Gauhati High Court
Page No.# 1/24 vs The State Of Assam And Anr on 23 April, 2025
Author: Sanjay Kumar Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/24
GAHC010252282019
2025:GAU-AS:4813
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./419/2019
MD. NASIR ALI @ NASIRUDDIN AHMED
S/O- MD. RAFIK ALI, R/O- VILL.- SURADI, P.S. AND DIST.- NALBARI,
ASSAM.
VERSUS
THE STATE OF ASSAM AND ANR
REP. BY THE P.P., ASSAM.
2:MS. MINA BIBI
W/O- LATE FERO ALI
VILL.- SURADI
MOUZA- NAMBORBHAG
P.S. AND DIST.- NALBARI
ASSAM
Advocate for the Petitioner : MR. N BARMAN, MR H R A CHOUDHURY,MR. A AHMED,MR. I
U CHOWDHURY,MS. S DAS,MS P RABHA,MR B HAQUE
Advocate for the Respondent : PP, ASSAM, MR. R CHETRI(R-2)
BEFORE HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA For the Appellant : Mr. A. Ahmed, Advocate For the Respondents : Ms. B. Bhuyan, Sr. Advocate & Additional Public Prosecutor, Assam Date of Hearing : 09.01.2025 Page No.# 2/24 Date of Judgment : 23.04.2025 JUDGMENT & ORDER (CAV) (Mridul Kumar Kalita, J)
1. Heard Mr. A. Ahmed, the learned counsel for the appellant. Also heard Ms. B. Bhuyan, the learned Additional Public Prosecutor appearing for the State of Assam.
2. This Criminal Appeal, under Section 374(2) of the Code of Criminal Procedure, 1973, has been filed by the appellant, Md. Nasir Ali @ Nasiruddin Ahmed impugning the judgment and order dated 31.08.2019 passed by the Court of the learned Special Judge, Nalbari, in the Special (P) Case No. 1/2015, whereby the appellant was convicted under Section 376(2)(i) of the Indian Penal Code and Section 4 of POCSO Act, 2012 and was sentenced to undergo rigorous imprisonment for life under Section 376(2)(i) of the Indian Penal Code only in view of the provision of Section 42 of the POCSO Act, 2012.
3. The facts relevant for the adjudication of the instant appeal, in brief, are as follows:-
(i) On 21.08.2013, the informant Ms. Mina Bibi had lodged an FIR before the Officer-in-charge of the Nalbari Police Station, inter alia, alleging that on 20.08.2013, at about 5:00 PM, when she was transplanting paddy seedlings in the paddy field, the daughter (victim) of the first informant, who was aged about 12 years, was taken away by the appellant, Md. Nasir Ali to nearby " Basti"
(homestead) and committed rape on her. When, the informant came home from paddy field, she noticed that her daughter was bleeding from her private part. Thereupon, the victim was taken to Barama and, thereafter, she was taken to Swahid Mukunda Kakoti Civil Hospital, Nalbari where she was admitted.
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(ii) On receipt of the said FIR, the Officer-in-charge of Nalbari Police Station registered the Nalbari P.S. Case No. 682/2013 under Sections 342/376(2)(h) of the Indian Penal Code and initiated the investigation.
(iii) During the course of investigation, the Investigating Officer visited the place of occurrence, drew sketch map of the place of occurrence and recorded the statements of witnesses. The Investigating Officer also recorded the statement of informant. On being informed that the victim was brought to SMK Civil Hospital, Nalbari, the Investigating Officer visited the said hospital and recorded the statement of the victim. After release of the victim from the hospital, the Investigating Officer also took steps to get the statement of the victim recorded under Section 164 of the Code of Criminal Procedure, 1973 and accordingly, said statement of the victim girl was recorded by the learned Judicial Magistrate First Class, Nalbari on 27.08.2013. Ultimately, after completion of the investigation, the Investigating Officer laid the charge-sheet against the appellant Nasir Ali under Sections 342/376(2)(h) of the Indian Penal Code read with Section 4 of POCSO Act, 2012. It is pertinent to mention herein that the appellant was shown as an absconder in the charge-sheet.
(iv) On 06.08.20016, the appellant surrendered before the Trial Court. He was remanded to custody and on 03.11.2016, he was released on bail. He faced the rest of the trial by remaining on bail.
