Gauhati High Court
Crl.A./21/2022 on 12 June, 2025
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GAHC010018312022
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
CRL.A./21/2022
1. Sofa Uddin
S/O Late Abdul Kadir
Village Khelma Part VIII
PS Katigorah, District-Cachar,
Assam 788815
......Appellant
-Versus-
1. The State of Assam
To be represented by the Public Prosecutor, Assam
2. Suleman Uddin
S/O Late Tasar Ali
Resident of Khelma Part VIII
PO Gumrah Bazar
PS Katigorah
District - Cachar
Assam 78881
......Respondents
For Petitioner(s) : Mr. L. R. Majumdar, Advocate
For Respondent(s) : Mr. D. Das, Additional Public Prosecutor
Ms. Debashree Saikia, Amicus Curiae
Date of Judgment 12.06.2025
CRL.A./21/2022 Page1
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BEFORE
HON'BLE MR. JUSTICE MRIDUL KUMAR KALITA
JUDGMENT
(MRIDUL KUMAR KALITA, J)
1. Heard Mr. L. R. Majumdar, the learned counsel for the appellant.
Also heard Mr. D. Das, the learned Additional Public Prosecutor for
the State respondent as well as Ms. Debashree Saikia, the learned
Amicus Curiae appearing for Respondent Nos. 2 and 3.
2. This appeal, under Section 374 (2) of the Code of Criminal
Procedure Code, 1973, has been filed by the appellant Sofa Uddin,
impugning the judgment and order dated 20.12.2021, passed by
the Court of learned Additional Session Judge cum Special Judge,
Cachar in Special (POCSO) Case No. 23/2018, whereby the
appellant has been convicted under Section 366/376 of the Indian
Penal Code and was sentenced only under Section 366 of the Indian
Penal Code to undergo rigorous imprisonment for 7 years and to
pay a fine of Rs. 7,000/- and in default of payment of fine to
undergo simple imprisonment for 3 months. The appellant was also
convicted under Section 4 of the POCSO Act, 2012 and was
sentenced to undergo rigorous imprisonment for a term of 10 years
and to pay a fine of Rs. 10,000/- and in default of payment of fine
to undergo further simple imprisonment for 6 months. Both the
sentences were directed to run concurrently.
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3. The facts relevant for consideration of the instant appeal, in brief,
are that, on 02.02.2018, the respondent No. 2, (informant) Md.
Suleiman Uddin, had lodged an FIR before the Officer-in-Charge of
Katigorah Police Station, inter-alia, alleging that on 30.01.2018,
when the minor daughter of the informant went outside the house
at about 11.00 pm to attend the call of nature, the appellant
forcefully dragged her towards his house. Though, the daughter of
the informant, raised hue and cry, however, she could not be
rescued from the clutches of the appellant. The appellant took the
daughter (hereinafter referred to as “X”) of the informant to his
house and committed rape on her.
4. It is also alleged in the FIR that earlier also, on 20.11.2017, the
appellant had abducted another daughter (hereinafter referred to as
“Y”) of the informant and kept her in his house and committed rape
on her for several days and thereafter, handed her to a fellow
villager, namely, Jasimuddin.
5. It is also stated in the FIR that when the alleged offences were
committed, both the daughters of the informant (respondent No. 2)
were minors.
6. On receipt of this said FIR, the Officer-in-Charge of the Katigorah
Police Station registered the Katigorah P. S. Case No. 92/2018
under Sections 366/376(1)/343 of the Indian Penal Code, read with
section 4/8/12 of the POCSO Act, 2012.
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7. Ultimately, on completion of the investigation, the Investigating
Officer laid the charge sheet against the appellant under section
366A/376(2)/343 of the Indian Penal Code, read with Section 4 of
the POCSO Act, 2012 in the Special (POCSO) Case No. 23/2018.
8. After going through the materials on the record and after
considering the submissions of the learned counsel for both the
sides, on 21.07.2018, the learned Additional Session, Judge, Cachar
framed the charges under Sections 366/376 of the Indian Penal
Code and under Section 4 of the POCSO Act, 2012, against the
present appellant. When the said charges were read over and
explained to the appellant, he pleaded not guilty to the same and
claimed to be tried.
9. In order to bring home the charges against the appellant, the
prosecution side examined 11 prosecution witnesses.
10. The appellant was examined under Section 313 of the Code of
Criminal Procedure, 1973, during which he pleaded his innocence
and denied the truthfulness of the testimony of the prosecution
witnesses. However, the appellant declined to adduce any evidence
in defense.
11. Ultimately, by the judgment, which has been impugned in this
appeal, the appellant was convicted and sentenced in the manner
as already described in the paragraph No. 2 of this judgment herein
before.
