Gauhati High Court
Amzad Ali vs The State Of Assam on 3 November, 2025
Page No.# 1/12
GAHC010012302013
undefined
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./338/2013
AMZAD ALI
S/O ASRAF ALI, A RESIDENT OF SADILAPUR, P.S. JALUKBARI, DIST.
KAMRUP, ASSAM.
VERSUS
THE STATE OF ASSAM,
Advocate for the Petitioner : MS.S K NARGIS, MR G KHANDELIA(AMICUS CURIAE),MS.B
W AKHTARA,MS.A NEOG
Advocate for the Respondent : , PP, ASSAM,
BEFORE
HON'BLE MR. JUSTICE N. UNNI KRISHNAN NAIR
ORDER
03/11/2025 Heard Mr. G Khandelia, learned Amicus Curiae, appearing for the appellant and Ms. A Begum, learned Additional Public Prosecutor, Assam for the State respondent.
2. The present criminal appeal has been instituted assailing the judgment dated 12.09.2013 passed by the learned Additional Sessions Judge No. IV, Kamrup, Guwahati, in Sessions Case No. 541(K)/2012, convicting the appellant, herein, under Section 354 IPC and sentencing him to undergo Rigorous Imprisonment for 2 (two) years and also to pay a fine of Rs.5,000/-, in default, to undergo further Rigorous Imprisonment for 2 (two) months.
3. The prosecution case in brief is that one Babul Ali, on 17.07.2011, had lodged an FIR Page No.# 2/12 before the Officer-in-Charge, Jalukbari Police Station, inter-alia, alleging, therein, that on 17.07.2011, at about 4:00 PM, the appellant, herein, had induced his 6 (six) years old daughter to go to his rented room and thereafter, committed rape upon her and smeared semen on her naked body. It was further alleged in the FIR that after commission of the said offence, the appellant, herein, had threatened his daughter not to tell about the incident to any person, otherwise, he would kill her. It was further alleged in the FIR that on earlier occasion also, the appellant, herein, had committed the same act on the victim girl with the help of his two sons.
On receipt of the said FIR, police registered the same as Jalukbari P.S. Case No. 531/2011 under Sections 376(f)/34 IPC.
On completion of the investigation, police laid a charge-sheet against the appellant, herein, under Sections 376(f)/511/506 IPC.
The learned Trial Court, on the matter being committed to it, framed a charge against the appellant, herein, under Sections 376(2)(f)/511/506 IPC. The appellant, herein, having pleaded not guilty on the charge being read over and explained to him, a trial ensued.
The learned Trial Court, upon appreciating the evidences coming on record, proceeded vide judgment dated 12.09.2013 to convict the appellant, herein, under Section 354 IPC and sentenced him, as noted hereinabove. The learned Trial Court basing on the evidences coming on record had acquitted the appellant, herein, from the charge framed against him under Sections 376/511/506 IPC.
Being aggrieved, the appellant, herein, has instituted the present proceeding.
4. Mr. G Khandelia, learned Amicus Curiae, by referring to the deposition of the prosecution witnesses during the trial, has submitted that there appears apparent contradictions in the depositions of the witnesses, more particularly, the depositions adduced by the victim girl and those adduced by her father as PW1 and by her mother as PW2. He has further submitted that a doubt exist as to whether the material found on the undergarment of the victim girl was the semen released by the appellant, herein, and or shampoo, as Page No.# 3/12 contended by the appellant, herein. He has further submitted that while the victim girl was alleged to have been subjected to sexual assault by the appellant, herein, she had not raised any hue and cry, inasmuch as, no evidence has been brought on record from the tenants residing in the adjacent rooms of hearing any such hue and cry raised by the victim girl, when she was being subjected to such sexual assault by the appellant, herein.
5. Mr. Khandelia, learned Amicus Curiae has further submitted that the undergarments of the victim girl were not seized by the Investigating Officer and thereby, no scientific examination of the same could be carried out. Accordingly, he submits that a doubt exist with regard to the story projected by the prosecution in the matter.
6. Mr. Khandelia, learned Amicus Curiae, by referring to the deposition of the victim girl before the learned Trial Court as PW3, has submitted that the victim girl had not disclosed anything with regard to the commission of the offence upon her by the appellant, herein, during the trial.
