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IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
SANJAY KUMAR MEDHI, MITALI THAKURIA, JJ.
Adhan Das Bongaigaon – Appellant
Versus
The State Of Assam – Respondent
Crl.A(J) 9 of 2018
Decided on : 11-11-2024
(A) Protection of Children from Sexual Offences Act, 2012 - Sections 4, 8, and 12 - Conviction and sentencing of the accused for sexual offences against minors - The accused was sentenced to a total of 11 years of rigorous imprisonment and fines for multiple offences under the POCSO Act, with sentences running consecutively. (Paras 1, 2, 12, 29)
(B) FIR - Delay in lodging - The court considered the reasons for the delay in lodging the FIR, noting that the victims were minors and that attempts were made to settle the matter prior to lodging the FIR. (Paras 6, 26)
(C) Foundational facts - The court emphasized the necessity of establishing foundational facts, including the age of the victims, to invoke the POCSO Act, and determined that the prosecution had sufficiently established the victims' ages through medical examination. (Paras 8, 25)
(D) Evidence - The court found that the testimonies of the victims were consistent and credible, despite the absence of independent witnesses and the non-seizure of the mobile phone used for displaying pornographic materials. (Paras 27, 28)
Facts of the case:
The appeal was filed against a conviction under the POCSO Act for showing pornographic material to minors and sexually harassing them. The FIR was lodged after attempts to settle the matter failed. (Paras 2, 5)
Findings of Court:
The court upheld the conviction, finding the evidence against the appellant credible and sufficient to establish guilt beyond reasonable doubt. (Paras 29)
Issues: The main issues included the validity of the FIR, the delay in lodging it, and the establishment of foundational facts necessary for conviction under the POCSO Act. (Paras 6, 25)
Ratio Decidendi: The court ruled that the prosecution had established the foundational facts required for conviction under the POCSO Act, including the ages of the victims, and that the delay in lodging the FIR was adequately explained. (Paras 25, 29)
Result: Appeal dismissed.
Key Points: - The court upheld conviction under POCSO Act despite delay in lodging the FIR, explaining reasons tied to minor victims and bichar settlement attempts (!) (!) (!) . - The court emphasized the necessity of establishing foundational facts, including the age of victims, and held that medical examination establishing ages below 18 sufficed when documentary age proof was unavailable (!) (!) (!) . - The court found the victims’ testimonies to be consistent and credible and affirmed that the absence of independent witnesses and non-seizure of the mobile phone did not invalidate the conviction, as other evidence supported the offences (!) (!) (!) (!) (!) .
JUDGMENT :
(SK Medhi, J)
The instant appeal has been preferred from jail against a judgment dated 12.09.2017 passed in Special (P) Case No.4(M)/2017 whereby the learned Sessions Judge, Bongaigaon had convicted and sentenced the accused to undergo Rigorous Imprisonment for total 11 years, comprising of 7 years and also to pay a fine of Rs.5000/-in default to undergo rigorous imprisonment for another two months for Offence under Section 4 of the Protection of Children from Sexual Offence Act (POCSO), 3 years with fine of Rs. 5000/-in default to undergo rigorous imprisonment for another two months for offence under Section 8 of the POCSO Act and 1 year and to pay a fine of Rs. 1000/- in default to undergo rigorous imprisonment for another one month for the offence under Section 12 of the POCSO Act. It was further directed that the sentences will run consecutively. It was also directed that the period of detention already undergone by the accused shall be set off against the terms of imprisonment.
2. The criminal law was set into motion by lodging of an Ejahar on 24.09.2016 by one Ajay Sarkar (PW1). It was alleged that the appellant had been showing naked videos in the mobile phone to certain minor boys, including his son and was sexually harassing them with the threatening to kill them. It was also stated that on coming to know about the incident, the matter was tried to be settled in a bichar. However, the accused person-appellant did not come for the bicharand was absconding and accordingly, the FIR had to be lodged. It has also been stated that prior to such incident also, the appellant had committed bad acts earlier.
3. Based on the aforesaid FIR, the investigation was done leading to filing of the charge sheet. The charges were accordingly framed against the appellant under Sections 4, 8 and 12 of the POCSO Act. As the appellant had pleaded not guilty, the trial was initiated by the learned Special Judge, Bongaigaon.
4. The prosecution had adduced evidence through 11 nos. of witnesses, including the IO and the Doctor who had examined the alleged victims. Based on the said evidence and the material exhibits, including the medical reports for the 5 nos. of alleged victims, the appellant was put to examination under Section 313 of the Cr.PC. After the same, the impugned judgment was passed on 12.09.2017 convicting and sentencing the appellant in the manner, as indicated above. The statements of the 5 nos. of alleged victims were also recorded under Section 164 of the Cr.PC immediately after lodging of the FIR.
5. It is the legality and validity of the aforesaid impugned judgment dated 12.09.2017 which is the subject matter of challenge in the present appeal.
6. We have heard Shri AM Dutta, learned Amicus Curiae for the appellant. We have also heard Shri K Baishya, learned Addl. Public Prosecutor, Assam.
7. The learned Amicus Curiae has submitted that the contents of the FIR are vague and would not constitute any offence. He has assailed the proceedings on the ground of delay in lodging the FIR and lack of foundational facts. The assailment on the impugned judgment is also made on the ground that there were no independent witnesses in spite of the fact that as per the FIR itself, bichar was called for settlement of the matter. He has also highlighted the aspect that the places of occurrence were busy areas adjacent to a railway track wherein the alleged misdeeds could not have been done. He has also urged the ground that the medical reports were not supporting the ocular evidence and in view of such medical report wherein there were no indications of sexual assault, no judgment of conviction could have been passed. He has also highlighted the aspect that there are lacunae in the evidence of the Investigating Officer.
8. He has submitted that for a conviction under the POCSO Act, the foundational facts are required to be proved and one of the essential factors is the age of the alleged victim so as to bring an offence under the ambit of t
The court affirmed the conviction under the POCSO Act, emphasizing the necessity of establishing foundational facts, including the age of victims, and upheld the credibility of victim testimonies des....
The court emphasized that significant inconsistencies in victim statements, delay in FIR, and lack of corroborative evidence led to the acquittal of the appellant in a sexual assault case.
The court upheld the conviction for aggravated sexual assault under the POCSO Act, emphasizing the sufficiency of evidence despite procedural claims of the defence.
The conviction of the appellant was quashed due to insufficient and inconsistent evidence, demonstrating the necessity for reliable testimonies in criminal cases, especially under sexual offence laws....
Prosecution has to prove the foundational facts of the offence charged against the accused, not based on proof beyond reasonable doubt, but on the basis of preponderance of probability.
The court affirmed the conviction under the POCSO Act based on the victim's credible testimony, emphasizing that minor inconsistencies do not detract from the integrity of her evidence.
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