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12. Before considering the arrival submissions of the learned counsel
for both sides, let us go through the evidence, which is available on
record.
13. The PW-1, “X”, who is the victim in the case, has deposed that she
knows the accused Sofa Uddin and that the incident took place
about 7 to 8 years ago from the date of her deposing before the
court. She has deposed that at the relevant time of occurrence she
came out from her house for attending nature’s call along with her
mother and at that time three persons came and caught her,
gagged her mouth and put her in a small car. She has deposed that
at that time her mother raised hue and cry and tried to resist but
they drove the car away. She further added that her father came
out hearing hue and cry and that they could not restrain the
accused persons as the accused persons drove the vehicle speedily.
The PW-1 has deposed that the accused persons took her to Silchar
and kept her confined in a house and the appellant raped her
forcefully. The PW-1 has further deposed that the appellant kept
in the house for about 15 days and on each day he raped her. The
other two persons left after dropping her in that house. The PW-1
has deposed that thereafter the appellant took her to his residence
at Khelma-VIII and he kept her in his house for about two months
and that the accused again raped her in his house for almost all
dates.
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14. The PW-1 has further deposed that the accused has his wife and
children and his daughter would be elder than her. The PW-1
deposed that after two months the appellant assaulted her and
driven her out from his residence. The PW-1 has further deposed
that she met her grandmother on the way and told her about the
incident and her grandmother directly takes her to Gumrah Police
Outpost and that Police took her for medical examination and
brought her to the court for recording her statement by the
Magistrate. The PW-1 has exhibited her statement before the
Magistrate as Ext-1 wherein Ext-1(1) is her signature. The PW-1 has
also deposed that her father was informed and he came to the
Police Station and police gave her in custody of her father and that
at the time of occurrence she was studied at Class-VIII in Digorkhal
High School.
15. During her cross-examination by the defence side, the PW-1 gave
description of the surrounding houses of her father and stated that
the entrance of their house is on the eastern side and that the
village road is 10/15 minutes of walking distance and that the
residence of the accused is about 200 meters from her father’s
residence and that there are residences of several persons near the
house of the appellant.
16. The PW-1 has deposed during her cross-examination that the
neighbours of their residence has got 5/6 family members of each
family and that their village does not have electricity connection and
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that the house of the accused consists of two rooms, one is living
room and another is kitchen room and that their family consists of
five daughters and three sons. She also stated in her cross-
examination that three of her elder sisters got married and at the
time of occurrence two of her elder sisters were staying in their
residence.
17. It was suggested to the PW-1 that “she did not state to police
Magistrate that about 7/8 years ago at about 11.00 pm she came
out from her house for attending nature’s call along with her
mother and at that time three persons came and caught her and
gagged her mouth and put her in a small car and that at that time
her mother raised hue and cry and tried to resist and they drove the
car away and her father came out hearing hue and cry and that
they could not restrain the accused persons as the accused persons
drove the vehicle speedily,” which she denied.
18. It was also suggested to the PW-1 that she did not tell before the
police or Magistrate that the accused persons took her to Silchar
and kept her confined in a house and she asked the accused to take
her to her house but he did not consider it and he raped her
forcefully and that he kept in the house for about 15 days and in all
dates he raped her and that the other two persons left after
dropping her in that house and that thereafter the accused took her
to his residence at Khelma -VIII and he kept her in his house for
about two months and that the accused again raped her in his
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house for almost all dates and that after two months the accused
assaulted and driven her out from his residence and that she met
her grandmother on the way and she told her about the incident
and her grandmother directly took her to the Gumrah Police OP and
she lodged the case, which she denied.
19. The PW-1 has further deposed during her cross-examination that
earlier her elder sister was taken by accused Sofa Uddin and given
marriage to Jashim Uddin. In her cross-examination it was put to
PW-1 that the appellanthad amicably settled the dispute between
her father and Jashim Uddin and for that reason her father lodged a
false case against the accused, which she denied.
20. The PW-2, Suleman Uddin, is the informant and father of the victim
in this case. He has deposed that at the relevant time of occurrence
his daughter “X” went out of the house along with his wife to attend
nature’s call with a torch in the hand of his wife and then the
appellant along with two others gagged her mouth and lifted her
and took her away. He has deposed that his wife raised hue and
cry, hearing the same he went out and tried to restrain the
appellant but the other accused persons who came with sword
threatened him. He has further deposed on that night he Informed
the villagers who told him that on the next morning they would
settle the dispute and on the next morning they advised him to
inform the matter to police and accordingly he lodged a written FIR.
