Gauhati High Court
Page No.# 1/27 vs The State Of Assam And Anr on 7 April, 2022
Author: Malasri Nandi
Bench: Suman Shyam, Malasri Nandi
Page No.# 1/27
GAHC010016482020
THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
Case No: Crl. A. 19/2020
Kumar Ali @ Komar Ali And 6 Ors
S/O Late Samser Ali, Resident of Village Arara, P.S. Ghograpar,
Dist. Nalbari, Assam
2. Sukur Ali
Son of Kumar Ali
Resident of Village Arara
P.S. Ghograpar
Dist. Nalbari
Assam
3. Jikir Ali
S/O Late Akbar Ali
Resident of Village Arara
P.S. Ghograpar
Dist. Nalbari
Assam
4. Majeda Khatun
W/O Abdul Halim
Resident of Village Panimajkuchi
P.S. Ghograpar
District Nalbari
Assam
5. Abdul Halim
Son of Late Abdul Matleb
Resident of Village Panimajkuchi
P.S. Ghograpar
Page No.# 2/27
District Nalbari
Assam
6. Sajahan Ali
S/O Late Gume Ali@ Guna Ali
Resident of Village Panimajkuchi
P.S. Ghograpar
District Nalbari
Assam
7. Abu Bakkar Siddique
S/O Late Kudrat Ali Ahmed
Resident of Village Panimajkuchi
P.S. Ghograpar
District Nalbari
Assam.
................................. Appellants
VERSUS
1. The State of Assam and Anr.
Represented by The Public Prosecutor, Assam
2. Miss Amiron Nessa
Daughter of Md. Jamal Ali
Resident of No.2 Arara
P.S. Ghograpar
Dist. Nalbari
Assam
Pin 78136 ..........................................Respondents
And
Crl.A. 21/2020
Sahidul Ali
S/O Kumar Ali
Resident of Village Arara
P.S. Ghograpar
Dist. Nalbari
Assam. ........................................Appellants
Page No.# 3/27
VERSUS
1. The State of Assam And Anr.
Represented by The Public Prosecutor
Assam.
2. Miss Amiron Nessa
Daughter of Md. Jamal Ali
Resident of No. 2 Arara
P.S. Ghograpar
Dist. Nalbari
Assam
PIN 781369 .......................................Respondents
:: BEFORE ::
HONOURABLE MR. JUSTICE SUMAN SHYAM
HON'BLE MRS. JUSTICE MALASRI NANDI
For the Appellants/Petitioners : Mr. A. Ahmed.
For the Respondents : Ms. B. Bhuyan, Addl. P.P., Assam
Mr. I. Ahmed, for Respondent No.2
Date of Hearing : 16.03.2022, 17.03.2022 and 25.03.2022
Date of delivery of
Judgment and Order : 07.04.2022
JUDGMENT & ORDER (CAV)
Malasri Nandi, J.
1. Heard Mr. A. Ahmed, learned Counsel for the appellant. We have also heard Ms. B. Bhuyan, learned Addl. P.P. Assam appearing for the State and Mr. I. Ahmed, learned Counsel for the informant/respondent No. 2.
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2. Both the Criminal Appeals Vide No- 19/2020 and Criminal Appeal No- 21/2020 arise from the same incident, FIR and judgment, thus, are being disposed of together.
3. The Criminal Appeal No- 21/2020 was filed by the accused Sahidul Ali against the Judgment passed by Learned Special Judge/Sessions Judge, Nalbari, dated 21.12.2019 in Special (P) Case No. 36/2015 convicting the accused/appellant Sahidul Ali under section 147/448/395/149/376(2)(i) IPC read with section 6 of POCSO Act and to undergo rigorous imprisonment for life and to pay a fine of Rs.10,000/- in default simple imprisonment for 6 months for committing the offence under section 376(2)(i) IPC as well as under section 6 of Protection of Children from Sexual Offences Act, 2012 (in short POCSO Act) for each of the offence and also to undergo simple imprisonment for one year and to pay a fine of Rs.1000/- in default simple imprisonment for one month for committing the offence u/s 147 IPC and also to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.5000/- in default Simple imprisonment for 6 months for committing the offence u/s 395 IPC and further sentence him to undergo simple imprisonment for 6 months and to pay a fine of Rs.500/- in default simple imprisonment for one month for committing the offence u/s 448 IPC. The sentences will run one after another.
