Gauhati High Court
Page No.# 1/27 vs The State Of Assam And Anr on 7 April, 2022
Page No.# 1/27
GAHC010016482020
THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
Case No: Crl. A. 19/2020
Kumar Ali @ Komar Ali And 6 Ors
S/O Late Samser Ali, Resident of Village Arara, P.S. Ghograpar,
Dist. Nalbari, Assam
2. Sukur Ali
Son of Kumar Ali
Resident of Village Arara
P.S. Ghograpar
Dist. Nalbari
Assam
3. Jikir Ali
S/O Late Akbar Ali
Resident of Village Arara
P.S. Ghograpar
Dist. Nalbari
Assam
4. Majeda Khatun
W/O Abdul Halim
Resident of Village Panimajkuchi
P.S. Ghograpar
District Nalbari
Assam
5. Abdul Halim
Son of Late Abdul Matleb
Resident of Village Panimajkuchi
P.S. Ghograpar
Page No.# 2/27
District Nalbari
Assam
6. Sajahan Ali
S/O Late Gume [email protected] Guna Ali
Resident of Village Panimajkuchi
P.S. Ghograpar
District Nalbari
Assam
7. Abu Bakkar Siddique
S/O Late Kudrat Ali Ahmed
Resident of Village Panimajkuchi
P.S. Ghograpar
District Nalbari
Assam.
................................. Appellants
VERSUS
1. The State of Assam and Anr.
Represented by The Public Prosecutor, Assam
2. Miss Amiron Nessa
Daughter of Md. Jamal Ali
Resident of No.2 Arara
P.S. Ghograpar
Dist. Nalbari
Assam
Pin 78136 ..........................................Respondents
And
Crl.A. 21/2020
Sahidul Ali
S/O Kumar Ali
Resident of Village Arara
P.S. Ghograpar
Dist. Nalbari
Assam. ........................................Appellants
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VERSUS
1. The State of Assam And Anr.
Represented by The Public Prosecutor
Assam.
2. Miss Amiron Nessa
Daughter of Md. Jamal Ali
Resident of No. 2 Arara
P.S. Ghograpar
Dist. Nalbari
Assam
PIN 781369 .......................................Respondents
:: BEFORE ::
HONOURABLE MR. JUSTICE SUMAN SHYAM
HON'BLE MRS. JUSTICE MALASRI NANDI
For the Appellants/Petitioners : Mr. A. Ahmed.
For the Respondents : Ms. B. Bhuyan, Addl. P.P., Assam
Mr. I. Ahmed, for Respondent No.2
Date of Hearing : 16.03.2022, 17.03.2022 and 25.03.2022
Date of delivery of
Judgment and Order : 07.04.2022
JUDGMENT & ORDER (CAV)
Malasri Nandi, J.
1. Heard Mr. A. Ahmed, learned Counsel for the appellant. We have also heard
Ms. B. Bhuyan, learned Addl. P.P. Assam appearing for the State and Mr. I. Ahmed,
learned Counsel for the informant/respondent No. 2.
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2. Both the Criminal Appeals Vide No- 19/2020 and Criminal Appeal No- 21/2020
arise from the same incident, FIR and judgment, thus, are being disposed of together.
3. The Criminal Appeal No- 21/2020 was filed by the accused Sahidul Ali against
the Judgment passed by Learned Special Judge/Sessions Judge, Nalbari, dated
21.12.2019 in Special (P) Case No. 36/2015 convicting the accused/appellant Sahidul
Ali under section 147/448/395/149/376(2)(i) IPC read with section 6 of POCSO Act and
to undergo rigorous imprisonment for life and to pay a fine of Rs.10,000/- in default
simple imprisonment for 6 months for committing the offence under section 376(2)(i)
IPC as well as under section 6 of Protection of Children from Sexual Offences Act,
2012 (in short POCSO Act) for each of the offence and also to undergo simple
imprisonment for one year and to pay a fine of Rs.1000/- in default simple
imprisonment for one month for committing the offence u/s 147 IPC and also to
undergo rigorous imprisonment for 10 years and to pay a fine of Rs.5000/- in default
Simple imprisonment for 6 months for committing the offence u/s 395 IPC and further
sentence him to undergo simple imprisonment for 6 months and to pay a fine of
Rs.500/- in default simple imprisonment for one month for committing the offence u/s