He has exhibited the FIR as Ext.2 as wherein Ext.2(1) and Ext.2(2)
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are his signatures. He has deposed that at the time of occurrence
his daughter “X” was studying in Class-VIII and she was 16 years of
age. He further deposed that he had submitted a copy of birth
certificate along with the ejahar and that he took zimma of his said
daughter from the Court.
21. During his cross-examination by the defence side, the PW-2 stated
that he only know how to put signature but he does not know how
to read and write and that he cannot read the ejahar and does not
know the contents of the ejahar. It was suggested to PW-2 that he
did not state to police that on the date of occurrence at about 11
p.m. his victim daughter went out of the house along with his wife
to attend nature’s call with a torch in the hand of his wife and that
his wife raised hue and cry and hearing the same he went out,
which he denied. PW-2 stated during his cross examination that his
eldest daughter “Y” fled away with Jashim Uddin. He also denied
several other suggestions which were put to him by the defence
side during his cross-examination.
22. PW-3, Mustt. Hazira Begum, is the mother of the victim and wife of
the informant. She deposed that at the relevant time of occurrence
her daughter went out to attend nature’s call and she accompanied
her with a torch in her hand and that when her daughter went for
urination, then the appellant, along with two others, gagged the
mouth of her daughter “X” and carried her away in a small vehicle.
She also deposed that as the mouth of her daughter was gagged by
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the accused so she could not raise hue and cry and that then PW-3
raised hue and cry. On hearing it, her husband came out and he
tried to restrain the appellant but in vain. She has deposed they
searched for their daughter but did not find her and then they
informed the villagers and thereafter her husband informed the
matter to the police. After 7 to 8 days of the occurrence her
daughter came to police station as she was beaten by the accused
person. She further deposed that on being asked her daughter told
her that the accused took her to Silchar and committed bad act on
her and thereafter she was again taken to his house at Khelma and
there also the accused committed bad act.
23. During her cross-examination, it was suggested to her that she did
not state to police that on the date of occurrence her daughter
went out to attend nature’s call and she accompanied her with a
torch in her hand and that when her daughter went for urination
then the accused along with two others gagged the mouth of her
said daughter and picked her up and carried her away and took her
in a small vehicle, which she denied. Several other suggestions
were also given to her which she denied.
24. PW-4, Abdul Noor, who is the son-in-law of the informant, has
deposed that on day of the incident he returned home from work at
about 11 to 11.30 p.m. and at the time of dinner one Abdul Mannan
of his village telephonically asked him to go to the house of the
appellant and then he went to the house of accused Sofa Uddin and
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that on reaching there he found the victim in his house. He has
deposed that he tried to take back the victim from the house of the
accused but she refused and that thereafter, he telephonically
informed the informant, the father of the victim who reached the
house of the accused and that the father of the victim also tried to
bring back the victim but she refused to come back with him and
that he came back to his house. He has further deposed that after 3
to 4 days police came and asked him to show the house of the
informant and he accompanied the police to the house of the
informant.
25. During his cross-examination, the PW-4 stated that the informant is
his father-in-law and that the victim is his sister-in-law and that his
house is at a distance of less than half kilometer from the house of
the informant. The PW-4 denied several defence suggestions which
were put to him during his cross-examination.
26. The PW-5, Abdul Khalil, has deposed that he knows both the
accused and the informant. He further deposed that the occurrence
took place about one year ago from the date of his deposition and
that one of the daughter “Y” of the informant had eloped with the
cousin brother of the appellant and that so far as the incident
regarding the victim “X” is concerned he knows nothing.
27. During his cross-examination by the defence, the PW-5 has deposed
that the informant is his neighbor and that the accused took part in
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the village bichar(meeting) in respect of marriage between one of
the daughter “Y” of the informant and Jashim Uddin.
28. The PW-6, Rusna Begum, who is the sister of the informant has
deposed that at the relevant time of occurrence, the victim along
with her mother went out of the house to attend nature’s call and
then the accused along with two others gagging the mouth of the
victim forcibly took her. She has deposed that she resides in the
house of the informant. She further deposed that wife of the
informant then raised hue and cry, hearing which PW-6 rushed out
of the house and saw that the accused took away the victim in a
car. She has deposed that they informed the matter to village
people but the appellant did not appear before the bichar and then
the father of the victim lodged FIR. She has further deposed that
after about two months of the filing of the FIR they came to know
that the victim came to the police station from the house of the
appellant. She has deposed that at the time of occurrence the
victim was a school going student.
29. During her cross-examination by the defence several suggestions
were put to her, which she denied.