7. Mr. Khandelia, learned Amicus Curiae submits that the learned Trial Court has relied upon the statement adduced by the victim girl under Section 164 Cr.P.C., which was exhibited and proved by the Magistrate before whom such statement was made.
8. By referring to the deposition of PW7, i.e., the Magistrate recording the statement of the victim girl under Section 164 Cr.P.C, Mr. Khandelia, has submitted that the statement, so recorded, cannot be relied upon, inasmuch as, PW7 during her cross-examination had deposed that she did not put any question to the victim girl to ascertain as to whether the statement given by the victim girl was so given voluntarily or she was tutored. Further, PW7 had deposed during her cross that she did not know as to why the statement of the victim girl was recorded.
9. By referring to the statement of the victim girl recorded Section 164 Cr.P.C., Mr. Khandelia, learned Amicus Curiae has submitted that the victim girl had stated that the appellant, herein, had called her to his house and shut the door and told her to take off her clothes. She further stated that the appellant, herein, had touched his private parts on her private parts and he asked her not to raise any alarm. She further deposed that he had done Page No.# 4/12 such activities with her on several days and had threatened her not to disclose the fact to anyone otherwise, she would be hacked. The victim girl further stated that when her mother saw something sticking on her panty, her mother asked her about it and she told her mother everything about it. He submits that the said statement of the victim girl, more particularly, with regard to the commission of similar nature of offence upon her by the appellant, herein, was not corroborated by the deposition made during the trial by PW1 and PW2, i.e., the parents of the victim girl.
10. Further, by referring to the deposition of PW2, i.e., the mother of the victim girl, Mr. Khandelia, has submitted that the delay in lodging the FIR was projected to have occasioned on account of the fact that the father of the victim girl was away from home and he had come back after two days. The learned Amicus Curiae has further submitted that PW2 had further deposed that the delay was also on the ground that the owner of the house, wherein they were staying on rent, had assured them that he would settle the matter. He submits that the daughter of PW2, having been subjected to sexual assault, there was no occasion for any settlement being arrived at in the matter between the family of the victim girl and the appellant, herein and accordingly, he submits that the depositions of the victim girl along with that of PW1 and PW2 are not probable and the conviction of the appellant, herein, cannot be based, thereon.
11. Mr. Khandelia, learned Amicus Curiae, by referring to the deposition of the Medical Officer, examining the victim girl, who had deposed as PW5, has submitted that the opinion of the Medical Officer was that there was no injury detected on the person of the victim girl and there was no sign of any sexual intercourse detected. Accordingly, he submits that the story projected by the prosecution is improbable one and the conviction of the appellant, herein, by the learned Trial Court would mandate interference.
12. Per contra, Ms. A Begum, learned Additional Public Prosecutor, Assam has submitted that the deposition of the victim girl under Section 164 Cr.P.C. having been exhibited during the trial, it was permissible for the learned Trial Court to place reliance, thereon. The disclosure as made by the victim girl in her statement under Section 164 Cr.P.C. having been corroborated during the trial by the evidence of PW1 and PW2, it is submitted that the Page No.# 5/12 conviction of the appellant, herein, by the learned Trial Court under Section 354 IPC would not mandate any interference.
