Gauhati High Court
Crl.A./126/2023 on 6 November, 2025
Author: Manish Choudhury
Bench: Manish Choudhury
GAHC010065852023 Page No. 1/33
2025:GAU-AS:14997-DB
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
CRIMINAL APPEAL NO.126/2023
Saiful Islam, S/o Surat Jamal, Village -
Kachuarkhas Part-I, Police Station and
District - Dhubri, Assam.
..................Appellant
-VERSUS-
1. The State of Assam, represented by the
Public Prosecutor, Government of Assam.
2. Asem Ali, S/o Late Mohori Seikh, Village -
Kachuwarkhas Part-I, Police Station - Dhubri,
District - Dhubri Assam.
...................Respondents
BEFORE HON'BLE MR. JUSTICE MANISH CHOUDHURY HON'BLE MRS. JUSTICE MARLI VANKUNG Page No. 2/33 Advocates :
Advocate for the Appellant : Mr. S. Das, Advocate
Advocate for the Respondent no. 1 : Mr. R.R. Kaushik,
Additional Public Prosecutor, Assam
Advocate for the Respondent no. 2 : Mr. S. Biswas, Advocate
Legal Aid Counsel
Date of hearings : 03.11.2025 & 06.11.2025
Date of pronouncement of judgment : 06.11.2025
Whether the pronouncement is of the
Operative part of the judgment ? : No
Whether the full judgment has been
Pronounced ? : Yes
JUDGMENT & ORDER
[M. Choudhury, J]
1. This criminal appeal under Section 374, Code of Criminal Procedure, 1973 ['the Code' or 'CrPC', for short] is directed against a Judgment and Order dated 19.01.2023 passed by the Court of learned Additional Sessions Judge-cum-Special Judge [POCSO] ['the Special Court', for short] in Special Case no. 21/2021, which arose out of G.R. Case no. 2722/2020 and Dhubri Police Station Case no. 829/2020. By the Judgment and Order dated 19.01.2023, the Special Court has convicted the accused-appellant for the offences under Section 417 and Section 376[3] of the Indian Penal Code [IPC] as well as Section 4 of the Protection of Children from Sexual Offences [POCSO] Act, 2012. For the offence under Section 417, IPC, the Page No. 3/33 accused-appellant has been sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 1,000, in default of payment of fine, to undergo rigorous imprisonment for a further period of fifteen days. In view of Section 42 of the POCSO Act, the accused-appellant has been sentenced under Section 4 of the POCSO Act only and he has been imposed a sentence of rigorous imprisonment for a term of twenty years and to pay a fine of Rs. 15,000/-, in default of payment of fine, to undergo rigorous imprisonment for another three months. The sentences are ordered to run concurrently.
2. The First Information Report [FIR] was lodged by P.W.3 as the informant before the Officer-in-Charge, Dharmasala Police Station W.P. on 29.06.2020. In the FIR, the informant named four persons as accused, namely, [i] Saiful Islam [the accused-appellant]; [ii] Soleman Ali; [iii] Surat Jamal; and [iv] Inisa Bibi, all residents of Kachuarkhas Part-I, Post Office - Dharmasala, Police Station & District
- Dhubri.
3. In the FIR, it was inter alia alleged that the accused-appellant who was named as accused no. 1 in the FIR, ensnared the informant's daughter into a love affair, thereby, establishing physical relation with her several times on the pretext of marrying her. Though his daughter refused to have physical relation with the accused no. 1 as she was a minor, the accused no. 1 committed rape on her forcefully and promised her that he would marry her. The love affair continued in that manner for a year, on being instigated by the other three accused. The informant further stated that all of a sudden, that is, on the date of lodging the FIR, the accused no. 1 refused to marry his daughter. The informant stated to have learnt that the marriage of the accused no. 1 had been arranged with another woman and he would be getting married on 29.06.2020. The FIR was lodged with the request to take necessary action in the matter. The informant further mentioned that the influential people of the village met three days earlier but at the instigation of the accused nos. 2, 3 & 4, the accused no. 1 refused to marry his daughter.
Page No. 4/334. On receipt of the FIR, the same was registered by the Officer-in-Charge, Dhubri Police Station as Dhubri Police Station Case no. 829/2020 under Sections 417/376[3], IPC read with Section 6 of the POCSO Act on 30.06.2020 and entrusted the investigation to one Ms. Himakshi Nath [P.W.10], the 2 nd Officer attached to Dhubri Police Station.
5. On being entrusted with the investigation, the I.O. [P.W.10] recorded the statement of the informant and sent the prosecutrix for medical examination on 01.07.2020. The I.O. seized the original Birth Certificate of the prosecutrix [Ext.-2] vide Seizure List [Ext.-3] in presence of witnesses and the statements of the two seizure witnesses, Hazarat Ali [P.W.2] and Sader Ali [P.W.6] were recorded. The I.O. then visited the place of occurrence [P.O.] and prepared a rough sketch map of the P.O.[Ext.-7]. The statements of few other witnesses, Rejina Bibi [P.W.4], Faziron Bibi, Aminur Islam [P.W.7] and Abed Ali [P.W.5] were recorded under Section 161, CrPC by the I.O. The I.O. then produced the prosecutrix in the Court of Learned Judicial Magistrate, First Class [JMFC], Dhubri for recording of her statement under Section 164, CrPC. The statement of the prosecutrix [P.W.1] was recorded by the JMFC, Dhubri under Section 164, CrPC on 03.07.2020. As the I.O.[P.W.10] got transferred, the case diary was handed over to the Officer-in- Charge, Dhubri Police Station on 04.11.2020. The Officer-in-Charge, Dhubri Police Station had then handed over the case diary to the next I.O., P.W.9 on 28.11.2020. The accused-appellant could not be apprehended during the course of investigation. The subsequent I.O. finding that the investigation was complete, submitted a charge-sheet under Section 173[2], CrPC vide Charge Sheet no. 782/2020 [Ext-5] finding a prima facie case against the accused-appellant for committing the offences under Sections 417/376[3], IPC and Section 6, POCSO Act. As per the I.O., as no evidence was found regarding involvement of the other three accused persons named in the FIR, the Charge-Sheet was not submitted against them with a prayer to discharge them from the case.
Page No. 5/336. On submission of the Charge Sheet in Dhubri Police Station Case no. 829/2020 [corresponding G.R. Case no. 2722/2020], the Special Court registered the same as Special Case no. 21/2021. The case of the prosecution was opened by the learned Special Public Prosecutor. After hearing the learned Special Public Prosecutor and the learned defence counsel; and after perusal of the materials on record; the Special Court, on 06.03.2021, framed charges under Section 6, POCSO Act; and Section 417, IPC & Section 376[3] of the IPC against the accused on 06.03.2021. After framing the charges, the charges were read over and explained to the accused to which he pleaded not guilty and claimed to be tried.