448 IPC. The sentences will run one after another.
4. By the same Judgment vide Appeal No -19/2020, the accused/appellants
Abdul Halim, Sukur Ali, Kumar Ali, Abu Bakkar Siddik, Shah Jahan Ali, Jikir Ali and
Majeda Begum were also convicted and sentenced to undergo simple imprisonment
for 1 year and to pay a fine of Rs.1000/- in default Simple imprisonment for 1 month
each for committing the offence u/s 147 IPC and to undergo rigorous imprisonment
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for 10 years and to pay a fine of Rs. 5000/- in default rigorous imprisonment for 6
months each for committing the offence under section 395 IPC and further to
undergo simple imprisonment for 6 months and to pay a fine of Rs.500 in default
simple imprisonment for 1 month to each of them for committing the offence under
section 448 IPC. All the sentences were directed to run concurrently.
5. The prosecution case in brief is that the informant/victim lodged an Ejahar
before the OC, Ghograpar PS on 23.03.2015 stating inter alia that the accused
Sahidul Ali by giving promise to marry her had sexual intercourse with her for two and
half years as a result of which she became pregnant and gave birth to a child. When
she informed her parents about the incident, one 'bichar' (extra judicial trial) was
held to resolve the matter and in the said bichar, a fine of Rs.80, 000/- was imposed.
Out of the said amount Rs. 60,000/- was paid by the accused Sahidul Ali.
6. It is also the case of the prosecution that on 21.03.2015 at about 11 PM
accused Sahidul Ali along with other accused persons namely, Sukur Ali, Kumar Ali,
Sidik Ali, Shahjahan Ali, Halim Ali, Jikir Ali and Majeda Begum entered into the house
of the informant and after assaulting the informant and her parents, snatched away
the paid money amounting to Rs. 66,000/- from their house.
7. On receipt of the Ejahar a case was registered vide Ghograpar PS case NO-
45/15 u/s 147/420/493/376/323/380 IPC. During investigation, the investigating officer
seized some documents like birth certificate of the victim girl and recorded the
statement of the witnesses. The investigating officer made requisition to doctor to
examine the victim girl and also prayed for DNA test for the accused Sahidul Ali with
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the child of the victim. On completion of the investigation Charge-sheet was
submitted against the accused/appellant Sahidul Ali u/s 420/493/376(2)(h) IPC and
section 6 of POCSO Act and other accused/appellants u/s 147/447/448/323 IPC.
8. During the investigation, the blood samples of the accused, minor victim and
newly born baby was collected for DNA profile to examine paternity. DNA report vide
Exhibit -14 confirms that allele DNA profile of blood sample of newly born baby
matches with the allele DNA profile of blood sample of minor victim and blood
sample of the appellant Sahidul Ali, holding that the newly born baby was the child
of the minor victim and the appellant Sahidul Ali. The victim in her statement
recorded u/s 164 Cr.PC clearly stated that on several occasions the appellant Sahidul
Ali taking advantage of the absence of her family members, came to her house and
had sexual intercourse with a promise to marry her as a result of which she became
pregnant. Though she informed the matter to the appellant Sahidul Ali about her
pregnancy, at first he agreed to marry her but subsequently, he got married to
another girl. The victim further stated that she was examined by the doctor and
subsequently she delivered a child, as such there was no doubt as regards the
paternity of the baby of the accused/appellant Sahidul Ali.
