GAHC010144112024

2025:GAU-

AS:16899-DB

THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : Crl.A./11/2024

PASHAN ALI

S/O LATE DARBESH ALI

VILL.- LACHANGA

P.S.- KALGACHIA

DIST.- BARPETA

ASSAM. VERSUS

THE STATE OF ASSAM AND ANR.

REP. BY P.P.

ASSAM.

2:NURJAHAN KHATUN

W/O JAHAR ALI R/O LACHANGA P.S.- KALGACHIA

P.O.- KALGACHISA

DIST.- BARPETA

ASSAM

PIN- 781319.

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Advocate for : MRS. B GOGOI

Advocate for : PP

ASSAM appearing for THE STATE OF ASSAM AND ANR.

BEFORE HON’BLE MR. JUSTICE MICHAEL ZOTHANKHUMA HON’BLE MR. JUSTICE N. UNNI KRISHNAN NAIR

04/12/2025 (M. Zothankhuma, J)

Heard Mr. J I Borbhuiya, learned counsel for the appellant. Also heard Ms. B Bhuyan, learned Additional Public Prosecutor, Assam for the State respondent No. 1 and Ms. S G Baruah, learned Amicus Curiae for the respondent No. 2.

2. The appellant has put to challenge the impugned judgment dated 17.10.2023 passed by the learned Additional Sessions Judge-cum-Special Judge (POCSO), Barpeta, in Special (POCSO) Case No. 14/2019, by which the appellant has been convicted under Section 6 of the POCSO Act and sentenced to undergo Rigorous Imprisonment for 14 (fourteen) years with a fine of Rs.10,000/- (Rupees Ten Thousand), in default, Simple Imprisonment for 2 (two) years.

3. The conviction and sentence of the appellant had been occasioned due to the appellant, who was approximately 66 years of age at the relevant point of time, having inserted his finger into the private parts of the victim girl, who was approximately 4 years of age.

4. The appellant’s counsel submits that the impugned judgment should be set aside, as the learned Trial Court has convicted the appellant, only on the basis of the statement made by the victim girl under Section 164 Cr.P.C., which cannot be done in terms of the judgments of the Hon’ble Supreme Court. He also submits that the satisfaction of the learned Trial Court that the girl could understand the questions put to her and give rational answers to the same before recording the statement of the victim girl under Section 164 Cr.P.C. and her testimony during trial, could not have been arrived at by asking so few and simple questions, as reflected in the form used for recording the statement of the victim under Section 164 Cr.P.C. and the form used for recording her testimony during trial. Further, there was previous enmity between the appellant and the family of the victim girl, with regard to the cattle of the appellant grazing into the victim’s family field. As such, a false case has been fabricated by the victim’s family due to enmity. This is proved by the evidence of PW1, who is the grandmother of the victim in her cross-examination.

5. The learned counsel for the appellant submits that as the appellant is an old man of 75 years as on date, who is suffering from various ailments, the impugned conviction should be set aside and he should be acquitted of the charge under Section 6 of the POCSO Act.

6. Ms. B Bhuyan, learned Additional Public Prosecutor, Assam, on the other hand, submits that the evidence of the victim girl has been corroborated by her statement made under Section 164 Cr.P.C. and as such, there is no reason to interfere with the impugned judgment. She also submits that the victim girl was subjected to questions by the learned Trial Court, prior to recording her statement under Section 164 Cr.P.C. and her evidence. The learned Magistrate having found that the victim was able to understand the questions put to her and give rational answers to the same, there was no reason to doubt the testimony of the victim girl or her statement made under Section 164 Cr.P.C. She further submits that the medical report and the evidence of the doctor corroborated the fact that the appellant had committed the offence of inserting his finger into the private parts of the victim, in violation of Section 5(m) of the POCSO Act, 2012.

7. The learned Additional Public Prosecutor, Assam submits that in a similar case, wherein, th