Gauhati High CourtPage No.# 1/8 vs The State Of Assam And Anr on 21 August, 2023Page No.# 1/8\n\nGAHC010206572021\n\n\n\n\n                              THE GAUHATI HIGH COURT\n   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)\n\n                                Case No. : Crl.A./201/2021\n\n            ABU BAKKAR SIDDIQUE AND ANR.\n            S/O- LATE MUKTAR ALI,\n            R/O- VILL- DAIPAM, P.S.- DALGAON, DIST- DARRANG, ASSAM.\n\n            2: MD. KHURSHED ALI\n             S/O- MD. HAZRAT ALI\n\n            R/O- VILL- DAIPAM\n            P.S.- DALGAON\n            DIST- DARRANG\n            ASSAM\n\n            VERSUS\n\n            THE STATE OF ASSAM AND ANR.\n            REPRESENTED BY PP, ASSAM.\n\n            2:MD. JANGSER ALI\n             S/O- LATE HAZRAT ALI\n\n            R/O- VILL- PACHIM KUMARPARA\n            P.S.-KHARUPETIA\n            DIST- DARRANG\n            ASSAM\n            PIN- 784115\n\nAdvocate for the Petitioner   : MR. A A R KARIM\n\nAdvocate for the Respondent : MR. D DAS(ADDL.PP, ASSAM)\n\n\n\n\n                                  BEFORE\n               HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND\n                                                                                         Page No.# 2/8\n\n\n                                             JUDGMENTDate : 21-08-20231.    Heard Mr. AAR Karim, learned counsel for the appellants and Mr. D. Das, learned Addl. P.P. for\n\nrespondent No. 1 and Ms. D. Saikia, learned Amicus Curiae for respondent No. 2.2.    This appeal is directed against the Judgment and Order dated 22.05.2019 passed by the learned\n\nSessions Judge, Darrang, Mangaldai in connection with Special (POCSO) Case No. 5/2017 convicting\n\nthe accused Abu Bakkar Siddique and Md. Khurshed Aliu/s 4of the Protection of Children from\n\nSexual Offences Act, 2012(POCSO Actfor short) and sentencing them to undergo Rigorous\n\nImprisonment for 10 years and to pay a fine of Rs. 10,000/- with default stipulation.3.    The prosecution case is that on 28.01.2016 at about 12 noon the 14 year old victim 'X' was found\n\nmissing and then her father 'Y' lodged an FIR and after registering a GD Entry, the FIR was forwarded\n\nto the police station from the Kharupetia Outpost to the Dalgaon PS and registered as Kharupetia P.S.\n\nCase No. 763/2016u/s 342/366A/368/34of the Indian Penal Code (IPCfor short) and investigation\n\ncommenced. The Investigating Officer (IO in short), forwarded the victim for medical examination and\n\nfor recording her statementu/s 164of the Code of Criminal Procedure (Cr.PCfor short). After\n\ncompletion of investigation charge-sheet was laid against the accusedu/s 366A/376(2)(i)/34of the IPC\n\nread withSection 4of the POCSO Act. This case was committed and at the commencement of trial, a\n\nformal charge was framedu/s 366A/376(2)(i)and34IPC and read with and explained to the accused.\n\nBoth the accused adjured their guilt and claimed innocence.4.    To substantiate its stance, the prosecution adduced the evidence of nine (9) witnesses and the\n\nwitnesses were cross-examined in rebuttal. On the circumstances arising against them, several\n\nquestions were asked to the accusedu/s 313Cr.PC and they denied their complicity.5.    The prosecution decided this case on the following points:-Page No.# 3/8\n\n       "Points for determination:[i]    Whether on 28.01.2016 at 12 noon Miss A was forced or seduced to illicit intercourse with the\n\naccused persons?[ii]    Whether the accused persons on the same date, time and place forcefully committed rape on\n\nMiss A and thereby committed an offence U/S 376(2)(i)/34IPCread withsection 4of POCSO Act?"6.     The learned counsel for the appellants Mr. A.A.R. Karim laid stress in his argument that the\n\nvictim was missing for two days since 28.01.2016 but the FIR was lodged after a lapse of two days\n\nallowing enough scope for afterthought and fabrication. Four persons were implicated by the victim\n\nthrough her statementu/s 164Cr.PC whereas charge-sheet was laid only against two. Her evidence is\n\nnot consistent to her statementu/s 164Cr.PC. There is no instance that the victim had raised alarm. The\n\nevidence of PW-2 is hearsay evidence. No injuries on the private parts of the victim were detected on\n\nher examination by the Medical Officer.7.     The learned counsel for respondent No. 2 Ms. D. Saikia laid stress in her argument that a new\n\nplea has been introduced. The plea regarding the age of the victim was not taken earlier. The victim's\n\nfather has earlier mentioned the age but the minority of the victim has remained unchallenged. The\n\nminor discrepancies in the evidence has to be discarded. Presumptions operate against the accused. The\n\nIO's evidence clearly depicts that the victim was in a bad state of health. The delay regarding the\n\nmedical examination was not confronted by the defence.8.     The learned Addl. PP Mr. D. Das laid stress in his argument that expert opinion is not a\n\nconclusive proof. The victim was examined after 9 or 10 days. No suggestion was made to the victim\n\nthat she was not a minor.9.     