Gauhati High Court
Crl.A./21/2022 on 12 June, 2025
Page 1 of 32
GAHC010018312022
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
CRL.A./21/2022
1. Sofa Uddin
S/O Late Abdul Kadir
Village Khelma Part VIII
PS Katigorah, District-Cachar,
Assam 788815
......Appellant
-Versus-
1. The State of Assam
To be represented by the Public Prosecutor, Assam
2. Suleman Uddin
S/O Late Tasar Ali
Resident of Khelma Part VIII
PO Gumrah Bazar
PS Katigorah
District - Cachar
Assam 78881
......Respondents
For Petitioner(s) : Mr. L. R. Majumdar, Advocate
For Respondent(s) : Mr. D. Das, Additional Public Prosecutor
Ms. Debashree Saikia, Amicus Curiae
Date of Judgment 12.06.2025
CRL.A./21/2022 Page1
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BEFORE
HON'BLE MR. JUSTICE MRIDUL KUMAR KALITA
JUDGMENT
(MRIDUL KUMAR KALITA, J)
1. Heard Mr. L. R. Majumdar, the learned counsel for the appellant.
Also heard Mr. D. Das, the learned Additional Public Prosecutor for the State respondent as well as Ms. Debashree Saikia, the learned Amicus Curiae appearing for Respondent Nos. 2 and 3.
2. This appeal, under Section 374 (2) of the Code of Criminal Procedure Code, 1973, has been filed by the appellant Sofa Uddin, impugning the judgment and order dated 20.12.2021, passed by the Court of learned Additional Session Judge cum Special Judge, Cachar in Special (POCSO) Case No. 23/2018, whereby the appellant has been convicted under Section 366/376 of the Indian Penal Code and was sentenced only under Section 366 of the Indian Penal Code to undergo rigorous imprisonment for 7 years and to pay a fine of Rs. 7,000/- and in default of payment of fine to undergo simple imprisonment for 3 months. The appellant was also convicted under Section 4 of the POCSO Act, 2012 and was sentenced to undergo rigorous imprisonment for a term of 10 years and to pay a fine of Rs. 10,000/- and in default of payment of fine to undergo further simple imprisonment for 6 months. Both the sentences were directed to run concurrently.
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3. The facts relevant for consideration of the instant appeal, in brief, are that, on 02.02.2018, the respondent No. 2, (informant) Md. Suleiman Uddin, had lodged an FIR before the Officer-in-Charge of Katigorah Police Station, inter-alia, alleging that on 30.01.2018, when the minor daughter of the informant went outside the house at about 11.00 pm to attend the call of nature, the appellant forcefully dragged her towards his house. Though, the daughter of the informant, raised hue and cry, however, she could not be rescued from the clutches of the appellant. The appellant took the daughter (hereinafter referred to as "X") of the informant to his house and committed rape on her.
4. It is also alleged in the FIR that earlier also, on 20.11.2017, the appellant had abducted another daughter (hereinafter referred to as "Y") of the informant and kept her in his house and committed rape on her for several days and thereafter, handed her to a fellow villager, namely, Jasimuddin.
5. It is also stated in the FIR that when the alleged offences were committed, both the daughters of the informant (respondent No. 2) were minors.
6. On receipt of this said FIR, the Officer-in-Charge of the Katigorah Police Station registered the Katigorah P. S. Case No. 92/2018 under Sections 366/376(1)/343 of the Indian Penal Code, read with section 4/8/12 of the POCSO Act, 2012.
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7. Ultimately, on completion of the investigation, the Investigating Officer laid the charge sheet against the appellant under section 366A/376(2)/343 of the Indian Penal Code, read with Section 4 of the POCSO Act, 2012 in the Special (POCSO) Case No. 23/2018.
8. After going through the materials on the record and after considering the submissions of the learned counsel for both the sides, on 21.07.2018, the learned Additional Session, Judge, Cachar framed the charges under Sections 366/376 of the Indian Penal Code and under Section 4 of the POCSO Act, 2012, against the present appellant. When the said charges were read over and explained to the appellant, he pleaded not guilty to the same and claimed to be tried.
9. In order to bring home the charges against the appellant, the prosecution side examined 11 prosecution witnesses.
10. The appellant was examined under Section 313 of the Code of Criminal Procedure, 1973, during which he pleaded his innocence and denied the truthfulness of the testimony of the prosecution witnesses. However, the appellant declined to adduce any evidence in defense.
11. Ultimately, by the judgment, which has been impugned in this appeal, the appellant was convicted and sentenced in the manner as already described in the paragraph No. 2 of this judgment herein before.
