GAHC010083742024 2025:GAU-AS:11913 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : Crl.A./114/2024 MD. NISANUL ISLAM BARBHUIYA @ LISANUL BARBHUIYA S/O MD. SAJIQUR BARBHUIYA, R/O NISCHINTAPUR, P.S.- HAILAKANDI, DIST.- HAILAKANDI (ASSAM).

VERSUS THE STATE OF ASSAM AND ANR.

REP. BY THE PUBLIC PROSECUTOR.

2:MD. ABDUL GAFFAR LASKAR S/O LATE ABDUL SATTAR LASKAR R/O BIDYAPUR P.O.- MRIAMGAHT P.S.- URIAMGHAT DIST.- GOLAGHAT (ASSAM)

PIN- 785601 Advocate for the Petitioner : MR. M K HUSSAIN, MD A RAHMAN,MR. M ALOM,MS. F H AHMED,MR K U AHMED,MRS. S Y AHMED Advocate for the Respondent : PP, ASSAM, MR SARFRAZ NAWAZ, (AMICUS CURIAE, R2)

BEFORE HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND Date of hearing : 03.06.2025 Date of Judgment : 03.09.2025 JUDGMENT AND ORDER (CAV)

1. This appeal is preferred challenging the judgment and order dated 28.03.2024, passed by the learned Special Judge, POCSO in connection with Special POCSO Case No. 52/2019, wherein vide order dated 28.03.2024, the learned Trial Court convicted the appellant, Mohammed Nisanul Islam Barbhuiya @Lisanul Barbhuiya (herein after referred to as the appellant or the accused), under Section 10 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act for short) and sentenced him to undergo rigorous imprisonment for five years and to pay a fine of Rs. 20,000/- with default stipulation, and also convicted the appellant under Section 354A(i)(iii) of the Indian Penal Code (IPC for short) and sentenced him to undergo rigorous imprisonment for three years and to pay a fine of Rs. 10,000/- with default situation. Both the sentences are to run concurrently.

2. It is contended on behalf of the appellant that the prosecution failed to bring home the charges leveled against the appellant but the learned Trial Court erroneously convicted the appellant. The learned Trial Court ignored the discrepancies and the contradictions in the evidence including the evidence of the prime prosecution witnesses which was not found to be creditworthy. The presence of appellant was not at all possible considering the place of occurrence at the relevant point of time. Without any direct evidence as well as circumstantial evidence, the Trial Court went ahead and convicted the appellant with a preconceived mind.

3. The learned Trial Court has completely ignored that the sole testimony of the PW’s that the accused attempted to commit sexual assault is contrary to the contents of the FIR. The entire prosecution case hinges on circumstantial evidence, but the chain of circumstances was unmistakably incomplete and hypothetically the appellant was held guilty of offences which he did not commit. It is further submitted that the impugned judgment is liable to be set aside as the learned Trial Court decided the case in a very mechanical and arbitrary manner.

4. Learned Additional Public Prosecutor has raised serious objection against the argument stating that the Trial Court has arrived at a decision after an in- depth discussion and scrutiny of the evidence. The Trial Court has correctly passed the judgment and order and a lenient view was taken and thus no interference is required by this court.

5. The learned counsel for the respondent No. 2 laid stress in his argument that the evidence cannot be rejected by comparing it with the FIR. An FIR cannot be an encyclopedia. The victim can be considered to be a sterling witness. The conduct of the accused on the other hand invites flak. The accused has taken two pleas. He has given two different statements. His statements under Section 313 of the Code of Civil Procedure (Cr.PC for short) before and after alteration of charges insinuates two varied pleas taken by him.

6. Heard Mr. M.K. Hussain, learned counsel for the appellant; Mr. S Nawaz, learned Amicus Curiae for the respondent No. 2 and Mr. B. Sharma, learned Additional Public Prosecutor for the respondent State.

7. I have considered the submissions at the Bar with circ