(v) After considering the materials available on record and after hearing both the sides, the Court of the learned Special Judge, Nalbari framed the charges under Section 376(2)(i) of Indian Penal Code read with Section 4 of the POCSO Act, 2012 against the appellant on 28.09.2016. When the said charges were read over and explained to the appellant, he pleaded not guilty to the said charges and claimed to be tried.
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(vi) To bring home the charges, the prosecution side examined as many as eight prosecution witnesses. The appellant was examined under Section 313 of the Code of Criminal Procedure, 1973, during which he denied the truthfulness of the testimony of the prosecution witnesses and pleaded his innocence. He also adduced evidence of three witnesses in his defence.
(vii) However, ultimately by the judgment which has been impugned in this appeal, the appellant was convicted and sentenced in the manner as already described in paragraph No. 2 of this judgment.
4. Before considering the rival submissions made by learned counsel for both the sides, let us go through the evidence which is available on record.
5. The PW-1, Hina Bibi, who is the mother of the victim girl, as well as the informant of this case, has deposed that on the day of occurrence of alleged offence she went to the paddy field of one Monu for transplanting paddy seedlings. She has also deposed that after coming home in the evening she found that her daughter was lying in the veranda of her house. She has also deposed that her daughter was bleeding heavily like having periods and there was a lot of blood in the bathroom. The PW-1 has further deposed that she called an ambulance and before taking her daughter to SMK Civil Hospital, Nalbari, she was taken to Barama PHC. The PW-1 has deposed that the victim was treated at Nalbari Civil Hospital for almost a week. She has further deposed that on being asked, her daughter informed her that she had a love affair with the appellant. She has also deposed that her daughter told her that the appellant did bad act with her as a result of which she bled from her private part. She has also deposed that her daughter was about 15 years old at the time of incident. She has further deposed that her daughter used to work in the house of other families and she used to stay where she worked. The PW-1 has Page No.# 5/24 deposed that the appellant had taken her daughter away from the house of the said family about a week before the incident. The PW-1 has again stated that her daughter stayed in the hospital for almost 15 days and after recovery she came back home. The PW-1 has further deposed that after about a month the victim girl hanged herself to death. The PW-1 has further deposed that the medical examination of her daughter was also done and her statements were also recorded by the Police and the Magistrate.
6. During her cross-examination, the PW-1 has deposed that the Gaonburha (Village Headman) had lodged a case against her alleging that she had murdered her daughter. She has also deposed that she had spent three months in jail in connection with that case. She has further deposed that before elopement of her daughter, her daughter (since deceased) had worked in the house of the relative of one Jalil at Barama. The PW-1 has further deposed that at Barama Medical, the victim told her that she had a love affair with the appellant. The PW-1 has also deposed that after fleeing away from the house of the relative of Jalil, her daughter reached home at about 10:00 AM and when she asked her daughter about the same, her daughter (victim) told her that she had eloped with the appellant on the previous day. The PW-1 has also deposed that her daughter told her that she had eloped with Rafique's son.
7. The PW-1 has also deposed that once a " Bichar" (village meeting) was held at the village over the issue of her illicit affair with Rajib. She has further deposed that even her sons did not like her. She has also deposed that an Advocate's clerk had written the ejahar and the contents of ejahar were not read over to her.
8. The PW-1 has further deposed that her daughter was found lying in almost unconscious state and one Sahida Bibi was sitting beside her. She has Page No.# 6/24 also deposed that when she made hue and cry, Safar Ali and Ramija and others came there. One Moynul called the 108 Ambulance and took her to the Barama. At Barama, the victim regained her sense.
9. The PW-1 has also deposed that she did not take her daughter to the hospital on the date of the alleged incident. She gave her daughter tablet, which she brought from a pharmacy. She has also deposed that she took her daughter to the hospital on the following day.
10. The PW-1 has also deposed that one Nur Bibi was present when her daughter disclosed to her about the love affair with the appellant. The PW-1 has answered in negative to the suggestions given to her by the learned defence counsel.
11. The PW-2, Ramisha Bibi, has deposed that when she came to the house of Mina Begum (informant) for calling her to transplant paddy seedlings, the victim (since deceased) told her that she was having periods and she fell down while carrying a bucket and started bleeding, thereafter, the PW-2 advised her to take tablet. This witness was declared hostile and was allowed to be cross-examined by the prosecution side.
