Gauhati High Court
Abu Siddique @ Chuttu vs The State Of Assam And Anr on 28 July, 2025
Page No.# 1/16
GAHC010258672023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./424/2023
ABU SIDDIQUE @ CHUTTU
S/O LATE SAYED ALI,
VILL.- JOGIRMOHAL, P.S.- BILASIPARA, DIST.- DHUBRI (ASSAM).
VERSUS
THE STATE OF ASSAM AND ANR.
REP. BY THE LEARNED PUBLIC PROSECUTOR.
2:MONOWAR HUSSAIN
S/O LATE ABDUL KADER
VILL.- TIAPARA
P.S.- BILASIPARA
DIST.- DHUBRI (ASSAM)
PIN- 783348
Advocate for the Petitioner : MR M J QUADIR, A.ISLAM,MR. A K HANNAN
Advocate for the Respondent : PP, ASSAM, MS P SARMA (R-2),K U AHMED (R-2)
BEFORE
HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA
For the Appellant : Mr. H. R. A. Choudhury, Sr. Advocate
: Mr. M. J. Quadir, Advocate
For the Respondent : Mr. M. P. Goswami, Addl. P.P.
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: Mr. K. U. Ahmed, Advocate
(for the respondent No. 2)
Date of Judgment : 28.07.2025
JUDGMENT & ORDER
1. Heard Mr. H. R. A. Choudhury, learned senior counsel assisted by Mr. M. J.
Quadir, learned counsel for the appellant. Also heard Mr. M. P. Goswami, learned
Additional Public Prosecutor for the State as well as Mr. K. U. Ahmed, learned
counsel for the respondent No. 2/informant.
2. This Appeal under Section 374(2) of the Code of Criminal Procedure,1973
has been preferred by the appellant, namely, Abu Siddique @ Chuttu impugning
the judgment dated 03.10.2023 passed by the Court of learned Special Judge,
Bilasipara in Special (POCSO) Case No. 14/2022, whereby the appellant was
convicted under Section 354 of the Indian Penal Code and was sentenced to
undergo simple imprisonment for four years and to pay a fine of Rs.5000/- and in
default of payment of fine to undergo simple imprisonment for one month.The
appellant was also convicted under Section 8 of the POCSO Act, 2012 and he was
sentenced to undergo rigorous imprisonment for four years and to pay a fine of
Rs.5000/- and in default of payment of fine to undergo simple imprisonment for
one month.
3. The facts relevant for consideration of the instant appeal, in brief, is that
on 11.11.2021, one Monowar Hussain had lodged an FIR before the Officer-in-
charge of Nayahat Police Outpost under Bilasipara Police station, inter alia, alleging
that his minor daughter aged above 12 years (herein after referred to as “X”) went
to the house of her elder sister Farida Parbin. On 07.11.2021, the elder sister of the
victim “X” had asked her to bring chilly from the house of her in-laws and when the
victim “X” was returning to the elder sister’s home, the appellant, who was working
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in the paddy field, caught hold of the victim, gagged her mouth and attempted to
commit sexual intercourse with her.
4. On receipt of the said FIR, the In-charge of Nayahat Police Outpost
forwarded the same to the Officer-in-charge of Bilasipara Police Station for
registration of the case and Bilasipara P.S. Case No. 877/2021 was registered under
Sections 376/511 of the Indian Penal Code read with Section 8 of the POCSO Act,
2012 and the investigation was initiated. Ultimately, on completion of the
investigation, the charge-sheet was laid against the appellant under Sections
376/511 of the Indian Penal Code read with Section 8 of the POCSO Act, 2012.
5. The appellant faced the trial remaining on bail.During the trial, when the
appellant appeared before the Trial Court, after considering the materials available
on the record and after hearing both sides, charges under Section 354 of the
Indian Penal Code read with Section 8 of the POCSO Act, 2012 were framed
against the appellant. When the said charges were read over and explained to him,
he pleaded not guilty and claimed to be tried.
6. To bring home the charges against the appellant, the prosecution side
examined eight prosecution witnesses. 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, he declined to adduce any evidence in defence. Ultimately, by
the judgment which has been impugned in this appeal, the appellant was convicted
and sentenced in the manner which has been described in the paragraph No. 2 of
this judgment hereinbefore.