9. Based on the submission of the Charge sheet before the Chief Judicial
Magistrate, Nalbari, as the offence u/s 376 IPC and section 6 of POCSO Act are
exclusively triable by the Court of Sessions/Special Judge, the case was committed
accordingly to the Sessions Court. During trial before the Special/Sessions Judge,
Nalbari charge was framed u/s 376(2)(i) IPC and Section 6 of POCSO Act against the
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accused Sahidul Ali and other accused/appellants including Sahidul Ali u/s
147/447/323/149 IPC to which they pleaded not guilty. It is pertinent to say here that
after examination of four prosecution witnesses, charge was reframed by the Sessions
Judge, Nalbari, by adding the sections 448/395/149 IPC to which they pleaded their
innocence.
10. To substantiate the case of the prosecution, 12 witnesses were examined
before the Trial Court and exhibited 14 documents. On the other hand, the defence
did not adduce any evidence in support of their case. The plea of the defence is the
plea of denial.
11. The prosecution also examined scientific officer PW12 who performed DNA test
on receipt of the respective vial of liquid blood of the victim, accused/appellant -
Sahidul Ali and the child. The DNA report vide Exhibit -14 shows that the
accused/appellant - Sahidul Ali is the father of the child. After completion of the trial
the statement of the accused/appellants were recorded u/s 313 Cr.pc by putting the
incriminating materials found against them but they denied the same. And the
accused/appellant Sahidul Ali admitted that one village meeting was held in their
village to discuss about the pregnancy of the victim. It was alleged that she was
impregnated by him and for this reason he was asked to pay compensation
amounting to Rs.80, 000/- and accordingly he agreed to pay the same. The Learned
Trial Court after hearing both the parties delivered the Judgment and awarded the
sentences as aforesaid. Hence, this appeal has been preferred by the
accused/appellants.
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12. We have heard the learned counsel appearing for the appellants, the
Learned Additional Public Prosecutor appearing for the Respondent/State and also
perused the record and the documents available thereon.
13. In connection with the appeal filed by the accused/appellant Sahidul Ali vide
Criminal Appeal No 21/2020, it was urged by the learned counsel for the appellant,
Mr. A. Ahmed that at the time of occurrence the victim was not a child as defined in
section 2(d) of the POCSO Act. According to him, she was more than 18 years of age
and thus, she was not a child. It is further submitted that the victim has given a
different versions at different stages. The prosecutrix is not consistent with her
statement and as such on the sole basis of her statement the appellant cannot be
convicted in absence of corroboration.
14. On the issue of age of the prosecutrix, the learned counsel for the appellant
has further submitted that no documentary proof of age such as birth certificate,
school admit card etc were produced before the trial court for ascertaining the age
of the prosecutrix and there are conflicting statements made by the witnesses
including the prosecutrix as a result of which there is no conclusive proof as to the
exact age of the prosecutrix at the time of the alleged occurrence. According to the
learned counsel, though the school certificate was seized but not exhibited in the trial
court. As such, the said document cannot be taken into consideration for establishing
the age of the victim. At any rate, according to the learned counsel for the
appellant, the victim had attained majority at the time of incident and hence, she
was capable of giving consent for sexual intercourse. As such, the conviction of the
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accused Sahidul Ali u/s 376(2)(i) IPC or Section 6 of POCSO Act cannot be sustained
and accused /appellant be acquitted on benefit of doubt.
15. It is also argued by the learned counsel for the appellant that there was a
compromise between the victim and the appellant regarding the pregnancy of the
victim and a "Bichar" was held in the village and the village elderly persons imposed
fine amounting to Rs. 80,000/- to be paid by the accused Sahidul Ali to the victim
and accordingly accused/appellant paid Rs.40, 000/- to the victim. It is also the
submission of the learned counsel for the accused/appellant that as the prosecutrix
and the accused/appellant had entered into a compromise and as such it is a fit
case for invoking the proviso to section 376 (2)(g) IPC for awarding lesser sentence.