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12. Before considering the arrival submissions of the learned counsel for both sides, let us go through the evidence, which is available on record.
13. The PW-1, "X", who is the victim in the case, has deposed that she knows the accused Sofa Uddin and that the incident took place about 7 to 8 years ago from the date of her deposing before the court. She has deposed that at the relevant time of occurrence she came out from her house for attending nature's call along with her mother and at that time three persons came and caught her, gagged her mouth and put her in a small car. She has deposed that at that time her mother raised hue and cry and tried to resist but they drove the car away. She further added that her father came out hearing hue and cry and that they could not restrain the accused persons as the accused persons drove the vehicle speedily. The PW-1 has deposed that the accused persons took her to Silchar and kept her confined in a house and the appellant raped her forcefully. The PW-1 has further deposed that the appellant kept in the house for about 15 days and on each day he raped her. The other two persons left after dropping her in that house. The PW-1 has deposed that thereafter the appellant took her to his residence at Khelma-VIII and he kept her in his house for about two months and that the accused again raped her in his house for almost all dates.
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14. The PW-1 has further deposed that the accused has his wife and children and his daughter would be elder than her. The PW-1 deposed that after two months the appellant assaulted her and driven her out from his residence. The PW-1 has further deposed that she met her grandmother on the way and told her about the incident and her grandmother directly takes her to Gumrah Police Outpost and that Police took her for medical examination and brought her to the court for recording her statement by the Magistrate. The PW-1 has exhibited her statement before the Magistrate as Ext-1 wherein Ext-1(1) is her signature. The PW-1 has also deposed that her father was informed and he came to the Police Station and police gave her in custody of her father and that at the time of occurrence she was studied at Class-VIII in Digorkhal High School.
15. During her cross-examination by the defence side, the PW-1 gave description of the surrounding houses of her father and stated that the entrance of their house is on the eastern side and that the village road is 10/15 minutes of walking distance and that the residence of the accused is about 200 meters from her father's residence and that there are residences of several persons near the house of the appellant.
16. The PW-1 has deposed during her cross-examination that the neighbours of their residence has got 5/6 family members of each family and that their village does not have electricity connection and CRL.A./21/2022 Page6 Page 7 of 32 that the house of the accused consists of two rooms, one is living room and another is kitchen room and that their family consists of five daughters and three sons. She also stated in her cross- examination that three of her elder sisters got married and at the time of occurrence two of her elder sisters were staying in their residence.
17. It was suggested to the PW-1 that "she did not state to police Magistrate that about 7/8 years ago at about 11.00 pm she came out from her house for attending nature's call along with her mother and at that time three persons came and caught her and gagged her mouth and put her in a small car and that at that time her mother raised hue and cry and tried to resist and they drove the car away and her father came out hearing hue and cry and that they could not restrain the accused persons as the accused persons drove the vehicle speedily," which she denied.
18. It was also suggested to the PW-1 that she did not tell before the police or Magistrate that the accused persons took her to Silchar and kept her confined in a house and she asked the accused to take her to her house but he did not consider it and he raped her forcefully and that he kept in the house for about 15 days and in all dates he raped her and that the other two persons left after dropping her in that house and that thereafter the accused took her to his residence at Khelma -VIII and he kept her in his house for about two months and that the accused again raped her in his CRL.A./21/2022 Page7 Page 8 of 32 house for almost all dates and that after two months the accused assaulted and driven her out from his residence and that she met her grandmother on the way and she told her about the incident and her grandmother directly took her to the Gumrah Police OP and she lodged the case, which she denied.
19. The PW-1 has further deposed during her cross-examination that earlier her elder sister was taken by accused Sofa Uddin and given marriage to Jashim Uddin. In her cross-examination it was put to PW-1 that the appellanthad amicably settled the dispute between her father and Jashim Uddin and for that reason her father lodged a false case against the accused, which she denied.
20. The PW-2, Suleman Uddin, is the informant and father of the victim in this case. He has deposed that at the relevant time of occurrence his daughter "X" went out of the house along with his wife to attend nature's call with a torch in the hand of his wife and then the appellant along with two others gagged her mouth and lifted her and took her away. He has deposed that his wife raised hue and cry, hearing the same he went out and tried to restrain the appellant but the other accused persons who came with sword threatened him. He has further deposed on that night he Informed the villagers who told him that on the next morning they would settle the dispute and on the next morning they advised him to inform the matter to police and accordingly he lodged a written FIR. He has exhibited the FIR as Ext.2 as wherein Ext.2(1) and Ext.2(2) CRL.A./21/2022 Page8 Page 9 of 32 are his signatures. He has deposed that at the time of occurrence his daughter "X" was studying in Class-VIII and she was 16 years of age. He further deposed that he had submitted a copy of birth certificate along with the ejahar and that he took zimma of his said daughter from the Court.