4. By the same Judgment vide Appeal No -19/2020, the accused/appellants Abdul Halim, Sukur Ali, Kumar Ali, Abu Bakkar Siddik, Shah Jahan Ali, Jikir Ali and Majeda Begum were also convicted and sentenced to undergo simple imprisonment for 1 year and to pay a fine of Rs.1000/- in default Simple imprisonment for 1 month each for committing the offence u/s 147 IPC and to undergo rigorous imprisonment Page No.# 5/27 for 10 years and to pay a fine of Rs. 5000/- in default rigorous imprisonment for 6 months each for committing the offence under section 395 IPC and further to undergo simple imprisonment for 6 months and to pay a fine of Rs.500 in default simple imprisonment for 1 month to each of them for committing the offence under section 448 IPC. All the sentences were directed to run concurrently.
5. The prosecution case in brief is that the informant/victim lodged an Ejahar before the OC, Ghograpar PS on 23.03.2015 stating inter alia that the accused Sahidul Ali by giving promise to marry her had sexual intercourse with her for two and half years as a result of which she became pregnant and gave birth to a child. When she informed her parents about the incident, one 'bichar' (extra judicial trial) was held to resolve the matter and in the said bichar, a fine of Rs.80, 000/- was imposed. Out of the said amount Rs. 60,000/- was paid by the accused Sahidul Ali.
6. It is also the case of the prosecution that on 21.03.2015 at about 11 PM accused Sahidul Ali along with other accused persons namely, Sukur Ali, Kumar Ali, Sidik Ali, Shahjahan Ali, Halim Ali, Jikir Ali and Majeda Begum entered into the house of the informant and after assaulting the informant and her parents, snatched away the paid money amounting to Rs. 66,000/- from their house.
7. On receipt of the Ejahar a case was registered vide Ghograpar PS case NO- 45/15 u/s 147/420/493/376/323/380 IPC. During investigation, the investigating officer seized some documents like birth certificate of the victim girl and recorded the statement of the witnesses. The investigating officer made requisition to doctor to examine the victim girl and also prayed for DNA test for the accused Sahidul Ali with Page No.# 6/27 the child of the victim. On completion of the investigation Charge-sheet was submitted against the accused/appellant Sahidul Ali u/s 420/493/376(2)(h) IPC and section 6 of POCSO Act and other accused/appellants u/s 147/447/448/323 IPC.
8. During the investigation, the blood samples of the accused, minor victim and newly born baby was collected for DNA profile to examine paternity. DNA report vide Exhibit -14 confirms that allele DNA profile of blood sample of newly born baby matches with the allele DNA profile of blood sample of minor victim and blood sample of the appellant Sahidul Ali, holding that the newly born baby was the child of the minor victim and the appellant Sahidul Ali. The victim in her statement recorded u/s 164 Cr.PC clearly stated that on several occasions the appellant Sahidul Ali taking advantage of the absence of her family members, came to her house and had sexual intercourse with a promise to marry her as a result of which she became pregnant. Though she informed the matter to the appellant Sahidul Ali about her pregnancy, at first he agreed to marry her but subsequently, he got married to another girl. The victim further stated that she was examined by the doctor and subsequently she delivered a child, as such there was no doubt as regards the paternity of the baby of the accused/appellant Sahidul Ali.
9. Based on the submission of the Charge sheet before the Chief Judicial Magistrate, Nalbari, as the offence u/s 376 IPC and section 6 of POCSO Act are exclusively triable by the Court of Sessions/Special Judge, the case was committed accordingly to the Sessions Court. During trial before the Special/Sessions Judge, Nalbari charge was framed u/s 376(2)(i) IPC and Section 6 of POCSO Act against the Page No.# 7/27 accused Sahidul Ali and other accused/appellants including Sahidul Ali u/s 147/447/323/149 IPC to which they pleaded not guilty. It is pertinent to say here that after examination of four prosecution witnesses, charge was reframed by the Sessions Judge, Nalbari, by adding the sections 448/395/149 IPC to which they pleaded their innocence.
10. To substantiate the case of the prosecution, 12 witnesses were examined before the Trial Court and exhibited 14 documents. On the other hand, the defence did not adduce any evidence in support of their case. The plea of the defence is the plea of denial.
11. The prosecution also examined scientific officer PW12 who performed DNA test on receipt of the respective vial of liquid blood of the victim, accused/appellant - Sahidul Ali and the child. The DNA report vide Exhibit -14 shows that the accused/appellant - Sahidul Ali is the father of the child. After completion of the trial the statement of the accused/appellants were recorded u/s 313 Cr.pc by putting the incriminating materials found against them but they denied the same. And the accused/appellant Sahidul Ali admitted that one village meeting was held in their village to discuss about the pregnancy of the victim. It was alleged that she was impregnated by him and for this reason he was asked to pay compensation amounting to Rs.80, 000/- and accordingly he agreed to pay the same. The Learned Trial Court after hearing both the parties delivered the Judgment and awarded the sentences as aforesaid. Hence, this appeal has been preferred by the accused/appellants.