7. Before considering the rival submissions of the learned counsel for both
sides, let us go through the evidence which is available on record.
8. The PW-1 i.e., victim ‘x’ has deposed that the informant is her father and
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she knows the accused. On the day of the incident, she was at the matrimonial
house of her elder sister Farida Parbin who asked her to bring chilly from the house
of her cousin Fazila whose house is also situated at Jogirmohal. PW-1 has further
deposed that she went to the house of Fazila and after taking chilly from the house
of Fazila while she was returning to the matrimonial house of her elder sister Farida
Parbin, on the way, accused Abu Siddique who was there in the paddy field, all of
sudden touched on her breast and made attempt to commit rape on her. The PW-1
has further deposed that on raising alarm, her elder sister and others assembled at
the place of occurrence and the accused fled away. Thereafter, she returned to
matrimonial house of her elder sister and reported about the incident to her elder
sister Farida Parbin. The PW-1 has further deposed that her elder sister Farida
Parbin told her father about the incident. Coming to know about the incident, her
father came to the matrimonial house of her elder sister Farida Parbin and she had
narrated about the incident to her father. The PW-1 has further deposed that in
respect of the incident her father lodged ejahar at the police station and police got
her medically examined and also produced her before the Magistrate where she
had given statement. Ext.P-1 is her statement given before the Magistrate wherein
Ext.P-1(1) is her signature.
9. During her cross examination,the PW-1 has stated that on the day of the
incident, the accused was harvesting paddy and other people were also harvesting
paddy in their respective paddy field and the incident took place within homestead
compound of Fazila. The PW-1 has further stated in cross that presently she cannot
remember the date of the incident and Fazila is not mother-in-law of her elder
sister Farida Parbin. She deposed that the distance between matrimonial house of
her elder sister Farida Parbin and that of Fazila is about 10 feet. Around the house
of Fazila, there were no houses of other people. However, there was a house at a
distance from homestead of Fazila. In cross examination, the PW-1 has further
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stated that Fazila has given chilly to her and thereafter Fazila went to the house of
some other person and as soon as Fazila has given chilly to her, she proceeded to
the matrimonial house of her elder sister.
10. The PW-1 has further stated during cross examination that she has not
stated before the Magistrate that the accused touched on her breast because
accused threatened her to cause damage to her if she discloses the fact of
touching her breast by the accused to anybody. The PW-1 has further stated during
cross examination that she has not stated before the Magistrate about threatening
given by the accused and she has also not stated before the Magistrate that on
raising alarm, her elder sister and other people assembled at the place of
occurrence because the Magistrate did not ask her about the said fact.
11. The PW-1 has further stated during her cross examination that she has
stated before the Magistrate that accused made attempt to touch her breast
because the Advocate of accused tutored her to say like that. The PW-1 has further
stated during cross examination that as there was no chilly in the house of mother-
in-law of her elder sister Farida, so, she brought chilly from the house of Fazila.
The PW-1 denied that she has not stated before the Magistrate that she went to
the house of Fazila for bringing some chilly on the date of incident on being asked
by her elder sister. The PW-1 further denied that she has not stated before the
Magistrate that at the backside of matrimonial home of her elder sister Farida, she
went to bring some chilly and at that time there was none available in the backyard
of matrimonial home of her elder sister Farida. The PW-1 further denied the fact
that due to land dispute between accused and her brother-in-law Shajamal, he had
used her to lodge this false case.
12. The PW-2, Monowar Hussain, the informant of the instant case has
deposed that the victim is his daughter who is presently aged about 11 to 12
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years. On the date of the incident his younger daughter (victim) was there in the
matrimonial house of her elder sister at Nayagaon and on that day at about 11.00
A.Μ his elder daughter Farida Parbin called him over phone at her residence
immediately. The PW-2 has further deposed that on inquiry, his elder daughter told
him that some incident took place with victim as such he has to go to the
matrimonial house of his elder daughter immediately. The PW-2 has further
deposed that he went to matrimonial house of his elder daughter and on way, he
had seen the accused.