On the anvil of these submissions, the question that falls for consideration is that whether the\n\ntrial court has erred in convicting the accused?Page No.# 4/810.   In this case the informant (PW-1) has testified that the incident occurred upon 2 years ago. His\n\ndaughter 'X' was studying at Class-VIII at the time of the incident and she was only 14 years old. On\n\nthe fateful day, his daughter visited her friend Marjina Begum's house at Duliapara but did not return\n\ntill evening. They made a frantic search and received information that the VDP had apprehended her\n\ndaughter along with 2 youths and handed her over to the Daipam Outpost. He immediately went to the\n\nDaipam Outpost and the victim was handed over to the Kharupetia Police Station. He visited\n\nKharupetia Police Station and met his daughter and then he lodged the FIR at the Kharupetia Police\n\nStation. His daughter was forwarded for medical examination and also for her statement to be recorded\n\nby the Magistrate. In her cross-examination this witness did not at all implicate that the accused-\n\npersons sexually assaulted the victim. He has stated that he could not say anything about the incident\n\nwhich took place between the accused-person and his daughter.11.   The victim has however implicated the accused. She has testified as PW-3 that the incident\n\noccurred about 2 years ago. On the day of the incident, she went to her friend's house after school and\n\nhad lunch in her friend's house. While returning from her friend's house, four persons came in an Auto\n\nrickshaw and suddenly waylaid her and forcefully took her in an Auto rickshaw. She identified two out\n\nof the four occupants in the Auto rickshaw who were facing trial. PW-3 further stated that the\n\noccupants of the Auto rickshaw gagged her and committed sexual assault on her and she became\n\nsenseless. She did not know where she was taken by the accused as she became senseless. She regained\n\nher consciousness at the hospital.12.   The victim's evidence has corroborated the evidence of her father that she was 14 years at the\n\ntime of the incident and was a student of Class-VIII. She has proved her signature on her statementu/s\n\n164Cr.PC as Exts.- 1(1) and 1(2).A close scrutiny of her statementu/s 164Cr.PC reveals that the victim stated that she could\n\nrecognize two of the occupants of the Auto rickshaw and she did not know the other two occupants but\n                                                                                           Page No.# 5/8\n\nshe would be able to identify them if they are produced before her. She became unconscious after she\n\nwas sexually assaulted by the four occupants and she could not recall when she gained consciousness.Although PW-3 has deposed that she regained her sense at the hospital but in her statementu/s\n\n164Cr.PC which was recorded a week after the incident PW-3 stated that could not recall when she\n\nregained her senses after the incident. A question arises at this stage is why no endeavour was made by\n\nthe investigating agency to get the other two occupants identified by PW-3. The other question that\n\narises is why the father of the victim did not support the victim. He did not mention that the accused\n\ncommitted sexual assault on his daughter. Although uncorroborated evidence of prosecutrix is\n\nsufficient evidence against the perpetrators, yet when the victim's father chose not to disclose anything\n\nabout sexual assault, doubt creeps in regarding the credibility of the victim's evidence. The\n\ninvestigating agency also made no endeavour to record the evidence of the victim's friend Marjina\n\nBegum. PW-3 deposed that she went to Marjina's house after her school was over. This incident\n\nallegedly occurred at the time when the victim was returning from Marjina's house.13.   Marjina's father, Mosa Ali has testified as PW-2 that the victim is known to him. The incident\n\noccurred about 2 years ago. The victim came to his house on the day of the incident and after taking\n\nmeal she left their house and she was proceeding to her uncle's house. Subsequently the victim was\n\nrecovered from Bakultola.On the contrary, the victim has deposed that from Marjina's house she was returning to her own\n\nhouse. The other witnesses Sheikh Abdulla (PW-4), Ishaf Ali @ Yosuf Ali (PW-5), Sukur Ali (PW-6)\n\ndenied any knowledge about the incident.14.    The evidence of the IO is relevant. Sri Raj Kumar Mukhia has testified as PW-8 that on\n\n30.01.2016, he was working as attached Officer at Kharupetia PS. On that day, the OC received an FIR\n\nfrom the informant and registered Kharupetia PS Case No.29/2016u/s 342/366/368/334IPC and\n                                                                                           Page No.# 6/8\n\nentrusted him with the investigation. He found the informant at the police station and interrogated him.