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12. We have heard the learned counsel appearing for the appellants, the Learned Additional Public Prosecutor appearing for the Respondent/State and also perused the record and the documents available thereon.
13. In connection with the appeal filed by the accused/appellant Sahidul Ali vide Criminal Appeal No 21/2020, it was urged by the learned counsel for the appellant, Mr. A. Ahmed that at the time of occurrence the victim was not a child as defined in section 2(d) of the POCSO Act. According to him, she was more than 18 years of age and thus, she was not a child. It is further submitted that the victim has given a different versions at different stages. The prosecutrix is not consistent with her statement and as such on the sole basis of her statement the appellant cannot be convicted in absence of corroboration.
14. On the issue of age of the prosecutrix, the learned counsel for the appellant has further submitted that no documentary proof of age such as birth certificate, school admit card etc were produced before the trial court for ascertaining the age of the prosecutrix and there are conflicting statements made by the witnesses including the prosecutrix as a result of which there is no conclusive proof as to the exact age of the prosecutrix at the time of the alleged occurrence. According to the learned counsel, though the school certificate was seized but not exhibited in the trial court. As such, the said document cannot be taken into consideration for establishing the age of the victim. At any rate, according to the learned counsel for the appellant, the victim had attained majority at the time of incident and hence, she was capable of giving consent for sexual intercourse. As such, the conviction of the Page No.# 9/27 accused Sahidul Ali u/s 376(2)(i) IPC or Section 6 of POCSO Act cannot be sustained and accused /appellant be acquitted on benefit of doubt.
15. It is also argued by the learned counsel for the appellant that there was a compromise between the victim and the appellant regarding the pregnancy of the victim and a "Bichar" was held in the village and the village elderly persons imposed fine amounting to Rs. 80,000/- to be paid by the accused Sahidul Ali to the victim and accordingly accused/appellant paid Rs.40, 000/- to the victim. It is also the submission of the learned counsel for the accused/appellant that as the prosecutrix and the accused/appellant had entered into a compromise and as such it is a fit case for invoking the proviso to section 376 (2)(g) IPC for awarding lesser sentence.
16. It is further argued by the Learned Counsel for the accused/appellant that the entire evidence of the prosecution is silent about the age of the alleged victim. The prosecution was duty bound to prove that the victim was a child within the meaning of the POCSO Act. As the age of the victim is not proved, the prosecution case suffers from serious infirmity. He further argued that the victim of the crime in question has not disclosed the date of the incident.
17. In support of his submission learned counsel for the appellant has placed reliance on the following case laws -
i. (2013) 14 Supreme Court Cases 637 (Mahadeo V. State of Maharashtra & another) ii. (2010) volume 1 SCC 742 (Sunil v. state of Haryana) Page No.# 10/27 iii. AIR 2015 SC 1369 (Ravindra V. State of Madhya Pradesh) iv. AIR 1980 SC 628 (Dhanabal & others V. State of Tamil Nadu) v. AIR 1952 SC 214 (Bhagwan Singh v. State of Punjab)
18. On the other hand Ms. B Bhuyan, Learned Additional Public prosecutor appearing for the State/Respondent has countered the submission and contention of the learned counsel for the appellant by taking this court through the provision of section 94 of the Juvenile Justice Act, 2015. It is also submitted that from the medical records it has been clearly established that the victim was less than 18 years of age on the date of the occurrence. It is also her submission that the presumption u/s 29 of the POCSO Act can very much be drawn against the accused/appellant since in this case the said presumption has not been rebutted by the accused. As such, the impugned judgment does not suffer from any infirmity.
19. The Learned Additional Public Prosecutor would further submit that as per section 30 of the POCSO Act the culpable mental state of the accused should be presumed. The accused has not rebutted the said presumption as required by the Section 30(1) o f the POCSO Act. Thus according to the learned Additional public prosecutor, from the evidence of the victim it has been clearly established that the accused/appellant had culpable mental state to have sexual intercourse with the victim as a result of which, she became pregnant and gave birth to a child. The DNA Page No.# 11/27 report of the child of the victim is also available on record which proves that the accused/appellant is the father of the child of the victim. All these facts would clearly go to show that the victim was a minor at the time of the incident and the accused appellant, by giving assurance to marry her, had sexual intercourse with her as a result of which, she became pregnant and gave birth to a child. As the victim was a minor there was no question of consent being taken on such act. Thus according to the learned Additional PP the conviction and sentence imposed by the learned trial court does not warrant any interference.