13. The PW-2 has further deposed that on seeing him, his daughter (victim)
started crying and his daughter (victim) told him that the accused touched her
breast and raped her. The PW-2 has further deposed that in the meantime some
other people assembled and they have assured him for settlement through holding
village meeting but nothing was done as such, he lodged ejahar at the police
station. Ext.P-2 is the ejahar wherein Ext.P-2(1) is his signature.
14. During cross examination, the PW-2 has stated that matrimonial house of
his elder daughter is less than 1½ km away from his residence and there are
houses of Munnaf, Nur Hussain and others near the matrimonial house of his elder
daughter. There is house of one Guljar at a distance from the matrimonial house of
his elder daughter and there is also house of one Akinur nearer to the matrimonial
house of his elder daughter. The PW-2 has further deposed during cross
examination that he lodged FIR after 1 to 2 days of the incident. The PW-2 has
further deposed, in cross examination, that the appellant has cultivating land
adjacent to the cultivating land of his son-in-law Shajamal and he does not know
whether there was any dispute and as to whether any village meeting was held in
respect of dispute regarding any path between his son-in-law Shajamal and the
appellant. The PW-2 has further deposedduring his cross examination that the
contents of ejahar has not been read over to him and the contents of ejahar was
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written by police official under guidance of In-charge of the police out post. The
PW-2 has further deposed during his cross examination that the incident took place
at the approaching road of the matrimonial house of his elder daughter. The PW-2
has further stated in cross that the name of father-in-law of his elder daughter is
Samal who has three sons.Out of them two are married and one is un-married. All
the family members live in the said homestead and on the date of the incident,
family members of Samal went to the paddy field for harvesting. The PW-2 has
deposed during his cross examination that he arrived at the place of occurrence
about 10 minutes later and on arrival at the place of occurrence, he saw that
accused was going away from there. The PW-2 has further deposed during his
cross examination that he found accused at about 40 meters away from the place
of occurrence. The PW-2 denied that he had lodged ejahar after 4 days of the
incident. He also denied that he has not stated before Investigating Officer that
accused touched the breast of his younger daughter (victim). The PW-2 further has
denied few other suggestions put to him by the defence side.
15. The PW-3 Farida Parbin has deposed that informant is her father and
victim is her younger sister. On the date of the incident the victim had come to her
house. On the day of the incident, on being asked by her, her sister (victim) went
to the house of Fazila Bibi for bringing chilly and while she was returning to her
matrimonial house through a ‘suli’ (a pathway in between two houses), on the way,
at ‘suli’, the appellant caught hold of her and touched her breasts and as such she
raised alarm. The PW-3 has further deposed that hearing alarm of her sister, she
came out from her house and proceeded to place of occurrence and on seeing her,
the appellant left the place of occurrence releasing her victim sister. The PW-3 has
further deposed that on being asked, her victim sister told her that while she was
coming through ‘suli’, accused stopped and caught hold of her and touched her
breast. The PW-3 has further deposed that while she enquired accused as to why
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accused had done the obscene acts with her sister then accused told her that he
had made fun only. The PW-3 has further deposed that she informed her father
over phone and reported him about the incident. Later on, her father came to her
matrimonial house and brought back her sister and her father lodged ejahar at the
police station.
16. During the cross-examination, the PW-3 has deposed that the appellant
was alone harvesting in the paddy field and the approaching road reaching to her
matrimonial house is adjacent to the land of the accused. The PW-3 has further
deposed during the cross-examination that her matrimonial house and that of the
house of Fazila is about 60/70 feet away and Fazila lives in the house of her
parents. The PW-3 has further deposed that there are houses of Nur Hussain,
Rafiqul, Munnaf Ali and others at a distance from her matrimonial home. The PW-3
has further stated in cross-examination that hearing alarm of the victim, she visited
the place of occurrence first. The PW-3 denied that she has not stated before
police that on the date of the incident she had sent the victim to the house of
Fazila for bringing chilly. PW-3 has further denied that she has not stated before
police that accused caught hold her sister and touched her breast in the ‘suli’.
17. The PW-4 Dr. Aruna Saikia, the Medical Officer has deposed that on
13.11.2021 while she was working as M&H.O- 1 at SDCH, Bilasipara, she had
medically examined the victim ‘X’ under reference to P.S Case No. 877/2021 u/s
376/511 I.P.C and Section 8 of POCSO Act on being identified and escorted by WPC
1035 Rahiton Khatun. During examination she foundthe victim has given history of
pulling of her hand by the accused and making attempt to commit rape on her.