12. During her cross-examination by the prosecution side, she has answered in negative to a suggestion that she stated before the Police that on 20.08.20213, she accompanied the victim's mother and went to the paddy field for transplanting paddy seedlings. When, they returned, the victim as well as her mother told that, at around 5:00 PM, taking advantage of the absence of the other members of the family, the appellant Nasir Ali took the victim to the backyard of the house by gagging her and committed rape on her and as a result there was bleeding from her private part. The PW-2 has also denied the Page No.# 7/24 suggestion that she has adduced false evidence in favour of the appellant. She also deposed that the appellant used to address her as "Abu" (grandmother). Her cross-examination by the defence side was declined.
13. The PW-3, Rina Bibi, has deposed that though she knew the informant, the victim as well as the appellant, however, she did not know about the incident. Her cross-examination was declined by the defence side.
14. The PW-4, Md. Samdeen Ali, has also deposed that he did not know as to what happened between the victim and the appellant. His cross-examination was declined by the defence side.
15. The PW-5, Rejina Begum, has also deposed that the informant (victim's mother) informed her that some incident had occurred between the appellant and her daughter (victim). However, she was not told as to what had happened.
16. The PW-6, Dr. Doli Gogoi Kalita, who had examined the victim, has deposed that on 21.08.2013, she was working as Medical and Health Officer- I, at Nalbari Civil Hospital and on that day, she examined the victim, aged about 13 years, who was escorted by WPC-130 Runu Begum. She was complaining bleeding since last night. On examination of the victim girl, the PW-6 has found the following:-
"Vulva- healthy, hymen-absent, vaginal tear -present with stitches which was given outside the hospital. Vagina admit one finger. Vaginal smear taken. No injury on her other private parts. Patient was admitted in septic ward in SMK Civil Hospital, Nalbari under police custody with medication. Blood transfusion was also done. Advice for X-ray for age determination and vaginal test for sperm. However, X-
Page No.# 8/24 ray report was not submitted by party. Vaginal smear- no sperm seen.
17. The PW-6 has deposed that there was no evidence of recent sexual intercourse. Evidence of forceful vaginal penetration is present. She also deposed that actual age of the victim could not be determined. She exhibited the medical report as Exhibit- 1 and her signature thereon as Exhibit-1(1).
18. During cross-examination, the PW-6 has deposed that on clinical examination, she found the vagina of the victim was torn and injured and stitch was present. She has also deposed that on the same day when the police produced the victim before her by the Police, she had examined her.
19. The PW-7, Mahendra Lahkar, has deposed that on 21.08.2013 he was working as Attached Officer at the Nalbari Police Station and on that day, on receipt of an ejahar from one Mina Bibi, the Officer-in-charge of Nalbari Police Station, registered the Nalbari P.S. Case No. 682/2013 under Sections 342/376 of the Indian Penal Code read with Section 4 of the POCSO Act, 2012 and entrusted him with the investigation of the case. The PW-7 has further deposed that after initiation of the investigation, he recorded the statement of the informant at the police station and went to the place of occurrence which is situated at the Suradi village under Nalbari Police Station. He prepared the sketch map and recorded the statement of witnesses. He has further deposed that as he came to know that the victim girl was brought to the SMK Civil Hospital, Nalbari, he went to the said hospital and recorded her statement there at the hospital. The PW-7 has further deposed that he had searched for the appellant, however, he could not be traced out. He has further deposed that after release of the victim from the hospital, she was brought before the Magistrate and her statement was recorded before the Magistrate. He has also deposed that that he collected the medical report of the victim girl and on Page No.# 9/24 completion of the investigation, he submitted the charge-sheet against the appellant which is exhibited as Exhibit-4.
20. During his cross-examination, he has deposed that as per the sketch map, there are houses of some people near the place of occurrence, namely, Safar, Zakir, Mahim and Mainul. However, he could not record the statement of the said persons. He has also deposed that he did not seize any wearing apparel of the victim girl. He has also deposed that Mina Bibi (the PW-1) did not state before him in her statement that her daughter was lying in the veranda and was bleeding. However, she has stated that there was bleeding from the body of her daughter. He has also deposed that Mina Bibi did not state before him that after kidnapping her daughter from the house of Zalil, the appellant kept her for one night with him. He has denied the suggestion that he did not investigate the case properly.