20. Having examined the evidences, which have come on record and on considering the submissions advanced by the Learned Counsel appearing for the appellant as well as the Learned Additional Public Prosecutor, we proceed first to examine the age of the victim at the time of sexual assault as well as the incident relating to sexual assault.
21. P.W-1 Sajida Khatun, mother of the victim, deposed in her evidence that accused Kumar Ali's house is adjacent to their house; accused Sahidul Ali is the son of Kumar Ali. On a day about 3 years and 2 months back her daughter i.e the victim went to the house of the accused/appellants Kumar Ali and Sahidul Ali. On the day when her daughter went to their house she came to know from the people of their village that accused Sahidul Ali had impregnated her daughter. Her daughter stayed in the house of accused/appellant Sahidul Ali for about 4-5 days. After 4-5 days the people of their village brought her daughter to their house from Sahidul's house. They said that Kumar had said that first a legal marriage of her daughter with Sahidul Ali Page No.# 12/27 would be held in Nalbari and that till the time of delivery, her daughter would stay in their house and after the birth of the child, Sahidul Ali would take her daughter to his house. Though a date was fixed for the marriage but ultimately the marriage was not held. Then her husband was planning to lodge a case against the accused/appellants through an advocate. On receipt of the information accused/appellant Kumar Ali went to the said advocate to settle the matter. She came to know from her husband that the matter has been settled in presence of the advocate and the villagers that an amount of Rs. 80,000/- would be paid to her daughter by the accused/appellants. Her husband told her that an amount of Rs.40, 000/- was paid and the rest of the amount would be paid after one month. Later on her husband also told her that Kumar had given him an additional amount of Rs. 20,000/- as the next instalment. After birth of the child of her daughter, police took her daughter to the hospital. She was medically examined there and her statement was recorded before the Magistrate. On being asked, her daughter told that when they had not been at home the accused had sexual intercourse with her by force as a result of which, she became pregnant and gave birth to a child.
22. In her cross examination PW1 replied that she had seen accused Sahidul visiting their house. Sahidul Ali is her nephew. Her daughter did not have love affair with Sahidul, she did not remember the date of birth of her daughter but this witness subsequently replied that her daughter was 14 years old at the time of the incident.
23. The victim, P.W4, deposed in her evidence that the accused Sahidul Ali used to reside near her house and he used to come to their house in the absence of her Page No.# 13/27 family members. He told that he loved her and by giving promise of marriage, he used to have sexual intercourse with her as a result of which, she became pregnant. When she informed the matter to accused/appellant Sahidul Ali he replied that he would marry her and asked her not to disclose the fact to anyone. Though Sahidul Ali promised to marry her but no marriage was held due to reluctance shown by him and ultimately she gave birth to a child. Sahidul Ali got married to another girl.
24. Regarding age, according to the victim, she was younger than the appellant Sahidul Ali. She had no formal education. She was born in Barpeta. Her birth certificate was issued after her birth. It is seen from the record that when the victim was examined in the Trial Court she stated her age as 18 years on 10.07.2018. The statement of the victim was recorded u/s 164 Cr.pc wherein she stated her age as 17 years in the year 2015. If it is accepted that the victim was 18 years of age when her evidence was recorded in the year 2018, it is quite obvious that in the year 2015 her age cannot be 17 years. It is not expected that a rustic village girl could say the exact date or year of her birth.
25. It appears that during investigation, one birth certificate of the victim was seized. P.W6 Atab Ali, deposed in his evidence that in his presence, police seized one birth certificate of the victim from her father Vide Exhibit-7. This witness was not cross examined on the seizure of the birth certificate of the victim. It is true that the birth certificate of the victim was not exhibited before the Trial Court as material Exhibit. But a Xerox copy of the birth certificate is available on record which reveals that the victim was born on 12.01.2001. The incident occurred in the year 2015. It transpires Page No.# 14/27 that the victim was 14 years of age when the incident took place. The mother of the victim (P.W1) deposed that her victim daughter was 14 years of age when she was impregnated by the accused Sahidul Ali. There was no cross examination on the point of the age of the victim save and except the fact of denial by putting suggestion. Under such backdrop, the birth certificate cannot be doubted subsequently without there being any cogent reasons. Veracity of the birth certificate is questioned by the accused/appellant but no attempt was made to disprove it by insisting on production and examination of the certificate giving authority. Mere obtaining birth certificate at later stage of time cannot be the ground to discredit the same. Thus the finding recorded by the trial court that the age of the victim was below 18 years when the offence was committed and the subsequent delivery of the child does not warrant any interference.
