Gauhati High Court

Saiful Islam vs State Of Assam And Anr on 24 March, 2021

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GAHC010020822020




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

                                 Case No. : Crl.A./69/2020

            SAIFUL ISLAM
            S/O SAFIQUL ISLAM, R/O VILL. DATIRBORI, P.O. CHAPARBORI, P.S.
            BARPETA, DIST. BARPETA, ASSAM, PIN 781352.

            VERSUS

            STATE OF ASSAM AND ANR.
            REPRESENTED BY PUBLIC PROSECUTOR, ASSAM

            2:ABDUL REZZAK
             S/O- LATE MAIJUDDIN

            R/O- VILLAGE- MADHYA DATIRBARI
            P.O- CHAPORBORI
            DIST AND P.S.- BARPETA
            ASSAM. PIN- 781352

Advocate for the Petitioner   : MD. B HUSSAIN

Advocate for the Respondent : MR. B. B GOGOI, ADDL. PP, ASSAM


                                    BEFORE
                       HONOURABLE MR. JUSTICE MIR ALFAZ ALI

                                          JUDGMENT

Date : 24-03-2021

This appeal is directed against the judgment and order dated 30.11.2019 passed by the learned Additional Sessions Judge, Bajali, Pathsala, in Special POCSO Case No. 12/2018, whereby the appellant was convicted under Section 4 of the POCSO Act and sentenced to Page No.# 2/11

rigorous imprisonment for 7 years and to pay fine of Rs. 10,000/- with default stipulation.

2. As per prosecution case, on 05.04.2018, at about 10 O'clock at night, the daughter and niece of the informant were missing from their respective houses. During search, both the victims were found on the next day at Rajakhat chowk and on being asked, both of the victims told that the appellant and the co-accused took away them upon assurance of marriage and committed rape on them. An FIR was lodged by the father of the one victim, on the basis of which police registered Barpeta P.S. Case No. 718/2018 under Section 366A/34 IPC read with Section 4 of POCSO Act and upon completion of the investigation submitted charge sheet against both the accused named in the FIR. The co-accused Habibul has been found to be juvenile and as such his case has been dealt with by the Juvenile Justice Board and the present appellant stood trial before the Court of Sessions-cum-Special Judge.

3. During trial charges were framed under Section 366 IPC and 4 of POCSO Act, to which the appellant pleaded not guilty. In order to establish the charges, prosecution examined 9 witnesses. On completion of the prosecution evidence, the appellant was examined under Section 313 CrPC, wherein the appellant took the plea of innocence. On appreciation of evidence, learned Sessions Judge convicted the appellant under Section 4 of the POCSO Act and awarded sentence as indicated above. The appellant was however, acquitted of the charge under Section 366 IPC.

4. Aggrieved by conviction and sentence, the appellant, has preferred the instant appeal.

5. Learned counsel for the appellant Mr. B. Hussain assailing the impugned judgment of conviction and sentence, contended that the evidence of the victims was totally unworthy of credence and no reliance could be placed on the testimony of the prosecutrix. It was also contended, that the learned trial court recorded the statement of the accused under Section 313 CrPC in a very perfunctory manner and even did not put the vital evidence to the accused, which has caused serious prejudice to the appellant. Learned counsel for the appellant further contended that the victim was major at the time of occurrence and she along with her cousin (PW-4) went out together with their respective boyfriends out of own will and the prosecution has not been able to establish the charge under Section 4 of the POCSO Act against the Page No.# 3/11

appellant beyond reasonable doubt.

6. Supporting the impugned judgment of conviction and sentence, learned Addl. P.P., Assam, contended, that in case of offence of sexual assault conviction can be recorded solely on the testimony of the victim and that the prosecution evidences were sufficient to draw a presumption under Section 29 of the POCSO Act and therefore, the conviction and sentence of the appellant calls for no interference.

7. I have considered the submissions made by the learned counsel for the parties and also meticulously perused the evidence and materials brought on record.

