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IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
AJIT BORTHAKUR, J.
MANIK SHEIKH @ MOHIDUL ISLAM S/O ABDUL MAZID – Petitioner
VERSUS
THE STATE OF ASSAM – Respondent
Crl. Appeal No. 347 of 2018
Decided On : 11-05-2022
Criminal Procedural Code, 1973 - Section 374 (2), 313, 164 – Indian Penal Code, 1860 - Section 375, 363, 366A/34, Protection of Children from Sexual Offences Act, 2012 – Section 2(1)(d), 4, 7, 8 - Appeal – Punishment for Rape - Punishment for kidnapping - Kidnapping from lawful guardianship - Taking into consideration of these aspects on evidence and in absence of any documentary evidence, it can safely be said that on the date of alleged occurrence, the victim girl (PW-2) in all probability attained the age of majority, that is, 18 years or more (Para 23).
Findings of the Court : Court finds that in the facts and circumstances that transpire from evidence on record, the victim girl’s (PW-2) consent being not vitiated by fear, fraud or immaturity, her consent was voluntary and as such, it does not attract Section 90 of the IPC - Further, as the alleged victim girl (PW-2) was being not a ‘child’ within the meaning of Section (2)(d) of the POCSO Act, and further, as PW-9, the doctor, who examined her on the date of her recovery itself, having not found any mark of injury on her body or any evidence of rape, this Court is of the opinion that in the absence of any convincing evidence, the accused appellant cannot be held guilty of the offence for forcible ‘penetrative sexual assault’ defined in Section 3 or ‘sexual assault’ defined in Section 7 which is punishable under Sections 4 and 8 of the POCSO Act respectively - Therefore, the plea of innocence of the accused appellant under Section 313 Cr.P.C. cannot be disbelieved.
Result : Appeal stands disposed of.
JUDGMENT :
AJIT BORTHAKUR, J.
1. Heard Mr. M. Hussain, learned counsel appearing for the accused appellant. Also heard Mr. D. Das, learned Additional Public Prosecutor, Gauhati High Court. None appeared for the respondent No. 2/informant.
2. This appeal under Section 374 (2) of the Cr.P.C. is preferred against the judgment and order, dated 16.08.2018, passed by the learned Special Judge (POCSO Act), Dhubri in Special Case No. 26/2016 whereby the appellant has been convicted and sentenced to undergo rigorous imprisonment for 3 (three) years and to pay fine of Rs.5,000/- (Rupees Five Thousand), in default to suffer imprisonment for 2 (two) months under Section 363 of the IPC and also to undergo rigorous imprisonment for 7 (seven) years and to pay fine of Rs.10,000/- (Rupees Ten Thousand) only, in default to suffer rigorous imprisonment for 3(three) months only under Section 4 of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’ for short).
PROSECUTION STORY:
3. The prosecution story, in brief, is that an F.I.R. was lodged on 18.04.2016 before the Officer-in-Charge, Golokganj Police Station with an allegation that on 17.04.2016 at about 7 p.m., taking the advantage of absence of the informant in the house, the accused appellant and another namely Rohidul Hoque (not charge-sheeted) kidnapped his minor daughter aged about 16 years. After getting information about it, he returned to his house from Tamarhat Bazar and as he did not find his daughter, he searched and on 18.04.2016, received information from reliable sources that the appellant and his said associate kidnapped his daughter and hid her at an unknown place. The informant suspected that they kidnapped his daughter to sell her to a racket of woman traffickers. His said associate namely Rohidul Hoque disclosed the matter of kidnapping of his daughter before the villagers.
INVESTIGATION:
4. Based on the above F.I.R., Golokganj P.S. Case No. 278/2016 under Section 366A/34 of the IPC, dated 18.04.2016, was registered and after completion of investigation, the police laid a charge-sheet under Section 366A of the IPC and under Section 4 of the POCSO Act against the present accused appellant.
TRIAL & CONVICTION:
5. The learned Special Judge (POCSO Act), Dhubri, after examining the materials on the case diary, on being prima facie satisfied, framed charges under the penal provisions as charge-sheeted, against which the accused appellant pleaded not guilty. The said learned trial Court after closing the evidence of the prosecution side, recorded the statement of the accused appellant under Section 313 Cr.P.C. The defence declined to examine any witness. Thereafter, upon hearing the arguments of both sides and appreciation of evidence, oral and documentary, having found the accused appellant guilty of the offences, convicted and sentenced him as stated above.
6. In order to establish the charges framed against the accused appellant, the prosecution examined as many as 10 (ten) witnesses.
EVIDENCE:
7. Now, let us look into the evidence on record.
8. PW-1 is the father of the victim and informant in this case. His version is that at the time of the alleged occurrence, his daughter was aged about 16 years. According to him, on 17.04.2016 at around 7 p.m., his victim daughter went off missing from house. He searched for her but did not find any trace of her. Therefore, he filed Ext. 1, the F.I.R. Thereafter, the police recovered his daughter along with the accused. In cross-examination, he, inter-alia, stated that he did not see wherefrom the police recovered his daughter along with the accused and denied the defence suggestion that at the time of the alleged occurrence his daughter was more than 18 years old.
9. PW-2 is the victim girl, a student of class X. According to her, on the day of the occurrence, at around 7.00- 8.00 p.m., she went out to the road in front of her house to take fresh air. At that time, a brother of the accused came in a tempo and told her that the accused
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