21. The PW-8, Ms. Banani Goswami, has deposed that on 27.08.2013, while she was working as Judicial Magistrate First Class at Nalbari, the then Chief Judicial Magistrate directed her to record the statement of the victim girl. Accordingly, the victim was produced by the Investigating Officer on the same day and she was identified and escorted by WPC-91 Minati Barman. The PW-8 has deposed that she recorded the statement of the victim girl under Section 164 of the Code of Criminal Procedure, 1973, and after recording the statement same was read over to the victim girl and thereafter she put her thumb impression on the said statement. She has also deposed that after recording the statement, she passed the order on 27.08.2013. She exhibited the statement of the victim girl as Exhibit-5 and her order passed on that day as Exhibit-6.
22. During cross-examination, the PW-8 has deposed that the thumb impression of the victim girl on the statement was not endorsed by anybody.
Page No.# 10/24 She has further deposed that as the victim was mature enough and she has proper understanding so she did not put any separate question to her prior to recording of her statement.
23. During his examination under Section 313 of the Code of Criminal Procedure, 1973, the appellant has denied the truthfulness of the testimony of the prosecution witnesses and pleaded his innocence. He has stated that the Exhibit-5 may be the statement of the victim girl or may not be her statement too. He has also stated that on the date of alleged incident, he was present in a marriage function of one of his neighbour till 1:00 PM. He has also stated that he did not know about the age of the victim girl. He has also stated that he has been falsely implicated in this case. He adduced evidence of three witnesses in his defence.
24. The DW-1, Md. Abdul Rahman, has deposed that he do not know about the fact of the case and he only knows that Mina Bibi lodged a case against the appellant and later on, the victim girl died. He has also stated that he came to know that Mina Bibi committed murder of her daughter and public handed over her to the Police. He has also stated that the victim girl worked as a domestic helper in the house of some people due to poverty and few days before her murder, he noticed her moving here and there. During cross- examination, he answered in negative to the suggestions put to him by the learned Public Prosecutor.
25. The DW-2, Md. Samer Ali, has deposed that he heard that victim was admitted in the hospital for her illness and after a few days he heard that Mina Bibi lodged a case against the appellant. He also deposed that he had heard that the mother of the victim had murdered her. During cross-examination by the prosecution side, he has deposed that at the time of her death, the victim Page No.# 11/24 was 12 to 13 years of age. He also deposed that he came to know that the victim was admitted at the hospital for bleeding. He has answered in the negative to other suggestive questions put to him by the prosecution side.
26. The DW-3, Md. Niyamat Ali, has deposed that he heard that Mina Bibi lodged a case against the appellant. He has also deposed that he is unaware about the allegations made by Mina Bibi in her ejahar lodged against the appellant. During cross-examination by the prosecution side, the DW-3 has deposed that he heard that the victim was admitted at the hospital. He has also deposed that after returning from hospital, she died. He denied the other suggestions put to him by the prosecution side.
27. Mr. A. Ahmed, the learned counsel for the appellant has submitted that the there is no eye-witness in this case and the Trial Court convicted the appellant under Section 376(2)(i) of the Indian Penal Code and Section 4 of the POCSO Act, 2012 merely on the basis of Exhibit-5 i.e., the statement of the victim girl recorded under Section 164 of the Code of Criminal Procedure, 1973. He submits that the evidence of all the prosecution witnesses is hearsay evidence and there is no substantive evidence on the basis of which the Trial Court came to its finding of guilt of the appellant.
