1 CRL.A./324/2022 Page 1 GAHC010244922022 2025:GAU-AS:14004 IN THE GAUHATI HIGH COURT HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH) CRL.A./324/2022 1. Jagadish Pasowan S/O Lt. Anip Pasowan, R/O Railway Colony Balmiki Line, P.S.- Tinsukia, District- Tinsukia, Assam- 786125 …..Appellant -Versus- 1. The State of Assam Represented by The Public Prosecutor, Assam 2. Anita Das W/O Binod Das R/O Raja Ali Road P.S.- Tinsukia, District- Tinsukia Assam, Pin- 786125 ……Respondents 2 CRL.A./324/2022 Page 2 For Appellant : Mr. B. D. Knowar, Senior Advocate Ms. M. Zomuanpuii, Advocate For Respondents : Mr. K. Baishya, Additional Public Prosecutor Mr. A. Phukan, Amicus Curiae Date of Judgment : 26.09.2025 BEFORE HON’BLE MR. JUSTICE MRIDUL KUMAR KALITA JUDGMENT 1. Heard Mr. B. D. Knowar the learned senior counsel, assisted by Ms. M. Zomuanpuii, the learned counsel for the petitioner. Also heard Mr. K. Baishya, the learned Additional Public Prosecutor for the State respondent as well as Mr. A. Phukan, the learned Amicus Curiae appearing for the respondent No.2. 2. This Appeal under Section 374(2) of the Code of Criminal Procedure, 1973, has been filed by the present appellant, Jagadish Pasowan, impugning the judgment and order dated 14.10.2022, passed by the learned Additional Session Judge-cum-Special Judge, Tinsukia (POCSO) in POCSO Case No. 10/2019, whereby the appellant was convicted under Section 10 of POCSO Act, 2012 and was sentenced to undergo rigorous imprisonment for 5 years, and to pay a fine of Rs. 20,000/- and in default of payment of fine to undergo rigorous imprisonment for further 6 months. 3 CRL.A./324/2022 Page 3 3. The facts relevant for consideration of the instant appeal, in brief, are that on 13.04.2019, the mother of the victim girl had lodged an FIR before the Officer-in-Charge of Tinsukia Police Station, inter- alia, alleging that at around 12.00 p.m. on that day, when she could not find her minor daughter aged about 4 years, for a long time, she searched for her and saw her daughter in a naked state in the bed of the appellant. The Appellant was also found there. On receipt of the said FIR, Tinsukia P. S. Case No. 490/2019 was registered under Section 354A of the Indian Penal Code, read with Section 18 of the POCSO Act, 2012, and the investigation was initiated. 4. Ultimately, upon completion of the investigation, charge sheet was laid against the appellant under Section 10 of the POCSO Act, 2012. The appellant was arrested on 14.04.2019. The charges under Section 10 of the POCSO Act, 2012 was framed by the Trial Court on 21.10.2019, against the appellant. When the said charge was read over and explained to the appellant, he pleaded not guilty, and claimed to be tried. 5. To bring home the charges, the prosecution side examined six prosecution witnesses. After closure of the evidence of the prosecution side, the appellant was examined under Section 313 of the Code of Criminal Procedure, 1973, wherein the appellant denied the truthfulness of the testimony of the prosecution witnesses and pleaded his innocence. However, he did not adduce any defense 4 CRL.A./324/2022 Page 4 evidence. Ultimately, by the judgment, which has been impugned in this appeal, the appellant was convicted and sentenced in the manner as already described in paragraph No. 2, of this judgment hereinbefore. 6. Before considering the submissions made by the learned counsel for both sides, let us go through the evidence of the prosecution witnesses, which is available on record. 7. The PW-1, Dr. Warisa Bora, who was a Medical and Health Officer, No. 1 at Tinsukia Civil Hospital and who examined the victim girl, in connection with Tinsukia P. S. Case No. 490/2019, on 13.04.2019, has deposed that on examination of the victim girl, she did not find any sign of injury mark, other than genital dentition-20 (temporary). On local examination of the private parts, hymen was found intact, and there was no injury on the private parts. It was deposed that as per radiological examination, the age of the victim girl was estimated to, in between 5 to 7 years. She also opined that, there was no suggestive sign of penetration of vagina, and no sign suggestive of sexual intercourse. Cross-examination was declined by the prosecution side. 8. The PW-2, Smt. Anita Das, who is the mother of the victim girl, has submitted that the age of the victim was about 6 years on the date of incident, she could not find the victim girl, at about 12 noon. When she searched for her, she found that she was in the quarter 5 CRL.A./324/2022 Page 5 of the present appellant. She found the door of the house of the appellant closed. However, when she pushed the door and entered into the house of the appellant. She saw her daughter lying on a cot and the accused was standing near the cot and both were in nude condition. 