30. The PW-7, Dr. (Mrs.) Monalisa Dev, who is the Medical Officer has
deposed that on 10.04.2018 on police requisition she examined the
victim girl. The M.O. stated the history as narrated by the victim
that around 3 months ago when at around 11 pm she came out of
her house, one man Sofa Uddin of the same place came with 3 to 4
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people and took her forcefully away and brought her to Silchar and
made her stay with one lady whom she does not know for one
month and then took her to his house and made her stay there and
his other wives and children used to beat her. Then somehow she
escaped today and went to police station with her grandmother and
filed the case. The PW-7 has deposed that on the basis of physical
(including dental) examination, laboratory and radiological
investigations done on the victim, she is of opinion that –
i. The age of the individual is above 14 and below 16 years.
ii. Evidence of recent sexual penetration not detected as on date
of examination.
iii. Injury marks not detected on her person and or genitals
except old hymenal tears.
31. She has exhibited the medical report as Ext. 3, wherein Ext.3(1)
and Ext.3(2) are her signatures and Ext. 3(3) as the signature of Dr.
Gunajit Das, Professor & HOD of FSM, SMCH. She has also exhibited
the Report of X-ray as Ext.4, wherein Ext. 4(1) is her signature and
Ext.4(2) as the signature of Dr. Renuka Rongpharpi, Asstt.
Professor, Forensic Science, SMCH and Ext.5, 6 and 7 are the X-ray
Plates. Her cross-examination was declined by the defence side.
32. The PW-8, “Y” is one of the daughters of the informant. She
deposed that the occurrence took place about one year prior to the
date of her deposing before the court. She has further deposed that
before the date of occurrence the appellant used to watch her at
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the time of going to school at 8 a.m. every day and that on the date
of occurrence at about 3 p.m. while she was returning from her
school the accused put something on her nose and then she fell
unconscious and that after one day of the occurrence she regained
her sense in the evening and she found that she was in his house.
She has deposed that she tried to come out from his house but the
appellant beat her and forcibly kept her therein for about one week
and that thereafter he brought a man to his house namely Jashim
Uddin and gave her marriage with him and that at present she is
staying with him happily. She also added that at the time of
occurrence her age was 17 years and that police produced her in
the Court wherein her statement U/S 164 Cr.P.C. was recorded by
the Magistrate. She has exhibited her statement as Ext. 8, wherein
Ext. 8(1) is her signature.
33. During her cross-examination by the defence, the PW-8 denied the
defence suggestion that at the time of occurrence her age was 19
years. Several other suggestions were put to PW-8 by the defence
during her cross-examination which she denied.
34. The PW-9, Abdul Khalique, has deposed that he knows both the
informant and the appellant. He further deposed that on the date of
occurrence the victim i.e. PW-8 eloped with Jashim Uddin and then
the appellant with the help of Panchayat members gave the
marriage of PW-8 with Jashim Uddin.
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35. During his cross-examination by the defence, the PW-9 stated that
the appellant and the informant were friends before the occurrence
and that he knows nothing more about the occurrence.
36. The PW-10, Dr. Nayan Moni Choudhury, deposed that he is the
Demonstrator in the Forensic Department, SMCH, Silchar and that
he knows the signature and handwriting of Dr. Renuka Rongpharpi
who worked in the SMCH, Silchar as Assistant Professor, Forensic
Department during his tenure. He further deposed that Ext.4 was
written by Dr. Renuka Rongpharpi by her own handwriting. He has
proved Ext.4(2) as the signature of Dr. Renuka Rongpharpi which
he knows. This witness was declined to be cross-examined by the
defence.
37. The PW-11, Abhijit Gogoi, S.I. is the Investigating Officer. He
deposed that on 03.02.2018 while he was attached to Gumrah PIC
under Katigorah P.S. as I/C, O.C. Katigorah P.S., he received an FIR
lodged by the informant against the appellant Sofa Uddin which was
registered as Katigorah P.S. case No. 92/2018 U/S
366/376(2)(i)/343 of IPC read with Section 4/8/12 of POCSO Act
and entrusted him to investigate the same. He also deposed that
during investigation he visited the place of occurrence, drew up a
sketch map of the place of occurrence. He has deposed that he sent
the two victim girls to Silchar Court wherein their statements u/s
164 Cr.P.C were recorded by the Magistrate and that he sent the
two victim girls to SMCH, Silchar wherein they were medically
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examined. He further added that he examined the two victim girls
and also examined the witnesses and that he had submitted Xerox
copies of birth certificates of the two victim girls with the C.D. after
going through their original certificates. The PW-11 has deposed
that he collected medical examination report of both the victims and
also arrested the accused person and that after completion of
investigation he submitted charge sheet against the appellant.