28. The learned counsel for the appellant has submitted that the statement recorded under Section 164 of the Code of Criminal Procedure, 1973, may be used only for the purpose of corroboration or for contradiction, however, the same cannot be treated as a substantive piece of evidence. He also submits that the truthfulness of the statement of the victim girl recorded under Section 164 of the Code of Criminal Procedure, 1973 is also under the cloud of doubt as same was recorded after about 7 days of the alleged incident. In support of his submissions, the learned counsel for the appellant cited following rulings:-
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(i) "Azizul Hoque @ Batchu -Vs- State of Assam " reported in "2024 (1) GLT 929"
(ii) "Anjuma Bibi (Musst.) -Vs- State of Assam and Ors. " reported in "2024 (1) GLT 647"
(iii) "Brij Nath -Vs- State of Bihar" reported in "2010 AIR SCW 3900"
(iv) "Sheo Raj -Vs- State" reported in "1964 (2) CRI LJ 1"
29. The learned counsel for the appellant has also submitted that the statement of the victim recorded under Section 164 of the Code of Criminal Procedure, 1973, cannot be treated as an evidence even under Section 33 of the Indian Evidence Act, as for its applicability, it is mandatory that the adversary must have a right and opportunity to cross-examine the witness but at the time of recording of statement under Section 164 of the Code of Criminal Procedure, 1973, there vests no right or opportunity with the adversary to cross-examine the witness. In support of his submission, he has cited a judgment of a Division Bench of Jharkhand High Court in " Mojib Ansari -Vs- State of Jharkhand" reported in "2015 Cri. L.J. 4702", wherein it was observed as follows:-
"34. Before discussion on the contents of the statement of victim recorded u/s 164, Cr.P.C, we have to see whether it can be taken into consideration or not?
35. Section 33 of the Evidence Act runs inter alia, "Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is Page No.# 13/24 dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable:
Provided-- that the proceeding was between the same parties or their representatives in interest; that the adverse party in the first proceeding had the right and opportunity to cross-examine; that the questions in issue were substantially the same in the first as in the second proceeding.
Explanation.--A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section"
36. For the application of Section 33 Indian Evidence Act, it is mandatory that the adversary must have the right and opportunity to cross-examine the witness, but at the time of recording statement u/s 164 Cr.P.C, there vests no right or opportunity with the adversary to cross-examine the witness. Hence, Section 33 of Indian Evidence Act is not applicable in the case at hand meaning thereby that we cannot legally read the statement of victim recorded u/s 164 Cr.P.C on the strength of Section 33 of Indian Evidence Act at least. However, the statement of witness recorded u/s 164 Cr.P.C, itself bears a corroborative value.
30. The learned counsel for the appellant has also submitted that though the Trial Court convicted the appellant under Section 4 of the POCSO Act, 2012, however, the age of the victim girl was not ascertained and the doctor who Page No.# 14/24 examined the victim girl has deposed during her cross-examination that the actual age of the victim girl could not be determined, therefore, he submits that there was no basis for the Trial Court holding the victim to be a minor and convicting the appellant under Section 4 of the POCSO Act, 2012.
31. The learned counsel for the appellant has submitted that as per the testimony of the PW-1, the alleged offence was committed on 20.08.2013, whereas, the victim was examined by the PW-6 at Nalbari Civil Hospital on 21.08.2013. However, no evidence of recent sexual intercourse was found on the victim girl. He has submitted that though evidence of forceful vaginal penetration was present and there was stitches present which was given outside the hospital, however, the medical evidence is also a corroborative piece of evidence and without there being any substantive evidence against the appellant, the Trial Court has erred in convicting the appellant under Section 376(2)(i) of the Indian Penal Code and Section 4 of the POCSO Act, 2012. Hence, he has prayed for setting aside the impugned judgment and acquitting the appellant.
32. On the other hand, Ms. B. Bhuyan, the Additional Public Prosecutor has submitted that the Trial Court has rightly convicted the appellant under Section 376(2)(i) of the Indian Penal Code and Section 4 of the POCSO Act, 2012, on the basis of the evidence available on record. She has submitted that the PW-1, who is the mother of the victim girl, has categorically stated in her testimony that her daughter had informed her that the appellant did bad act with her. She submits that this piece of evidence is admissible as res gestae under Section 6 of the Evidence Act as the disclosure by the victim to her mother was part of the same transaction. She has submitted that the evidence of doctor wherein she found the stitches on the vagina of the victim girl as well Page No.# 15/24 as evidence of forceful vaginal penetration corroborates the testimony of the PW-1.
33. The learned Additional Public Prosecutor has also submitted that the Exhibit-5 which is the statement of the victim girl recorded under Section 164 of the Code of Criminal Procedure, 1973, also corroborates the evidence of the PW-1. She also submits that the fact that the appellant was absconding after the incident is also an incriminating circumstance which points towards the guilt of the appellant. She, therefore, submits that the impugned judgment should not be interfered in this appeal and the appeal may be dismissed.