9. During cross-examination, she has deposed that when she entered into the house of the appellant, she saw the victim had made the cot filthy with her night soil. She also deposed that she did not saw the appellant committing sexual act against the victim. However, she saw both of them in nude condition. 10. The victim girl was examined as PW-3. During her examination, she has stated that the appellant gave her some biscuits and then pulled off her pant and made her sleep on a cot. At that time, her mother saw them through the hole of the wall and, thereafter, her mother took her home and had beaten up her. During cross- examination, she has stated that her mother told her to say what to say before the Magistrate. She also stated that the appellant did not commit any bad act with her. 11. The PW-4, Shri Lal Bahadur, has deposed that on the fateful day, he went to the market and saw Raju Das in the police station and as such he also went there. He also stated that in the police station, he came to know that the appellant was caught with the victim girl with an intention to commit sexual assault. 6 CRL.A./324/2022 Page 6 12. During cross-examination, he has deposed that he did not have any personal knowledge about the incident and he only came to know about the incident from others. 13. The PW-5 Raju Das, who is the father of the victim girl had deposed that the victim was 6 years of age and on the date of the alleged incident, he saw that his daughter was taken to the police station. He came to know from his wife that his daughter was found in a naked condition in the house of the appellant. During cross- examination, he has deposed that he had no personal knowledge about the incident. 14. The PW-6 is the Investigating Officer, Mr. Deep Jyoti Das, who has deposed that on 13th April 2019, he was working as an attached Officer at Tinsukia Sadar Police Station. On that day, the mother of the victim lodged an FIR before the Officer-in-Charge of Tinsukia Police Station and he took up the investigation. During investigation, he went to the place of occurrence, prepared the sketch map and examined the witnesses. He also sent the victim girl for a medical examination and got her statement recorded under Section 164 of the Code of Criminal Procedure, 1973. Later on, on completion of the investigation, he laid the charge sheet under Section 354A of the Indian Penal Code and under Section 18 of the POCSO Act, 2012 against the appellant. 7 CRL.A./324/2022 Page 7 15. During cross-examination, the PW-6 has deposed that the place of occurrence is the house of the appellant, which was a small hut with a broken bed and one bamboo table. He also stated that while recording the statement of the victim girl, who was about 4 years of age, WPC Rupa Das was also present there. However, she was not shown as a prosecution witness in the charge sheet. 16. The learned senior counsel for the appellant has submitted that the Trial Court has erred in convicting as well as sentencing the appellant under Section 10 of the POCSO Act, 2012 inasmuch as there is no evidence on record to show that the appellant had touched the vagina or breast, anus or any part of the victim or made her to touch his private parts. He submits that the appellant had only changed the clothes of the victim girl when she made her clothes dirty with night soil. He also submits that even the victim girl, while deposing as PW-3 before the Trial Court, has stated that the appellant did not do any bad act with her. He further submits that there is no eyewitness to the incident except the victim girl and the victim girl has not implicated the appellant of having committed any act for which he has been convicted and sentenced under Section 10 of the POCSO Act, 2012. He also submits that the Trial Court, while convicting the appellant on the basis of the testimony of the victim girl, had failed to consider the fact that the victim girl herself has stated as PW-3 that “she said before the Magistrate what her mother asked her to say”. Thus, he submits that it is 8 CRL.A./324/2022 Page 8 apparent that the victim girl may be categorized in the category of a tutored witness. He also submits that the medical evidence also does not corroborate the accusation of sexual assault against the appellant as no injury was found in the private part of the victim girl. 17. He further submits that no ingredients of offence under Section 10 of the POCSO Act, 2012 has been proved by the prosecution side, therefore, he prays for acquitting the appellant by setting aside the impugned judgment. 