21. During his cross-examination by the defence side, the PW-2 stated that he only know how to put signature but he does not know how to read and write and that he cannot read the ejahar and does not know the contents of the ejahar. It was suggested to PW-2 that he did not state to police that on the date of occurrence at about 11 p.m. his victim daughter went out of the house along with his wife to attend nature's call with a torch in the hand of his wife and that his wife raised hue and cry and hearing the same he went out, which he denied. PW-2 stated during his cross examination that his eldest daughter "Y" fled away with Jashim Uddin. He also denied several other suggestions which were put to him by the defence side during his cross-examination.
22. PW-3, Mustt. Hazira Begum, is the mother of the victim and wife of the informant. She deposed that at the relevant time of occurrence her daughter went out to attend nature's call and she accompanied her with a torch in her hand and that when her daughter went for urination, then the appellant, along with two others, gagged the mouth of her daughter "X" and carried her away in a small vehicle. She also deposed that as the mouth of her daughter was gagged by CRL.A./21/2022 Page9 Page 10 of 32 the accused so she could not raise hue and cry and that then PW-3 raised hue and cry. On hearing it, her husband came out and he tried to restrain the appellant but in vain. She has deposed they searched for their daughter but did not find her and then they informed the villagers and thereafter her husband informed the matter to the police. After 7 to 8 days of the occurrence her daughter came to police station as she was beaten by the accused person. She further deposed that on being asked her daughter told her that the accused took her to Silchar and committed bad act on her and thereafter she was again taken to his house at Khelma and there also the accused committed bad act.
23. During her cross-examination, it was suggested to her that she did not state to police that on the date of occurrence her daughter went out to attend nature's call and she accompanied her with a torch in her hand and that when her daughter went for urination then the accused along with two others gagged the mouth of her said daughter and picked her up and carried her away and took her in a small vehicle, which she denied. Several other suggestions were also given to her which she denied.
24. PW-4, Abdul Noor, who is the son-in-law of the informant, has deposed that on day of the incident he returned home from work at about 11 to 11.30 p.m. and at the time of dinner one Abdul Mannan of his village telephonically asked him to go to the house of the appellant and then he went to the house of accused Sofa Uddin and CRL.A./21/2022 Page10 Page 11 of 32 that on reaching there he found the victim in his house. He has deposed that he tried to take back the victim from the house of the accused but she refused and that thereafter, he telephonically informed the informant, the father of the victim who reached the house of the accused and that the father of the victim also tried to bring back the victim but she refused to come back with him and that he came back to his house. He has further deposed that after 3 to 4 days police came and asked him to show the house of the informant and he accompanied the police to the house of the informant.
25. During his cross-examination, the PW-4 stated that the informant is his father-in-law and that the victim is his sister-in-law and that his house is at a distance of less than half kilometer from the house of the informant. The PW-4 denied several defence suggestions which were put to him during his cross-examination.
26. The PW-5, Abdul Khalil, has deposed that he knows both the accused and the informant. He further deposed that the occurrence took place about one year ago from the date of his deposition and that one of the daughter "Y" of the informant had eloped with the cousin brother of the appellant and that so far as the incident regarding the victim "X" is concerned he knows nothing.
27. During his cross-examination by the defence, the PW-5 has deposed that the informant is his neighbor and that the accused took part in CRL.A./21/2022 Page11 Page 12 of 32 the village bichar(meeting) in respect of marriage between one of the daughter "Y" of the informant and Jashim Uddin.
28. The PW-6, Rusna Begum, who is the sister of the informant has deposed that at the relevant time of occurrence, the victim along with her mother went out of the house to attend nature's call and then the accused along with two others gagging the mouth of the victim forcibly took her. She has deposed that she resides in the house of the informant. She further deposed that wife of the informant then raised hue and cry, hearing which PW-6 rushed out of the house and saw that the accused took away the victim in a car. She has deposed that they informed the matter to village people but the appellant did not appear before the bichar and then the father of the victim lodged FIR. She has further deposed that after about two months of the filing of the FIR they came to know that the victim came to the police station from the house of the appellant. She has deposed that at the time of occurrence the victim was a school going student.