Approximate radiological age of victim was found to be 10 to 12 years. In her
opinion- no evidence of any recent sexual and physical assault present but
radiological age is 10-12 years. Ext. P-3 is medical report wherein Ext. P-3(1) is her
signature.
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18. During cross-examination, the PW-4 has stated that she has not mentioned
the name of the police station in connection with which police station case number
she had examined the victim. The PW-4 has further stated that during examination
she did not find any injury over the person of the victim.
19. The PW-5 Fazila Bibi has deposed that on the day of the incident she was
there at the backyard of their homestead and was drying jute firewood. On that
day, Farida sent the victim to her house for bringing some chilly and accordingly
victim went to her home and victim apprised her that her elder sister asked for
some chilly. Thereafter, she gave chilly to the victim and the victim left their
homestead. Later, while she was there in the backyard of their homestead, she saw
that people were proceeding towards the place of occurrence. The PW-5 has
further deposed that while she went to the place of occurrence, the victim told her
that while the victim was returning to the matrimonial house of Farida, the accused
caught hold the victim and touched her breast.
20. During cross-examination, the PW-5 has stated that on the date of the
incident, her two children went to school and the residence of Farida is about 100
to 120 ft. away from their residence. The PW-5 has further stated in cross-
examination that while she went to the place of occurrence, she saw that 100/150
peoples assembled there and she also saw Farida there. The PW-5 has further
stated during cross examination that the place of occurrence is their private
approach road exclusively used by their family members. The PW-5 denied the
suggestions given to her by the defence counsel.
21. The PW-6 Rofiqul Hoque has been declared hostile by the prosecution. On
being cross examined by the prosecution, the PW-6 has denied that Ext. P-4 is his
statement given before police u/s 161 Cr.P.C and further denied that as the accused
is known to him, he deposed falsely.
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22. During cross examination by defence, the PW-6 has stated that there was
land dispute between accused and Sahjamal and often he had heard about the
land dispute. The PW-6 has further stated during cross examination that he knows
nothing about the instant case.
23. The PW-7 Manoj Newar, the Investigating Officer has deposed that on 11-
11-2021, he was posted at Nayahat O.P as in-charge. On that day, on receipt of
ejahar from Monowar Hussain, he forwarded the same to Bilasipara PS which is
registered as Bilasipara P.S Case No. 877/2021 under Sections 376/511 I.P.C read
with Section 8 of POCSO Act and he was given charge of investigation. During the
course of investigation, he recorded statement of complainant, recorded statement
of victim, visited place of occurrence, drawn a sketch map, sent the victim for
recording her statement under Section 164 Cr.P.C before the learned Judicial
Magistrate and thereafter, on being transferred he handed over the case diary to
S.I. Jitumoni Baisya who has filed charge-sheet. Ext. P-4/PW-7 is sketch map
wherein Ext. P-4(1) and 4(2) are his signature. Ext. P-5/PW-7 is the charge sheet
filed by S.I. Jitumoni Baisya wherein Ext. P-5(1) is the signature of Jitumoni Baisya
which he knows.
24. During cross examination, the PW-7 has deposedthat occurrence took
place on 07-11-2021 and FIR was filed on 11-11-2021 and there was no
explanation of delay in lodging FIR for four days. The PW-7 has further stated
during cross examination that P.W-2 Monowar Hussain has not stated before him
that the accused touched the breast of his younger daughter; accused committed
rape on her daughter; on arrival at the place of occurrence he saw the accused
about 40 meters away from the place of occurrence. The PW-2 has also not stated
before him that on seeing him, his daughter started crying and some people of the
place of occurrence asked him not to make any noise and they have assured to
settle the matter amicably by holding village meeting. The PW-7 has further stated
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during cross examination that P.W.-3 has not stated before him that on the date of
incident she has sent the victim to the house of Fazila to bring chilly and the
accused caught hold of her sister and touched her breast in the ‘suli’. The PW-7
has further deposed that PW-5 has not stated before him that on the date of the
incident she was drying jute firewood in the backyard of their homestead and
victim reported her that the accused touched her breast. The PW-5 denied that Ext
4 is not connected with this case. The PW-5 further denied that whole proceeding
is under objection and he has not conducted investigation in Bilasipara P.S. Case
No. 877/21. The PW-5 also denied that his investigation is not proper and he had
deposed falsely.
