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IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
ROBIN PHUKAN, J.
Papu Das – Appellant
Versus
The State Of Assam – Respondents
Crl.A(J) 95 of 2020
Decided on : 13-05-2024
POCSO - Appeal against conviction under Section 354 of IPC, read with Section 8 of the POCSO Act - Section 354, Section 8 - The judgment discusses the determination of the victim's age, the definition of 'child' under the POCSO Act, and the applicability of Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 in determining the age of a minor. The court also considers the evidence presented, including medical reports and witness testimonies, to establish the guilt of the appellant under Section 354 of the IPC and Section 8 of the POCSO Act. The judgment further analyzes the applicability of Section 42 of the POCSO Act, which provides for alternate punishment, and concludes that the appellant should be punished under the provision that prescribes a greater degree of punishment. The court sets aside the sentence imposed under Section 354 IPC and dismisses the appeal, upholding the sentence under Section 8 of the POCSO Act.
Fact of the Case:
The appellant was convicted under Section 354 of the IPC, read with Section 8 of the POCSO Act, for committing rape on a minor victim. The victim's mother reported the incident to the police, and the appellant was arrested and charged under the relevant sections of law. The appellant appealed the judgment and sentence imposed by the trial court.
Finding of the Court:
The court found that the appellant had committed sexual assault and outraged the modesty of the victim, as defined in Section 7 of the POCSO Act and Section 354 IPC, by laying the victim on the ground and getting on top of her person after unzipping his pant and removing the victim's pant. The court also concluded that the appellant should be punished under the provision that prescribes a greater degree of punishment, as per Section 42 of the POCSO Act.
Issues: The key issues revolved around the determination of the victim's age, the applicability of Section 42 of the POCSO Act, and the appropriate punishment to be imposed on the appellant.
Ratio Decidendi: The court's decision was based on the interpretation of the legal provisions related to the determination of the victim's age, the definition of 'child' under the POCSO Act, and the applicability of Section 42 of the POCSO Act. The court also considered the evidence presented, including medical reports and witness testimonies, to establish the guilt of the appellant under the relevant sections of law.
Final Decision: The court dismissed the appeal, upheld the sentence under Section 8 of the POCSO Act, and set aside the sentence imposed under Section 354 IPC. The parties were ordered to bear their own costs, and the record of the trial court was to be sent down with a copy of the judgment and order.
JUDGMENT :
Heard Mr. D.K. Nath, learned counsel for the appellant and Mr. R.J. Baruah, learned Addl. Public Prosecutor for the State respondent No. 1. Also heard Mr. P. Saikia, learned Legal Aid counsel for the respondent No. 2.
2. This appeal is preferred from the Central Jail, Jorhat, by the appellant, namely, Shri Papu Das, who stood convicted vide the impugned judgment and order dated 07.03.2020, passed by the learned Special Judge (POCSO), Jorhat, in Special Case No. 47/2018, under Section 354 of the IPC, read with Section 8 of the POCSO Act and sentenced him to suffer rigorous imprisonment for three years and a fine of Rs. 5,000/-with default stipulation under Section 354 of the IPC and also sentenced to suffer rigorous imprisonment for five years and also to pay a fine of Rs. 10,000/-, with default stipulation, under Section 8 of the POCSO Act.
3. The background facts leading to filing of the present appeal are briefly stated as under:
The I.O. then visited the place of occurrence, drew a sketch map of the place of occurrence, examined the witnesses and thereafter, got the victim examined by Doctor and collected the report and got her statement recorded in the Court and also arrested the accused and forwarded him to the Court. Then on completion of investigation and having found a prima facie case made out, against the appellant, the I.O. laid charge-sheet, being charge-sheet No. 229/2018, dated 31.08.2018, under Sections 376(A)(B)/75 of the IPC, read with Section 4 of the POCSO Act, to stand trial in the Court under said Sections of law.
The appellant was accordingly produced before the learned Court below and thereafter, the learned trial court, complying with the provision of Section 207 of the Cr.P.C. and upon hearing the learned Advocates of both the parties, had framed charge against the appellant under Section 376 of the IPC, read with Section 4 of the POCSO Act, and on being read and explained over the particulars of the offences to the appellant, he pleaded not guilty and claimed to be tried. Thereafter, the prosecution side had examined as many as ten witnesses, including the M.O. and the I.O. Thereafter, closing the prosecution evidence, the learned trial Court had examined the appellant under Section 313 of the Cr.P.C. and thereafter, hearing arguments of learned Advocates of both the parties, the learned trial Court had found the offences under Section 354 of the IPC, read with Section 8 of the POCSO Act, well established against the appellant and convicted him under the said Sections of law and sentenced him accordingly.”
4. Being aggrieved, the appellant has preferred this appeal from the Central Jail, Jorhat, challenging the correctness and otherwise of the said judgment and order of conviction and sentence.
5. It is to be noted here that the appeal is being preferred from Central Jail, Jorhat, and this Court, vide order dated 22.02.2024, was pleased to engage Mr. D.K. Nath, learned Advocate as Amicus Curiae for the appellant and Mr. P. Saikia, learned Advocate as legal aid counsel for the respondent No.2 as the respondent No.2 did not turn up inspite of receipt of notice.
6. Mr. D.K. Nath, learned Amicus Curiae has submitted that except the victim girl, there is no eye-witness to the occurrence and that her evidence is not of sterling quality so as to act upon the same without corroboration and that the medical evidence has also not supported her version. Further, Mr. Nath submits that the learned Court below had convicted
The judgment establishes the principle that when an act or omission constitutes an offence punishable under both the POCSO Act and the IPC, the offender should be punished under the provision that pr....
The court clarified the interpretation and application of Section 8 of the POCSO Act and Section 42 of the POCSO Act in determining the appropriate conviction and sentencing.
The prosecution must prove guilt beyond reasonable doubt, and the quality of evidence is essential in criminal law.
The prosecution must establish guilt beyond a reasonable doubt, with sufficient and credible evidence; failure to do so invalidates a conviction.
Prosecution can establish the age of the victim through reliable oral testimonies, such as those from the victim and her mother, even if specific documentary evidence under the PoCSO Act is absent.
The conviction under the POCSO Act requires substantial evidence beyond mere suspicion; failure to prove such evidence necessitates acquittal.
The court affirmed that prior legal standards apply to convictions, emphasizing the necessity of valid evidence and proper assessment of child witnesses' competency in sexual assault cases.
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