34. We have considered the submissions made by the learned counsel for both the sides. We have also meticulously scrutinized the evidence available on record. We have also gone through the rulings cited by the learned counsel for the appellant.
35. In the instant case, the victim girl could not depose before the Trial Court as she had allegedly committed suicide after a month of the alleged incident. Out of 8(eight) prosecution witnesses examined by the prosecution side, only the testimony of the PW-1 and the PW-6 was taken into consideration by the Trial Court to come to the finding of the guilt of the appellant. The Trial Court mainly relied upon the statement of the victim girl, treating it as a substantive piece of evidence under Section 32 of the Indian Evidence Act.
36. In her evidence, during cross-examination, the PW-1 Hina Bibi (though her name has been shown as Mina Bibi in other documents as well as in the testimony of the other witnesses) has deposed that she did not take her daughter to hospital on the date of the alleged incident and she took her to hospital on the following day. She has also deposed that it was at the Barama Page No.# 16/24 PHC, where her daughter informed her that she had a love affair with the appellant and that the appellant did bad act with her. This disclosure to the PW- 1 by the victim girl is admittedly after one day of the alleged incident.
37. Moreover, the PW-2, who was declared as hostile, has deposed in her examination-in-chief that the informant told her that the victim was having periods and she fell down while she was carrying a bucket and started bleeding, this testimony could not be demolished during her cross-examination by the prosecution side.
38. The statement of the victim to her mother after a day of the alleged incident in the hospital may not be considered as spontaneous and immediately after the alleged incident. The evidence of the PW-1 shows that when she saw her daughter bleeding, she did not take her to the hospital on the same day and instead brought a tablet from a pharmacy. The victim was taken to hospital on the following day of the incident and there is nothing on record to suggest that while she was at her home, she disclosed regarding commission of bad act by the appellant on her, to her mother. Under such circumstances, we are of the considered opinion that the disclosure by the victim girl to her mother, after one day of the incident, in the hospital, that the appellant did bad act with her may not be considered as a part of the same transaction, when the alleged bad act was done with the victim girl, so as to be admissible in evidence as res gestae.
39. Though, the Exhibit-5 which is the statement of the victim recorded under Section 164 of the Code of Criminal Procedure, 1973, shows that the appellant had gagged the mouth of the victim girl and committed rape on her, however, the PW-1 has deposed that her daughter informed her at the hospital that the victim was having love affair with the appellant and he did bad act on her. The PW-1 did not depose that the victim told her regarding gagging of her Page No.# 17/24 mouth by the appellant and thereafter raping her.
40. It is pertinent to note that during cross-examination, the mother of the victim girl i.e., the PW-1 has also deposed that her daughter informed her that after fleeing from the house of relative of Jalil where her daughter was working, she had eloped with the appellant on the previous day.
41. It appears that the testimony of the PW-1 is also self-contradictory in as much as, the FIR mentions about the date of alleged incident as 20.08.2013 and the FIR was lodged on 21.8.2013 at about 12:30 PM. However, during her cross-examination, the PW-1 has deposed that she lodged the FIR on the date of alleged incident itself. In her examination-in-chief, at one point of time, she states that her daughter had been treated at Nalbari Civil Hospital for almost a week, however, in the later portion of the examination-in-chief, she has deposed that her daughter stayed in the hospital for almost 15 days. Whereas, the testimony of the PW-7 shows that the victim statement under Section 164 of the Code of Criminal Procedure, 1973, was recorded after her release from the hospital and perusal of Exhibit-5 as well as testimony of the PW-8 shows that the statement of victim girl under Section 164 of the Code of Criminal Procedure, 1973, was recorded on 27.08.2013, which shows that the victim was admitted in the hospital for about a week and not 15 days as deposed by the PW-1. The testimony of the PW-1 also shows that her daughter only informed her about her having a love affair with the appellant and having indulged in bad act. She did not tell her that the appellant committed sexual intercourse with her without her consent.
42. Thus, we are of the considered opinion that the testimony of the PW-1 may not be admissible under Section 6 of the Indian Evidence Act as res gestae. Her testimony is hearsay evidence as regards the appellant having a Page No.# 18/24 love affair and having indulged in bad act with her daughter. Her testimony to the effect that she saw her daughter bleeding from her private parts and, thereafter, took her to the hospital where she has treated for seven days, however, is not hearsay evidence.