18. The learned senior counsel for the appellant has also submitted that there is no evidence on record to show that the appellant had touched the specific sexual part of the body of the victim girl with any sexual intent, therefore, the prosecution side has failed to prove the ingredient of Section 10 and Section 7 of the POCSO Act, 2012. In support of his submission, the learned senior counsel for the appellant has cited the ruling of the Apex Court in the case of “Attorney General for India Vs. Satish and Another” reported in (2022) 5 SCC 545. He has also cited the ruling of the Apex Court in the case of “Nirmal Prem Kumar and Another Vs. State represented by Inspector of Police” reported in 2024 SCC Online SC 260. 19. On the other hand, the learned Additional Public Prosecutor, as well as the learned Amicus Curiae, representing Respondent No. 2, have 9 CRL.A./324/2022 Page 9 submitted that the Trial Court has correctly convicted the appellant under Section 10 of the POCSO Act, 2012 after finding sufficient materials against him on record and, as such, the impugned judgment of conviction and sentence imposed upon the appellant does not warrants any interference by this Court. 20. The learned Additional Public Prosecutor submits that the evidence on record clearly suggests that the victim was made naked and the appellant was also found standing naked near her, which apparently shows the sexual intent on the part of the appellant. He further submits that the prosecution side has been able to prove the foundational facts necessary to draw the presumption of guilt against the appellant in this case, and the appellant was unable to revert such presumption. He also submits that considering the nature of the case, the minimum sentence, which is statutorily prescribed has been imposed on the appellant, therefore, the impugned judgment does not warrants any interference by this Court. 21. I have considered the submissions made by the learned counsel for both sides and have gone through the materials available on record, including the records of the POCSO Case No. 10/2019. 22. Though, in this case, there is nothing to indicate that the appellant had done any penetrative sexual assault or had touched the private 10 CRL.A./324/2022 Page 10 parts of the victim girl, however, the evidence on record clearly indicates that the victim girl was found in the residence of the appellant in naked state, lying on a cot, and the appellant was also found in naked state, standing beside her. This act of disrobing the minor girl and standing naked in front of her in absence of any other members of her family itself indicates the presence of sexual intent on the part of the appellant. This Court, therefore, finds no error in the Trial Court drawing the statutory presumption that may be regarded as an act with sexual intent, which involves physical contact without penetration. The victim was found naked and the evidence shows that she was disrobed by the appellant. This is sufficient to draw the inference that there was a physical contact for disrobing the victim girl. 23. Hence, this Court is of the considered opinion that the Trial Court was right to conclude that this is a case of offence of sexual assault on the victim girl, even if it is presumed that the appellant did not touch the private parts of the victim girl. 24. The explanation which the learned senior counsel tried to give that the victim girl's dress was removed as because it was littered with night soil is not acceptable as there is no exact explanation as to why the appellant himself became naked. The appellant has not been able to revert the statutory presumption regarding presence of culpable mental state by adducing cogent evidence in that regard. 11 CRL.A./324/2022 Page 11 25. In his examination under Section 313 of the Code of Criminal Procedure, 1973 also no explanation was given as to why he himself became naked, even if the explanation given by him that the victim girl had littered the clothes with night soil. 26. This Court, therefore, finds no error in the conclusion arrived at by the Trial Court regarding finding of guilt of the appellant under Section 10 of the POCSO Act, 2012 and sentencing him under the said provision. As the appellant was imposed the minimum statutory sentence prescribed for the alleged offense, this Court also does not find any ground to interfere with the sentence imposed on the appellant. 27. For the reasons stated hereinabove, this Court is reluctant to interfere in the impugned judgment of conviction and sentence imposed on the appellant. 28. Accordingly, this appeal stands dismissed. 29. Send back the Trial Court records to the Trial Court along with a copy of this judgment. JUDGE Comparing Assistant