16. It is further argued by the Learned Counsel for the accused/appellant that the
entire evidence of the prosecution is silent about the age of the alleged victim. The
prosecution was duty bound to prove that the victim was a child within the meaning
of the POCSO Act. As the age of the victim is not proved, the prosecution case suffers
from serious infirmity. He further argued that the victim of the crime in question has not
disclosed the date of the incident.
17. In support of his submission learned counsel for the appellant has placed
reliance on the following case laws -
i. (2013) 14 Supreme Court Cases 637
(Mahadeo V. State of Maharashtra & another)
ii. (2010) volume 1 SCC 742
(Sunil v. state of Haryana)
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iii. AIR 2015 SC 1369
(Ravindra V. State of Madhya Pradesh)
iv. AIR 1980 SC 628
(Dhanabal & others V. State of Tamil Nadu)
v. AIR 1952 SC 214
(Bhagwan Singh v. State of Punjab)
18. On the other hand Ms. B Bhuyan, Learned Additional Public prosecutor
appearing for the State/Respondent has countered the submission and contention of
the learned counsel for the appellant by taking this court through the provision of
section 94 of the Juvenile Justice Act, 2015. It is also submitted that from the medical
records it has been clearly established that the victim was less than 18 years of age
on the date of the occurrence. It is also her submission that the presumption u/s 29 of
the POCSO Act can very much be drawn against the accused/appellant since in this
case the said presumption has not been rebutted by the accused. As such, the
impugned judgment does not suffer from any infirmity.
19. The Learned Additional Public Prosecutor would further submit that as per
section 30 of the POCSO Act the culpable mental state of the accused should be
presumed. The accused has not rebutted the said presumption as required by the
Section 30(1) o f the POCSO Act. Thus according to the learned Additional public
prosecutor, from the evidence of the victim it has been clearly established that the
accused/appellant had culpable mental state to have sexual intercourse with the
victim as a result of which, she became pregnant and gave birth to a child. The DNA
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report of the child of the victim is also available on record which proves that the
accused/appellant is the father of the child of the victim. All these facts would
clearly go to show that the victim was a minor at the time of the incident and the
accused appellant, by giving assurance to marry her, had sexual intercourse with her
as a result of which, she became pregnant and gave birth to a child. As the victim
was a minor there was no question of consent being taken on such act. Thus
according to the learned Additional PP the conviction and sentence imposed by the
learned trial court does not warrant any interference.
20. Having examined the evidences, which have come on record and on
considering the submissions advanced by the Learned Counsel appearing for the
appellant as well as the Learned Additional Public Prosecutor, we proceed first to
examine the age of the victim at the time of sexual assault as well as the incident
relating to sexual assault.
21. P.W-1 Sajida Khatun, mother of the victim, deposed in her evidence that
accused Kumar Ali's house is adjacent to their house; accused Sahidul Ali is the son of
Kumar Ali. On a day about 3 years and 2 months back her daughter i.e the victim
went to the house of the accused/appellants Kumar Ali and Sahidul Ali. On the day
when her daughter went to their house she came to know from the people of their
village that accused Sahidul Ali had impregnated her daughter. Her daughter stayed
in the house of accused/appellant Sahidul Ali for about 4-5 days. After 4-5 days the
people of their village brought her daughter to their house from Sahidul's house. They
said that Kumar had said that first a legal marriage of her daughter with Sahidul Ali
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would be held in Nalbari and that till the time of delivery, her daughter would stay in
their house and after the birth of the child, Sahidul Ali would take her daughter to his
house. Though a date was fixed for the marriage but ultimately the marriage was not
held. Then her husband was planning to lodge a case against the
accused/appellants through an advocate. On receipt of the information
accused/appellant Kumar Ali went to the said advocate to settle the matter. She
came to know from her husband that the matter has been settled in presence of the
advocate and the villagers that an amount of Rs. 80,000/- would be paid to her
daughter by the accused/appellants. Her husband told her that an amount of Rs.40,
000/- was paid and the rest of the amount would be paid after one month. Later on
her husband also told her that Kumar had given him an additional amount of Rs.
