. The convict had ample opportunity to refute the allegations during his examination under section 313 Cr.P.C. but he failed to do so, indicating that he had no explanation. V. In support, the Addl. PP relies on the decision of the Hon’ble Apex Court in Nawabuddin vs State of Uttarakhand (Criminal Appeal No.144 of 2022) dated 8.2.2022 , reported in 2022 Live Law (SC) 142. 10. Ms. V. In support, the Addl. PP relies on the decision of the Hon’ble Apex Court in Nawabuddin vs State of Uttarakhand (Criminal Appeal No.144 of 2022) dated 8.2.2022 , reported in 2022 Live Law (SC) 142. 10. Ms. J. Doji, learned Legal Aid counsel for the victim and the informant supported the conviction and sentence. Echoing the arguments of the Addl. P.P. She further submitted that the minor victim continues to suffer from trauma of sexual assault. Despite this, she has consistently maintained her statements, which are corroborated by the medical evidence, recovery of weapon (wooden stick), and other incriminating evidences from prosecution witnesses. 11. We have heard the arguments from parties and thoroughly reviewed all the materials on record. 12. From the exhibit P(2) a school certificate, it is duly proved that date of birth of the victim as per school register is 03.04.2009. The incident occurred on 01.08.2021 and therefore, her age on the date of incident was slightly above 12 years and therefore, she was a minor. 13. Section 29 of the POCSO Act, mandates that the Special Court shall presume that the accused has committed or abated or attempted to commit offences under Sections 3, 5, 7 and 9 when a person is prosecuted for committing or abating or attempting to commit any offence mentioned hereinabove. 14. The learned counsel for the appellant has strenuously argued that the testimony of the victim is not trustworthy and is not of sterling quality inasmuch as her statement is full of contradiction and the evidence of the doctor clearly shows that there is no injury in the private part and therefore, the learned special judge ought not to have convicted the appellant on the basis of the sole testimony of the victim. 15. The Hon’ble Apex court in the case of Ganesan Vs. State represented by its Inspector of Police reported in ( 2020) 10 SCC 557 and in Santosh Prasad @ Santosh Kumar vs. The State Of Bihar reported in (2020) 3 SCC 443 in no unambiguous term held that law is well settled that there can be a conviction when the victim/prosecutrix’s deposition is trustworthy, immaculate and credible and her evidence is of pristine quality. 16. In the case in hand, as held by the Hon’ble Apex court in the case of State of Maharashtra Vs. 16. In the case in hand, as held by the Hon’ble Apex court in the case of State of Maharashtra Vs. Chandraprakash Kewal Chand Jain reported in 1990 AIR 658 , the victim is not an accomplish to the crime but is a victim of another person’s lust and therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplish. In the present case, the victim’s evidence in the considered opinion of this court is trustworthy and of sterling quality but also her testimony remained unshaken and at the same time, the prosecution through her evidence has been able to laid the strong foundational fact for prosecution under Section 29 and the Defence has failed to establish its explanation. 17. Regarding the argument of the learned counsel for the appellant that the conviction was based on testimony of the child witness and such testimony was not properly and carefully evaluated and there was no corroboration of such child witness and her reliance on the decision of Panchhi (supra), this Court is of the considered opinion that the decision rendered in Panchhi (supra), was a case of murder out of a conflict between two families wherein one of the witness was a child witness. In the case in hand, the child herself is the victim, therefore, there is a mark distinction between the evidence of a child who herself is a victim of sexual offence and a child witness to a commission of murder and therefore, no separate corroboration is required as the trial court and this court find the testimony of the victim to be trustworthy. 18. Coming to the statement of the accused recorded under Section 313 Cr.P.C. and the defence evidence laid by the accused, this court is of the view that though it is a well principle of law that recording of statement of the accused under Section 313 Cr.P.C. is not a mere formality and the defence evidence is also to be given equally value that too of the prosecution witness. However, the defence is to make known to the prosecution its defence case during the cross-examination by making suggestion, which is not done in the present case. 19. However, the defence is to make known to the prosecution its defence case during the cross-examination by making suggestion, which is not done in the present case. 19. Though by leading two defence witnesses the defence wanted to establish that on the date and place of occurrence DW1 and DW2 were present and they also saw the victim inside the furniture shop belonging to the accused and that she was in a normal condition and that she has not informed anything to them, however, during the cross-examination of the victim no such suggestion was made and such defence has been brought for the first time by way of DW1 and DW2 without laying foundation of such defence. 