7. During the course of the trial, the prosecution side examined 10 [ten] nos. of witnesses and exhibited 6 [six] nos. of documents to bring home the charges against the accused. After closure of evidence from the prosecution side, the adverse circumstances appearing from the evidence of the prosecution witnesses were put to the accused during his examination under Section 313, CrPC. When the accused was asked whether he would adduce defence evidence, he declined to adduce any defence evidence in his support. After hearing the learned counsel for the parties and upon appreciation of the evidence/materials on record, the Special Court reached the verdict of guilt against the accused. The accused was, thereafter, heard on the point of sentence under Section 235[2], CrPC. The Special Court delivered the Judgment and Order of conviction and sentence on 19.01.2023, which is assailed in this criminal appeal.
8. We have heard Mr. S. Das, learned counsel for the accused-appellant; Mr. R.R. Kaushik, learned Additional Public Prosecutor for the respondent no. 1, State of Assam; and Mr. S. Biswas, learned Legal Aid Counsel for the respondent no. 2.
9. Mr. Das, learned counsel appearing for the accused-appellant has submitted that there are a nos. of inconsistencies and embellishments of vital nature in the testimony of the prosecution witnesses, more particularly, the prosecutrix [P.W.1] and the informant [P.W.3]. The version of the prosecutrix recorded under Section Page No. 6/33 164, CrPC is at variance substantially from her testimony given in the Court. There is grave doubt as regards the age of the prosecutrix. Mr. Das has submitted that though a Birth Certificate of the prosecutrix was produced as Ext.-2 showing her as a minor at the time of instituting the FIR, her testimony as P.W.1 with regard to her age qua her elder sister's age has thrown considerable doubt as regards her minority. The issuing authority of the Birth Certificate was not examined by the prosecution, thereby, making the document inadmissible in evidence. He has contended that no enquiry contemplated in Section 94 of the Juvenile Justice [Care and Protection of Children] Act, 2015 ['the JJ Act, 2015', for short] was undertaken by the Special Court for determining the age of the prosecutrix. The investigation was perfunctorily carried out as the I.O.s did not even visit the school where the prosecutrix had claimed to have studied. He has further contended that the family of the prosecutrix was in the practice of lodging false complaints as has emerged from the testimony of the prosecution witnesses. He has submitted that it appears from the evidence on record that the prosecutrix had earlier entered into a marriage with one Monsur Ali. The medical evidence did not support the case of the prosecution. He has contended that in the absence of any supporting medical evidence and in view of inconsistencies and embellishments made by the vital witnesses, the prosecutrix cannot be said to be a minor. It was alleged by the prosecutrix that the relationship of love continued between the prosecutrix and accused for a period of about one year and at no point of time during the said period of one year, the prosecutrix had raised any complaint. It was only when she came to learn that the accused was going to marry another woman, the prosecutrix through her father lodged the FIR to prevent such marriage and to coerce the accused to enter into a marital relationship with her. Summing up, Mr. Das has contended that the impugned Judgment and Order of conviction and sentence passed by the Special Court is not sustainable in law as the prosecution has failed to prove the case beyond reasonable doubt. Even the foundational facts were not established to bring into operation the presumptions under the POCSO Act.
Page No. 7/3310. Mr. Kaushik, learned Additional Public Prosecutor appearing for the State has submitted that the date recorded in the Birth Certificate [Ext.-2] had clearly established that the prosecutrix, on the date of institution of the FIR on 29.06.2020, was a minor, not to speak of the year previous to it when the alleged love affair between the prosecutrix and the accused continued. If the prosecutrix was a minor at that point of time, the question of any consent from the prosecutrix did not arise. He has submitted that contrary to the contention of the accused-appellant, the prosecutrix is found to be consistent from the stage of recording of her statement under Section 164,CrPC till the recording of her testimony in the Court. Any failure on the part of the I.O.s to visit the School of the prosecutrix cannot be treated as one creating a dent in the case of the prosecution as for an offence under Section 6, POCSO Act it is the age of the prosecutrix which is material. The age of the prosecutrix has already been established by the prosecution through the Birth Certificate. The other allegations made by the defence regarding previous marriage of the prosecutrix and lodging of any other FIR are not relevant factors at all. The evidence of witnesses, other than the prosecutrix and the father, as regards the age of the prosecutrix would not carry any weight.
11. Mr. Biswas, learned Legal Aid Counsel appearing for the respondent no. 2- prosecutrix has submitted with fairness that there was doubt as regards the age of the prosecutrix considering her own testimony on the said aspect. The testimony of the informant and the prosecutrix on the number of children of the elder sister of the prosecutrix are at variance to each other, thereby, throwing cloud on the veracity of their statements. The testimony of the prosecutrix as regards her age difference with her elder sister is a relevant aspect, which is to be considered with the Birth Certificate produced during the trial. The prosecution witnesses who deposed about the previous marriage or the age of the prosecutrix, were independent witnesses and were not inimical to the family of the prosecutrix and therefore, their testimony are to be given due weightage. The prosecution witnesses, P.W.2 and P.W.6 were only seizure witnesses, as evident from their statements recorded under Section 161, CrPC. But the prosecution had recorded Page No. 8/33 their versions on aspects on which they did not make any comments during their previous statements. Mr. Biswas has submitted that it is after wholesome appreciation of the entire evidence on record, the question of minority or otherwise of the prosecutrix has to be decided. Thereafter only, a finding on the culpability or otherwise of the accused-appellant can be reached.
12. We have given due consideration to the submissions of the learned counsel for the parties; and have also gone through the evidence/materials available in the case record of Special Case no. 21/2021, in original. We have also gone through the Judgment of the Special Court and the authorities cited by the learned counsel for the parties in support of their respective submissions.
13. It is apt to turn to the testimony of the prosecutrix who was examined as P.W.1, at first. In her examination-in-chief, P.W.1 stated that the accused made physical relation with her many times on promise of marriage. P.W.1 stated that she did not agree in making physical relation with the accused but he told her not to worry and inspite of objection, he made physical relation with her. The accused also made obscene video recording and threatened her not to disclose the matter to anyone or else, the video would be uploaded by him. In that manner, the accused made physical relation with her for one year. When during that period she asked him to marry, he used to console her by saying that he would marry. Finally, when she came to know that the accused was planning to marry another woman she disclosed the matter to her relative, Hajarat Ali [P.W.2], who, in turn, informed the matter to her parents. On knowing about the matter, her parents along with others went to the house of the accused to inform the parents of the accused about the relationship. The accused though admitted the relationship refused to get married with her. Several village meetings were held in that connection. When no decision could be arrived at in those village meetings, her father [P.W.3] lodged the FIR. P.W.1 stated that at the time of the incident, she was a student of Class-VI. During investigation, Police personnel seized her Birth Certificate and recorded her statement apart from recording her statement in Court. P.W.1 exhibited the Page No. 9/33 statement recorded under Section 164, CrPC as Ext.-1 and the original Birth Certificate as Ext.-2 with her signatures in those.