43. As regards the testimony of the PW-7 i.e., the doctor who examined the victim girl is concerned, it appears that she examined the victim girl on 21.08.2013 i.e., on the next date of the alleged incident and though she found vaginal tear and stitches thereon and evidence of forceful vaginal penetration, she did not find any evidence of recent sexual intercourse, which only indicates that the evidence of forceful vaginal penetration on the victim girl was not recent.
44. It also appears that though there where stitches on the vaginal tear, however, there is no evidence to show as to where those stitches were given to the victim girl. The only evidence available on record is to the effect that before taking to the victim girl to SMK Civil Hospital, Nalbari, she was taken to Barama PHC. However, as to what treatment was provided to her at the Barama PHC, nothing is available on record.
45. Now, coming to the statement of the victim girl recorded under Section 164 of the Code of Criminal Procedure, 1973, it is no longer res integra that the statement recorded under Section 164 of the Code of Criminal Procedure, 1973 is not a substantive piece of evidence and can be utilized only to corroborate or contradict the witness viz-a-viz a statement made in the Court. It can only be utilized as a previous statement for the purpose of corroboration and contradiction.
46. The observation of the Apex Court in the case of " Brij Nath Sah -Vs-
Page No.# 19/24 State of Bihar" (supra) are relevant and same are quoted herein below:-
"6. We have heard the learned counsel for the parties and have gone through the record. We see from the judgments of the Courts below that the only material that has been used against the appellant is the statement under Section 164 of the Cr.P.C. This Court in Ram Kishan Singh vs. Harmit Kaur and Another (1972) 3 SCC 280 has held that a statement of 164 Cr.P.C. is not substantive evidence and can be utilized only to corroborate or contradict the witness vis-a-vis. statement made in Court. In other words, it can be only utilized only as a previous statement and nothing more. We see from the record that Suman Kumari was not produced as a witness as she had since been married in Nepal and her husband had refused to let her return to India for the evidence. In this light her statement under Section 164 cannot be used against the appellant. Even otherwise, a look at her statement does not involve the appellant in any manner. The allegation against him is that after she had been kidnapped by the other accused she had been brought to their home, where the appellant was also present. In other words, when she had been brought to the appellant's home the kidnapping had already taken place. The appellant could therefore not be implicated in the offence under Section 363 or 366-A of the IPC de hors other evidence to show his involvement in the events preceding the kidnapping".
47. Though, the mere fact that a victim is dead and consequently she could not be examined during the trial can never be a ground to acquit an accused if evidence otherwise is available for proving the guilt of the accused for the alleged offence, the Court can record a conviction for any offence that is Page No.# 20/24 made out on the basis of available evidence even in the absence of a victim. However, for that, the prosecution side has to adduce admissible evidence against the accused. In absence of any admissible evidence against the accused, he may not be convicted merely because of the fact that the victim girl is herself not available to depose, and there is material on record which, otherwise is inadmissible as evidence in law, is pointing towards his guilt.
48. In the instant case, the Trial Court while arriving at the finding of guilt of the present appellant has mainly relied on the Exhibit-5 which is the statement of the victim girl recorded under Section 164 of the Code of Criminal Procedure, 1973. The Trial Court considered the said statement to be a substantive piece of evidence treating it to be admissible in view of Section 32 of the Indian Evidence Act.
49. Section 32 of the Indian Evidence Act, 1872 is quoted herein below:-
"32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant. - Statements, written or verbal, or relevant facts, made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases :-
(1)When it relates to cause of death. - When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.
Such statements are relevant whether the person who made them Page No.# 21/24 was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.
(2) Or is made in course of business. - When the statement was made by such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business, or in the discharge of professional duty; or of an acknowledgement written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce written or signed by him, or of the date of a letter or other document usually dated, written or signed by him.
(3) Or against interest of maker. - When the statement is against the pecuniary or proprietary interest of the person making it, or when, if true, it would expose him, or would have exposed him to a criminal prosecution or to a suit for damages.
(4) Or gives opinion as to public right or custom, or matters of general interest. - When the statement gives the opinion of any person, as to the existence of any public right or custom or matter of public or general interest, of the existence of which, if it existed he would have been likely to be aware, and when such statement was made before any controversy as to such right, custom or matter had arisen.
