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IN THE HIGH COURT OF GAUHATI, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
Mir Alfaz Ali, J.
Saiful Islam, S/O Safiqul Islam – Petitioner
Versus
State of Assam Represented By Public Prosecutor, and Anr. – Respondents
Crl.A. 69 of 2020
Decided On : 24-03-2021
Indian Penal Code - Section 366A/34 – Criminal Procedure Code - Section 313 – POSCO Act - Section 4, 29 – Appeal Against Conviction - Sentenced to rigorous imprisonment - Kidnapping, abducting or inducing woman to compel her marriage, etc - at about 10 O'clock at night, daughter and niece of the informant were missing from their respective houses - During search, both victims were found on the next day and on being asked, both of the victims told that 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 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 - learned trial court in a very cavalier manner confronted the accused with the medical evidence which did not have any relevance to present appellant, inasmuch as, it was the report of examination of PW-4 and not of the present victim. Therefore, this again appears to be a serious defect in the case, having significant bearing to affect the prosecution case. Thus, having considered totality of evidence, more particularly, the evidence of PW-1, victim, who is found to be an unreliable witness, this court is of the view, that prosecution evidence falls short of proving the charge under Section 4 of the POCSO Act beyond reasonable doubt or atleast the appellant is entitled for benefit of doubt, inasmuch as, one cannot be convicted for a serious offence like one under Section 4 of the POCSO Act on mere surmises and conjectures. Accordingly, conviction and sentence of the appellant is set aside –
Result: Appeal is allowed
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 before the Court of Sessions-cum-Special Judge.
3. During trial charges were framed under Section 366 IPC and 4 of POCSO Act, to which the appellant pleaded not guilty. In order to establish the charges, prosecution examined 9 witnesses. On completion of the prosecution evidence, the appellant was examined under Section 313 CrPC, wherein the appellant took the plea of innocence. On appreciation of evidence, learned Sessions Judge convicted the appellant under Section 4 of the POCSO Act and awarded sentence as indicated above. The appellant was however, acquitted of the charge under Section 366 IPC.
4. Aggrieved by conviction and sentence, the appellant, has preferred the instant appeal.
5. Learned counsel for the appellant Mr. B. Hussain assailing the impugned judgment of conviction and sentence, contended that the evidence of the victims was totally unworthy of credence and no reliance could be placed on the testimony of the prosecutrix. It was also contended, that the learned trial court recorded the statement of the accused under Section 313 CrPC in a very perfunctory manner and even did not put the vital evidence to the accused, which has caused serious prejudice to the appellant. Learned counsel for the appellant further contended that the victim was major at the time of occurrence and she along with her cousin (PW-4) went out together with their respective boyfriends out of own will and the prosecution has not been able to establish the charge under Section 4 of the POCSO Act against the appellant beyond reasonable doubt.
6. Supporting the impugned judgment of conviction and sentence, learned Addl. P.P., Assam, contended, that in case of offence of sexual assault conviction can be recorded solely on the testimony of the victim and that the prosecution evidences were sufficient to draw a presumption under Section 29 of the POCSO Act and therefore, the conviction and sentence of the appellant calls for no interference.
7. I have considered the submissions made by the learned counsel for the parties and also meticulously perused the evidence and materials brought on record.
8. The victim of the occurrence has been examined as PW-1. She deposed in her evidence that on 05.04.2018, at about 10 PM, she come out of the house responding to a phone call received from the appellant, Saiful Islam. She further stated that she met the PW-4 and Habibul Hoque besides the appellant, on the road. Thereafter the accused caught hold of her and took her to nearby bamboo groves at a distance of about 100 meter from her house, and committed sexual intercourse with her forcibly. She also stated, that the accused took her with him upon promise of marriage. She further stated, that in the meantime, PW-4 also came back and told her that Habibul Hoque committed rape on her (PW-4).
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