26. Learned Counsel for the appellant Mr. Ahmed has put forth a submission that the sexual contact of the accused with the victim by the appellant was done with her consent. Thus, it does not make out a case of rape or sexual assault. These contentions of the appellant deserves to be rejected outright as because the sexual assault or sexual contact with a woman who is under 18 years is defined as rape u/s 375 IPC and there is no contemplation of consent under the provision of POCSO Act in a case of sexual assault on a child below the age of 18 years. A child less than 18 years of age is not capable of giving consent, legally or physically. The notion of consensual sexual intercourse in case of a minor, as pleaded by the appellant, is impermissible under the law.
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27. True it is that the victim of the crime has not mentioned the date of the incident but that is inconsequential. Such a discrepancy cannot touch the core of the prosecution case which is in respect of the commission of penetrative sexual assault. Ultimately, the court will have to keep in mind the age of the victim at the relevant time and therefore, merely because date of the incident is not stated by the victim, her evidence cannot be doubted.
28. The case in hand relates to charge of rape/penetrative sexual assault on a minor female, who, according to the prosecution was just about 13 to 14 years, at the time of the alleged incident. It hardly needs to be mentioned that rape is a ghastly act which leaves the victim shattered for the life as it causes, not only physical but emotional and psychological trauma to the victim. Sexual activities with minor girls have a traumatic effect on them, which persists throughout their life leading to several disorders and complications. It is well settled that the victim of a sexual assault is not an accomplice, but she is a victim of lust of another person. Her evidence stands at a higher pedestal than that of an injured witness. Evidence of victim of rape case is required to receive same weight as is attached to evidence of an injured witness. If totality of circumstances emerging on record discloses that the victim of such crime does not have any motive to falsely implicate the accused, then, it is not required to seek corroboration to her evidence and the Court would generally accept her evidence as true. While dealing with cases of sexual assault on females of tender ages, the Court is expected to shoulder great responsibility and is required to deal with such cases sensibly. Broader probabilities of the prosecution case are required to be examined in such crimes and the Court is not expected to get swayed Page No.# 16/27 by minor contradictions or insignificant discrepancies in the evidence of prosecution which does not go to the core of the prosecution case.
29. Coming to the question of how the testimony of child witness has to be considered and appreciated by the Court, in the case of Dattu Ramrao Shakhare Vs. State of Maharastra reported in 1997 (5) SCC 341, it was observed that " A child witness if found competent to depose to the facts and reliable one, such evidence could be the basis of conviction. In other words even in the absence of oath, the evidence of the child witness can be considered under Section 118 of the evidence Act provided that such witness is able to understand the answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the Court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored."
30. In view of the aforesaid legal proposition, we can consider the testimony of the victim i.e. P.W. 4 in the instant case as reliable. According to the victim, the accused/appellant Sahidul is her neighbour. He used to visit her house. He told her that he loved her and wanted to marry her and by giving such false promise, he used to have sexual intercourse with her as a result of which, she became pregnant and gave birth to a child. Medical report including FSL report (DNA report) proves the fact that appellant is the father of the child of the victim. Under such backdrop, there is no scope to disbelieve the statement of the victim. The evidence of the victim inspires Page No.# 17/27 confidence in this case. Nothing has been suggested by the defence as to why she should not be believed or why she would falsely implicate the appellant.
31. The other witnesses like P.W-5 Parisa Begum, PW7 Abdul Samad, P.W-8 Anjara Khatun and P.W-9 Jamal Ali, father of the victim also supported the fact of pregnancy of the victim caused by the accused Sahidul Ali. According to PW5, she came to know that the victim girl had been impregnated by the accused Sahidul Ali. She went to the house of the accused when the victim was carrying 7 months of pregnancy. She heard that later on a Bichar (an extra judicial Trial) was held in their village in this connection. She came to know that the accused Sahidul Ali had given money to the victim.
32. Regarding extra judicial trial P.W-6 also stated that he was present when the extra judicial trial was held in their village in connection with the relation between the victim and the accused/appellant Sahidul Ali. In the said extra judicial Trial, a decision was taken that the accused would pay Rs.80,000/- to the victim as compensation and Sahidul Ali gave an amount of Rs.40,000/- on the day itself. He took one months' time for payment of rest of the amount.