\n\nThe IC of Daipam Outpost brought the victim as well as the accused to the police station. The health\n\ncondition of the victim was deteriorated and he immediately sent her to Kharupetia CHC for medical\n\ntreatment. He could not record the statement of the victim on the same day. This evidence of the IO is\n\nhowever not substantiated by the evidence of PW-1. PW-1 was silent about any health condition of his\n\ndaughter. PW-3 has stated that she regained her consciousness in the hospital. On the contrary, the\n\ndoctor who has examined the victim has not mentioned that the victim was found in an unconscious\n\ncondition. The Medical Officer (MO in short) examined the victim at the Kharupetia CHC and her\n\nmental condition is reflected in Ext.-3 which clearly reveals that the victim was corroborative and fully\n\nconscious. Moreover the age of the victim was not affirmed as no Radiological Report was submitted.\n\nThe doctor is the best person to opine regarding the consciousness of the victim. It could not be\n\naffirmed through the evidence, after how many days the victim was recovered. The victim's evidence\n\nreveals that she became unconscious after the assault. Her father's evidence reveals that when her\n\ndaughter did not return till evening he subsequently got information from the VDP that his daughter\n\nalong with two youths have been apprehended by them and they were handed over to the Daipan\n\nOutpost. When he went to the Daipan Outpost he found his daughter and the other two youths. The FIR\n\nwas lodged at the Kharupetia outpost on 30.01.2016 and the victim was examined by the MO on\n\n09.02.2016. Her statementu/s 164Cr.PC was recorded on 08.02.2016. It is mentioned in the FIR that\n\nthe victim went missing on 28.01.2016 and she was recovered by the VDP on 30.01.2016 and handed\n\nover to the Daimpam OP by the VDP. Not a single member of the VDP was interrogated by the police.\n\nNeither the I/O, nor the PW-1 has stated that the victim was unconscious. Although victim has deposed\n\nthat she regained her consciousness in the hospital, the MO did not depose that she was unconscious.\n\nMoreover contrary to her evidence the victim PW-3 has statedu/s 164Cr.PC that she could not\n\nremember where she regained consciousness. The victim's evidence does not inspire confidence. It is\n                                                                                            Page No.# 7/8\n\nalso not clear from the evidence if the MO who examined the victim provided treatment to the victim.\n\nAlthough IO has stated that the victim was found in a bad state of health, yet the victim's father did not\n\nmention in his evidence that his daughter was in a bad state of health and his daughter was\n\nunconscious. The victim's evidence is contradictory to her statementu/s 164Cr.PC. She has stated that\n\nshe has deposed that she regained the consciousness in the hospital whereas in her statementu/s 164Cr.PC she stated that she could not recall where she regained her senses. Her statement was recorded\n\nafter 9 or 10 days of the incident. Her explanation in her statementu/s 164Cr.PC that she could not\n\nrecall where she regained her senses does not appear to be plausible. She has stated that she regained\n\nher consciousness in the hospital and the MO's evidence clearly reveals that she was examined after 9\n\ndays. Was she unconscious for 9 days? If she was taken to any other hospital earlier then, why was she\n\nnot examined immediately after she was taken to any other hospital? If she was in such a bad state of\n\nhealth then why was she produced before the MO after 9 days? The FIR marked as Ext.-1 clearly\n\nreveals that the incident occurred on 28.01.2016 and the FIR was lodged on 30.01.2016. No\n\nexplanation was given regarding the delay of 2 days in lodging the FIR. Why was the victim's father so\n\nslow in lodging the FIR?15.   It is apparent that the victim was a school going student and she was missing for 2 days but the\n\nFIR was lodged after the VDP party handed over the victim along with the accused-persons to the\n\nDaipam police station. Why did the victim's father wait for 2 days to lodge the FIR till the accused\n\nwere caught with the victim by the VDP party? Not a single member of the VDP party was examined as\n\na witness. The offence alleged is of a serious nature and the prosecution has to prove this case beyond a\n\nreasonable doubt.16.     In view of my foregoing discussions, it is hereby held that the prosecution failed to prove this\n\ncase beyond a reasonable doubt. The victim's age was also not ascertained, and without ascertaining the\n\nage of the victim the accused-persons were convicted. The victim has also accused four miscreants but\n                                                                                            Page No.# 8/8\n\nthe police investigated this case and laid charge-sheet against two accused-persons. In this aspect too,\n\nthe victim's evidence comes under cloud. I do not agree with the decision of the learned trial Court.17.   The impugned judgment and order of the learned trial Court convicting the accusedu/s 4of the\n\nPOCSO Act is hereby set aside. The accused-persons are to be released forthwith, if they are not\n\nwanted in any other case. Sureties are to be discharged.18.   Ms. D. Saikia, learned Amicus Curiae, who has ably assisted this Court in conducting this appeal,\n\nmay be paid the honorarium at the rate fixed as per rules.JUDGE\n\n\n\nComparing Assistant