25. The PW-8 Jitumoni Baisya, another Investigating Officer has deposed that
on 07-01-2022 he was posted at Nayahat O.P as In-charge. O/C Bilasipara PS has
handed over the case diary of the instant case to him for investigation. After
reading case diary he found that earlier Investigating Officer has completed the
investigation. Accordingly, he arrested the accused and collected medical report
and thereafter submitted charge-sheet against the accused u/s 376/511 I.P.C r/w
Section 8 of POCSO Act. Ext. P-5/PW-8 is the charge-sheet wherein Ext. P-5(1) is
his signature.
26. During his cross examination, the PW-8 has denied that he filed charge
sheet without going through the case diary.
27. Mr. H. R. A. Choudhury, learned senior counsel for the appellant has
submitted that the Trial Court has wrongly convicted the appellant in this case
without there being any clinching evidence against him on record. He has
submitted that in this case there is a delay of four days in lodging of the FIR,
however, no explanation has been there for the said delay, which creates doubt
regarding the veracity of the prosecution’s story. He also submits that there was a
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land dispute between the appellant and the son-in-law of the informant, therefore,
the appellant has been falsely implicated by the informant in this case.
28. The learned senior counsel for the appellant has also submitted that there
are contradictions in the deposition of the victim before the Trial Court with what
she had stated before the Magistrate in her statement under Section 164 of the
Cr.P.C. as well as before the Investigating Officer under Section 161 of the Cr.P.C.
She had not stated earlier that the appellant had touched her breast, however,
during the trial she, in order to implicate the appellant, had stated so after being
tutored by the informant.
29. The learned senior counsel for the appellant has also submitted that the
PW-1 (victim) has categorically deposed in her testimony that the distance
between the house of her elder sister and house of Fazila is only 10 feet and within
such a short distance the incident would not happen without other people knowing
about this.
30. The learned counsel senior counsel for the appellant has also submitted
that there are contradictions in the statement of witnesses which was ignored by
the Trial Court while coming to the finding of the guilt of the appellant. He submits
that when the victim girl has deposed that the appellant fled away from the scene
after the victim raised hue and cry. However, the sister of the victim has deposed
that she saw the appellant at the spot and only after she arrived he left the place.
In support of the submission, the learned senior counsel for the appellant has cited
following case:-
(i) “Dilawar Singh Vs. State of Delhi” reported in “(2007) 12 SCC 641”
(ii) “Santosh Prasad @ Santosh Kumar Vs. State of Bihar ” reported in
“(2020) 3 SCC 443”
(iii) “Kunju @ Balachandran Vs. State of Tamil Nadu ” reported in “(2008) 2
SCC 151”.
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31. The learned senior counsel for the appellant has submitted that the
appellant has been convicted from this case solely on the basis of the testimony of
the victim girl. However, the victim girl has narrated different versions during
different stages of the proceeding. Her testimony before the Trial Court as PW-1 is
not corroborated by her statement recorded under Section 164 as well as Section
161 of the Code of Criminal Procedure, 1973. He, therefore, submits that the victim
girl cannot be categorized in the category of a sterling witness so as to base the
finding of conviction solely on her testimony. He, therefore, submits that the
appellant is entitled to get benefit of doubt in this case and he may be acquitted of
the charges under which he has been convicted in this case.
32. On the other hand, the learned Additional Public Prosecutor as well as the
learned counsel for the respondent No. 2 have submitted that the Trial Court has
rightly convicted the appellant in this case on the basis of reliable evidence on
record against him. They submit that the appellant side has projected the story of
land dispute between the appellant and the son-in-law of the informant only to get
the benefit of doubt in this case. It is submitted that no such land dispute exist and
nothing has been adduced by the defense side in support of said contention.
33. The learned Additional Public Prosecutor also submits that the delay in
lodging of FIR in this case has been properly explained as same was caused only
due to the assurance given by the villagers that the matter would be settled
amicably in the village meeting. However, when same was not done, the informant
had lodged the FIR.
