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IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
MICHAEL ZOTHANKHUMA, KAUSHIK GOSWAMI
Golap Hussain S/o Late Lal Mia – Appellant
Versus
State of Assam – Respondent
JUDGMENT :
MICHAEL ZOTHANKHUMA, J.
1. Heard Mr. H.R.A. Choudhury, learned Senior Counsel assisted by Mr. J. Islam, learned counsel for the appellant. Also heard Ms. A. Begum, learned Additional Public Prosecutor, Assam for the State and Mr. H. Talukdar, learned counsel for the respondent no.2.
2. The appellant has put to challenge the impugned judgment dated 13.12.2022 passed by the Court of the learned Additional Sessions-cum-Special Judge (POCSO) at Barpeta in Special POCSO Case no.101/2018, by which the appellant has been convicted under Section 4(2) of the POCSO Act, 2012 and sentenced to undergo rigorous imprisonment for 20 years with a fine of Rs.15,000/-, in default to undergo rigorous imprisonment for another 2 years.
3. The appellant’s counsel submits that the incidents of rape had occurred in between 18.06.2018 till 23.06.2018, when Section 4 of the POCSO Act, 2012 was as follows :
“Punishment for penetrative sexual assault - Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than 7 years but which may extend to imprisonment for life, and shall also be liable to fine.”
4. However, the appellant
The court ruled that the punishment must align with the law in force at the time of the offence, emphasizing that the minor's inability to consent invalidates any claims of consensual relations.
Conviction under POCSO Act modified from Section 6 to Section 10 due to evidentiary inconsistencies regarding penetration and charge alteration procedures impacting the defense.
The court upheld the conviction of rape under IPC despite challenges regarding the victim's age based on insufficient documentation, affirming the credibility of the victim's testimony.
The trial court's failure to specify the charge under Section 4(1) or 4(2) of the POCSO Act resulted in an improper conviction and sentence, necessitating a remand for proper proceedings.
Penetrative sexual assault – Child witness - though the victim was only 4 years old at the time of the incident, a child witness can also be a reliable witness. In the present case, the competency of....
The court held that the prosecution failed to prove the victim's age beyond reasonable doubt, emphasizing that consent from a minor is not legally valid under the POCSO Act.
Evidence of victim child cannot be sole basis for convicting accused unless safeguards are undertaken.
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