29. During her cross-examination by the defence several suggestions were put to her, which she denied.
30. The PW-7, Dr. (Mrs.) Monalisa Dev, who is the Medical Officer has deposed that on 10.04.2018 on police requisition she examined the victim girl. The M.O. stated the history as narrated by the victim that around 3 months ago when at around 11 pm she came out of her house, one man Sofa Uddin of the same place came with 3 to 4 CRL.A./21/2022 Page12 Page 13 of 32 people and took her forcefully away and brought her to Silchar and made her stay with one lady whom she does not know for one month and then took her to his house and made her stay there and his other wives and children used to beat her. Then somehow she escaped today and went to police station with her grandmother and filed the case. The PW-7 has deposed that on the basis of physical (including dental) examination, laboratory and radiological investigations done on the victim, she is of opinion that - i. The age of the individual is above 14 and below 16 years. ii. Evidence of recent sexual penetration not detected as on date of examination.
iii. Injury marks not detected on her person and or genitals except old hymenal tears.
31. She has exhibited the medical report as Ext. 3, wherein Ext.3(1) and Ext.3(2) are her signatures and Ext. 3(3) as the signature of Dr. Gunajit Das, Professor & HOD of FSM, SMCH. She has also exhibited the Report of X-ray as Ext.4, wherein Ext. 4(1) is her signature and Ext.4(2) as the signature of Dr. Renuka Rongpharpi, Asstt. Professor, Forensic Science, SMCH and Ext.5, 6 and 7 are the X-ray Plates. Her cross-examination was declined by the defence side.
32. The PW-8, "Y" is one of the daughters of the informant. She deposed that the occurrence took place about one year prior to the date of her deposing before the court. She has further deposed that before the date of occurrence the appellant used to watch her at CRL.A./21/2022 Page13 Page 14 of 32 the time of going to school at 8 a.m. every day and that on the date of occurrence at about 3 p.m. while she was returning from her school the accused put something on her nose and then she fell unconscious and that after one day of the occurrence she regained her sense in the evening and she found that she was in his house. She has deposed that she tried to come out from his house but the appellant beat her and forcibly kept her therein for about one week and that thereafter he brought a man to his house namely Jashim Uddin and gave her marriage with him and that at present she is staying with him happily. She also added that at the time of occurrence her age was 17 years and that police produced her in the Court wherein her statement U/S 164 Cr.P.C. was recorded by the Magistrate. She has exhibited her statement as Ext. 8, wherein Ext. 8(1) is her signature.
33. During her cross-examination by the defence, the PW-8 denied the defence suggestion that at the time of occurrence her age was 19 years. Several other suggestions were put to PW-8 by the defence during her cross-examination which she denied.
34. The PW-9, Abdul Khalique, has deposed that he knows both the informant and the appellant. He further deposed that on the date of occurrence the victim i.e. PW-8 eloped with Jashim Uddin and then the appellant with the help of Panchayat members gave the marriage of PW-8 with Jashim Uddin.
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35. During his cross-examination by the defence, the PW-9 stated that the appellant and the informant were friends before the occurrence and that he knows nothing more about the occurrence.
36. The PW-10, Dr. Nayan Moni Choudhury, deposed that he is the Demonstrator in the Forensic Department, SMCH, Silchar and that he knows the signature and handwriting of Dr. Renuka Rongpharpi who worked in the SMCH, Silchar as Assistant Professor, Forensic Department during his tenure. He further deposed that Ext.4 was written by Dr. Renuka Rongpharpi by her own handwriting. He has proved Ext.4(2) as the signature of Dr. Renuka Rongpharpi which he knows. This witness was declined to be cross-examined by the defence.
37. The PW-11, Abhijit Gogoi, S.I. is the Investigating Officer. He deposed that on 03.02.2018 while he was attached to Gumrah PIC under Katigorah P.S. as I/C, O.C. Katigorah P.S., he received an FIR lodged by the informant against the appellant Sofa Uddin which was registered as Katigorah P.S. case No. 92/2018 U/S 366/376(2)(i)/343 of IPC read with Section 4/8/12 of POCSO Act and entrusted him to investigate the same. He also deposed that during investigation he visited the place of occurrence, drew up a sketch map of the place of occurrence. He has deposed that he sent the two victim girls to Silchar Court wherein their statements u/s 164 Cr.P.C were recorded by the Magistrate and that he sent the two victim girls to SMCH, Silchar wherein they were medically CRL.A./21/2022 Page15 Page 16 of 32 examined. He further added that he examined the two victim girls and also examined the witnesses and that he had submitted Xerox copies of birth certificates of the two victim girls with the C.D. after going through their original certificates. The PW-11 has deposed that he collected medical examination report of both the victims and also arrested the accused person and that after completion of investigation he submitted charge sheet against the appellant.