20. From the evidence of PW-1 i.e., (the victim) it was clearly established that the accused/convict took her to the jungle, forcefully gagged her mouth and she was threatened to the effect that if she shout, he will cut her into pieces and out of fear she kept quite. Her evidence that the accused forcefully removed her cloths and made her naked and committed rape on her remained unshaken. Her testimony that she was found by her maternal aunt (PW-5) who came to jungle in her search and rescued her, was also corroborated by PW-5. In fact, during cross examination the place of occurrence and the fact of victim taking her forcefully towards jungle as well as the conduct of the accused in raping her and strangulating her were reaffirmed. She reaffirmed during cross examination that she was thrown to a gorge and became senseless and regained her sense and found herself at the gorge. Thus, her testimony not only remained firm but also she reaffirmed the role of the accused and the commission of the offence during her cross examination. 21. Coming to the trustworthiness of the victim, in the considered opinion of this Court, from the evidence on record as discussed herein above, this court is having the unhesitant conclusion that the evidence of the victim remained unshaken that on the fateful day at around 06:00 PM to 07:00 PM she was forcefully sexually penetrated/raped by the accused inside the sofa workshop belonging to the accused. As discussed herein above, the allegation of rape and sexual penetration was not only testified by the victim during her evidence-in- chief the defence could not shake her testimony during cross-examination inasmuch as she has been consistent in this regard in her statement recorded under Section 164 of Cr.P.C. 22. From the evidence of the prosecutrix this court is not having any doubt upon the testimonies of the prosecutrix/victim. Her testimony is reliable and trustworthy. No motive of false implication was also suggested by the defence. 23. The testimony of PW-1 PW-2, PW-4, PW-5 & PW-6 reaffirmed that after the victim was found missing. They started search and she was found on a gorge near the road towards Dihing river in a semi naked state and there was no movement of the victim and that there was injury mark near her eyes. Such testimony also remained firm and in fact, such testimonies were not even challenged by the defence. Thus the fact that the victim was found in a semi naked and injured condition in a gorge near Dihing river on 02.08.2021 was also established beyond reasonable doubt. During the cross examination, PW-5 reaffirmed that the victim was half naked. PW-7, who is the grandmother of the victim, during her examination in chief testified that she took the victim for medical examination and there were severe injury marks on her body and that there was bruise mark all over the body and her eyes were swollen. Such testimony was not challenged by the defence during their cross except trying to raise a doubt that she was not wearing the same cloth which she was wearing at the time of her recovery. Thus the defence did not dispute the factum of recovery of the victim from the gorge inasmuch as none of the aforesaid witnesses i.e., PW-1, PW-3, 4, 5 & 6 who testified recovering the victim from the gorge were even challenged by the defence. 24. The evidence of the doctor (PW-08) clearly corroborates the evidence of the aforesaid. And his testimony remained unshaken. The relevant portion is quoted herein below: “On 02.08.2021 I was posted at CHC, Diyun as Medical Officer. On that day at about 7 AM, one patient namely Miss Sonia Chakma aged about 14 years female who was sent by the OC/PS Diyun for her medical examination. And his testimony remained unshaken. The relevant portion is quoted herein below: “On 02.08.2021 I was posted at CHC, Diyun as Medical Officer. On that day at about 7 AM, one patient namely Miss Sonia Chakma aged about 14 years female who was sent by the OC/PS Diyun for her medical examination. As per requisition I was requested to examine the nature of injuries sustained by Miss Sonia Chakma and I was also requested to preserve the pubic hair, vaginal swab and other necessary samples to send for expert opinion. Accordingly physical and sexual examination of the victim was done in presence of Miss Jenila Mossang. The patient was brought with multiple injuries on her body. During my examination, I have found; I. Racon eyes (it is seen when a person sustains injury in the brain and head) the injury is recent. II. Swelling eyelids and bruises on a right temporal region. Injury on forehead on the right side of the frontal bone. III. No broken teeth were detected during the time of examination. IV. Laceration on upper and lower lips were seen with clothing with bloods (injuries are recent in nature) V. Linear contusion around the neck extending from right sterno (chest bone) clavicular joint to the nape of the neck (near right side