20,000/- as the next instalment. After birth of the child of her daughter, police took her
daughter to the hospital. She was medically examined there and her statement was
recorded before the Magistrate. On being asked, her daughter told that when they
had not been at home the accused had sexual intercourse with her by force as a
result of which, she became pregnant and gave birth to a child.
22. In her cross examination PW1 replied that she had seen accused Sahidul
visiting their house. Sahidul Ali is her nephew. Her daughter did not have love affair
with Sahidul, she did not remember the date of birth of her daughter but this witness
subsequently replied that her daughter was 14 years old at the time of the incident.
23. The victim, P.W4, deposed in her evidence that the accused Sahidul Ali used
to reside near her house and he used to come to their house in the absence of her
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family members. He told that he loved her and by giving promise of marriage, he
used to have sexual intercourse with her as a result of which, she became pregnant.
When she informed the matter to accused/appellant Sahidul Ali he replied that he
would marry her and asked her not to disclose the fact to anyone. Though Sahidul Ali
promised to marry her but no marriage was held due to reluctance shown by him
and ultimately she gave birth to a child. Sahidul Ali got married to another girl.
24. Regarding age, according to the victim, she was younger than the appellant
Sahidul Ali. She had no formal education. She was born in Barpeta. Her birth
certificate was issued after her birth. It is seen from the record that when the victim
was examined in the Trial Court she stated her age as 18 years on 10.07.2018. The
statement of the victim was recorded u/s 164 Cr.pc wherein she stated her age as 17
years in the year 2015. If it is accepted that the victim was 18 years of age when her
evidence was recorded in the year 2018, it is quite obvious that in the year 2015 her
age cannot be 17 years. It is not expected that a rustic village girl could say the exact
date or year of her birth.
25. It appears that during investigation, one birth certificate of the victim was
seized. P.W6 Atab Ali, deposed in his evidence that in his presence, police seized one
birth certificate of the victim from her father Vide Exhibit-7. This witness was not cross
examined on the seizure of the birth certificate of the victim. It is true that the birth
certificate of the victim was not exhibited before the Trial Court as material Exhibit.
But a Xerox copy of the birth certificate is available on record which reveals that the
victim was born on 12.01.2001. The incident occurred in the year 2015. It transpires
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that the victim was 14 years of age when the incident took place. The mother of the
victim (P.W1) deposed that her victim daughter was 14 years of age when she was
impregnated by the accused Sahidul Ali. There was no cross examination on the
point of the age of the victim save and except the fact of denial by putting
suggestion. Under such backdrop, the birth certificate cannot be doubted
subsequently without there being any cogent reasons. Veracity of the birth certificate
is questioned by the accused/appellant but no attempt was made to disprove it by
insisting on production and examination of the certificate giving authority. Mere
obtaining birth certificate at later stage of time cannot be the ground to discredit the
same. Thus the finding recorded by the trial court that the age of the victim was
below 18 years when the offence was committed and the subsequent delivery of the
child does not warrant any interference.
26. Learned Counsel for the appellant Mr. Ahmed has put forth a submission that
the sexual contact of the accused with the victim by the appellant was done with
her consent. Thus, it does not make out a case of rape or sexual assault. These
contentions of the appellant deserves to be rejected outright as because the sexual
assault or sexual contact with a woman who is under 18 years is defined as rape u/s
375 IPC and there is no contemplation of consent under the provision of POCSO Act
in a case of sexual assault on a child below the age of 18 years. A child less than 18
years of age is not capable of giving consent, legally or physically. The notion of
consensual sexual intercourse in case of a minor, as pleaded by the appellant, is
impermissible under the law.