33. P.W-7 Abdul Samad, the neighbour of the victim, deposed in his evidence that one day about 3 years ago the parents of accused Sahidul Ali came to his house and informed that the victim became pregnant from the side of the accused Sahidul Ali and they sought for his advice. He advised them to solemnize marriage between Sahidul Ali and the victim. As no marriage was held, elderly persons of their village tried to resolve the dispute through Bichar. Later on, he heard that Rs.60,000/- was Page No.# 18/27 paid by Sahidul Ali to the victim.
34. P.W-8 also deposed in the same tune by stating that about 3-4 years back, the victim went to the house of the appellant Sahidul and thereafter, she could learn that the victim was pregnant. On being asked the victim disclosed that she was impregnated from the side of Sahidul. Though Sahidul promised to marry the victim but ultimately the marriage was not solemnized. Later on, the victim delivered a baby. Thereafter the matter was compromised between both the family members and she heard that approximately Rs.60,000/- was handed over to the father of the victim by the accused/appellant Sahidul Ali.
35. The Medical Officer who examined the victim to ascertain her age and DNA profile, as P.W-3, deposed in her evidence that on 26.03.2015 while she was working as a Medical and Health officer at SMK Civil Hospital, Nalbari, she examined the victim on police requisition in connection with Ghograpar Police Case No 45/2015. According to the victim she was with a boy for two and half years and a baby girl was born on 02.03.2015 at home. Now the boy has denied the paternity. The findings of P.W-3 on examination of the victim is as follows-
"External genitalia was healthy, hymen was torn but healthy. Vagina admits two fingers easily, uterus was bulky. Mild blood was present. She advised X-ray for age determination where it was found that she was below 18 years of age. Ultra Sonography was advised where it was found normal pelvic study. Blood examination for DNA test for mother, baby and accused father was advised. After collecting the blood EDTA vial it was sent to FSL. As per finding of the FSL, the blood of baby Page No.# 19/27 matches with accused Sahidul Ali and the mother i.e. victim girl vide exhibit-4. As per Radiological report age of the victim is below 18 years vide exhibit-5.
36. P.W-11 Investigating Officer, deposed in his evidence that on 23.03.2015, he was working at Ghograpar P.S. as 2nd Officer. On that day, on receipt of a written ejahar from the victim, the O/C Ghograpar P.S. registered a case vide Ghograpar P.S. Case No. 45/15 under Section 147/420/493/376/323/380 IPC and entrusted him to investigate the case. During investigation, he recorded the statement of the informant, who is the victim of the case at the police station. He visited the place of occurrence, which is the house of the informant situated at village Arora and drew sketch-map of place of occurrence. He also recorded the statement of other witnesses and seized one dagger, one broken lock, two pairs of chappals vide Exhibit-10 seizure list. He also seized birth certificate of the victim vide Exhibit-7. He sent the victim girl for medical examination to SMK Civil Hospital, Nalbari and produced the victim before the Court to record her statement under Section 164 Cr.P.C. During investigation, the Investigating Officer also arrested accused Sahidul Ali Other accused persons namely, Sukur Ali, Kumor Ali, Miss Majeda Begum, Sahjahan Ali, Jikir Ali, Abdul Halim, and Abubakkar Siddiq appeared before him and they were allowed to go on bail. On completion of investigation, he submitted charge-sheet.
37. P.W-12 is Dr. Monalisha Choudhury, Scientific officer, DFS, Guwahati. She deposed in her evidence that on 24.04.2015 she received a parcel through the Director, DFS, Assam, in connection with Ghograpar PS Case No- 45/2015 for DNA examination. The parcel consisted of three exhibits in a thermo flask containing ice Page No.# 20/27 which was sealed with seal impression. After examination of the EDTA vial vide three exhibits, it was opined by P.W-12 that the allele DNA profile of the baby matches with the allele DNA profile of the victim mother and the father i.e. the accused/appellant Sahidul Ali.
38. Regarding delay in lodging FIR in connection with the offence of sexual assault, learned Trial Court has recorded finding on plausible explanation on the point by citing the case law-State of Punjab Vs. Gurmit Singh AIR 1996 SC 1993, wherein it was held that:-
" In sexual offences delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged. Even if there is some delay in lodging FIR in respect of offence of rape, if it is properly explained and the explanation is natural in the facts and circumstances of the case, such delay would not matter"
39. From the evidence of the aforesaid witnesses including victim as well as the medical officer, it appears that the accused/appellant Sahidul Ali had committed sexual assault with the victim who was a minor during that period as a result of which she became pregnant and ultimately gave birth to a child.
