Gauhati High Court
Page No.# 1/ vs The State Of Assam And Anr on 11 June, 2025
Page No.# 1/11
GAHC010282182019
2025:GAU-AS:7666
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRL.A(J)/113/2019
ANANDA KHERUAR
S/O. SRI PETRA KHERUAR, VILL. DIGHALJULI, P.S. MISSAMARI
(GARUBANDHA), DIST. SONITPUR, ASSAM.
VERSUS
THE STATE OF ASSAM AND ANR.
REP. BY PP, ASSAM.
2:SMTI. DHIYANI SURIN
INFORMANT
W/O-LATE JUNASH SURIN
R/O-VILLAGE-2 NO. MANTIKIRI (BENGBARI)
P.S.-HARISINA
DIST.-UDALGURI (BTAD)
ASSAM
PIN-78452
Advocate for the Petitioner : , MR. SURAJIT DAS, AMICUS CURIAE
Advocate for the Respondent : PP, ASSAM, DR. P AGARWAL, AMICUS CURIAE
BEFORE HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND Date of Hearing : 11.06.2025.
Date of Judgment : 11.06.2025.
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JUDGMENT AND ORDER(Oral)
1. Heard learned counsel Mr. S. Das for the appellant Ananda Kheruar who has filed this appeal challenging the Judgment and Order dated 12.07.2019, passed by the learned Special Judge, Udalguri, Assam in connection with Special POCSO Case No. 16/2018, convicting the appellant under Section 365 of the Indian Penal Code (IPC for short) and sentencing him to undergo rigorous imprisonment for 4 years and to pay a fine of Rs. 2000/- with default stipulation and further convicting him under Section 4 of the Protection of Children from Sexual Offenses Act, (POSCO Act for short) and sentencing him to undergo rigorous imprisonment 10 years and to pay a fine of Rs. 4000/- with default stipulation.
2. Heard Mr. B. Sarma, learned Additional Public Prosecutor for the respondent State and learned Amicus Curiae, Dr. P. Agarwal for the informant.
3. The genesis of the case was that the victim, 'X', a student of Class-X left her home at about 7 a.m. on 05.02.2018 and did not return. It is alleged that the appellant kidnapped the victim and committed penetrative sexual assault on the victim. An FIR was lodged which was registered as Harisinga P.S. Case No. 05/2018 under Section 365 of the IPC. Investigation commenced. The Investigating Officer (I.O. for short) embarked upon the investigation. He recorded the statements of the witnesses, prepared the sketch map and recovered the victim along with the appellant and brought them to the police station. The victim was then forwarded to the Magistrate, who recorded her statement under section 164 of the Cr.PC and was forwarded to the Medical Officer for examination. On conclusion of investigation, charge-sheet was laid Page No.# 3/11 against the appellant under section 365 of the IPC read with Section 4 of the POCSO Act. At the commencement of trial, a formal charge under section 365 of the IPC read with Section 4 of the POCSO Act was framed against the appellant who abjured his guilt and claimed innocence. To substantiate it's stance, the prosecution adduced the evidence of 8 witnesses including the victim, the Medical Officer (M.O. for short) and the I.O. On the incriminating materials projected by the prosecution through the evidence, several questions were asked to the appellant under section 313 Cr.PC and his plea was of total denial.
4. Learned counsel for the appellant laid stress in his argument that the victim cannot be considered to be a sterling witness as she has given a false age. The learned Trial Court ought to have held an enquiry as per Section 34 of the POCSO Act to ascertain the age of the victim. As the victim's age was not ascertained vide a proper enquiry, the appellant is entitled to benefit of doubt, more so, when the medico-legal report marked as Exhibit-7 clearly reveals that the victim's age was between 18-19 years implicating that the victim was a major at the time of the incident.
5. Learned counsel for the appellant has also relied on the decision of this Court in Manirul Islam @Manirul Zaman Vs. The State of Assam and Ors in connection with Crl.A. No. 64/2020, whereby vide order dated 09.04.2021, it has been observed that :-
28. A Birth Certificate issued by the Health Department of the State Government is a part of the public record. Section 35 of the Evidence Act, 1872 deals with relevancy of entry in public record which reads as follows :-
" 35. Relevancy of entry in public record [or an electronic record], made in performance of duty. An entry in any public or other official book, register or record [or an electronic record], stating a Page No.# 4/11 fact in issue or relevant fact, and made by a 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."
29. From a plain reading of Section 35, it would be apparent that an entry made in any public or other official book/register or record is required to be proved by a public servant who had made the entry in discharge of his official duty or by any other persons, in performance of his duty, especially enjoined by law. In the instant case, as noted above, no such officer of the department was summoned by the prosecution as a witness to prove Ext-A. "
6. It is further submitted that the alleged offence occurred in the year 2018 before the amendment of the POCSO Act which was 31.10.2019. The minimum sentence under Section 4 of the POCSO Act was 7 years at the time of the incident, and if this Court deems it appropriate, the sentence may be scaled down from 10 years to 7 years under Section 4 of the POCSO Act.