8. The victim of the occurrence has been examined as PW-1. She deposed in her evidence that on 05.04.2018, at about 10 PM, she come out of the house responding to a phone call received from the appellant, Saiful Islam. She further stated that she met the PW-4 and Habibul Hoque besides the appellant, on the road. Thereafter the accused caught hold of her and took her to nearby bamboo groves at a distance of about 100 meter from her house, and committed sexual intercourse with her forcibly. She also stated, that the accused took her with him upon promise of marriage. She further stated, that in the meantime, PW-4 also came back and told her that Habibul Hoque committed rape on her (PW-4). Thereafter Habibul and the present appellant took both PW-1 & PW-4 to Balapara and left them in an isolated place at about 3 AM at night and they came to Rajakhat on foot, where, they met their respective fathers and told about the occurrence. During cross examination, she stated that she had been in love with Saiful for one and half years before the occurrence. She also stated that she was using the mobile phone of her father, with which she called her father. She also stated that both the accused persons i.e. the present appellant and Habibul Hoque took both of them to nearby bamboo bush. It was elicited during cross examination, that she did not raise any hue and cry, while the accused committed rape on her forcibly. She also admitted to have not raised any hue and cry on the road while going to Balapara nor they tried to call any one, though, they had mobile phone with them. She also categorically stated, that she did not call her father. She also admitted to have stated before the Magistrate during her statement recorded under Section 164 CrPC, that while they were coming from the house of her Page No.# 4/11

grandmother, they met Saiful and Habibul on the road, who dragged them to nearby forest. She also stated before the magistrate that she herself called her father with a phone belonging to an unknown person. She also stated during cross examination that the bamboo bush was situated near their house.

9. PW-4, the other victim, who was also allegedly subjected to sexual assault by the co- accused Habibul Hoque, deposed, that on 05.04.2018 at about 9.30-10 PM, while she was studying in her house, PW-1 asked her over phone to come out of the house. Accordingly, she came out stealthily without informing her parents and met PW-1 and the present appellant as well as Habibul on the road. She further stated, that as soon as she met PW-1, Saiful and Habibul, Habibul snatched away her mobile phone and caught hold her hand and dragged her to a nearby jungle, where he committed rape on her. She further stated, that it was in her knowledge that Saiful also committed rape on PW-1. After committing rape on both of them, the appellant and Habibul took them to Balapara, where both Habibul and Saiful left them and had fled away. She further stated, that finding no other way, she and PW-1 proceeded to Rajakhat and went to the house of an unknown person and told him about the entire occurrence. Immediately, her father and Abdul Rezzak, the father of PW-1 arrived at Rajakhat and they narrated the story to their fathers. During cross examination, she stated that her residence is situated at a distance of about one bigha of land from the house of PW-1. She further stated that the place of occurrence was at a distance of one kilometer from her house. It was also elicited from her cross examination, that from Balapara to Rajakhat the road was motorable, and there was a bye-lane in between Balapara and Rajakhat, which goes towards their house from the main road. She also admitted that after the occurrence, they proceeded to Rajakhat from Balapara without going to their house, which was in the midway from Balapara towards Rajakhat. She also pleaded ignorance about the identity of the person, whom they asked for help. She also stated that after the accused left them at Balapara, she did not call anybody. However, PW-1 rang up Habibul and Saiful and requested them to come back. She also stated in cross examination that her house was situated at a distance of one kilometer from the house of PW-1 and PW-1 came to her house on the day of occurrence at about 11 PM to take her along.

10. PW-2, the father of the victim stated that at about 10-10.30 PM on 05.04.2018, his Page No.# 5/11

daughter, the victim and another girl was missing from the house. Though they made a search, his daughter could not be traced out. However, on the next day in the afternoon, he received a phone call from an unknown person at Rajakhat, who informed that his daughter (victim) and another girl was recovered and requested them to go there immediately. Accordingly, he along with PW-3 went to Rajakhat and found both the girls. According to him, both the victims told them, that the present appellant and the accused Habibul brought them near the bamboo bush and committed rape on them. During cross examination, he stated that his daughter did not call him over phone, rather, one Jalal of Rajakhat informed about recovery of the victim. This witness also admitted to have stated before police that the victims were subjected to rape in an unknown place. This witness also admitted that the mobile phone, possessed by the victims were seized by police and later on returned to them.

11. PW-3, the father of PW-4 also stated almost in the same tune, that at about 9.30-10 PM on 05.04.2018, his daughter and the daughter of Abdul Rezzak (PW-1 & PW-4) were missing. On the next morning, he along with PW-2 went to Rajakhat in search of the victim. He also stated that when they were at Salbari, an unknown person informed them from Rajakhat that both the girls were recovered and accordingly they went to Rajakhat and found the victims. According to him, on being asked, both the PW-1 & PW-4 told that they eloped with their respective lovers Saiful and Habibul in order to marry them. During cross-examination, this witness stated that on the very night, he and PW-3 searched both the girls and found them at about 1 PM on the next day at Rajakhat. This witness also stated before police that the accused persons committed rape on their daughters at an unknown place.