38. During his cross-examination by the defence side, the PW-11 had
stated that as per Ext.2 FIR the occurrence took place on
30.01.2018 and the Ext.2 was lodged on 03.02.2018 and that there
is no mention in the Ext.2 FIR as to the delay of three days in
lodging the Ext.2 FIR. He further stated in his cross-examination
that the case was registered on 03.02.2018 and the sketch map
was prepared on 06.02.2018 and that he has not recorded the
statements U/S 161 Cr.P.C. of the persons mentioned in the index
of sketch map except Abdul Noor. He denied the usual defence
suggestions which were put to him during his cross-examination.
39. The PW-11 in his cross-examination further deposed that PW-1 did
not state before him that she along with her mother went out and
that at that time her mother raised hue and cry and tried to resist
them but they drove the car away and hearing hulla her father
came and they could not restrain the accused persons as the
accused persons drove the vehicle speedily and that she asked the
accused to take her to her house but the accused did not consider
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and he raped her forcefully and that the number of months he kept
her in his house and raped her in his house for almost daily and
that after two months she was driven out by the accused and that
she met with her grandmother on the road to whom she narrated
the incident and with her grandmother she went to police station
and lodged the case.
40. The PW-11 in his cross-examination also deposed that PW-2 did not
state before him that his victim daughter “X” went out along with
his wife with torch light to attend nature’s call and that hearing hue
and cry of his wife he came out.
41. The PW-11 further stated in his cross-examination that PW-3 did
not state to him that on the day of occurrence at about 11 p.m. her
victim daughter went out to attend nature’s call and she
accompanied her with a torch in her hand and when her daughter
went for urination accused along with two other persons gagged
the mouth of her said daughter and picked her up and carried her
away and took her in a small vehicle and that after 7 to 8 days of
the occurrence her daughter came to the police station as she was
beaten by the accused and that on being asked her daughter told
her that accused took her to Silchar and committed bad acts on her
and thereafter she was again taken to his house at Khelma and
there also the accused committed bad acts.
42. The PW-11 also deposed during his cross-examination that PW-4
did not state to him that on the date of occurrence he came back to
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his house from duty at about 11/11.30 p.m. and that he had found
the victim in the house of accused then he tried to take back the
victim girl from the house of the accused but she refused and
thereafter he had telephonically informed the informant, the father
of the victim who reached the house of the accused and the father
of the victim also tried to bring the victim but she refused to come
back with him and that after 3/4 days police came and asked him to
introduce the house of the informant and he accompanied the
police to the house of the informant.
43. The PW-11 in his cross-examination further stated that PW-6 did
not state to him that victim daughter of the informant while went
out of her house along with her mother for nature’s call then the
accused Sofa Uddin along with two others gagging the mouth of the
victim had forcibly took her and that wife of the informant raised
hue and cry and hearing the cry he rushed out of the house and
saw the accused took away the victim in a car and they informed
the matter to village people regarding the incident but the accused
did not appear before the bichar and that after about two months
of filing the FIR they came to know that the victim was approaching
towards the P.S. crying from the house of the accused.
44. PW-11 also deposed in his cross-examination that the PW-8 stated
to him that her age was 19 years at the relevant time of occurrence
and that PW-8 did not state to him that the occurrence took place
about 1 year back and that before the date of occurrence the
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accused used to watch her at the time of going to school at 8 a.m.
every day and that on the date of occurrence at about 3 p.m. while
she was returning from school the accused put something on her
nose and then she felt unconscious and that after one day of
occurrence she regained her sense in the evening and she found
that she was in her house and thereafter she tried to come out from
her house but he beat her and forcibly kept her therein for about
one week and that thereafter the accused brought a man to his
house by name Jashim Uddin and gave her marriage with him.
45. On 02.11.2021, the appellant was examined under Section 313 of
the Code of Criminal Procedure, 1973. During said examination, the
appellant denied the truthfulness of the testimony of the
prosecution witnesses and pleaded his innocence. He had also
stated that he has been falsely implicated in the case due to
previous grudge with the informant regarding the marriage of the
sister of the victim girl.
46. Mr. L. R. Majumdar, the learned counsel for the appellant has
submitted that the Trial Court has erred in convicting the appellant
under Section 4 of the POCSO Act, 2012 without ascertaining the
age of the victim girl in accordance with the settled principles
regarding ascertainment of the age of a minor victim.
47. The learned counsel for the appellant has submitted that though,
the Investigating Officer has deposed that he had seized the birth
certificate of the victim girl, however, the same was not exhibited
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and proved in the trial. He submits that the age of the victim girl
was ascertained on the basis of a mere opinion of the doctor, that
the age of victim „X‟ is more than 14 and less than 16 years of age.