38. During his cross-examination by the defence side, the PW-11 had stated that as per Ext.2 FIR the occurrence took place on 30.01.2018 and the Ext.2 was lodged on 03.02.2018 and that there is no mention in the Ext.2 FIR as to the delay of three days in lodging the Ext.2 FIR. He further stated in his cross-examination that the case was registered on 03.02.2018 and the sketch map was prepared on 06.02.2018 and that he has not recorded the statements U/S 161 Cr.P.C. of the persons mentioned in the index of sketch map except Abdul Noor. He denied the usual defence suggestions which were put to him during his cross-examination.
39. The PW-11 in his cross-examination further deposed that PW-1 did not state before him that she along with her mother went out and that at that time her mother raised hue and cry and tried to resist them but they drove the car away and hearing hulla her father came and they could not restrain the accused persons as the accused persons drove the vehicle speedily and that she asked the accused to take her to her house but the accused did not consider CRL.A./21/2022 Page16 Page 17 of 32 and he raped her forcefully and that the number of months he kept her in his house and raped her in his house for almost daily and that after two months she was driven out by the accused and that she met with her grandmother on the road to whom she narrated the incident and with her grandmother she went to police station and lodged the case.
40. The PW-11 in his cross-examination also deposed that PW-2 did not state before him that his victim daughter "X" went out along with his wife with torch light to attend nature's call and that hearing hue and cry of his wife he came out.
41. The PW-11 further stated in his cross-examination that PW-3 did not state to him that on the day of occurrence at about 11 p.m. her victim daughter went out to attend nature's call and she accompanied her with a torch in her hand and when her daughter went for urination accused along with two other persons gagged the mouth of her said daughter and picked her up and carried her away and took her in a small vehicle and that after 7 to 8 days of the occurrence her daughter came to the police station as she was beaten by the accused and that on being asked her daughter told her that accused took her to Silchar and committed bad acts on her and thereafter she was again taken to his house at Khelma and there also the accused committed bad acts.
42. The PW-11 also deposed during his cross-examination that PW-4 did not state to him that on the date of occurrence he came back to CRL.A./21/2022 Page17 Page 18 of 32 his house from duty at about 11/11.30 p.m. and that he had found the victim in the house of accused then he tried to take back the victim girl from the house of the accused but she refused and thereafter he had telephonically informed the informant, the father of the victim who reached the house of the accused and the father of the victim also tried to bring the victim but she refused to come back with him and that after 3/4 days police came and asked him to introduce the house of the informant and he accompanied the police to the house of the informant.
43. The PW-11 in his cross-examination further stated that PW-6 did not state to him that victim daughter of the informant while went out of her house along with her mother for nature's call then the accused Sofa Uddin along with two others gagging the mouth of the victim had forcibly took her and that wife of the informant raised hue and cry and hearing the cry he rushed out of the house and saw the accused took away the victim in a car and they informed the matter to village people regarding the incident but the accused did not appear before the bichar and that after about two months of filing the FIR they came to know that the victim was approaching towards the P.S. crying from the house of the accused.
44. PW-11 also deposed in his cross-examination that the PW-8 stated to him that her age was 19 years at the relevant time of occurrence and that PW-8 did not state to him that the occurrence took place about 1 year back and that before the date of occurrence the CRL.A./21/2022 Page18 Page 19 of 32 accused used to watch her at the time of going to school at 8 a.m. every day and that on the date of occurrence at about 3 p.m. while she was returning from school the accused put something on her nose and then she felt unconscious and that after one day of occurrence she regained her sense in the evening and she found that she was in her house and thereafter she tried to come out from her house but he beat her and forcibly kept her therein for about one week and that thereafter the accused brought a man to his house by name Jashim Uddin and gave her marriage with him.
45. On 02.11.2021, the appellant was examined under Section 313 of the Code of Criminal Procedure, 1973. During said examination, the appellant denied the truthfulness of the testimony of the prosecution witnesses and pleaded his innocence. He had also stated that he has been falsely implicated in the case due to previous grudge with the informant regarding the marriage of the sister of the victim girl.
46. Mr. L. R. Majumdar, the learned counsel for the appellant has submitted that the Trial Court has erred in convicting the appellant under Section 4 of the POCSO Act, 2012 without ascertaining the age of the victim girl in accordance with the settled principles regarding ascertainment of the age of a minor victim.
47. The learned counsel for the appellant has submitted that though, the Investigating Officer has deposed that he had seized the birth certificate of the victim girl, however, the same was not exhibited CRL.A./21/2022 Page19 Page 20 of 32 and proved in the trial. He submits that the age of the victim girl was ascertained on the basis of a mere opinion of the doctor, that the age of victim „X‟ is more than 14 and less than 16 years of age.