13. I have heard the learned counsel for the parties and also perused the materials available on record.
14. The learned Trial Court, upon examining the evidences coming on record, had proceeded vide judgment dated 12.09.2013 to draw the following conclusions:-
"15. On careful consideration of the events of the case, shows that the allegation is that the accused attempted to commit rape of the 6 (six) years old victim by removing her cloth and by rubbing his penis in her vagina. In this respect PW1 the father of the victim stated that on 22.07.2011 at noon, the accused called the victim to his house and used her in massaging his body. Thereafter by removing his cloth asked her to touch his penis and also rubbed his penis in her vagina resulting there was emission of semen in her pant. On her return seeing some foreign material in her pant, while her mother asked about this, then she reported the incident. During cross he stated that the occurrence took place on 17.07.2011 and on 22.07.2011 he lodged the FIR. Corroborating his evidence, the PW2 the mother of the victim stated that on the day of occurrence seeing the victim coming from the house of the accused by pulling her pant she enquired and also noticed semen in her pant. Then though the accused said that it was shampoo but on asking, the victim reported that the accused by removing his pant asked her to touch his penis, kissed her and smeared his semen in her pant. PW2 further stated that the victim cried at the time of reporting the incident. During cross of PW1, it was also brought on record that PW2 reported him that after coming home, the victim cried. The evidence of PW4 Rainul Haque also shows that on the day of occurrence the accused was alone at home. This evidence remains unrebutted during cross examination. Though the victim PW3 in her deposition only stated that on that day the accused, whom she called as 'Nana' (Grandfather), called her to his house and closed the door and thereafter what occurred she did not remember. The statement U/S 164 Cr.P.C. was recorded on 25.07.2011 i.e., immediately after 8 days of the occurrence. So in my view due to very tender age, it is quite natural that the victim Page No.# 6/12 might have forget some part which took place two years earlier. During cross she clearly stated that she stated what she remembered and that was not tutored by anyone. So though she did not remember the whole incident, but she remembered the part that the accused called her to his room and thereafter closed the door. So her statement U/S 164 Cr.P.C. Ext-7 was not demolished during her deposition. She was not cross examined with her previous statement made U/S 164 Cr.P.C. Ext-7. The statement of the victim was proved by the learned Special Judicial Magistrate who recorded the statement. During cross of PWs defence failed to elicit anything to rebut their evidence. The evidence of the PWs are found firm, trustworthy and spontaneous.
16. The learned counsel also submitted that there was delay in lodging the FIR. Apparently the occurrence took place on 17.07.2011 and the FIR was lodged on 22.07.2011. So there is a delay of 5 days. In this respect during cross the informant stated that they waited for the accused to discuss the matter. Hence, delay was caused in filing the FIR. Moreover, in the FIR and in deposition he stated that he came to know about the occurrence on 22.07.2011 and though on the same day his wife went to the police station but police asked to come on next day and thereafter on 22.07.2011 the FIR was lodged. His wife PW2 also stated that on the day of occurrence PW2 was in Mankachar and on receiving information he returned home after two days but as the owner of their rented house assured to settle the matter, hence delay of 4/5 days was caused in filing the FIR. So in my considered view it cannot be said that delay remained unexplained. Moreover, considering the fact that the father of the victim was in Mankachar on the day of occurrence and they waited to talk with the accused, some delay may be caused and in my opinion such delay is not fatal to the prosecution. Defence also could not show that the parents of the victim had any enmity with the accused or his family members. It is also unbelievable that a parents would set their minor girl with a false allegation of sexual harassment against an innocent without any reason had there been no truth.
17. The learned counsel for defence also submitted that there was some discrepancies in respect of date of alleged occurrence as PW1 in the examination in chief stated that Page No.# 7/12 the occurrence took place on 22.07.2011 whereas the occurrence took place on 17.07.2011. But on careful reading the evidence of PW1 it reveals that during cross PW1 stated that the occurrence took place on 17.07.2011. Only for some minor discrepancy the whole case cannot threw away. Law is also that the prosecution case is not liable to be disbelieved because of minor contradiction and omissions in the evidence of witnesses if otherwise reliable the prosecution case.
18. On the other hand though during cross examination the defence took the plea that the material found in the panty of the victim was nothing but shampoo, but during argument the learned defence counsel Mr. I Rasul submitted that touching one person's penis, there might have been emission of semen but touching a penis by a girl on being asked does not constitute any offence against a woman by any provision of law. So emission of semen is not denied by the defence. Moreover, semen smeared on her pant not on frock.
19. Situated thus, the conclusion which is irresistible is that the accused had taken the 6 years old victim to his room, kissed her, asked her to touch his penis resulting emission of semen which was smeared on her pant. So from the above discussion, I am of the view that the prosecution has successfully establish that the accused had committed an offence.
.....
24. Considering all aspects, I am of the view that the accused Amjad Ali outraged modesty of the victim as has been described by the PWs and the prosecution has been able to prove its case beyond all reasonable doubt against the accused for offence punishable U/S 354 IPC and he is held guilty for the offence U/S 354 IPC and convicted accordingly.
25. In respect of threatening to the victim, there is no iota of evidence against the accused in the deposition of PWs. Accordingly, accused is acquitted from the charge U/S 506 IPC."