48. The learned counsel for the appellant has submitted that in view of
the provisions of Section 34 of the POCSO Act, 2012 and Section 94
of the Juvenile Justice (Care and Protection of Children) Act, 2015,
the settled proposition of law regarding ascertainment of age of a
victim girl is that at the first instance school leaving certificate or
matriculation or concerned certificate or equivalent certificate from
a concerned examination board, if available, has to be the basis of
ascertaining the age of the victim girl. Only in absence thereof, birth
certificate given by a corporation or a municipal authority or
panchayat may be produced and in absence of both the above, the
age may be determined by an ossification test or by any other latest
medical age determining tests.
49. He submits that in the instant case without taking recourse to the
first two options, the prosecution side has only adduced evidence of
doctor regarding ascertaining the age of the minor victim and he
submits that Trial Court also erroneously accepted the said evidence
without ascertaining the availability of the other two options before
relying on the third option. In support of his submission, the
learned counsel for the appellant has cited a ruling of the Apex
Court in the case of “P. Yuvaprakash Vs. State represented by
Inspector of Police” reported in 2023 SCC online SC 846.
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50. He further submits that the testimony of the victim girl during her
cross examination wherein she has stated that the distance
between the house of the accused and her parent was only 200
meters has not been considered by the Trial Court in its true
perspective in as much as with such a small distance between the
two places, it is unlikely that the appellant could have kept the
victim girl in his house for two months without any intervention of
police.
51. He further submits that the testimony of the victim girl (PW-1) as
well as PW-2 and PW-3 were contradicted during their cross
examination and such contradiction was not taken into
consideration by the Trial Court while relying on their testimony and
therefore, it had erred in reaching the conclusion of guilt on the
basis of such tainted evidence.
52. He further submits that the PW-4, Abdul Noor, who is the son-in-
law of the informant has also categorically deposed that when he
found the victim in the house of the appellant and he tried to take
her back she refused to come with him. He has also submitted that
the PW-4, PW-6, PW-5 and PW-9 have contradicted the prosecution
story and in spite of the said contradiction the Trial Court failed to
take into consideration the same and erroneously convicted the
appellant.
53. He submits that the elder daughter of the appellant namely „Y‟ had
herself eloped with Jasimuddin. He submits that as the marriage of
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Jasimuddin was arranged by the present appellant, the informant
got enraged due to such arrangement of marriage by the appellant
and had lodged false case against him out of grudge.
54. The learned counsel for the appellant has also submitted that the
though, the alleged incident occurred on 30.01.2018, however, the
FIR was lodged on 03.02.2018 and no reason was mentioned for
the delay in lodging of the FIR.
55. The learned counsel for the appellant has submitted that the
appellant has been detained behind the bars for more than three
years and the evidence on records against him are contradicting
each other and the prosecution side has not been able to prove the
guilt of the appellant beyond all reasonable doubt and under such
circumstances, he ought to have been given benefit of
doubt.Accordingly, he prays for setting aside the impugned
judgment and acquitting the appellant by giving him benefit of
doubt.
56. On the other hand, Mr. D. Das, the learned Additional Public
Prosecutor has submitted that the Trial Court has correctly
convicted the appellant under Section 4 of the POCSO Act, 2012 as
well as Section 376/366 of the Indian Penal Code and the conviction
does not warrant any interference by this Appellate Court.
57. He submits that the victim has categorically stated in her deposition
that she was raped on several occasions by the present appellant
and her testimony has been corroborated by the statement of the
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victim recorded under Section 164 of the Code of Criminal
Procedure, 1973 as well as the medical evidence. He submits that
the sole testimony of the prosecutrix is enough to convict an
accused in sexual offences, if the testimony of such a prosecutrix
inspire confidence.
58. Ms. D. Saikia, the learned Amicus Curiae, appearing for the
respondent No. 2/informant has also submitted that the Trial Court
has correctly convicted and sentenced the appellant and the
impugned judgment does not warrant anyinterference by this Court.
59. She submits that the incident of abduction of the victim girl „X‟ had
occurred on 30.01.2018 and the FIR was lodged on 02.02.2018.She
submits that there was a delay of two days in the lodging of the
FIR. She submits that the informant,testifyingas PW-2, has
explained the reason for delay that he was assured by the villagers
to settle the dispute. However, on failure of the same, he lodged
the FIR.
60. The learned Amicus Curiae has also submitted that the testimony of
PW-7, i.e., the doctor, who medically examined the victim girl „X‟
shows that the hymen of the victim girl was found in torn condition,
which is indicative of the fact that she was subjected to sexual
intercourse. She also submits that in her statement recorded under
Section 164 of the Code of Criminal Procedure, 1973, the victim girl
had categorically stated that she was repeatedly raped by the
appellant. Thus, her deposition as PW-1 is corroborated by her
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statement recorded under Section 164 of the Code of Criminal
Procedure, 1973.