7. Learned counsel for the respondent No. 2 and the learned Additional Public Prosecutor has raised serious objection stating that the victim is a sterling witness. Her statement under Section 164 of the Cr.PC has been substantiated by her deposition in the Court.
The argument of the learned counsel for the appellant that the victim willingly went with the appellant on her own volition has been refuted by the cross- examination of the victim when she has stated that she was under the surveillance of one person in the house of the appellant for one week.
8. I have considered the submissions at the Bar with circumspection.
9. It has been held by the learned Trial Court that the prosecution could prove its case to the hilt. On a critical analysis of the evidence on record along with the Page No.# 5/11 surrounding facts and circumstances of the case, what has emerged is that this was a case of penetrative sexual assault/rape. The evidence of the victim, PW-1 assumes cardinal significance inasmuch as in the principle. The victim of sexual offence cannot be held at par with an accomplice and she is undoubtedly a competent witness under Section 118 of the Evidence Act. It was also held by the learned Trial Court that the evidence of the victim does not suffer from any basic infirmity and the probability factor does not render it unworthy of credence as a general rule. There is no reason to insist on corroboration. It has been held by the learned Trial Court that the victim's evidence has been corroborated by the evidence of her mother, PW-2, who is also the informant in this case. The medical report, Exhibit-7 also substantiates the fact that the victim has sustained injuries on her private parts. It has also been held by the learned Trial Court that the defence failed to refute the charges.
10. Now, taking into account the evidence adduced by the prosecution, the victim as PW-1 has stated that on 05.02.2018, she went to attend her tuition classes. The appellant then called her over phone and asked her to accompany him to Udalguri and he was waiting at Harisinga railway station. The victim was initially reluctant, but when her tuition classes were over, the appellant called her to Harisinga railway station. The victim further deposed that she then proceeded to the railway station and met the appellant. Reluctantly, the victim accompanied the appellant who promised to return immediately, but the appellant restrained her from getting off the train at Udalguri and threatened her to throw her on the railway tracks. Thereafter, she remained in the train and proceeded to Michamari. After alighting from the train, the appellant took the victim to his uncle's house against her wish. She then informed her parents. After staying for about a week, the police of Michamari P.S. along with the police of Harisingha P.S. recovered her from the appellant's house. Thereafter, she along with the appellant was brought to the police station. The appellant Page No.# 6/11 sexually assaulted her against her will in his uncle's house. The police produced her before the Magistrate who recorded her statement under Section 164 of the Cr.PC and she was forwarded for medical examination. She has proved her statement under Section 164 of the Cr.PC as Exhibit-1 and Exhibit-1(1) and Exhibit-1(2) as her signature. In her cross-examination, she has stated that a person was guarding her in the house where she was confined.
11. This evidence of PW-1 is corroborated and supported by the evidence of PW-
2 who has deposed that the victim is her daughter and she is the informant who has lodged the FIR. On 05.02.2018, at about 7 p.m., her daughter went to attend her tuition classes but did not return as usual at 11 a.m. Thereafter, they set out searching for their daughter but could not trace her out. Then she lodged the FIR with the police. Subsequently, the police recovered her daughter on 12.02.2018 and produced her at Harisinga P.S. Her daughter was recovered from Dimakuchi under Michamari P.S. Her daughter had informed her about staying at Michamari. After her daughter returned home, her daughter informed her that the appellant molested her while she was staying with the appellant.
12. Only three witnesses were cross-examined in extenso but no contradictions could be elicited as per Section 145 of the Evidence Act, 1872, (The Evidence Act for short) qua Section 162 of the Cr.PC. The police officials Shri Kumud Ch. Sharma and Shri Powal Hazarika, PW-6 and PW-7 were also examined but no contradictions could be elicited vis-a-vis the cross-examination of PW-1 and PW-
2. As no contradictions could be elicited, it was held by the learned Trial Court that the victim is a sterling witness and her evidence was found to be reliable.
13. The evidence of PW-1 and PW-2 has been substantiated by a co-villager, Shri Sonjay Sick Chauhan who deposed as PW-4 that the appellant is known to him Page No.# 7/11 and the incident occurred in the month of February 2018. The victim is his sister-in-law. He was not at home at the time of the incident and after he returned home, he learnt from the victim's mother that the victim was found missing. They set out in search of the victim but they could not trace her out. Then the victim's mother lodged the FIR with the police and after a week, the victim was recovered by the Police of Michamari and Harisingha P.S. He did not know how the victim landed at Michamari. In fact this witness has denied any knowledge about the incident, but the fact remains that the evidence of this witness also proves that the victim was missing some time in the month of February 2018 for a week.
14. Another co-villager Shri Luis Bhengra deposed as PW-5 that both the victim and the informant are known to him. The incident occurred in the month of February 2018. He heard that the informant's daughter was missing and an FIR was lodged by the informant and finally the victim was recovered after 7 days. In his cross-examination, PW-5 has deposed that he learnt from the co-villagers that the victim had a love affair with the appellant.