Page No.# 8/12
15. For the purpose of appreciating the conclusions drawn by the learned Trial Court as well as the contention raised by the learned counsel for the parties before this Court in the present proceeding, this Court would notice the evidences coming on record.
(i) PW1 Babul Ali, the father of the victim girl had deposed that at the time of the incident, they were staying in a rented house and the rooms were situated facing each other. It was deposed that on 22.07.2011, the appellant, herein, had called his daughter to his room to massage his body. His daughter was deposed to be aged around 6 years at the relevant point of time. It was further deposed that after the victim girl had massaged his body, the accused removed his clothes and asked his daughter to touch his private parts (penis). It was further deposed that the appellant, herein, started rubbing his penis on her panty and as a result of which, semen ejaculated from his body and fell on her panty. PW1 also deposed that on her daughter coming back home and seeing her panty, when her mother asked her as to what had happened, the victim girl had started weeping and explained to her mother as to what the accused had done to her. It was further deposed that the appellant, herein, had then come out and said that expired shampoo had fallen on the panty of the victim girl.
During his cross, he had also deposed that he had not seen the dirty panty of his daughter and had informed the incident to the owner of his rented house. He also deposed that police had not seized his daughter's clothing and that his daughter had not shouted during the time of the incident. PW1 also deposed that he was informed that his daughter had cried after coming home.
(ii) PW2, the mother of the victim girl deposed that on the date of the incident when her daughter was playing outside and as she did not return for a long time, a search was made for her and then she saw her daughter coming out of the room of the appellant by pulling up her panty. On asking her about the panty as some dirty particles were noticed on it, the appellant had said that it was shampoo. PW2 deposed that on seeing the particles she was sure that it was not shampoo and her daughter on being asked had informed that the appellant, herein, put off his pants and had asked Page No.# 9/12 her to touch his penis and thereafter, she cried. PW2 also deposed that her daughter had stated the appellant, herein, had kissed her and released semen on her panty. She further deposed that at the relevant point of time, her husband had gone to Mankachar and on receipt of the information he came back after two days. She further deposed that the lodging of the FIR was delayed for 4/5 days as the owner of her rented premise had said that he would settle the matter.
During her cross, PW2 deposed that police had not seized the panty sticking with semen and that she had not stated before police that the appellant, herein, had kissed Arjina or that she could not sleep for the entire night when the said incident had occasioned. She denied the suggestion that the substance that was sticking in her daughter's panty was not semen of the appellant, herein. She deposed that if hue and cry raise in any of the rented rooms, then it could be heard from the other rooms.
(iii) The victim girl had deposed as PW3. However, she only deposed to the extent that the appellant, herein, had called her to his room and she remembers nothing that had happened thereafter.
During her cross, she had deposed that she was not tutored by anyone with regard to the depositions she had made.
(iv) PW4, a neighbor is a hearsay witness and he had deposed that on the day of the incident, the appellant, herein, was alone at his home.
(v) PW5 is the Doctor examining the victim girl. During her deposition, she exhibited her findings along with the opinion that there was no evidence of injury detected on the person of the victim girl and there was further no evidence of recent sexual intercourse being committed on her.
(vi) PW6 is the Investigating Officer, who deposed with regard to the particulars of investigation carried out by him, he also deposed that he had sent the victim girl for medical examination and had also got her statement recorded in the Court. During his cross, PW6 had deposed that the PW1 Babul Ali had not stated before him that the Page No.# 10/12 appellant, herein, had removed his clothes and allowed the victim girl to touch his sexual organ and that he was rubbing his sexual organ on her panty. He further deposed that he had not seized the wearing apparels of the victim girl.
(vii) PW7 deposed that while she was posted as Special Judicial Magistrate, Assam, on 25.07.2011, she had recorded the statement of the victim girl under Section 164 Cr.P.C. the statement of the victim girl was exhibited as Ext.7.
During her cross, she had deposed that police had not mentioned any reason as to why the statement of the victim girl was being recorded. She had further deposed that at the time of recording the statement of the victim girl, she had not put any question to ascertain as to whether the statement given by the victim girl was voluntary or tutored.