61. The learned Amicus Curiae has also submitted that the age of the
victim girl „X‟ has also been duly proved with the help of medical
evidence, which remains uncontroverted as the defence side chose
not to cross-examine the PW-7.She, therefore, submits that the
sentence imposed on the appellant as well as conviction that the
conviction and sentence imposed on the appellant does not justify
any interference by this Court in this appeal.
62. I have considered the submissions made by the learned counsel for
both sides and have gone through the records of Special POCSO
Case No. 23/2018, which was requisitioned in connection with this
appeal.
63. On perusal of the case records of the Trial Court, it appears that
though, in the FIR, the PW-2 has mentioned about two of his
daughters as victim of sexual offences by the appellant. However, it
appears that the charges under Section 366 and 376 of the Indian
Penal Code as well as Section 4 of the POCSO Act, 2012, were
framed against the appellant only in respect of the alleged offence
committed against the younger daughter of the informant, i.e., „X‟.
As regards the elder daughter, „Y‟ no charges were framed. Neither
any conviction with regard to the alleged offence against the
daughter, „Y‟, is made in this case.
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64. Otherwise also, the evidence on record suggests that the elder
daughter, „Y‟, of the informant had eloped with a person called
Jasimuddin and presently she has been happily married to him.
65. As regards the younger daughter of the informant, namely, „X‟, who
is the victim in this case, is concerned, it appears that the conviction
of the appellant under Section 376/366 of the Indian Penal Code as
well as Section 4 of the POCSO Act, 2012, has been made mainly
on the basis of the testimony of the victim „X‟ as PW-1, wherein she
has deposed that she was subjected to repeated rape by the
appellant after she was abducted by him.
66. As regards the question as to whether the age of the victim „X‟ was
rightly ascertained by the Trial Court, and whether she was rightly
treated as minor by the Trial Court, let us examine the same.
67. The Apex Court has observed in the case of “P. Yuvaprakash Vs.
State represented by Inspector of Police” (Supra), as follows:
“13. It is evident from conjoint reading of the above
provisions that wherever the dispute with respect to
the age of a person arises in the context of her or him
being a victim under the POCSO Act, the courts have
to take recourse to the steps indicated in
Section 94 of the JJ Act. The three documents in
order of which the Juvenile Justice Act requires
consideration is that the concerned court has toCRL.A./21/2022 Page25
Page 26 of 32determine the age by considering the following
documents:
“(i) the date of birth certificate from the school,
or the matriculation or equivalent certificate
from the concerned examination Board, if
available; and in the absence thereof;
(ii) the birth certificate given by a corporation or
a municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above,
age shall be determined by an ossification test
or any other latest medical age determination
test conducted on the orders of the Committee
or the Board”.
68. The main contention of the learned counsel for the appellant is that
while ascertaining the age of the victim girl, the Trial Court did not
examine the birth certificate from school or of matriculation or
equivalent certificate or birth certificate given by corporation or
municipal authority even when the same was available.
69. If we peruse the provision contained in Section 94 (2) (iii) of the
Juvenile Justice (Care and Protection of Children) Act, 2015, it
clearly indicates that the date of birth certificate from school or
matriculation or equivalent certificate by the concerned examination
board has to be firstly referred in absence of which birth certificate
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issued by corporation, municipal authority or a panchayat and it is
only thereafter in absence of these documents, age is to determine
through diagnosis test or other latest medical age determination
test. In the instant case, though, the PW-1 and PW-2 has stated in
his testimony that he had submitted the copy of birth certificate
along with the FIR to the Investigating Officer, however, the
prosecution side did not exhibit any such birth certificate.
70. In the instant case, the Trial Court had relied on the evidence of
PW-7 as well as the medical report of the victim girl wherein her
age was ascertained as more than 14 years and less than 16 years
on the basis of physical (including dental) examination, laboratory
and radiological investigations done on the victim. It appears that
apart from the testimony of PW-7 and the medical report which was
exhibited as Exhibit-3, no other admissible material was there
before the Court to ascertain the age of the victim girl. The only
other material which could have indicated the age of the victim girl
is the photocopy of the birth certificate of the victim girl available in
the case diary wherein her date of birth has been shown as
16.02.2002.
71. Even if the original birth certificate would have been exhibited, still
the victim would have been assessed as minor at the time of
commission of the alleged offence. However, the instant case is not
a case where various options were available are i.e., birth certificate
as well as school living certificate were also available and the Court
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opted for medical evidence that is evidence of PW-7. Rather it is a
case where the birth certificates were not produced before the
Court.
72. The materials available before the Court to ascertain the age of the
victim was the evidence of the doctor and the assessment made by
the doctor, i.e., PW-7 on the basis of physical (including dental)
examination, laboratory and radiological investigations done on the
victim. The PW-7 was not cross-examined by the defence side.