13.1. During cross-examination, P.W.1 denied suggestions that two years prior to the incident, her marriage was solemnized with one Monsur Ali, son of Hasen Ali of Village - Silghagri Part-I; and that Monsur Ali issued a pleader's notice to her for restitution of conjugal rights. P.W.1 also denied a suggestion that subsequently she executed a talaqnama for dissolving her marriage with Monsur Ali. P.W.1 stated that the accused came to her village about 4½ years earlier to settle. P.W.1 reiterated that she wanted to marry the accused but he refused to marry her. When the parents of the accused arranged marriage with another woman, the case was lodged. Prior to that she did not inform about the alleged incident to anyone. She had three sisters and one brother and she was the second eldest child of her parents. P.W.1 stated that her elder sister, Kashna Banu who got married, is three years older to her. Kashna Banu has three children, aged about nine years, seven years and five and half years respectively. P.W.1 stated that it was her father who obtained her Birth Certificate and she did not know when her father obtained the Birth Certificate. She denied a suggestion that the Birth Certificate was a manufactured one. P.W.1 further deposed that about 4-5 days earlier, her mother lodged an FIR alleging that Umed Ali and Nasir Ali committed rape on her. She admitted that she mistakenly told the I.O. that she was a student of Class-VII. She deposed to have told the I.O. that she was in love with the accused and wanted to marry him but the family members of the accused arranged his marriage with some other woman and it was then the FIR was lodged. P.W.1 stated that her brother by village relation, Babu SK saw her talking to the accused seven days prior to lodging of the FIR. Babu SK informed the matter to her father, who scolded her. Then, her father told the accused that as he used to talk with her frequently, he should marry her. Her father also told the accused that if he would refuse to marry his daughter, case would be lodged against him. Thereafter, as tutored by her parents, P.W.1 narrated the alleged incident which she repeated similarly in the court. P.W.1 further stated that in Ext.-1, she narrated as tutored by her parents. She admitted Page No. 10/33 that she did not state before the Magistrate and the I.O. regarding making of obscene video by the accused and that he threatened her by saying he would upload the same. P.W.1 denied a suggestion that she had deposed falsely that the accused made physical relation with her for a period of one year on promise of marriage. P.W.1 further stated that as the house of the accused was adjacent to her house, she and the accused as neighbours used to talk every now and then. She denied suggestions that she was a married lady and was aged about 25-26 years.
14. P.W.2, Hajarat Ali was a co-villager and he knew the informant, the prosecutrix and the accused. In his examination-in-chief, he deposed that few days earlier to the filing of the FIR, the prosecutrix told him that she was in love with the accused and the accused on promise of marriage made physical relation with her. But later on, the accused refused to marry her. P.W.2 was told by the prosecutrix that the accused was planning to marry another woman. P.W.2 stated that then, he along with other villagers went to the house of the accused to inform the matter to his family members. Though the accused admitted his relation but he refused to marry the prosecutrix. Thereafter, P.W.2 informed the father of the prosecutrix to take the help of law. When Police personnel came for investigation after the FIR he was not asked anything and he was made to give his signature on a paper. He did not know why his signature was taken. P.W.2 exhibited a Seizure List, Ext.-3 and his signature therein as Ext.-3[1].
14.1. During cross-examination, P.W.2 repeated that he did not know why his signature was taken by police and he was not shown any article/document by police. He denied a suggestion that the prosecutrix got married with Monsur Ali two years earlier. P.W.2 deposed to have given his statement for the first time in the court as Police did not record his statement. The witness denied the other suggestions including a suggestion that the prosecutrix was married with another person earlier and thereafter, she wanted to marry the accused but the accused refused to marry her. He claimed ignorance whether the mother of the prosecutrix Page No. 11/33 had lodged another rape case against Umed Ali and Nasir Ali alleging commission of rape upon the victim.
15. The informant-father of the prosecutrix was examined as P.W.3. P.W.3 deposed that at the time of occurrence, the prosecutrix was below fourteen years of age. Prior to one year of filing the FIR, the accused, with a false promise of marriage, used to have sexual intercourse with the prosecutrix. The prosecutrix told her mother that the accused used to have a love affair and he had sexual intercourse with her. Subsequently, the accused denied to marry the prosecutrix and got married with another woman. Before the marriage of the accused, he informed the matter to a member of the village panchayat with a request to settle the matter. Despite intervention of the village members the accused did not marry the prosecutrix and therefore, he lodged the FIR.
15.1. In cross-examination, P.W.3 stated that he lodged the FIR after six days from the day when the matter was reported by the prosecutrix. P.W.3 stated that he had six children and his youngest child was aged about six years. He denied that the prosecutrix was his second child while admitting that his elder daughter who got married and had six children, was aged about twenty-eight years. P.W.3 stated that he did not know if Monsur Ali, son of Hasen Ali of Village Silghagri Part-I served a legal notice on the prosecutrix. He did not know for how many days the prosecutrix lived in the house of Monsur Ali and whether the prosecutrix lodged any FIR against Monsur Ali. P.W.3 denied suggestions that the prosecutrix was a married woman and she left the matrimonial home of Monsur Ali with the desire to get married with the accused. P.W.3 stated that the accused was living near his house for the last 4-5 years and his family members including the prosecutrix were in talking terms with the accused. P.W.3 stated that they did not intend to arrange marriage of the victim with the accused and never approached the accused for his marriage with the prosecutrix. He further stated that the prosecutrix did not tell him about the occurrence and denied a suggestion that the prosecutrix was aged about twenty-three years at the time of lodging of the FIR. P.W.3 also denied a Page No. 12/33 suggestion that there was a love affair of the accused with the victim and the accused had sexual intercourse with the prosecutrix. He further denied that he had tutored his daughter, the prosecutrix to depose falsely against the accused.
16. P.W.4, Rejina Bibi deposed in her examination-in-chief that though she knew the informant, the prosecutrix and the accused, she did not know anything about the incident. In her cross-examination, P.W.4 stated that she knew that the prosecutrix once got married with one Monsur Ali of Silghagri Part-I about three years earlier and the prosecutrix was aged about twenty-three years.
17. P.W.5, Abed Ali during examination-in-chief deposed to the effect that though he knew the informant, the prosecutrix and the accused, he did not have any knowledge about the incident. During cross-examination, P.W.5 stated that he heard that the prosecutrix got married with Monsur Ali of Village - Silghagri Part-I.