48. The learned counsel for the appellant has submitted that in view of the provisions of Section 34 of the POCSO Act, 2012 and Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015, the settled proposition of law regarding ascertainment of age of a victim girl is that at the first instance school leaving certificate or matriculation or concerned certificate or equivalent certificate from a concerned examination board, if available, has to be the basis of ascertaining the age of the victim girl. Only in absence thereof, birth certificate given by a corporation or a municipal authority or panchayat may be produced and in absence of both the above, the age may be determined by an ossification test or by any other latest medical age determining tests.
49. He submits that in the instant case without taking recourse to the first two options, the prosecution side has only adduced evidence of doctor regarding ascertaining the age of the minor victim and he submits that Trial Court also erroneously accepted the said evidence without ascertaining the availability of the other two options before relying on the third option. In support of his submission, the learned counsel for the appellant has cited a ruling of the Apex Court in the case of "P. Yuvaprakash Vs. State represented by Inspector of Police" reported in 2023 SCC online SC 846.
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50. He further submits that the testimony of the victim girl during her cross examination wherein she has stated that the distance between the house of the accused and her parent was only 200 meters has not been considered by the Trial Court in its true perspective in as much as with such a small distance between the two places, it is unlikely that the appellant could have kept the victim girl in his house for two months without any intervention of police.
51. He further submits that the testimony of the victim girl (PW-1) as well as PW-2 and PW-3 were contradicted during their cross examination and such contradiction was not taken into consideration by the Trial Court while relying on their testimony and therefore, it had erred in reaching the conclusion of guilt on the basis of such tainted evidence.
52. He further submits that the PW-4, Abdul Noor, who is the son-in-
law of the informant has also categorically deposed that when he found the victim in the house of the appellant and he tried to take her back she refused to come with him. He has also submitted that the PW-4, PW-6, PW-5 and PW-9 have contradicted the prosecution story and in spite of the said contradiction the Trial Court failed to take into consideration the same and erroneously convicted the appellant.
53. He submits that the elder daughter of the appellant namely „Y‟ had herself eloped with Jasimuddin. He submits that as the marriage of CRL.A./21/2022 Page21 Page 22 of 32 Jasimuddin was arranged by the present appellant, the informant got enraged due to such arrangement of marriage by the appellant and had lodged false case against him out of grudge.
54. The learned counsel for the appellant has also submitted that the though, the alleged incident occurred on 30.01.2018, however, the FIR was lodged on 03.02.2018 and no reason was mentioned for the delay in lodging of the FIR.
55. The learned counsel for the appellant has submitted that the appellant has been detained behind the bars for more than three years and the evidence on records against him are contradicting each other and the prosecution side has not been able to prove the guilt of the appellant beyond all reasonable doubt and under such circumstances, he ought to have been given benefit of doubt.Accordingly, he prays for setting aside the impugned judgment and acquitting the appellant by giving him benefit of doubt.
56. On the other hand, Mr. D. Das, the learned Additional Public Prosecutor has submitted that the Trial Court has correctly convicted the appellant under Section 4 of the POCSO Act, 2012 as well as Section 376/366 of the Indian Penal Code and the conviction does not warrant any interference by this Appellate Court.
57. He submits that the victim has categorically stated in her deposition that she was raped on several occasions by the present appellant and her testimony has been corroborated by the statement of the CRL.A./21/2022 Page22 Page 23 of 32 victim recorded under Section 164 of the Code of Criminal Procedure, 1973 as well as the medical evidence. He submits that the sole testimony of the prosecutrix is enough to convict an accused in sexual offences, if the testimony of such a prosecutrix inspire confidence.
58. Ms. D. Saikia, the learned Amicus Curiae, appearing for the respondent No. 2/informant has also submitted that the Trial Court has correctly convicted and sentenced the appellant and the impugned judgment does not warrant anyinterference by this Court.
59. She submits that the incident of abduction of the victim girl „X‟ had occurred on 30.01.2018 and the FIR was lodged on 02.02.2018.She submits that there was a delay of two days in the lodging of the FIR. She submits that the informant,testifyingas PW-2, has explained the reason for delay that he was assured by the villagers to settle the dispute. However, on failure of the same, he lodged the FIR.
60. The learned Amicus Curiae has also submitted that the testimony of PW-7, i.e., the doctor, who medically examined the victim girl „X‟ shows that the hymen of the victim girl was found in torn condition, which is indicative of the fact that she was subjected to sexual intercourse. She also submits that in her statement recorded under Section 164 of the Code of Criminal Procedure, 1973, the victim girl had categorically stated that she was repeatedly raped by the appellant. Thus, her deposition as PW-1 is corroborated by her CRL.A./21/2022 Page23 Page 24 of 32 statement recorded under Section 164 of the Code of Criminal Procedure, 1973.