15. PW-3 Shri Bibek Lohar has deposed that in the last part of February 2018, the police seized the victim's birth certificate. He has proved his signature on the seizure list, Exhibit-2 as Exhibit-2(1). He has identified the photocopy of the birth certificate as Exhibit-3. However, in his cross-examination, he has admitted that he was not aware as to why his signature was taken on the seizure list and he had no knowledge about the birth certificate of the victim.
16. Mr. Powal Hazarika deposed as PW-6 that on 06.02.2018, while he was serving as O/C of Harisinga P.S., he received an FIR from 'Y' and registered a Harisinga P.S. Case No. 05/2018 and entrusted ASI, Kumud Ch. Sarma to investigate the case. The I.O. recorded the statements of the witnesses and Page No.# 8/11 recovered the victim and forwarded her to the Magistrate for recording her statement and to the Medical Officer for medical examination. On perusal of the Case Diary, it was found that the victim was a minor as per the birth certificate and a prayer was made for adding Section 4 of the POCSO Act. He has proved his signature on the FIR as Exhibit-4(1).He was not cross-examined by the prosecution.
17. The I.O. Kumud Ch. Sarma deposed as PW-7 that on being entrusted with the investigation, he went to the place of occurrence and recorded the statements of the witnesses and prepared the sketch map. He seized one birth certificate relating to the age of the victim. He could not recover the victim on the same day. On 13.02.2018, a message was sent from Michamari P.S. that the victim and the appellant were detained at the police station. He has proved his signature on the sketch map as Exhibit-6(1).
18. On scrutiny of evidence of the witnesses, it appears that the evidence of PW-1 is substantiated by the evidence of PW-2. The other witnesses PW-4 and PW-5 have not supported the evidence of PW-1 and PW-2 except for the fact that the evidence reveals that PW-1 was missing for a week from her house. Both the police officers are formal witnesses and their evidence also substantiates the fact that the victim was missing from her house. The evidence of PW-2 does not support the deposition of PW-1 that the victim was forcefully confined by the appellant.
19. On the other hand, the evidence of PW-5 reveals that the victim had a love relationship with the appellant. Does the appellant deserve benefit of doubt?
20. The Medical officer Dr. Bhagirath Dey deposed as PW-8 that on 14.02.2018, he examined the victim 'X', 15 years, Female, and found the following:-
Page No.# 9/11 PHYSICAL EXAMINATION:-
Height- 167 cm, weight- 38 Kg, teeth- 27 Nos., axillary hair- absent, breast- poorly developed, hymen- ruptured, vaginal injury- small (1 x .5) cm abrasion, marks of violence- Nil, clothing- normal, LMP- 1.1.18.
Smear examination:- No spermatozoa seen.
RADIOLOGICAL EXAMINATION:-
X-ray examination of the right wrist, elbow and iliac crest shows radiological age as 18 to 19 years.
Urine for pregnancy test on 14.2.18 shows negative.
Ultrasonography of abdomen on 14.2.18 by Sinologist, Radhika X-Ray and Imaging Centre, Mangaldai reported as no pregnancy.
21. I find force in the argument of the learned counsel for the appellant that the birth certificate ought to have been proved by a witness. The birth certificate was not proved by any witness from The Registry of the death and birth. The dispute of the age arose when the Medical Officer opined that the victim was not a minor and aged between 18-19 years. When the victim was registered for medical examination, she gave her age as 15 years but the findings of the Medical officer after medical examination reflects that the victim's age was between 18 to 19 years.
22. I have also relied on the decision of this Court in connection with Crl.A. No. 64/2020, Monirul Islam (Supra), wherein it has been held that, " Relevancy of entry in public record [or an electronic record], made in performance of duty. 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 a 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."
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23. This Court cannot be oblivious of the fact that the birth certificate was not proved in original and the same was issued on 13.07.2015 relating to birth of the child whose date of birth was 16.09.2002. The evidence that the appellant committed sexual assault on the victim has not been refuted through the cross- examination of the witnesses.
24. Although the victim stated that she was 16 years old at the time of the incident and gave her age as 15 years when she was examined by the doctor, the M.O., PW-8 has opined that the victim was above 18 years at the time of the incident. The evidence was not properly rebutted by the defense. Without proper rebuttal, a Court cannot dismiss the evidence of a victim.
25. I have considered the submission that this is an incident which occurred before the amendment of the POCSO Act i.e., it occurred on 05.02.2018. I have considered the facts and circumstances of this case. No brutality is discernable. I thereby deem it appropriate to scale down the sentence. The conviction under Section 4 is upheld and the sentence under Section 4 of the POCSO Act is scaled down to rigorous imprisonment for seven years and a fine of Rs. 1000/- in default rigorous imprisonment for 1 month. The conviction under Section 365 of the IPC is upheld. Period of detention already undergone by the appellant during investigation and trial is set off with the custodial sentence.
26. Send back the Trial Court Records.
27. The assistance provided by the learned Amicus Curiae is appreciated and they are recommended for payment of honorarium.
JUDGE Page No.# 11/11 Comparing Assistant