40. Clause (j)(ii) of section 5 of the POCSO Act defines that whoever commits penetrative sexual assault on a child, making the child pregnant as a consequences of sexual assault, is punishable u/s 6 of the POCSO Act, which shall not be less than 10 Page No.# 21/27 years of rigorous imprisonment but which may extend to imprisonment for life and shall also be liable to fine. Clause (l) of section 5 prescribes that whoever commits penetrative sexual assault on a child more than once or repeatedly he shall also be liable for punishment. In the case in hand also, it has come on record that the offence was not committed once but subsequently also. All the aforesaid offences are punishable u/s 6 of the POCSO Act wherein the minimum sentence is 10 years of rigorous imprisonment with fine. The Trial Court has rightly found the appellant Sahidul Ali, guilty of various charges as above and convicted accordingly. Resultantly, the conviction and sentence awarded by the Trial court u/s 6 of POCSO Act and u/s 376(2)(i) IPC are confirmed. But he is acquitted for the offence under Section 147/395/448 IPC. Hence, Criminal Appeal No. 21/2020 is dismissed to that extent.
41. Regarding conviction of the accused/appellants vide Criminal Appeal No. 19/2020 namely Kumar Ali, Sukur Ali, Abu Bakkar Ali, Abdul Halim, Shahjahan Ali, Jikir Ali, and Majeda Khatun u/s 395/147/448/323/149 IPC are concerned, learned counsel for the accused/appellant has argued that none of the witnesses specifically implicated the appellants who entered into the house of the victim for taking away the money. They only named all the accused persons. It is further submitted that though it was alleged that eight miscreants entered into the house of the father of the victim, it was only three of them who actively participated in the commission of dacoity according to P.W-4. But the requirement of law for commission of such offence u/s 395 IPC is that there must be five or more persons involved conjointly to commit or attempt to commit robbery. In the present case the prosecution also failed to prove that all the persons named by the prosecution witnesses had shared Page No.# 22/27 common object to commit dacoity in the house of the informant and also the fact that all of them took part in the alleged dacoity. Therefore, the offence u/s 395 IPC is not proved against the accused/appellants beyond reasonable doubt.
42. It is also the submission of learned counsel for the accused/appellants that the prosecution has failed to prove the injuries to the person of P.W-1, P.W-4 and P.W-9. As such, the accused/appellants be acquitted from the alleged offence.
43. On the other hand, learned Additional PP has submitted that it is an admitted fact that prior to the incident of dacoity, the accused/appellants paid Rs.60,000/- to the father of the informant in the matter of compromise regarding pregnancy of the victim. Under such background as well as the evidence of the witnesses proved the fact that the accused/appellants entered into the house of the informant and snatched away the money what they had paid earlier to the informant on the issue of compromise. As such, learned Trial Court has rightly convicted accused/appellants which needs no interference by this Court.
44. It is not and cannot be disputed that prior to the alleged incident of dacoity, in view of compromise between the victim and the accused Sahidul Ali, around Rs.60, 000/- was paid to the informant. Though it is alleged that on the date of incident of dacoity in the house of the informant, the accused/appellants had taken away the said money but the alleged money was not recovered from the possession of the accused/appellants.
45. As regards taking away of money from the house of the informant, P.W-1 stated that she came to know from her husband that on settlement between the Page No.# 23/27 parties on pregnancy of their daughter Rs. 60,000/- was paid and her husband kept the said amount in their house. Her husband had returned from shillong on the day before the last instalment was supposed to be paid. While they were sleeping at night, someone called them from outside. When she opened the door, accused Kumar Ali, Sukur, Sahidul, Jikir, Siddique, Shahjahan, Halim and Halim's wife Majeda entered into their house and assaulted her, her husband and her daughter. Thereafter they broke open a box and took away an amount of Rs. 60,000/- which had been given to her husband earlier and also took an additional amount of Rs. 6,000/- from their house.