Thereafter, the prosecution evidence being closed, the appellant, herein, was examined under Section 313 Cr.P.C. The appellant, herein, had stated that the substance that was sticking on the panty of the victim girl was shampoo. He further deposed that he had frequent quarrel with the wife of the informant and the case is lodged on false ground for torturing.
16. The evidences coming on record reveals that the FIR was lodged belatedly. The explanation for delay in lodging the FIR was adduced by PW2, i.e., the mother of the victim girl, wherein, she had highlighted that the delay was on the ground that her husband, i.e., PW1 was not at home and had come back only after 2 (two) days. She had also deposed that the delay in lodging the FIR for 4/5 days was on account of the fact that the owner of the rented house had said that he would settle the matter. It is not understood as to what settlement was contemplated by PW2, inasmuch as, in the event her daughter was subjected to sexual assault and considering the age of the victim girl, there was no scope of any settlement in the matter, inasmuch as, the victim was a minor.
17. In the statement of the victim girl recorded under Section 164 Cr.P.C. in addition to the sexual assault made on her on the fateful day, i.e., on 17.07.2011, the victim girl had stated about similar sexual assault being committed upon her on earlier occasions by the Page No.# 11/12 appellant, herein.
18. The FIR lodged by the PW1 as informant also contains a statement to the effect that the appellant, herein, in presence of his sons had earlier subjected the victim girl to heinous offence. However, PW1 and PW2 during their depositions in the trial had not deposed anything about the said aspect of the matter.
19. The evidences coming on record reveals that the victim girl on coming out of the room of the appellant, herein, was noticed by PW2 to be pulling her panty and on a closure examination on the panty of the victim girl, certain particles were found, which were suspected to be semen of the appellant, herein. But what is relevant is that in spite of such disclosure being made in the FIR, police had not seized the wearing apparels of the victim girl and accordingly, a scientific examination of the material purportedly found in the panty of the victim girl, was prevented from being carried out.
20. The statement of the victim girl under Section 164 Cr.P.C. reveals that the appellant, herein, was rubbing his sexual organ on her panty, however, the opinion of the Medical Officer, examining the victim girl, which was exhibited as Ext. 2 during the trial does not bring to the forefront about commission of any such act. No injury was detected on the person of the victim girl and it was opined that there was no evidence of recent sexual intercourse detected on her person. The above aspect of the matter raises a doubt with regard to the story projected by the prosecution in the matter.
21. The learned Trial Court, in the considered view of the Court, did not appreciate the evidences coming on record in its proper perspective. The material, found on the panty of the victim girl not being established to be semen, further the statement recorded of the victim girl under Section 164 Cr.P.C., being not recorded in the manner required, the said statement not being established to be not a tutored one, the very factum of the commission of a sexual assault on the victim girl by the appellant, herein, turns doubtful. In addition to the said factors, this Court notices that one of the grounds adduced for the delay occasioning in the matter, i.e., the proposal for settlement advanced by the owner of the premises, wherein, the victim's family was residing and non-examination of the owner during the trial by the Page No.# 12/12 prosecution leads to a further doubt arising with regard to the said reason adduced by the PW2 for the delay occasioning in lodging the FIR in the matter. The said factors in the considered view of this Court renders the prosecution story to be an improbable one.
22. Accordingly, in view of the above discussion, this Court finds that the ingredients requisite for establishing a charge under Section 354 IPC to have not been satisfied and a doubt having arisen with regard to the commission of any act by the appellant, herein, which can be construed to have outraged the modesty of the victim girl, this Court is of the considered view that the doubt so arisen has to be answered in favour of the appellant, herein.
23. This Court reiterates the evidence adduced by the PW1 and PW2 in the matter, does not inspire confidence. Accordingly, this Court is of the considered view that the appellant, herein, is required to be acquitted from the charge under Section 354 IPC by extending to him the benefit of doubt arising in the matter. Accordingly, the appellant, herein, is acquitted of the charge under Section 354 IPC on the basis of doubt and he is set at liberty. The bail bond executed by him stands discharged.
24. With the above observation and direction, the present appeal stands allowed.
25. Registry to send down the records to the learned Trial Court along with a copy of this order for information.
26. Before parting with the records of this case, this Court appreciate the assistance rendered by Mr. G Khandelia, learned Amicus Curiae appearing for the petitioner, towards disposal of the present appeal.
JUDGE Comparing Assistant