12. PW-5 was the Doctor Anima Boro, who examined both, the victims i.e. PW-1 & PW-4 and upon examination of PW-1, she found as follows:

"Identification marks: One black mole on left thumb of palm's side. Height: 151cm. Weight: 50 kg. Chest girth as nipple level: 76 cm. Abdominal girth as nipple level: 80 cm. General built and appearance: Average. Voice: Feminine. Hair: Axillary/Body: Present. Breasts: develop. Puberty (as told by individual): 12 years. Menstruation (as told by individual): Regular. L.M.P. (as told by individual): 24.03.2018. Mental Condition: Stable. Gait: Normal. Intelligence: Average. Wearing- garments & any suspected stains present: No stain detected. Bodily injury: No injury on body.

One genital examination:

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Pubic Hairs: Present. Vulva (Labia Majora & minora): Normal. Hymen: Tear. Vagina: Admit 2 fingers. Cervix & Uterus: Uterus not palpable per abdominally. Fourchetee & Perineum: Normal.

Vaginal swab collected from posterior fornix. Result of vaginal swab smear examination. No spermatozoa is seen on microscopic examination of vaginal swab slides.

Result of X-ray investigation (plate No. 61 MLC, dated 10.04.2018)

Wrist Joint, Elbow Joint, Shoulder Joint. All epiphyseal Union are completed.

Pelvis: epiphyseal Union is not completed.

Ultrasonography advised and result: No UGC report.

Opinion:

1. According to x-ray report her age is above 18 (eighteen) years below 20 (twenty) years at present.

2. There is no recent sign of sexual intercourse but victim is accustomed to sexual intercourse.

3. There is no injury marks on her private parts."

13. PW-6 & PW-7, were the Investigating Officer and PW-8 was the Judicial Magistrate, who recorded the statement of the victim under Section 164 CrPC.

14. PW-9 was one Dr. Sarbananda Kalita, who issued the birth certificate to the victim. According to him, the victim did not born in his hospital and the birth certificate was issued in the year 2015 during preparation of NRC on the basis of an order of an Executive Magistrate. He proved the birth certificate as Ext. 1 issued on 23.07.2015 reflecting the date of birth of the victim as 01.01.2003.

15. A dispassionate scrutiny of the oral testimony of the prosecution witnesses would show that PW-2 & PW-3 being the fathers of PW-1 & PW-4 respectively were apparently reported witnesses so far the offence of rape or sexual assault is concerned. They did not have any personal knowledge about the occurrence and as such, the most vital witness in the instant case appears to be PW-1, the victim and the PW-4, who was also allegedly victim of similar offence committed by another accused at the same time and place. It is evident from the oral Page No.# 7/11

testimony of PW-1 & PW-4 that both of them accompanied their respective lovers out of their own will and volition. Having considered the evidence of PW-1 & PW-4 and other evidences adduced by the prosecution and having noticed glaring inconsistency in the oral testimony, learned trial court came to the finding that prosecution did not succeed in proving the charge under Section 366 IPC against the appellant and acquitted him of the charge under Section 366 IPC. However, primarily on the basis of the same evidence of PW-1 & PW-4 recorded conviction of the appellant under Section 4 of the POCSO Act.

16. Though, in case of sexual offences, which are committed in secrecy, hardly there may be any eye witness of the occurrence besides the victim. However in the present case as per the prosecution story, allegedly similar offence was committed simultaneously by two persons in respect of two alleged victims being PW-1 & PW-4 and therefore, the testimony of both these alleged victims assumes importance in the instant case. When the oral testimony of PW- 4 & PW-1 are read in juxta-position, it appears that their testimony was highly inconsistent and contradictory to each other. According to PW-1, she came out of the house at about 10 PM, responding to a phone call from the appellant and met the appellant, the PW-4 and Habibul on the road, whereas, according to PW-4, she came to the house of PW-1 at about 11 PM and come out from the house of the PW-1 together. She also stated that while she was studying, she received a phone call from the PW-1 asking her to come to her house. According to PW-4, when she came out from her house responding to a phone call from PW-1, she met the PW-1, the present appellant and Habibul on the road, where after, Habibul snatched away her mobile phone and forcibly took her to a nearby jungle and committed rape on her. Whereas, according to PW-1, the present appellant dragged her to a nearby bamboo bush at a distance of 100 meter from her house and committed sexual intercourse with her. She also stated that while they were engaged in sexual activities, the PW-4 again came back and informed her that Habibul also committed rape on her. According to them, both, the appellant and Habibul left them at Balapara where from they went to Rajakhat on foot. It is discernible from the evidence that the house of PW-1 was in the midway from Balapara to Rajakhat. But instead of going home which was on the way from Balapra to Rajakhat she or the PW-4 went to Rajakhat dead at night. Therefore, it remained a mystery, why they went to Rajakhat dead at night, by passing their own house. PW-1 stated that she herself and PW-4 came to Rajakhat, where they met their father and narrated the story. She also stated that she did not raise any hue & cry nor they call anyone over phone though both of them had mobile phones with them. They even did not make any phone call to their parents. However, in her statement recorded by the Page No.# 8/11