46. According to P.W-4, the victim, on the settlement of issues on her pregnancy, Rs.60,000/- was paid to her by the father of the accused Sahidul Ali. Before payment of last instalment her father came home. On that day, at about 11 P.M. accused Halim's wife called his father from outside of their house. When her father opened the door, accused Jikir, Siddique, Halim, Sukur, Sahidul, Kumar and Halim's wife entered their home. Kumar hit her mother on her head and her mother fell down. Someone amongst the accused person slapped on her right cheek near the ear and hit on her head with a stick. Her father screamed and he grabbed Halim, Sukur dealt blow to her father. Halim's wife tried to kill her 18 days old child. When they cried for help, the neighbouring people came to the spot. The accused persons took away the amount of Rs. 66,000/- from the box where the said money was kept by her father.
47. P.W-9, the father of the victim deposed in his evidence that the accused persons gave him an amount of Rs. 60,000/- in view of the agreement reached Page No.# 24/27 between the parties on pregnancy of her daughter. Accused persons took one month time for payment of the remaining amount. One month later he returned from shillong to take the remaining amount of Rs. 20,000/-. On that day, at about 11 P.M. the accused persons namely Sahidul, Sukur, Shahjahan, Halim, Jikir, Majeda Begum, Kumar and Siddique entered into his house and snatched away an amount of Rs. 66,000/-.
48. It is interesting to note that though P.W-4, the victim alleged that on the date of incident while the aforesaid accused/appellants entered into their house to take the money which was paid by them as a matter of compromise and also assaulted her and her parents but P.W-1 i.e. mother of the victim and P.W-9 i.e. father of the victim did not utter a single word regarding assault hurled by the accused/appellants towards P.W-1, P.W-4 and P.W-9 at the time of commission of dacoity. It is an admitted fact that the stolen money was not recovered from the possession of the accused/appellants. Though P.W-4 stated that having heard their cries some neighboring people came to their house but P.W-5, stated that after payment of money by Sahidul Ali to the victim, one day she heard the shout of father of the victim and she went there and saw that Halim's wife Majeda was trying to snatch away the child from the victim. Then she took the child to her house. But P.W-5, nowhere stated that she had seen other accused persons in the house of the informant. P.W-5 also did not say that she came to know about taking away of the money by the accused persons from the informant. P.W-6, had simply stated that the following morning, he came to know from the father of the victim that a dacoity had been committed in his house on the previous night. P.W-7 and 8 also did not say that Page No.# 25/27 they came to the house of the informant on the night of dacoity after hearing the shout of the victim. Apparently it is not proved that some villagers came to the house of the victim on the night of the dacoity.
49. Section 395 IPC provides punishment for dacoity.
Section 391 IPC defines dacoity which reads as follows - when five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more every person so committing, attempting or aiding, is said to commit "dacoity".
50. Section 392 IPC prescribes punishment for robbery.
Section 390 IPC deals with the offence of robbery which says that in all robbery there is either theft or extortion.
When theft is robbery- Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.
When extortion is robbery. -Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person pur in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted.
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51. On a conjoint reading of these provisions, it is clear that to constitute an offence of dacoity, robbery essentially should be committed by five or more persons. Similarly, to constitute an offence of robbery, there must be either theft or extortion. The chief distinguishing element in robbery is the presence of imminent fear of violence. The second para distinguishes robbery from theft, the third distinguishes it from extortion. When robbery is sought to be established through theft, then before one may be convicted of robbery, theft must be proved and established. Where theft is not established, the accused is entitled to an acquittal.
52. To prove the offence of robbery, what is required to be proved by the prosecution is that the nexus between robbed article and the accused. It is pertinent to note that in theft/robbery cases, in order to prove the guilt of the accused, the recovery of stolen/robbed articles plays an important role. The prosecution is required to prove that the accused made a confessional statement and part of the statement led to discovery of fact that the stolen/robbed article was seized.
53. Now coming to the case in hand, though P.W-1, P.W-4 and P.W-9 stated in their deposition that the accused/appellants entered into their house at night and took away Rs. 66,000/-, after breaking lock and the key of a box from their house, but there was no allegation against them that they put the informant and his family members in imminent fear of violence. P.W-4 and P.W-9 also did not make any allegation that due to assault hurled by the accused/appellants they sustained injury on their person.
54. It is curious to note that the police did not make any effort in this case to Page No.# 27/27 recover the stolen money. It is also not known what efforts were made by the police to recover it.
55. In the absence of any evidence to prove the alleged theft or robbery, the accused/appellants are entitled to acquittal. Hence, the conviction under Section 147/448/323/395/149 IPC is set aside. All the accused/appellants pertaining to Criminal Appeal No. 19/2020 are acquitted and set at liberty forthwith.
56. Criminal Appeal No. 19/2020 stands allowed.
57. Send down the LCR.
JUDGE JUDGE Comparing Assistant