18. P.W.6, Sader Ali deposed that he knew the informant, the prosecutrix and the accused. As regards the incident, P.W.6 stated that on the date of the incident, the prosecutrix came crying to his house to tell him that Inisa Bibi called her to her house and told her to start a love affair with the accused. Then, P.W.6 went to the house of the accused with two-three villagers to question the family members of the accused about the advances made by the accused towards the prosecutrix. But the family members of the accused abused them. After two days, a village meeting was convened and the accused was asked to attend the meeting. But, the accused did not appear in the meeting. Subsequently, they came to know that the accused married to another girl. Then, P.W.6 advised to P.W.3 to lodge a case against the accused. P.W.6 deposed that the I.O. seized one Birth Certificate of the prosecutrix and he gave his signature in the Seizure List, Ext.-3. He also identified his signature in Ext.-3 as Ext.-3[2].
18.1. During cross-examination, P.W.6 stated that the prosecutrix is the second daughter of the informant-P.W.3. The elder sister of the prosecutrix is four years Page No. 13/33 elder to the prosecutrix. The elder sister has three children with the eldest of the three children being about ten years of age. P.W.6 stated that he is the maternal uncle of the prosecutrix. Kulsuma Bibi is the mother of the prosecutrix and the wife of the informant-P.W.3. P.W.6 testified that after lodging the FIR of the case in hand, Kulsuma Bibi lodged another case against five persons alleging that they committed rape on the prosecutrix. P.W.6 stated that he did not have any knowledge if the prosecutrix had got married with Monsur Ali of Village - Silghagri Part-I. P.W.6 further stated that the Police did not record his statement and he had testified about the incident for the first time. He denied suggestions that he had testified falsely before the court and that they had the habit of lodging false cases against persons. Stating that he was a rickshaw-puller, P.W.6 denied a suggestion that the prosecutrix did not come to his house to tell against Inisa Bibi.
19. P.W.7 deposed that he knew the informant, the prosecutrix and the accused. He stated that he did not know anything about the incident. The cross-examination of P.W.7 was declined by the defence.
20. P.W.8, Dr. [Ms.] Muskura Ahmed was, on 01.07.2020, posted as Senior Medical & Health Officer at Dhubri Civil Hospital and it was on 01.07.2020, she examined the prosecutrix in connection with Dhubri Police Station Case no. 829/2020. The prosecutrix was accompanied by a Women Home Guard. P.W.8 deposed that on examination of the prosecutrix, she did not find any external injury and no spermatozoa in the smear supplied. P.W.8 stated that as per the report and the opinion of the Radiologist, the age of the prosecutrix on the date of examination was 14½-15½ years. P.W.8 exhibited the Medical Examination Report as Ext.-4 with her signature therein as Ext.-4[1].
20.1. In cross-examination, P.W.8 stated that she did not see the X-ray plate and the Radiological Report in the court. She stated that the name of the Radiologist who issued the Radiological Report was Laskar Ali. P.W.8 stated that she could not say the date of the Radiological Report and who carried out the X-ray. P.W.8 Page No. 14/33 admitted that she had not mentioned the date on which the Medical Examination Report, Ext.-4 was prepared. P.W.8 denied a suggestion that a fake report had been prepared in the absence of X-ray and Radiological Report that the prosecutrix was a minor.
21. P.W.10, Himakshi Nath was the 1st Investigating Officer [I.O.] when on 30.06.2020, she as the 2nd Officer of Dhubri Police Station, was entrusted with the investigation of Dhubri Police Station Case no. 829/2020, which was registered on the basis of Ext.-6, FIR. P.W.10 stated that on being entrusted with the investigation, she examined the informant-P.W.3 to record his statement. Thereafter, the prosecutrix was sent for medical examination on 01.07.2020. The original Birth Certificate of the prosecutrix was seized by P.W.10 vide a Seizure List, Ext.-3 wherein P.W.10 identified her signature as Ext.-3[3]. P.W.10 exhibited the original Birth Certificate of the prosecutrix as Ext.-2. P.W.10 further stated that the statements of the seizure witnesses, Hazarat Ali [P.W.2] and Sader Ali [P.W.6] were recorded. The I.O. [P.W.10] stated to have visited the place of occurrence [P.O.] to prepare a Sketch Map of the P.O., Ext.-7 wherein she identified her signature as Ext.-7[1]. P.W.10 stated to have recorded the statements of the witnesses under Section 161, CrPC and searched for the accused to apprehend him. But, he was not found in his residence. The prosecutrix was produced before the Court for recording her statement under Section 164, CrPC and the statements so recorded, was duly collected apart from the Medical Examination Report of the prosecutrix. On 04.11.2020, P.W.10 was transferred. Therefore, the concerned case diary was handed over to the Officer In-Charge, Dhubri Police Station.
21.1. During cross-examination, P.W.10 stated that she received the FIR, Ext.-7 after the same was endorsed and received by the Officer In-Charge, Dhubri Police Station. She did not examine why the FIR written on 29.06.2020 was lodged on 30.06.2020. P.W.10 stated that when the Medical Examination Report of the prosecutrix, Ext.-4 was received on 16.09.2020, she did not make any enquiry as to when Ext.-4 was prepared and she did not ask for the X-ray report mentioned in Page No. 15/33 Ext.-4. P.W.10 denied a suggestion that despite being aware that a fake report had been prepared in absence of X-ray report and Radiological Report stating that the prosecutrix was a minor, she did not undertake any investigation on the said aspect. P.W.10 further stated that the Birth Certificate [Ext.-2] and the Seizure List [Ext.-3] were not produced before the Court for endorsement. P.W.10 stated that the prosecutrix was produced before the Court on 03.07.2020 for recording of her statement under Section 164, CrPC and the reason for any delay for recording of the statement was mentioned in the case diary though not mentioned in the application made to the Court. P.W.10 deposed that she did not visit the Office of the Registrar of Birth and Death for ascertaining the authenticity of the Birth Certificate [Ext.-2]. P.W.10 further stated that the prosecutrix did not mention in her statements recorded under Section 161, CrPC and Section 164, CrPC that the accused made obscene videos of the prosecutrix and threatened to upload the same in social media. Rather, the prosecutrix stated that she wanted to get married with the accused. But, his family members arranged his marriage with some other girl and as a result, the case was lodged. The prosecutrix stated before P.W.10 that she was a student of Class-VII of Dharmashala M.E. School. But, P.W.10 neither made any investigation in the School of the prosecutrix nor collected any School certificate. The I.O. [P.W.10] admitted that the mother of the prosecutrix, Babu Sk and Monsur Ali of Village - Silghagri Part-I i.e. the former husband of the prosecutrix were not examined by her during the investigation. P.W.10 also stated that the informant-P.W.3 stated before him that the prosecutrix had a love affair with the accused and had sexual intercourse with the prosecutrix. P.W.10 denied a suggestion that the statements of P.W.2 and P.W.6 were not recorded. P.W.10 denied suggestions of improper investigation resulting in non-seizure of the X-ray plate which would have established the case as a false case and the prosecutrix as an already married lady.