61. The learned Amicus Curiae has also submitted that the age of the victim girl „X‟ has also been duly proved with the help of medical evidence, which remains uncontroverted as the defence side chose not to cross-examine the PW-7.She, therefore, submits that the sentence imposed on the appellant as well as conviction that the conviction and sentence imposed on the appellant does not justify any interference by this Court in this appeal.
62. I have considered the submissions made by the learned counsel for both sides and have gone through the records of Special POCSO Case No. 23/2018, which was requisitioned in connection with this appeal.
63. On perusal of the case records of the Trial Court, it appears that though, in the FIR, the PW-2 has mentioned about two of his daughters as victim of sexual offences by the appellant. However, it appears that the charges under Section 366 and 376 of the Indian Penal Code as well as Section 4 of the POCSO Act, 2012, were framed against the appellant only in respect of the alleged offence committed against the younger daughter of the informant, i.e., „X‟. As regards the elder daughter, „Y‟ no charges were framed. Neither any conviction with regard to the alleged offence against the daughter, „Y‟, is made in this case.
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64. Otherwise also, the evidence on record suggests that the elder daughter, „Y‟, of the informant had eloped with a person called Jasimuddin and presently she has been happily married to him.
65. As regards the younger daughter of the informant, namely, „X‟, who is the victim in this case, is concerned, it appears that the conviction of the appellant under Section 376/366 of the Indian Penal Code as well as Section 4 of the POCSO Act, 2012, has been made mainly on the basis of the testimony of the victim „X‟ as PW-1, wherein she has deposed that she was subjected to repeated rape by the appellant after she was abducted by him.
66. As regards the question as to whether the age of the victim „X‟ was rightly ascertained by the Trial Court, and whether she was rightly treated as minor by the Trial Court, let us examine the same.
67. The Apex Court has observed in the case of "P. Yuvaprakash Vs. State represented by Inspector of Police" (Supra), as follows:
"13. It is evident from conjoint reading of the above provisions that wherever the dispute with respect to the age of a person arises in the context of her or him being a victim under the POCSO Act, the courts have to take recourse to the steps indicated in Section 94 of the JJ Act. The three documents in order of which the Juvenile Justice Act requires consideration is that the concerned court has to CRL.A./21/2022 Page25 Page 26 of 32 determine the age by considering the following documents:
"(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board".
68. The main contention of the learned counsel for the appellant is that while ascertaining the age of the victim girl, the Trial Court did not examine the birth certificate from school or of matriculation or equivalent certificate or birth certificate given by corporation or municipal authority even when the same was available.
69. If we peruse the provision contained in Section 94 (2) (iii) of the Juvenile Justice (Care and Protection of Children) Act, 2015, it clearly indicates that the date of birth certificate from school or matriculation or equivalent certificate by the concerned examination board has to be firstly referred in absence of which birth certificate CRL.A./21/2022 Page26 Page 27 of 32 issued by corporation, municipal authority or a panchayat and it is only thereafter in absence of these documents, age is to determine through diagnosis test or other latest medical age determination test. In the instant case, though, the PW-1 and PW-2 has stated in his testimony that he had submitted the copy of birth certificate along with the FIR to the Investigating Officer, however, the prosecution side did not exhibit any such birth certificate.
70. In the instant case, the Trial Court had relied on the evidence of PW-7 as well as the medical report of the victim girl wherein her age was ascertained as more than 14 years and less than 16 years on the basis of physical (including dental) examination, laboratory and radiological investigations done on the victim. It appears that apart from the testimony of PW-7 and the medical report which was exhibited as Exhibit-3, no other admissible material was there before the Court to ascertain the age of the victim girl. The only other material which could have indicated the age of the victim girl is the photocopy of the birth certificate of the victim girl available in the case diary wherein her date of birth has been shown as 16.02.2002.
71. Even if the original birth certificate would have been exhibited, still the victim would have been assessed as minor at the time of commission of the alleged offence. However, the instant case is not a case where various options were available are i.e., birth certificate as well as school living certificate were also available and the Court CRL.A./21/2022 Page27 Page 28 of 32 opted for medical evidence that is evidence of PW-7. Rather it is a case where the birth certificates were not produced before the Court.
72. The materials available before the Court to ascertain the age of the victim was the evidence of the doctor and the assessment made by the doctor, i.e., PW-7 on the basis of physical (including dental) examination, laboratory and radiological investigations done on the victim. The PW-7 was not cross-examined by the defence side. Therefore, her testimony remained intact.