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27. True it is that the victim of the crime has not mentioned the date of the
incident but that is inconsequential. Such a discrepancy cannot touch the core of
the prosecution case which is in respect of the commission of penetrative sexual
assault. Ultimately, the court will have to keep in mind the age of the victim at the
relevant time and therefore, merely because date of the incident is not stated by the
victim, her evidence cannot be doubted.
28. The case in hand relates to charge of rape/penetrative sexual assault on a
minor female, who, according to the prosecution was just about 13 to 14 years, at the
time of the alleged incident. It hardly needs to be mentioned that rape is a ghastly
act which leaves the victim shattered for the life as it causes, not only physical but
emotional and psychological trauma to the victim. Sexual activities with minor girls
have a traumatic effect on them, which persists throughout their life leading to
several disorders and complications. It is well settled that the victim of a sexual assault
is not an accomplice, but she is a victim of lust of another person. Her evidence
stands at a higher pedestal than that of an injured witness. Evidence of victim of rape
case is required to receive same weight as is attached to evidence of an injured
witness. If totality of circumstances emerging on record discloses that the victim of
such crime does not have any motive to falsely implicate the accused, then, it is not
required to seek corroboration to her evidence and the Court would generally
accept her evidence as true. While dealing with cases of sexual assault on females of
tender ages, the Court is expected to shoulder great responsibility and is required to
deal with such cases sensibly. Broader probabilities of the prosecution case are
required to be examined in such crimes and the Court is not expected to get swayed
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by minor contradictions or insignificant discrepancies in the evidence of prosecution
which does not go to the core of the prosecution case.
29. Coming to the question of how the testimony of child witness has to be
considered and appreciated by the Court, in the case of Dattu Ramrao Shakhare Vs.
State of Maharastra reported in 1997 (5) SCC 341, it was observed that
" A child witness if found competent to depose to the facts and reliable one, such
evidence could be the basis of conviction. In other words even in the absence of
oath, the evidence of the child witness can be considered under Section 118 of the
evidence Act provided that such witness is able to understand the answers thereof.
The evidence of a child witness and credibility thereof would depend upon the
circumstances of each case. The only precaution which the Court should bear in
mind while assessing the evidence of a child witness is that the witness must be a
reliable one and his/her demeanour must be like any other competent witness and
there is no likelihood of being tutored."
30. In view of the aforesaid legal proposition, we can consider the testimony of the
victim i.e. P.W. 4 in the instant case as reliable. According to the victim, the
accused/appellant Sahidul is her neighbour. He used to visit her house. He told her
that he loved her and wanted to marry her and by giving such false promise, he used
to have sexual intercourse with her as a result of which, she became pregnant and
gave birth to a child. Medical report including FSL report (DNA report) proves the fact
that appellant is the father of the child of the victim. Under such backdrop, there is no
scope to disbelieve the statement of the victim. The evidence of the victim inspires
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confidence in this case. Nothing has been suggested by the defence as to why she
should not be believed or why she would falsely implicate the appellant.
31. The other witnesses like P.W-5 Parisa Begum, PW7 Abdul Samad, P.W-8 Anjara
Khatun and P.W-9 Jamal Ali, father of the victim also supported the fact of
pregnancy of the victim caused by the accused Sahidul Ali. According to PW5, she
came to know that the victim girl had been impregnated by the accused Sahidul Ali.
She went to the house of the accused when the victim was carrying 7 months of
pregnancy. She heard that later on a Bichar (an extra judicial Trial) was held in their
village in this connection. She came to know that the accused Sahidul Ali had given
money to the victim.
32. Regarding extra judicial trial P.W-6 also stated that he was present when the
extra judicial trial was held in their village in connection with the relation between the
victim and the accused/appellant Sahidul Ali. In the said extra judicial Trial, a decision
was taken that the accused would pay Rs.80,000/- to the victim as compensation
and Sahidul Ali gave an amount of Rs.40,000/- on the day itself. He took one months'
time for payment of rest of the amount.
