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IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
SUMAN SHYAM, MALASRI NANDI, JJ.
Kumar Ali @ Komar Ali S/O Late Samser Ali - Appellant
Vs.
The State of Assam and Anr. Represented by The Public Prosecutor, Assam - Respondent
Crl. A. 19, 21 of 2020
Decided On : 07-04-2022
Protection of Children from Sexual Offences Act, 2012- section 6 – Penal Code, 860 - section 147/448/395/149/376(2)(i) –Sexual intercourse – False promise of marriage – Appeal against conviction - Accused by giving promise to marry her had sexual intercourse with her for two and half years as a result of which she became pregnant and gave birth to a child – Allegations of theft and Robbery – Proof of.
Finding of the Court:
to constitute an offence of dacoity, robbery essentially should be committed by five or more persons. Similarly, to constitute an offence of robbery, there must be either theft or extortion. The chief distinguishing element in robbery is the presence of imminent fear of violence. The second para distinguishes robbery from theft, the third distinguishes it from extortion. When robbery is sought to be established through theft, then before one may be convicted of robbery, theft must be proved and established. Where theft is not established, the accused is entitled to an acquittal - police did not make any effort in this case to recover the stolen money. It is also not known what efforts were made by the police to recover it.
Result: Appeal allowed
JUDGEMENT :
Malasri Nandi, J.
1. Heard Mr. A. Ahmed, learned Counsel for the appellant. We have also heard Ms. B. Bhuyan, learned Addl. P.P. Assam appearing for the State and Mr. I. Ahmed, learned Counsel for the informant/respondent No. 2.
2. Both the Criminal Appeals Vide No-19/2020 and Criminal Appeal No-21/2020 arise from the same incident, FIR and judgment, thus, are being disposed of together.
3. The Criminal Appeal No-21/2020 was filed by the accused Sahidul Ali against the Judgment passed by Learned Special Judge/Sessions Judge, Nalbari, dated 21.12.2019 in Special (P) Case No. 36/2015 convicting the accused/appellant Sahidul Ali under section 147/448/395/149/376(2)(i) IPC read with section 6 of POCSO Act and to undergo rigorous imprisonment for life and to pay a fine of Rs.10,000/-in default simple imprisonment for 6 months for committing the offence under section 376(2)(i) IPC as well as under section 6 of Protection of Children from Sexual Offences Act, 2012 (in short POCSO Act) for each of the offence and also to undergo simple imprisonment for one year and to pay a fine of Rs.1000/-in default simple imprisonment for one month for committing the offence u/s 147 IPC and also to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.5000/-in default Simple imprisonment for 6 months for committing the offence u/s 395 IPC and further sentence him to undergo simple imprisonment for 6 months and to pay a fine of Rs.500/-in default simple imprisonment for one month for committing the offence u/s 448 IPC. The sentences will run one after another.
4. By the same Judgment vide Appeal No -19/2020, the accused/appellants Abdul Halim, Sukur Ali, Kumar Ali, Abu Bakkar Siddik, Shah Jahan Ali, Jikir Ali and Majeda Begum were also convicted and sentenced to undergo simple imprisonment for 1 year and to pay a fine of Rs.1000/-in default Simple imprisonment for 1 month each for committing the offence u/s 147 IPC and to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 5000/-in default rigorous imprisonment for 6 months each for committing the offence under section 395 IPC and further to undergo simple imprisonment for 6 months and to pay a fine of Rs.500 in default simple imprisonment for 1 month to each of them for committing the offence under section 448 IPC. All the sentences were directed to run concurrently.
5. The prosecution case in brief is that the informant/victim lodged an Ejahar before the OC, Ghograpar PS on 23.03.2015 stating inter alia that the accused Sahidul Ali by giving promise to marry her had sexual intercourse with her for two and half years as a result of which she became pregnant and gave birth to a child. When she informed her parents about the incident, one ‘bichar’ (extra judicial trial) was held to resolve the matter and in the said bichar, a fine of Rs.80, 000/-was imposed. Out of the said amount Rs. 60,000/-was paid by the accused Sahidul Ali.
6. It is also the case of the prosecution that on 21.03.2015 at about 11 PM accused Sahidul Ali along with other accused persons namely, Sukur Ali, Kumar Ali, Sidik Ali, Shahjahan Ali, Halim Ali, Jikir Ali and Majeda Begum entered into the house of the informant and after assaulting the informant and her parents, snatched away the paid money amounting to Rs. 66,000/-from their house.
7. On receipt of the Ejahar a case was registered vide Ghograpar PS case NO-45/15 u/s 147/420/493/376/323/380 IPC. During investigation, the investigating officer seized some documents like birth certificate of the victim girl and recorded the statement of the witnesses. The investigating officer made requisition to doctor to examine the victim girl and also prayed for DNA test for the accused Sahidul Ali with the child of the victim. On completion of the investigation Charge-sheet was submitted against the accused/appellant Sahidul Ali u/s 420/493/376(2)(h) IPC and section 6 of POCSO Act and other accused/appellants u/s 147/447/448/323 IPC.
8. During the investiga
The statutory presumption of guilt under Section 29 of the POCSO Act places the burden on the accused to prove their innocence in cases of sexual offences against children, which was upheld in this j....
The conviction in sexual offences requires credible and reliable evidence, especially regarding the victim's age, and reliance solely on secondary evidence without primary proof is insufficient.
In the absence of corroborating evidence, a conviction for sexual assault relies on the victim's testimony being clear, consistent, and credible. If the victim's account is vacillating or contradicto....
The court upheld the conviction under POCSO, confirming that credible victim testimony and medical evidence sufficiently established the appellant's guilt in the sexual assault of a minor.
The sole testimony of a child victim can suffice for conviction if credible, and age determination must rely on conclusive evidence such as school records.
The victim's consistent statement, medical evidence, and corroborating witness testimonies are crucial in establishing the occurrence of the crime and the victim's age, even in the absence of eyewitn....
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