22. P.W.9, Nilmoni Nath who was posted as In-Charge, Bajar Police Out Post on 28.11.2020, deposed that he was entrusted with the later part of the investigation by the Officer In-Charge, Dhubri Police Station by handing over the concerned case Page No. 16/33 diary. He stated that after going through the case diary, he found that the previous I.O. of the case, P.W.10 had almost completed the investigation except arresting the accused. Though he made efforts to arrest the accused, the accused could not be located. Thereafter, on the basis of the investigation conducted by P.W.10, he submitted the charge-sheet vide Charge-Sheet no. 789/2020 on 31.12.2020 finding a prima facie case against the accused. As no evidence was found regarding involvement of the other three accused persons, named in the FIR, he filed final report against them with a prayer to discharge them. P.W.9 exhibited the Charge- Sheet no. 789/2020 as Ext.-5 with his signature therein as Ext.-5[1].
22.1. During cross-examination, P.W.9 stated that from the statement of the prosecutrix, it was noticed that the prosecutrix was studying in Class-VII in Dharmashala M.E. School at the time of the incident. But, neither any School Certificate of the prosecutrix was seized from the said School nor any authority from the said School was examined by visiting the School during the investigation. P.W.9 stated that he did not make any investigation with the Issuing Authority of the Birth Certificate [Ext.-2] as to ascertain whether the same was genuine or not. He stated that he did not receive any X-ray plate with Ext.-4 and did not also investigate about non-availability of the X-ray plate. He denied a suggestion that had he visited the School of the prosecutrix and done proper investigation, he would not have filed the Charge-Sheet, Ext.-5 under the POCSO Act.
23. It is on the basis of the above evidence on record, the Special Court has convicted and sentenced the accused-appellant. It is through evaluation of the same, it is required to examine whether the conviction and sentence passed are sustainable in law.
24. To convict an accused facing a charge in a trial for committing an offence under Section 5, which is punishable under Section 6, of the POCSO Act, the first and foremost aspect which is to be established by the prosecution is that the prosecutrix upon which the offence of aggravated penetrative sexual assault was Page No. 17/33 alleged to have been committed, was a child at the time of commission of the offence. As per Section 2[d] of the POCSO Act, 'child' means any person below the age of eighteen years. To prove a charge under Section 376[3], IPC, it must be established that the prosecutrix was below sixteen years of age at the time of commission of the alleged rape. Therefore, it is the obligation of the prosecution to establish by cogent and reliable evidence that the prosecutrix, at the time of commission of the offence, was a child or below sixteen years of age. As the prosecution has mainly relied upon the Birth Certificate [Ext.-2] to establish the aspect regarding the age of the prosecutrix [P.W.1], a discussion on the applicable statutory provisions is found necessary.
25. The Registration of Births and Deaths Act, 1969 ['the 1969 Act', for short] is enacted by the Parliament to provide for the regulation of registration of births and deaths and for matters connected therewith. Chapter III with heading, 'Registration of Births and Deaths' has inter alia provided for registration of births by persons after giving information to the Registrar of several particulars required to be entered in the forms prescribed by the State Government under Section 16[1]. Section 12 has prescribed that the Registrar shall, as soon as the registration of a birth has been completed, give to the person concerned a certificate extracted from the Registrar related to such birth in such form and manner as may be prescribed. The Chapter has contained provisions relating to delay in registration of births, registration of name of child and correction or cancellation of entry in the register.
26. Chapter IV with heading, 'Maintenance of Records and Statistics', has provided in Section 16 for every Registrar to keep in the prescribed form a registrar of births for the registration area or any part thereof in relation to which he exercises jurisdiction. Subject to the rules framed by the State Government, any person, as per Section 17[1], may inter alia [a] cause a search to be made by the Registrar for any entry in a register of births; and [b] obtain a certificate of birth from such Registrar and issue in such form and manner as may be prescribed. As per sub- section [2] of Section 17, all certificates given under Section 17 shall be certified by Page No. 18/33 the Registrar or any other officer authorized by the State Government to give such certificates as provided in Section 76 of the Indian Evidence Act, 1872 ['the Evidence Act', for short], and shall be admissible in evidence for the purpose of proving the birth to which the entry relates. As per Rule 8 of the Assam Registration of Births and Deaths Rules, 1999, framed under the 1969 Act, the extracts of particular from the register relating to births to be given under Section 12 of the 1969 Act shall be in Form no. 5 and Rule 13 has prescribed for the fees payable under Section 17 with certification in the manner provided for in Section 78 of the Evidence Act.
27. Section 35 of the Evidence Act has laid down that an entry in any public or other official book, register or record or an electronic record, stating a fact in issue or relevant fact, and made by public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register, or record or an electronic record is kept, is itself a relevant fact. What documents are public documents are mentioned in Section 74 of the Evidence Act. Section 76 of the Evidence Act has provided for giving of certified copies of public documents with certification along with the date, subscribed by the public officer with his name and his official title and if such certificates are sealed by the public officer authorized by law to make use of a seal then they are called certified copies. Section 77 has laid down that such certified copies may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies.
28. On the presumption as to genuineness of certified copies, Section 79 of the Evidence Act has inter alia laid down that the Court shall presume to be genuine every document purporting to be a certificate, certified copy, or other document, which is by law declared to be admissible as any evidence of any particular fact and which purports to be duly certified by any authorized officer, provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf. The court shall also presume that any officer by Page No. 19/33 whom any such document purports to be signed or certified held, when he signed it, the official character which he claims in such paper.
29. In Birad Mal Singhvi vs. Anand Purohit, 1998 Supp SCC 604, the Hon'ble Supreme Court has held that to render a document admissible under Section 35 of the Evidence Act, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record; secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in the performance of a duty specially enjoined by law. Following Birad Mal Singhvi [supra], the Hon'ble Supreme Court in CIDCO vs. Vasudha Gorakhnath Mandevlekar, [2009] 7 SCC 283, has held that the births and deaths registers maintained by the statutory authorities raised a presumption of correctness. Such entries made in the statutory registers are admissible in evidence in terms of Section 35 of the Evidence Act.