73. Under such circumstances, this Court is of considered opinion that when the birth certificates were not available before the Court, the Court was not wrong in relying on whatever evidence was available before it i.e., the testimony of PW-7 (the doctor who examined the victim girl) as well as the Exhibit-3.
74. In the case which is cited by the learned counsel for the appellant, i.e., "P. Yuvaprakash Vs. State represented by Inspector of Police" (Supra)both the birth certificates and medical examination reports were available and in medical examination report, the victim of that case was assessed to be major. However, in the instant case, the uncontroverted medical evidence shows that the victim was less than 16 years of age at the time of commission of the alleged offence.
75. The Trial Court by relied on the observation of the Apex Court in the case of "Jaya Mala vs. Home Secretary, Government of CRL.A./21/2022 Page28 Page 29 of 32 Jammu and Kashmir and others" reported in (1982)2 SCC 538 wherein it was observed that if the age is determined by doctor, then two years have to be added on the either side, to such age, by taking notice of the margin of error in age ascertained on the basis of radiological examination. The Trial Court, thus, by adding two years to the age assessed by the PW-7 held the age of the victim „X‟ to be less than 18 years and under the facts and circumstances of this case and for the reasons discussed herein above, this Court is of considered opinion that the Trial Court did not make any mistake in assessing the age of the victim girl on the basis of evidence led by PW-7 as well as Exhibit-3, as no other document was exhibited by the either prosecution side or defence side regarding the age of the victim.
76. It is pertinent to note herein that in the photocopy of the birth certificate which is available in the case diary, the date of birth of the victim „X‟ has been shown as 16.06.2002. Even if the said date is taken into consideration, the victim would be regarded as a minor on the date of commission of alleged incident.Hence, the finding of the Trial Court as regards the assessment of age of the victim „X‟ in this case does not need any interference by this Court and said finding is found to be correct as it is on the basis of the evidence available before the Court.
77. The Trial Court has convicted the appellant mainly on the basis of the testimony of the PW-1, i.e., the victim „X‟ wherein she has CRL.A./21/2022 Page29 Page 30 of 32 categorically stated that she was raped forcibly by the appellant for about 15 days when she was confined in a house at Silchar as thereafter, in his own house where the appellant had kept the victim girl till she was driven out therefrom.
78. Though, the learned counsel for the appellant has submitted that the testimony of the victim has been contradicted during her cross examination as well as by the evidence of PW-11 wherein he has stated that the victim did not state before him as she has stated before the Court. However, it appears that the contradiction was not done in the manner as was required under the law.As early as in 1959, the Apex Court has clarified in the case of "Tahsildar Singh and Another Vs. The State Of Uttar Pradesh"reported in 1959 SCC online SC 17 as to how a witness has to be contradicted in relation to his or her previous statement recorded in writing. The Apex Court has held in that case that whenever a witness is intended to be contradicted in relation to his previous statement which is recorded down in writing, the attention of the said witness must be drawn to the such previous statement which was recorded in writing before he may be contradicted.
79. In the instant case, though, it appears that even in her statement recorded under Sections 161 of the Code of Criminal Procedure, 1973, the victim girl i.e., PW-1 has stated before the Investigating Officer that she was raped repeatedly by the appellant. However, the said statement was not brought to the notice of the PW-1 when CRL.A./21/2022 Page30 Page 31 of 32 she was intended to be contradicted vis-a-vis her previous statement recorded in writing, at the time of her cross examination by the defense counsel.
80. Hence, by merely stating that the victim did not state in the exactly same manner before the Investigating Officer asdeposed by her during her examination-in-chief would not amount to contradicting her with regard to the material particulars i.e., with regard to the accusation of rape by the appellant. Thus, the contention that the evidence of PW-1 has been contradicted is not correct. Rather her testimony is corroborated by what she had stated in her statement under Section 164 of the Code of Criminal Procedure, 1973.There is no reason to disbelieve her testimony, therefore, this Court is of considered opinion that the Trial Court had correctly relied on the testimony of PW-1 to convict the appellant under Section 376/366 of Indian Penal Code as well as Section 4 of the POCSO Act, 2012.
81. For the reasons stated herein above this Court finds no ground to interfere with the impugned judgment of the Trial Court convicting the appellant under Section 376/366 of the Indian Penal Code as well as Section 4 of the POCSO Act, 2012.
82. The impugned judgment is, accordingly, upheld and the finding of conviction in the sentence imposed on the appellant is not interfered with.
83. This appeal is accordingly dismissed.
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84. Send back the Trial Court records along with the copy of this judgment.
JUDGE
Comparing Assistant
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