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MIR ALFAZ ALI
Saiful Islam, S/O Safiqul Islam – Appellant
Versus
State of Assam Represented By Public Prosecutor – Respondent
Key Points: - The court considered the victim (PW-1) as an unreliable witness and held that prosecution evidence fell short of proving the charge beyond reasonable doubt, leading to acquittal in part and setting aside conviction (!) (!) (!) (!) . - It held that conviction under Section 4 of the POCSO Act cannot be sustained solely on the basis of the prosecutrix’s testimony when there are glaring inconsistencies, and that corroboration from independent evidence is necessary when the prosecutrix is unreliable (!) (!) (!) . - The court scrutinized medical evidence, finding no signs of recent sexual intercourse and noting the victim was aged above 18 and below 20, with issues surrounding the legitimacy of Ext. 1 birth certificate; these factors undermine the reliability of the prosecution’s case (!) (!) (!) . - The judgment criticized the trial court for interviewing the accused in a cavalier manner and for confronting the accused with irrelevant medical evidence not pertaining to the victim in question; improper recording of 313 CrPC statements is highlighted as a defect affecting the case (!) (!) (!) . - The court rejected reliance on Section 29 POCSO presumption when the solitary testimonies of PW-1 and PW-4 lack independent corroboration, emphasizing that the presumption does not replace the need to prove guilt beyond reasonable doubt (!) (!) . - The appellate court ultimately allowed the appeal and released the appellant, setting aside the conviction and sentence under Section 4 POCSO Act due to unreliability and lack of corroboration (!) (!) .
JUDGMENT :
This appeal is directed against the judgment and order dated 30.11.2019 passed by the learned Additional Sessions Judge, Bajali, Pathsala, in Special POCSO Case No. 12/2018, whereby the appellant was convicted under Section 4 of the POCSO Act and sentenced to rigorous imprisonment for 7 years and to pay fine of Rs. 10,000/-with default stipulation.
2. As per prosecution case, on 05.04.2018, at about 10 O’clock at night, the daughter and niece of the informant were missing from their respective houses. During search, both the victims were found on the next day at Rajakhat chowk and on being asked, both of the victims told that the appellant and the co-accused took away them upon assurance of marriage and committed rape on them. An FIR was lodged by the father of the one victim, on the basis of which police registered Barpeta P.S. Case No. 718/2018 under Section 366A/34 IPC read with Section 4 of POCSO Act and upon completion of the investigation submitted charge sheet against both the accused named in the FIR. The co-accused Habibul has been found to be juvenile and as such his case has been dealt with by the Juvenile Justice Board and the present appellant stood trial befo
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