30. In Ravinder Singh Gorkhi vs. State of Uttar Pradesh, [2006] 5 SCC 584, the Hon'ble Supreme Court has observed that determination of the date of birth of a person before a court of law, whether in a civil proceeding or a criminal proceeding, would depend upon the facts and circumstances of each case. Such a date has to be determined on the basis of the materials on record. It will be a matter of appreciation of evidence adduced by the parties. Different standards having regard to the provision of Section 35 of the Evidence Act cannot be applied in a civil case or a criminal case. On Section 35 of the Evidence Act, the Hon'ble Court has observed as under :-
23. Section 35 of the Evidence Act would be attracted both in civil and criminal proceedings. The Evidence Act does not make any distinction between a civil proceeding and a criminal proceeding. Unless specifically provided for, in terms of Section 35 of the Evidence Act, the register maintained in the ordinary course of business by a public servant in the discharge of his official duty, or by any other person Page No. 20/33 in performance of a duty specially enjoined by the law of the country in which, inter alia, such register is kept would be a relevant fact. Section 35, thus, requires the following conditions to be fulfilled before a document is held to be admissible thereunder : [i] it should be in the nature of the entry in any public or official register; [ii] it must state a fact in issue or relevant fact; [iii] entry must be made either by a public servant in the discharge of his official duty, or by any person in performance of a duty specially enjoined by the law of the country; and [iv] all persons concerned indisputably must have an access thereto.
The decision in Manoj vs State of Haryana, [2022] 6 SCC 187, is in the same line.
31. In Harpal Singh and another vs. State of Himachal Pradesh, [1981] 1 SCC 560, contention was raised on behalf of the convicted appellant that the certified copy of the relevant entry in the birth register which showed the prosecutrix as a minor one, would not be admissible in evidence in the absence of examination of the officer who recorded the entry. Such contention has been rejected by the Hon'ble Supreme Court for the simple reason that the entry was made by the concerned official in the discharge of his official duties and therefore, it is clearly admissible under Section 35 of the Evidence Act and it is not necessary for the prosecution to examine its author.
32. Reverting back to the present case, the prosecution has relied upon a Birth Certificate issued by the Registrar, Birth & Death, Dharmashala Primary Health Centre [P.H.C.] under his signature and official seal on 22.02.2006. The Birth Certificate was issued under Section 12 read with Section 17 of the 1969 Act in the official letterhead of the Directorate of Health Services, Government of Assam. As per the Birth Certificate, the date of birth of the prosecutrix was 03.02.2006 and the date of birth was registered on 21.02.2006. The Birth Certificate which was exhibited as Ext.-2, also recorded the names of the parents of the prosecutrix.
Page No. 21/3333. When the Birth Certificate [Ext.-2] of the prosecutrix, presented by the prosecution, is examined in the light of the provisions contained in the 1969 Act and the Evidence Act and the propositions laid down in the afore-mentioned decisions, it is evidently clear that all the conditions, as indicated in Birad Mal Singhvi [supra] and Ravinder Singh Gorkhi [supra], are found to be fulfilled thereby, making it admissible under Section 35 of the Evidence Act. As the Birth Certificate [Ext.-2] has mentioned the date of birth of the prosecutrix as 03.02.2006, the Court has to presume such date of birth of the prosecutrix as correct in terms of the provisions of Section 79 of the Evidence Act, without examination of the author. Going by such date of birth of the prosecutrix and the date of commission of the alleged offence, it would point towards the age of the prosecutrix as about fourteen years at the time of commission of the alleged offence.
34. The contention advanced by the appellant that there was no enquiry under Section 94 of the JJ Act, 2015 after consideration is to be rejected as Section 94 of the JJ Act, 2015 can be followed for determining the age of a person, be it a Juvenile or a victim, in the absence of a certificate issued by the appropriate statutory authority under the Act, 1969 as such a certificate is a primary document of proof and admissible under Section 35 of the Evidence Act.
35. By virtue of Section 79 of the Evidence Act, the date, 03.02.2006 is to be presumed as the date of birth of the prosecutrix as it raises a presumption of correctness. But, such presumption is a presumption of law. It is true that a statutory presumption has an evidential value. However, such a presumption is rebuttable. To rebut the presumption, the onus lies on the accused and if the accused is able to discharge the onus by showing that such date of birth is improbable or doubtful, then the onus would again shift to the prosecution and the prosecution would then be obliged to prove it as a matter of fact. The burden to show improbability or doubtfulness can be either direct or by bringing on record the preponderance of probabilities by reference to the other evidence/materials on record. An accused for discharging the rebuttable presumption is not required to Page No. 22/33 step into the witness box himself as he has a constitutional right to maintain silence. It is settled law that the standard of proof on the part of an accused and that of the prosecution in a criminal prosecution is different. Whereas the prosecution always has the responsibility to prove the case against the accused beyond all reasonable doubt, the standard of proof to rebut a presumption for an accused is preponderance of probabilities.
36. It has been held by the Hon'ble Supreme Court in Krishna Janardhan Bhat vs. Dattatraya G. Hegde, [2008] 4 SCC 54, that inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which he relies. For the purpose of rebuttal, it is not imperative for the accused to step into the witness box himself. In a case where the chances of false implication cannot be ruled out, the background facts and the conduct of the parties together with their legal requirements are required to be taken into consideration.
37. In Hiten P. Dalal vs. Bratindranath Bannerjee, [2001] 6 SCC 16 , it has been held as under :-
22......Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter, all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact.
23. In other words, provided the facts required to form the basis of a presumption of law exist, no discretion is left with the court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, Page No. 23/33 'after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists' [ Section 3, Evidence Act] .
Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the 'prudent man'.
38. The issue which has, therefore, arisen for consideration next is that whether the presumption as regards the age of the prosecutrix has been rebutted or not in the context of the other evidence referred to by the defence, in the background facts and surrounding circumstances the conduct of the parties. To find out about the same, reference to the other evidence on record is necessary.
39. The defence appeared to have consistently raised the issue of majority of the prosecutrix during cross-examination of the prosecution witnesses. When the prosecutrix was examined as P.W.1, the prosecutrix was asked about her siblings. When cross-examined, the prosecutrix stated that she had three sisters and one brother and she was the second eldest child of her parents. P.W.1 stated that her elder sister is three years older to her and her elder sister is married. The elder sister has three children, aged about 9 years, 7 years and 5½ years respectively at the time of recording the testimony of P.W.1 on 20.03.2021. P.W.1 further testified that it was her father, P.W.3 who obtained the Birth Certificate and she did not have any knowledge when her father obtained the Birth Certificate.
40. When the informant-father of the prosecutrix, P.W.3 was cross-examined, the defence confronted him as regards his children including the eldest one. P.W.3 stated that he has six children with the youngest being 6 years of age at the time of recording his testimony on 09.11.2021. He denied that the prosecutrix is his second Page No. 24/33 child. He admitted that his eldest daughter was married and was aged about twenty-eight years of age. He stated that his elder daughter has six children.
41. It was elicited from P.W.4, Rejina Bibi that the prosecutrix was aged about twenty-three years. When the maternal uncle of the prosecutrix, Sader Ali [P.W.6] was cross-examined, he stated that the elder sister of the prosecutrix was four years older than the prosecutrix. The elder sister of the prosecutrix had three children and the eldest one was aged about ten years.