34. It is also submitted by the Additional Public Prosecutor that the prime
witness of this case in a minor, hence, some minor discrepancies may be there in
her testimony and same may not be a reason for discarding her testimony in toto.
It is submitted by the Additional Public Prosecutor as well as the learned counsel
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for the respondent No. 2 that finding of conviction arrived at by the Trial Court and
the sentence imposed on the appellant are correct and should not be disturbed and
this appeal should be dismissed.
35. I have considered the submissions of the learned counsel for both sides
and have gone through the materials on record including the record of the Special
(POCSO) Case No. 14/202 which was requisitioned in connection with this case.
36. In the instant case, the main witness, on the basis of whose evidence, the
Trial Court came to the finding of guilt of present appellant is the victim girl herself,
who has deposed before the Trial Court as PW-1. There is no dispute regarding the
age of minority of the victim that she was about 12 years of age when the alleged
offence was committed. When we peruse the testimony of the victim girl which she
had deposed as PW-1 before the Trial Court as well as her statement recorded
under Section 164 of the Cr.P.C. during the course of investigation, it appears that
though there are minor discrepancies in the statements made before the Trial
Court. She had deposed as PW-1 that the appellant tried to commit rape on her,
however, nothing of this sort was stated before the Magistrate when her statement
under Section 164 of the Cr.P.C. was recorded. However, the basic accusation
against the appellant that he touched the breast of the victim girl remains intact as
in her statement recorded under Section 164 of the Cr.P.C. as well as while
deposing as PW-1 before the trial court, the victim girl has categorically stated that
the accused Abu Siddique touched her breast. Though, the part of the testimony of
the PW-1 in which she had stated that the appellant tried to commit rape on her
appears to be exaggerated when the testimony of the PW-1 is examined vis-à-vis
her statement recorded under Section 164 of the Cr.P.C. However, her testimony to
the effect that the appellant had touched her breast remains unwavered and
consistent throughout the trial.
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37. Merely submitting that the appellant had land dispute with the brother-in-
law of the victim girl is not sufficient to disbelieve testimony of the PW-1 in
absence of any specific details about such land dispute and any cogent reason
which might have triggered making false accusation by the victim girl against the
appellant.
38. Regarding the delay in lodging of the FIR also, the testimony of the PW-2
that the FIR was lodged belatedly as there was an assurance given by the villagers
to amicably settle the matter, cannot be disbelieved, as it normally happens in
villages that in such cases the lodging of FIR is delayed due to assurance of
settlement by the villagers.
39. This Court finds nothing on record which might have triggered lodging of
false FIR against the appellant. There is no material on record from which it can be
ascertained as to what made PW-1, who is a minor girl, to level false accusation
against the appellant. The evidence on record shows that the accusation against
the appellant is touching the breast of the victim girl remained consistent
throughout the criminal trial, therefore, this Court is of considered opinion that the
finding of guilt arrived by the Trial Court does not justify any interference by this
Court. The conviction of the appellant under Section 354 of the Indian Penal Code
and Section 8 of the POCSO Act, 2012 is, therefore, upheld.
40. However, considering the facts and circumstances of this case and the
punishment imposed on the appellant by the Trial Court appears to be on the
harsher side. The appellant has been detained behind the bars since the date of
the impugned judgment and he has undergone a considerable period behind the
bars, which is, in the considered opinion of this Court, is sufficient punishment
proportionate to the offence committed by the appellant.
41. In view of the aforesaid discussion, the conviction of the appellant under
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Section 354 of the Indian Penal Code and Section 8 of the POCSO Act, 2012 is
upheld, however, the sentence imposed under both the penal provisions is reduced
to the period of detention already undergone by the appellant.
42. Accordingly, the sentence of imprisonment imposed upon the appellant
under Section 354 of Indian Penal Code as well as Section 8 of the POCSO Act,
2012 is modified to the period of imprisonment already undergone by the appellant
till the date of this judgment. However, the sentence of fine imposed by the Trial
Court under both the above provisions and the default stipulations thereof remain
intact.
43. This appeal is, accordingly, partly allowed.
JUDGE
Comparing Assistant