Magistrate, she stated that she called her father by a phone of an unknown boy. Though, in her evidence, PW-1 stated that responding a phone call from Saiful, she came out of her house, her statement was contradicted by PW-4 and the testimony of the PW-1 & PW-4 seems to be mutually destructive, as regards their coming to the place of occurrence. In her statement before the Magistrate, the PW-1 gave a completely different version and stated that while both of them (PW-1 & PW-4) were coming from their grandmother's house, the appellant and Habibul dragged them from the road.

17. In view of the above self contradictory and mutually destructive evidence of both the vital witnesses, being PW-1 & PW-4, learned trial court disbelieved the evidence of both the witnesses as regards the allegation of kidnapping and therefore, they were acquitted and the conviction of the appellant under Section 4 of the POCSO Act was recorded more or less on the basis of the presumption under Section 29 of the POCSO Act, which reads as under:

"29. Presumption as to certain offences- Where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3, 5, 7 and Section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved.

18. Though PW-1 stated in her evidence that she was subjected to sexual assault by the appellant forcibly in a jungle under the bamboo bush, the medical evidence does not support the testimony of PW-1, inasmuch as, according to the doctor, there was no sign of recent sexual intercourse, although, she was medically examined on the next day of the occurrence. According to the doctor, there was no injury on the private parts of the victim nor there was any sign of recent sexual intercourse, rather according to the doctor, the victim was accustomed to sexual intercourse. Therefore, the version of the prosecutrix, that she was subjected to non-consensual and forcible rape does not appear to be supported by the medical evidence. According to the doctor, the age of the victim was above 18 years and below 20 years. However, a birth certificate, which was procured after 12/13 years after the birth has been produced to project that the victim was minor at the relevant time. The PW-9, who issued the birth certificate (Ext.1) deposed that the birth certificate was issued on 23.07.2015 on the basis of an application and the order passed by the Executive Magistrate. The testimony of the PWs coupled with the other attending facts and circumstances associated with the Page No.# 9/11

issuance of Ex.1 as revealed from the evidence, shows that the Ext.1 was not above board.

19. The testimony of the PW-3, that he received a phone call from an unknown person from Rajakhat informing about recovery of two girls also appears to be contradictory with the evidence of PW-1 and the statement recorded by the Magistrate, inasmuch as, in the statement recorded under Section 164 CrPC, the victim stated that she informed her father over phone from the mobile of an unknown person. When admittedly, both the victims were carrying mobile phones with them, it is difficult to understand why they needed a phone of an unknown person at night. It also remained a mystery as who was the unknown person met by the PW-1 & PW-4 dead at night. Though, PW-2 stated, that on the next day in the afternoon, he received a phone call from an unknown person that his daughter and the other girl was recovered by a person at Rajakhat, PW-1 stated in her evidence that while going from Balapara to Rajakhat, they met PW-2 at Rajakhat. Therefore, the evidence of PW-2 that he got the information next day in the afternoon and thereafter found the victim at Rajakhat is also stood contradicted with PW-1. It is also discernible from the testimony of the PW-1, that her version as to how she met the accused was also contradictory to her statement recorded under Section 164 CrPC.

20. Though, in her evidence, PW-1 stated that the appellant committed rape on her under a bamboo bush in the proximity of her house, such statement was again belied by PW-4, who stated that the place of occurrence was at a distance of one and half kilometer from the house of PW-1. The above self contradictory and mutually destructive evidence of the victim as well PW-4 regarding the genesis of the occurrence coupled with the medical evidence of PW-5, that no injury on the private parts of the victim were detected nor there was any sign of sexual intercourse, rather the victim was found to be accustomed to be sexual intercourse creates serious doubt about the veracity of the prosecution case as sought to be projected by PW-1 and thereby renders the entire prosecution case shrouded in the cloud of doubt.