33. P.W-7 Abdul Samad, the neighbour of the victim, deposed in his evidence that
one day about 3 years ago the parents of accused Sahidul Ali came to his house and
informed that the victim became pregnant from the side of the accused Sahidul Ali
and they sought for his advice. He advised them to solemnize marriage between
Sahidul Ali and the victim. As no marriage was held, elderly persons of their village
tried to resolve the dispute through Bichar. Later on, he heard that Rs.60,000/- was
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paid by Sahidul Ali to the victim.
34. P.W-8 also deposed in the same tune by stating that about 3-4 years back, the
victim went to the house of the appellant Sahidul and thereafter, she could learn that
the victim was pregnant. On being asked the victim disclosed that she was
impregnated from the side of Sahidul. Though Sahidul promised to marry the victim
but ultimately the marriage was not solemnized. Later on, the victim delivered a
baby. Thereafter the matter was compromised between both the family members
and she heard that approximately Rs.60,000/- was handed over to the father of the
victim by the accused/appellant Sahidul Ali.
35. The Medical Officer who examined the victim to ascertain her age and DNA
profile, as P.W-3, deposed in her evidence that on 26.03.2015 while she was working
as a Medical and Health officer at SMK Civil Hospital, Nalbari, she examined the
victim on police requisition in connection with Ghograpar Police Case No 45/2015.
According to the victim she was with a boy for two and half years and a baby girl
was born on 02.03.2015 at home. Now the boy has denied the paternity. The findings
of P.W-3 on examination of the victim is as follows-
"External genitalia was healthy, hymen was torn but healthy. Vagina admits two
fingers easily, uterus was bulky. Mild blood was present. She advised X-ray for age
determination where it was found that she was below 18 years of age. Ultra
Sonography was advised where it was found normal pelvic study. Blood examination
for DNA test for mother, baby and accused father was advised. After collecting the
blood EDTA vial it was sent to FSL. As per finding of the FSL, the blood of baby
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matches with accused Sahidul Ali and the mother i.e. victim girl vide exhibit-4. As per
Radiological report age of the victim is below 18 years vide exhibit-5.
36. P.W-11 Investigating Officer, deposed in his evidence that on 23.03.2015, he
was working at Ghograpar P.S. as 2nd Officer. On that day, on receipt of a written
ejahar from the victim, the O/C Ghograpar P.S. registered a case vide Ghograpar
P.S. Case No. 45/15 under Section 147/420/493/376/323/380 IPC and entrusted him to
investigate the case. During investigation, he recorded the statement of the
informant, who is the victim of the case at the police station. He visited the place of
occurrence, which is the house of the informant situated at village Arora and drew
sketch-map of place of occurrence. He also recorded the statement of other
witnesses and seized one dagger, one broken lock, two pairs of chappals vide
Exhibit-10 seizure list. He also seized birth certificate of the victim vide Exhibit-7. He sent
the victim girl for medical examination to SMK Civil Hospital, Nalbari and produced
the victim before the Court to record her statement under Section 164 Cr.P.C. During
investigation, the Investigating Officer also arrested accused Sahidul Ali Other
accused persons namely, Sukur Ali, Kumor Ali, Miss Majeda Begum, Sahjahan Ali, Jikir
Ali, Abdul Halim, and Abubakkar Siddiq appeared before him and they were allowed
to go on bail. On completion of investigation, he submitted charge-sheet.
37. P.W-12 is Dr. Monalisha Choudhury, Scientific officer, DFS, Guwahati. She
deposed in her evidence that on 24.04.2015 she received a parcel through the
Director, DFS, Assam, in connection with Ghograpar PS Case No- 45/2015 for DNA
examination. The parcel consisted of three exhibits in a thermo flask containing ice
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which was sealed with seal impression. After examination of the EDTA vial vide three
exhibits, it was opined by P.W-12 that the allele DNA profile of the baby matches with
the allele DNA profile of the victim mother and the father i.e. the accused/appellant
Sahidul Ali.