Therefore, her testimony remained intact.
73. Under such circumstances, this Court is of considered opinion that
when the birth certificates were not available before the Court, the
Court was not wrong in relying on whatever evidence was available
before it i.e., the testimony of PW-7 (the doctor who examined the
victim girl) as well as the Exhibit-3.
74. In the case which is cited by the learned counsel for the appellant,
i.e., “P. Yuvaprakash Vs. State represented by Inspector of
Police” (Supra)both the birth certificates and medical examination
reports were available and in medical examination report, the victim
of that case was assessed to be major. However, in the instant
case, the uncontroverted medical evidence shows that the victim
was less than 16 years of age at the time of commission of the
alleged offence.
75. The Trial Court by relied on the observation of the Apex Court in
the case of “Jaya Mala vs. Home Secretary, Government of
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Jammu and Kashmir and others” reported in (1982)2 SCC
538 wherein it was observed that if the age is determined by
doctor, then two years have to be added on the either side, to such
age, by taking notice of the margin of error in age ascertained on
the basis of radiological examination. The Trial Court, thus, by
adding two years to the age assessed by the PW-7 held the age of
the victim „X‟ to be less than 18 years and under the facts and
circumstances of this case and for the reasons discussed herein
above, this Court is of considered opinion that the Trial Court did
not make any mistake in assessing the age of the victim girl on the
basis of evidence led by PW-7 as well as Exhibit-3, as no other
document was exhibited by the either prosecution side or defence
side regarding the age of the victim.
76. It is pertinent to note herein that in the photocopy of the birth
certificate which is available in the case diary, the date of birth of
the victim „X‟ has been shown as 16.06.2002. Even if the said date
is taken into consideration, the victim would be regarded as a minor
on the date of commission of alleged incident.Hence, the finding of
the Trial Court as regards the assessment of age of the victim „X‟ in
this case does not need any interference by this Court and said
finding is found to be correct as it is on the basis of the evidence
available before the Court.
77. The Trial Court has convicted the appellant mainly on the basis of
the testimony of the PW-1, i.e., the victim „X‟ wherein she has
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categorically stated that she was raped forcibly by the appellant for
about 15 days when she was confined in a house at Silchar as
thereafter, in his own house where the appellant had kept the
victim girl till she was driven out therefrom.
78. Though, the learned counsel for the appellant has submitted that
the testimony of the victim has been contradicted during her cross
examination as well as by the evidence of PW-11 wherein he has
stated that the victim did not state before him as she has stated
before the Court. However, it appears that the contradiction was
not done in the manner as was required under the law.As early as
in 1959, the Apex Court has clarified in the case of “Tahsildar
Singh and Another Vs. The State Of Uttar Pradesh“reported
in 1959 SCC online SC 17 as to how a witness has to be
contradicted in relation to his or her previous statement recorded in
writing. The Apex Court has held in that case that whenever a
witness is intended to be contradicted in relation to his previous
statement which is recorded down in writing, the attention of the
said witness must be drawn to the such previous statement which
was recorded in writing before he may be contradicted.
79. In the instant case, though, it appears that even in her statement
recorded under Sections 161 of the Code of Criminal Procedure,
1973, the victim girl i.e., PW-1 has stated before the Investigating
Officer that she was raped repeatedly by the appellant. However,
the said statement was not brought to the notice of the PW-1 when
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she was intended to be contradicted vis-a-vis her previous
statement recorded in writing, at the time of her cross examination
by the defense counsel.
80. Hence, by merely stating that the victim did not state in the exactly
same manner before the Investigating Officer asdeposed by her
during her examination-in-chief would not amount to contradicting
her with regard to the material particulars i.e., with regard to the
accusation of rape by the appellant. Thus, the contention that the
evidence of PW-1 has been contradicted is not correct. Rather her
testimony is corroborated by what she had stated in her statement
under Section 164 of the Code of Criminal Procedure, 1973.There is
no reason to disbelieve her testimony, therefore, this Court is of
considered opinion that the Trial Court had correctly relied on the
testimony of PW-1 to convict the appellant under Section 376/366
of Indian Penal Code as well as Section 4 of the POCSO Act, 2012.
81. For the reasons stated herein above this Court finds no ground to
interfere with the impugned judgment of the Trial Court convicting
the appellant under Section 376/366 of the Indian Penal Code as
well as Section 4 of the POCSO Act, 2012.
82. The impugned judgment is, accordingly, upheld and the finding of
conviction in the sentence imposed on the appellant is not
interfered with.
83. This appeal is accordingly dismissed.
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84. Send back the Trial Court records along with the copy of this
judgment.
JUDGE
Comparing Assistant
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