collarbone). Colour of the injury was reddish and size was 1 x 13 cm approx VI. Bite marks on upper lateral quadrant of right breast. VII. Bruise on left upper lateral quadrant of right breast. VIII. Two bruises along the mid axillary line on right thorax region (under the armpit) IX. Multiple bruises on back (1 x 15 cm). Hard and blunt materials are used for causing the injury. During examination of genital, following are the findings: - i. No fully grown pubic hair ii. Hymen broken iii. No bleeding per vagina, iv. No recent injury can be detected, v. No swelling of vulva, vi. No tear in labia minora and major and vulva, vii. No abnormal discharge can be seen during the time of examination viii. No tenderness in vagina. During clinical examination, it was found that the findings are consistent with recent sexual assault but recent sexual forceful intercourse cannot be ascertained. The clotting was stained with mud and vomiting particles. And other vital were found within normal range.” 25. No abnormal discharge can be seen during the time of examination viii. No tenderness in vagina. During clinical examination, it was found that the findings are consistent with recent sexual assault but recent sexual forceful intercourse cannot be ascertained. The clotting was stained with mud and vomiting particles. And other vital were found within normal range.” 25. Though the medical evidence do not suggest any injury in the private part of the victim, such finding shall have no assistance to the defence case inasmuch as the victim was examined after four days of the incident and also that it is the case of the minor victim that she did not resist the accused in rapping her as the offence was committed under threat and the workshop was locked from inside. Therefore, there may not be any injury mark in her private part. 26. The PW-9, who is son of the accused testified that he saw the victim girl in the village and when the villagers were asking the victim, as to who is the miscreant that assaulted her, every time she was taking the name of the father of PW-9. He further testified that the victim was replying with closed eyes and hardly able to move herself. 27. Though the defence examined two defence witnesses and these witnesses projected that DW-1 testified that while he was accompanying the victim to Namsai hospital, some persons were tutoring her that she was subjected to rape by the accused. During cross-examination, he admitted that he is the brother of the accused. 28. DW-2’s deposition is not relevant as he was neither an eye witness nor was present when the victim was recovered. Rather his testimony was to the effect that he saw the girl in a bicycle on the previous day which even corroborates the deposition of the victim that she was travelling in the same road with her bicycle. 29. To summarize, this court is having no iota of doubt that the prosecution through testimonies of PW-3, PW-5, PW-6, PW-7, & PW-9 has been able to establish that the victim was missing from 01.08.2021, and she was found in a gorge on 02.08.2021 at around 6.40 hrs in a semi naked injured condition. 29. To summarize, this court is having no iota of doubt that the prosecution through testimonies of PW-3, PW-5, PW-6, PW-7, & PW-9 has been able to establish that the victim was missing from 01.08.2021, and she was found in a gorge on 02.08.2021 at around 6.40 hrs in a semi naked injured condition. From the evidence of PW-1 the victim, the prosecution has been able to establish beyond reasonable doubt that it is the accused who sexually assaulted the victim, injured her and committed rape on her. Such testimony remained firm and in the considered opinion is of starling quality. Not only that, such testimony was also corroborated by the medical evidence of the doctor i.e., PW-8. 30. This court is also of the unhesitant opinion that no contradiction has been proved by the defence in terms of section 145 of the Evidence Act, rather through cross examination the testimonies of PW-1 as regards involvement of the accused in the commission of the offence of rape was reaffirmed. Further, the defence even did not challenge the factum of the victim being recovered from the gorge on 02.08.2021 in a semi naked and injured condition. Rather, the defence side projected that this was not a case of rape. 31. Therefore, in view of the aforesaid determination and materials produced by the prosecution, this court is of the view that learned trial court has not committed any error either in law or fact in convicting the appellant. And it is also our firm opinion that the prosecution has been able to establish their case beyond reasonable doubt. 32. Accordingly, the impugned judgment and conviction of the appellant Priyo Dewan@ Hriday dated 31.1.2023, for the offense under section 376(3) of the IPC, sentencing him to undergo rigorous imprisonment for 20 years by the learned Special Judge, POCSO, Khonsa, in Khonsa SC(POCSO) Case No.11/2021 and under section 323 IPC, sentencing him to suffer SI for a period of 8 months with a fine of Rs.5000, in default to suffer further period of two months, is hereby upheld and confirmed 33. Send back the TCR.