42. Though the prosecutrix stated during her testimony that at the time of the incident she was a student of Class-VI, she did not disclose the name of the school where she studied. P.W.1 admitted that she mistakenly told the I.O. that she was a student of Class-VII. The informant-P.W.3 neither said anything about the school where the prosecutrix studied nor about the class the prosecutrix was studying at the time of the incident or she was a school-going one. He had denied the suggestion that the prosecutrix left school seven years earlier to the lodging of the FIR. None of the other prosecution witnesses had deposed either about the school where the prosecutrix had studied or about the class in which she studied. During his deposition, the I.O. [P.W.10] stated that the prosecutrix told him that she was a student of Class-VII of Dharmashala M.E. School. The I.O. [P.W.9] stated during cross-examination that the prosecutrix in her previous statement recorded under Section 161, CrPC stated that she was studying in Class-VII standard in Dharmashala M.E. School at the time of the incident. But, neither the 1 st I.O. [P.W.10] nor the subsequent I.O. [P.W.9] had visited the school, Dharmashala M.E. School during the course of investigation. The prosecutrix in her statement recorded under Section 164, CrPC [Ext.-1] disclosed that she was a student of Class-VII. No documentary evidence was exhibited and no witness from the Dharmashala M.E. School was examined as regards the academic pursuit of the prosecutrix.
43. In a case where the age of a person falls for determination, it is the parents of the person and the person himself who are placed in the best position to depose Page No. 25/33 about the age. The testimony of a close relative of the person is also significant as he/she is most likely to know about the age of the person. In the case in hand, the prosecutrix had clearly admitted that she was about three years younger to her elder sister, who had three children with the eldest being 9 years of age. P.W.3 is the father of the two - the prosecutrix and the elder sister - who while stating that prosecutrix was below 14 years, admitted the age of his elder daughter as twenty- eight years. In so far as the number of children of the informant [P.W.3] is concerned, the testimony of P.W.1 and P.W.3 are found to be at variance whereas testimony on such aspect could not have been at variance in normal circumstances. Conspicuously, the mother of the prosecutrix and the wife of the informant, who could have been the best person to bridge the gap in the testimony of P.W.1 and P.W.3, was not examined by the prosecution. With the maternal uncle [P.W.6] testifying that the prosecutrix was aged about twenty-three years, this piece of testimony is found to be one bridging the gap found between the testimony of P.W.1 and P.W.3 on the age of the prosecutrix vis-à-vis the age of her elder sister. From the above, one possible conclusion which can be drawn is that the prosecutrix being about three years younger to her elder sister, who was about twenty-eight years, was a major at the time of commission of the alleged offence.
44. In the Medical Examination Report [Ext.-4], the following were recorded :-
Findings : General Physical Examination
1. Whether oriented in space & time : Yes; 2. Pulse : 80/min BP : 120/80 min; Temp : Normal Resp. rate : Normal; Pupils : Normal
3. Clothing Fresh, torn, stains of blood/semen/mud etc. : Normal
4. Whether the victim has washed her genitalia/mouth/anal canal and changed her clothes or not after the incident : Yes Height : 5 ft; Weight : 43 Kg Teeth : 30; Total no. of permanent teeth : 30 Page No. 26/33 Secondary sex character Breast : Normal; Secondary areola : No Secretion of Squeezing : No; Any injury mark : No Auxiliary hair well grown/scanty/not grown : Normal Pubic hair : Normal; Presence of matting : No Menstrual history : Her menstruation occur 1 month back Examination of vulva & vagina : Normal Marks of violence : No Examination for injuries : No external injury found at the time of examination Vaginal smear for microscopy examination for spermatozoa : Send to lab for lab examination Report of Pathologist : No spermatozoa found in the smear supplied.
Ossification test by x-ray of wrist join, elbow join, iliac crest [with shield covering abdomen if pregnant] X-ray plate no. : L - 2285 + 86 + 87 Report and opinion of radiologist : App. radiological age is 14½ - 15½ yrs.
Final Opinion : Above mention victim is not consistent c recent sexual assault or intercourse from present situation or examination and radiological age is 14½ - 15½ yrs.
45. In Mukarrab and others vs. State of Uttar Pradesh, [2017] 2 SCC 210 , it is held that the evidence afforded by radiological examination is a useful guiding factor for determining the age of a person but the evidence is not of a conclusive and incontrovertible nature and is subject to a margin of error. Medical evidence as to the age of a person though a useful guiding factor is not conclusive and has to be considered along with other circumstances. The ossification test cannot be regarded as conclusive. The age of a person cannot be adopted solely on the basis of the medical opinion by the radiological examination and it cannot be regarded as conclusive when it comes to ascertaining the age of a person. In a ossification test, Page No. 27/33 examination of eruption of teeth and ossification activities of bones are important criteria. A careful examination of teeth and ossification of wrist joint provide valuable data for age estimation in children. Variations in the appearance of centre of ossification at wrist joint shows influence of race, climate, diet and regional factors. Ossifications test requires examination of distal ends of radius and ulna. An x-ray ossification test can by no means be so infallible and accurate a test as to indicate the correct number of years and days of a person's life.
46. Ossification is the process of bone formation that occurs in humans from infancy ordinarily until the end of adolescence. In a ossification test, also known as the epiphyseal test, examination of x-rays of certain bones in the human body are made to determine the degree of ossification. When the parameters recorded in the Medical Examination Report [Ext.-4] along with the testimony of the doctor, P.W.8 are looked at, it is evidently clear that the process adopted for determining the age of the prosecutrix clearly falls short of the standard required for an ossification test. The radiological report and the x-ray plate were not part of the Medical Examination Report and also for reaching opinion by P.W.8. There was no detailed examination of ossification at wrist joint, distal ends of radius and ulna, etc. The Radiologist was also not examined. In such backdrop, this Court is constrained to observe that no reliance can be placed in the approximate radiological age of the prosecutrix recorded in the Medical Examination Report [Ext.-4].
47. Consequently, it is not safe and possible to reach a conclusive opinion that the prosecutrix was a minor below the age of eighteen years when she was examined on 01.07.2020. The Medical Examination Report [Ext.-4] and the examining doctor, P.W.8 reported that there was no external injury on the person of the prosecutrix and no spermatozoa in the smear supplied. The examining doctor opined that the condition of the prosecutrix was not consistent with recent sexual assault or intercourse in the situation the prosecutrix was examined.
Page No. 28/3348. From what have been elicited by the defence from the cross-examination of the above prosecution witnesses, as discussed above, the same have clearly affected the presumption regarding correctness of the age of the prosecutrix recorded in the Birth Certificate in an adverse manner. On comparison of two contradictory kinds of evidence, one dubiety which emerges and remains is about the actual age of the prosecutrix at the time of commission of the offence. With the nature of evidence elicited from the prosecution witnesses, P.W.1, P.W.3 and P.W.6, who are best positioned to disclose about the age of the prosecutrix, it is no longer available for the prosecution to claim minority of the prosecutrix on the basis of the presumption drawable from the Birth Certificate [Ext.-2] as such presumption, in the considered view of this Court, the defence has been able to dislodge on the standard of preponderance of probabilities. Once the presumption as regards the age of the prosecutrix on the basis of the Birth Certificate stands removed, with the accused having discharged the burden, the onus would again shift to the prosecution as it is always under the obligation to prove its case beyond all reasonable doubt. With no other convincing and reliable evidence establishing the fact that the age of the prosecutrix was below sixteen or eighteen years of age, it is tilted towards a position that the prosecutrix was major at the time of lodging of the FIR.