21. It is no doubt true, that in a case of sexual offence, conviction can be recorded on the sole basis of the testimony of the prosecutrix, provided her testimony is found to be reliable and free from any infirmity. On careful analysis of the evidence of PW-1, I find that in view of the glaring inconsistency and material contradiction in her evidence together with the inconsistency in between the evidence of the PW-1 & PW-4 and the medical evidence, which does not support the oral testimony of PW-1, clearly shows that the PW-1 as well as PW-4, Page No.# 10/11

were not at all reliable witnesses.

22. When testimony of the prosecutrix is found to be unreliable, conviction cannot be sustained without corroboration from reliable independent evidence. For any support, the decision of this Court in Mrinal Das Vs. State of Assam reported in 2017 (5) GLT 626 may be profitably referred to. In Mrinal Das Vs. State of Assam (supra), this court observed as under:

"26. There is no doubt about the principle of appreciation of evidence that in a case of sexual assault the testimony of the prosecutrix must be given primary consideration and her testimony should not be viewed with suspicion, unless there are compelling circumstances requiring the court to seek corroboration or support from other independent source. But the principle that prosecution needs to prove its case beyond reasonable doubt and that the reliability of a witness depends on its credibility and trustworthiness, equally applies even in case of sexual assault. It cannot be said that whatever is stated by the victim of sexual assault, being the solitary witness, has to be relied by the court, notwithstanding, any infirmities in the testimony of such witness.

27. When there are circumstances creating doubts on the veracity of the statement of the solitary witness, court is obliged to seek corroboration from independent source, inasmuch as, in the anxiety of doing justice to the victim, court cannot afford to lose its sight to do justice to the accused, particularly when there are circumstances indicative of false implication or false allegation or rape, inasmuch as, a false or baseless allegation of rape equally causes distress and damage to the accused. It would be appropriate in this context to cite a paragraph from the judgment of the Apex Court in Raju & Ors Vs. State of Madhya Pradesh, (2008) 15 SCC 133 relied by the learned counsel for the petitioner which reads as under : -

11. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration."

28. The Apex Court in Raja & Ors. Vs. State of Karnataka, (2016) 10 SCC 506, relied by the petitioner, observed that:

though generally the testimony of a victim of rape or non-consensual physical assault ought to be accepted as true and unblemished, it would still be subjected to judicial scrutiny, least casual routine, automatic acceptance thereof, results in unwarranted conviction of a person charged."

23. In the facts and circumstances of the case, in my considered view, on the basis of Page No.# 11/11

testimony of the PW-1 & PW-4 without any independent corroboration, even drawing of a presumption under Section 29 of the POCSO Act is not possible. It must be borne in mind that the presumption under Section 29 of the POCSO Act does not absolve the prosecution of its initial burden to prove the guilt beyond doubt. Therefore, unless the prosecution succeeds to establish the foundational fact beyond reasonable doubt as to the commission of offence, no accused can be saddled with the reverse burden by virtue of presumption under Section 29 of the POCSO Act.

24. Another important aspect as pointed out by the learned counsel for the accused appellant is that the statement of the accused under Section 313 was not properly recorded. On perusal of the statement of the accused recorded under Section 313 CrPC, I find that the medical evidence, which was confronted to the present appellant was relating to the PW-4 and not of PW-1 the actual victim. The appellant was not even confronted with the vital piece of evidence of the doctor relating to the medical examination of the PW-1. However, learned trial court in a very cavalier manner confronted the accused with the medical evidence which did not have any relevance to the present appellant, inasmuch as, it was the report of the examination of PW-4 and not of the present victim. Therefore, this again appears to be a serious defect in the case, having significant bearing to affect the prosecution case. Thus, having considered the totality of the evidence, more particularly, the evidence of PW-1, the victim, who is found to be an unreliable witness, this court is of the view, that prosecution evidence falls short of proving the charge under Section 4 of the POCSO Act beyond reasonable doubt or atleast the appellant is entitled for benefit of doubt, inasmuch as, one cannot be convicted for a serious offence like the one under Section 4 of the POCSO Act on mere surmises and conjectures. Accordingly, the conviction and sentence of the appellant is set aside and the appeal is allowed. The accused appellant be released and set at liberty forthwith, if not required in any other case.