(5) Or relates to existence of relationship. - When the statement relates to the existence of any relationship [by blood, marriage or adoption] between persons as to whose relationship [by blood, marriage or adoption] the person making the statement had special means of Page No.# 22/24 knowledge, and when the statement was made before the question in dispute was raised.
(6) Or is made in will or deed relating to family affairs. - When the statement relates to the existence of any relationship [by blood, marriage or adoption] between persons deceased, and is made in any will or deed relating to the affairs of the family to which any such deceased person belonged, or in any family pedigree, or upon any tombstone, family portrait or other thing on which such statements are usually made, and when such statement was made before the question in dispute was raised.
(7) Or in document relating to transaction mentioned in section 13, clause (a). - When the statement is contained in any deed, will or other document which relates to any such transaction as is mentioned in section 13, clause (a).
(8) Or is made by several persons and expresses feelings relevant to matter in question. - When the statement was made by a number of persons, and expressed feelings or impressions on their part relevant to the matter in question".
50. A bare perusal of the aforesaid provisions would show that the statement made by a person who is dead may be relevant only under the circumstances mentioned in the sub-clause (1) to sub-clause (8) of the Section 32 of the Evidence Act.
51. However, in the instant case, the statement under Section 164 of the Code of Criminal Procedure, 1973 of the victim girl, which has been exhibited as Exhibit-5, does not relate to the cause of death of the victim girl neither it was Page No.# 23/24 made in the course of business or against the interest of maker and it also does not fall within the purview of circumstances mentioned in the remaining clauses of Section 32 of the Indian Evidence Act. Hence, in the instant case, the statement of the victim recorded under Section 164 of the Code of Criminal Procedure, 1973 (the Exhibit- 5) does not fall within the ambit of Section 32 of the Indian Evidence Act. We are, therefore, of the considered opinion that the Trial Court has erred in regarding the statement of the victim girl recorded under Section 164 of the Code of Criminal Procedure, 1973 as a piece of substantive evidence to come to the finding of the guilt of the appellant.
52. Moreover, the appellant has also been convicted under Section 4 of the POCSO Act, 2012. In a case involving offence under POCSO Act, 2012, the burden on the prosecution to prove the age of the victim is crucial for the prosecution case. Though, under Section 29 of the POCSO Act, 2012 provides for a presumption, such provision would come into play only after the prosecution establishes the foundational facts. In the instant case, no birth certificate or any other documentary evidence relating to age of the victim girl has been proved. Moreover, in her deposition, the PW-6, i.e., the doctor who medically examined the victim girl, has also categorically stated that the actual age of the victim could not be determined. There is no evidence of any radiological examination of the victim girl to prove that she was a minor when the alleged offence was committed. The Trial Court, while coming to the finding regarding the age of the victim girl, relied upon the age of the victim girl mentioned in the FIR, i.e., 12 years. However, the informant, who is the mother of the victim girl, while deposing as the PW-1 has stated that the victim was about 15 years of age when the incident occurred.
53. Under the above-mentioned circumstances, when the prosecution has Page No.# 24/24 failed to conclusively prove the age of the victim girl and also failed to adduce any substantive piece of admissible evidence to prove the guilt of the appellant, we are of the considered opinion that the Trial Court was not correct in convicting the appeal merely on the basis of Exhibit-5, which is the statement of the victim girl recorded under Section 164 of the Code of Criminal Procedure, 1973, treating it to be a piece of substantive evidence.
54. We are, therefore, of the considered opinion that the Trial Court had erred in convicting the appellant under Section 376(2)(i) of the Indian Penal Code as well as Section 4 of the POCSO Act, 2012 without there being any substantive piece of incriminating evidence on record against him. Under the facts and circumstances of this case, we are of the considered opinion that the appellant is entitled to get benefit of doubt.
55. For the reasons discussed in forgoing paragraphs, the instant appeal is allowed. The impugned judgment of conviction and sentence imposed on the appellant under Section 376(2)(i) of the Indian Penal Code, as well as Section 4 of the POCSO Act, 2012 is hereby set aside and he is acquitted of aforesaid charges on benefit of doubt. The appellant shall be set at liberty forthwith, if not, required in connection with any other case.
56. Let the records of the Trial Court be sent along with a copy of this judgment to the Trial Court.
JUDGE JUDGE Comparing Assistant