49. Few other circumstances and conduct of the prosecutrix [P.W.1] and the prosecutrix's father [P.W.3] also require consideration.
50. When the prosecutrix as P.W.1 gave her testimony before the court, she alleged that the accused made obscene video recordings and threatened her not to disclose the matter to anyone. She alleged that the accused used to threaten her on the pretext that he would upload the video recordings and it was out of fear, she did not disclose the matter to anyone and in that way, the accused continued to make physical relation with her for one year. When the statement of the prosecutrix was recorded under Section 164, CrPC [Ext.-1] on 03.07.2020 by the Magistrate, she had not said anything about obscene video recordings by the accused and threats of the Page No. 29/33 accused on the basis of such video recordings to coerce her to engage in physical relation with the accused. When cross-examined after examination-in-chief, the prosecutrix admitted that she did not state before the Magistrate and the I.O. regarding making of obscene videos by the accused and about any threats by him for uploading the videos.
51. In her previous statement [Ext.-1], the prosecutrix stated that about seven days earlier, the accused forcibly pulled her to the cultivation field in the backside of her elder sister and taking her there, the accused had sexual intercourse with her against her will. She further stated that her fellow villager, Babu Seikh witnessed them having sexual intercourse in the cultivation field on that day and Babu SK informed the matter to her parents. During deposition before the court the prosecutrix [P.W.1] stated that seven days prior to the filing of the FIR, Babu SK saw her talking with the accused and Babu SK informed the matter to her father. The prosecution did not present Babu SK as a witness during the trial to fill in the gap for reasons best known to the prosecution, whereas the prosecutrix is found to have made inconsistent statements at different stages.
52. A question was asked to few of the prosecution witnesses, namely, P.W.1, P.W.2 and P.W.6 by the defence whether the mother of the prosecutrix lodged an FIR against Umed Ali and Nasir Ali alleging commission of rape on the prosecutrix. The prosecutrix admitted that about 4-5 days earlier, her mother lodged an FIR alleging that the said two persons committed rape on her. In response to the same question, P.W.2 said that he did not know if the mother of the prosecutrix had lodged another rape case against Umed Ali, Nasir Ali and others alleging commission of rape upon the prosecutrix about 5-7 days earlier. While answering the same question, P.W.6 stated that after lodging the FIR in the present case, the mother of the prosecutrix lodged another case against five persons alleging that they had committed rape on the prosecutrix.
Page No. 30/3353. It is true that a conviction for the offence of rape or sexual assault can be made on the basis of sole testimony of the prosecutrix. It is an accepted position that the evidence of a prosecutrix in a case of rape or sexual assault is considered to be even at a higher pedestal than that of an injured witness. It is settled that to hold an accused guilty of the commission of rape, the solitary evidence of the prosecutrix is sufficient, provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of starling quality.
54. Who can be said to a sterling witness has been elucidated by the Hon'ble Supreme Court of India in Rai Sandeep @ Deepu vs. State [NCT of Delhi], [2012] 8 SCC 21, and referred to in Ganeshan vs. State, [2020] 10 SCC 573. In Rai Sandeep @ Deepu [supra] the Hon'ble Court has observed as under : -
22 . In our considered opinion, the 'sterling witness' should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court.
It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material Page No. 31/33 such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a 'sterling witness' whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.
55. What is more noticeable is that the prosecutrix, during her cross-examination, admitted that after her father told the accused that if the accused would refuse to marry the prosecutrix, case would be lodged against him, she started narrating the alleged incident as tutored by her parents. The prosecutrix admitted that she narrated during her previous statement recorded under Section 164, CrPC [Ext.-1] as tutored by her parents. Such own admission about being tutored by her parents has made her an unreliable witness. Similarly, the father of the prosecutrix is found out to be not a reliable witness.
56. With the quality of evidence led by the prosecution, as discussed above, it is difficult to comprehend that any kind of physical relation between the accused and the prosecutrix continued for a period of about one year prior to the lodging of the Page No. 32/33 FIR. The prosecutrix had only alleged continuity of physical relation with the accused for a period of one year without disclosing anything specifically. There is a distinction between a breach of promise, and a false promise. To establish a false promise, the accused should have had no intention of fulfilling the promise at the time of giving it. When an accused on account of circumstances which could not have been foreseen or which were beyond his control, was unable to marry the prosecutrix, despite having every intention to do so, it would be a case of breach of promise. Having gone through the evidence on record, this court is not convinced that the ingredients of the offence under Section 415, IPC are made out to convict and sentence the accused under Section 417, IPC.
57. In the light of the evidence brought on record, this Court is not persuaded to hold that the prosecutrix can be elevated to the status of a starling witness. Having the presumption of minority of the prosecutrix gets removed, the presumption under Section 29, POCSO Act would not get activated. This Court is of the unhesitant view that the prosecution has not been able to lead such evidence for this Court to believe that the manner in which the alleged offence was stated to have occurred, had occurred. It is noticed that the prosecutrix alleged to have continued physical relation with the accused for a period of about one year without objection and she lodged the case through her father only when the accused decided to marry another woman. With the prosecutrix herself saying that she narrated about the incident, as tutored by her parents, one cannot be convinced that an offence of rape is made out as it does not satisfy the ingredients of rape as defined under Section 375, IPC.
58. Rather from the evidence on record, an inference that the whole case had been instituted to coerce the accused to enter into marriage with the prosecutrix with the assistance of her father is possible to be drawn. On the basis of such evidence and with the spectra of false prosecution, it is neither safe nor fair to convict the accused in view of failure on the part of the prosecution to establish the case beyond all reasonable doubt and therefore, the benefit of doubt ought to be given to the accused.
Page No. 33/3359. In view of the discussion made above and for the reasons assigned therein, this Court has found that the Judgment and Order of conviction and sentence dated 19.01.2023 passed by the Special Court is not sustainable in law. Consequently, the appeal is allowed and the impugned Judgment and Order of conviction and sentence dated 19.01.2023 passed by the Special Court is set aside and quashed, acquitting the accused-appellant from all the charges leveled against him.
60. The appellant is to be released from custody forthwith, if his custody is not required for any other case or purpose.
61. The records of the Trial Court are to be sent back forthwith.
JUDGE JUDGE Comparing Assistant