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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Parthivjyoti Saikia, J.
Nasib Ali S/o Abdul Wahab - Appellant
Vs.
The State Of Assam And Anr. - Respondent
Crl.A./276/2023
Decided On : 05-03-2025
(A) Code of Criminal Procedure, 1973 - Section 374(2) - Indian Penal Code, 1860 - Sections 366(A), 376(1) - Protection of Children from Sexual Offences Act, 2012 - Section 4 - Appeal against conviction - The appellant was accused of kidnapping and sexual assault of a minor. The victim's testimony lacked corroboration, with witnesses indicating she was a consenting party. The prosecution failed to prove the charges beyond reasonable doubt. (Paras 22, 24, 25)
(B) Burden of Proof - In criminal jurisprudence, the prosecution must establish guilt beyond reasonable doubt. When two interpretations of evidence are possible, the one favoring the accused must be adopted. (Paras 22, 24)
Facts of the case:
The victim, aged 17, went missing and later claimed she was kidnapped and sexually assaulted by the appellant, who was found not guilty due to insufficient evidence. (Paras 3-26)
Findings of Court:
The trial court's conviction was overturned as the evidence did not support the charges of kidnapping and sexual assault beyond reasonable doubt. (Paras 25, 26)
Issues: Whether the prosecution proved the charges of kidnapping and sexual assault against the appellant beyond reasonable doubt.
Ratio Decidendi: The court held that the prosecution's evidence was insufficient to establish the guilt of the appellant, emphasizing the principle that in cases of reasonable doubt, the benefit must go to the accused. (Paras 22, 24)
Result: Appeal allowed; appellant acquitted.
JUDGMENT :
PARTHIVJYOTI SAIKIA, J.
Heard Mr. M.U. Mahmud, learned counsel appearing for the appellant. Also heard Mr. D. Gogoi, learned counsel representing the respondents.
2. This is an appeal under Section 374 (2) of the Code of Criminal Procedure against the judgment and order dated 06.07.2023 passed by the learned Special Judge (P), Bongaigaon in Special (P) Case No.12(M)/2021, arisen out of G.R. Case No.1429/2020.
3. On 01.12.2020, an FIR was lodged before police alleging that on 30.11.2020 at about 5 P.M., the 17 year old daughter of the informant went missing. The father of the girl searched for her, but she could not be found.
4. During the period of investigation, police recovered the girl and she gave a statement before the Magistrate under Section 164 of the CrPC. Before the Magistrate, she claimed to be 14 years old. She said that the present appellant was unknown to her. According to the girl, the present appellant picked her up in a car and after that her mouth was gagged and she was taken to Tezpur. She shouted for help, but nobody heard her. She had to spend the next two days in a Maruti Car. The present appellant provided her with food. Subsequently, she stopped shouting for help. Afterwards, she was taken to the house at Tezpur. The appellant threatened her and told her that she must not disclose before the inhabitants of that house that she was in fact kidnapped by him. On the next Saturday, she was brought to her village by the appellant and she was dropped near her house.
5. The victim girl stated before the Magistrate that during stay with the appellant on those days, they had physical relations.
6. On conclusion of investigation, police filed the charge sheet against the appellant under Sections 366(A), 376(1) of the Indian Penal Code read with Section 4 of the POCSO Act.
7. During the trial of the case, 10 number of prosecution witnesses were examined. The appellant also examined 1 witness.
8. On the basis of the evidence on record, the trial court passed the impugned judgment.
9. I have heard the learned counsel of both sides. I have also gone through the evidences available in the record.
10. The first prosecution witness was the victim herself. She claimed that after she was taken to Tezpur in a Maruti Car, the appellant had forcible sexual intercourse with her inside the car. She said that the car was driven by a driver. While she was with the appellant in the house of his relative at Tezpur, the appellant had forcible sexual intercourse with her. Finally, she was dropped at Gerukabari. She informed her father and he took her home.
11. During cross-examination, the girl stated that while she was kept in the house of the relatives of the appellant at Tezpur, she never told the inhabitants of the house that she was raped by the appellant.
12. Now, I shall take up the evidence of Mustafijur Rahman. He has stated in his evidence that on the day of occurrence at about 4 P.M., he was sitting near a bamboo bridge situated at Barbila Village. He saw that a car was coming from the western side and also saw that the girl got into the said car. After that incident, this witness came to know from the brother of the girl that she was in fact kidnapped.
13. The witness Sanidul Islam has stated in his evidence that on the day of occurrence at about 4 P.M., he was also sitting near the bamboo bridge at Barbila Village and saw that a car had taken away a girl. At that time, he could not recognize the girl.
14. The witness Hamed Ali has stated in his evidence that on the day of occurrence, he had seen the appellant taking away the victim girl in a Maruti Car. Hamed Ali further stated that the appellant kept the victim for a period of 1 year 3 months and thereafter he ran away. According to this witness, the victim girl returned home on her own.
15. The witness Ramjan Ali has stated in his evidence that on the day of occurrence, the appellant borrowed his car on rent for going to Nayahat, Bilasipara. At about 5.30 P.M., the appellan
The prosecution must prove charges beyond reasonable doubt; insufficient evidence led to acquittal.
Kidnapping and rape of minor girl – In criminal jurisprudence, it is compulsory on part of prosecution that in order to hold a person guilty of an offence, offence must be proved beyond all reasonabl....
Point of Law : 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) ....
The court established that child witness testimony, if credible and corroborated, can be sufficient for conviction under the POCSO Act.
Plea of innocence in his statement under Section 313 CrPC, in the absence of any evidence, cannot be relied on.
Conviction under POCSO Act requires credible evidence; inconsistencies and potential tutoring in the victim's testimony can render a conviction unsafe.
Penetrative sexual assault upon minor girl – It is incumbent upon prosecution to establish beyond all reasonable doubts that victim was below 18 years as on date of occurrence to attract provisions o....
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