38. Regarding delay in lodging FIR in connection with the offence of sexual
assault, learned Trial Court has recorded finding on plausible explanation on the point
by citing the case law-State of Punjab Vs. Gurmit Singh AIR 1996 SC 1993, wherein it
was held that:-
" In sexual offences delay in the lodging of the FIR can be due to variety of reasons
particularly the reluctance of the prosecutrix or her family members to go to the
police and complain about the incident which concerns the reputation of the
prosecutrix and the honour of her family. It is only after giving it a cool thought that a
complaint of sexual offence is generally lodged. Even if there is some delay in lodging
FIR in respect of offence of rape, if it is properly explained and the explanation is
natural in the facts and circumstances of the case, such delay would not matter"
39. From the evidence of the aforesaid witnesses including victim as well as the
medical officer, it appears that the accused/appellant Sahidul Ali had committed
sexual assault with the victim who was a minor during that period as a result of which
she became pregnant and ultimately gave birth to a child.
40. Clause (j)(ii) of section 5 of the POCSO Act defines that whoever commits
penetrative sexual assault on a child, making the child pregnant as a consequences
of sexual assault, is punishable u/s 6 of the POCSO Act, which shall not be less than 10
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years of rigorous imprisonment but which may extend to imprisonment for life and
shall also be liable to fine. Clause (l) of section 5 prescribes that whoever commits
penetrative sexual assault on a child more than once or repeatedly he shall also be
liable for punishment. In the case in hand also, it has come on record that the
offence was not committed once but subsequently also. All the aforesaid offences
are punishable u/s 6 of the POCSO Act wherein the minimum sentence is 10 years of
rigorous imprisonment with fine. The Trial Court has rightly found the appellant Sahidul
Ali, guilty of various charges as above and convicted accordingly. Resultantly, the
conviction and sentence awarded by the Trial court u/s 6 of POCSO Act and u/s
376(2)(i) IPC are confirmed. But he is acquitted for the offence under Section
147/395/448 IPC. Hence, Criminal Appeal No. 21/2020 is dismissed to that extent.
41. Regarding conviction of the accused/appellants vide Criminal Appeal No.
19/2020 namely Kumar Ali, Sukur Ali, Abu Bakkar Ali, Abdul Halim, Shahjahan Ali, Jikir
Ali, and Majeda Khatun u/s 395/147/448/323/149 IPC are concerned, learned counsel
for the accused/appellant has argued that none of the witnesses specifically
implicated the appellants who entered into the house of the victim for taking away
the money. They only named all the accused persons. It is further submitted that
though it was alleged that eight miscreants entered into the house of the father of
the victim, it was only three of them who actively participated in the commission of
dacoity according to P.W-4. But the requirement of law for commission of such
offence u/s 395 IPC is that there must be five or more persons involved conjointly to
commit or attempt to commit robbery. In the present case the prosecution also failed
to prove that all the persons named by the prosecution witnesses had shared
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common object to commit dacoity in the house of the informant and also the fact
that all of them took part in the alleged dacoity. Therefore, the offence u/s 395 IPC is
not proved against the accused/appellants beyond reasonable doubt.
42. It is also the submission of learned counsel for the accused/appellants that the
prosecution has failed to prove the injuries to the person of P.W-1, P.W-4 and P.W-9. As
such, the accused/appellants be acquitted from the alleged offence.
43. On the other hand, learned Additional PP has submitted that it is an admitted
fact that prior to the incident of dacoity, the accused/appellants paid Rs.60,000/- to
the father of the informant in the matter of compromise regarding pregnancy of the
victim. Under such background as well as the evidence of the witnesses proved the
fact that the accused/appellants entered into the house of the informant and
snatched away the money what they had paid earlier to the informant on the issue
of compromise. As such, learned Trial Court has rightly convicted
accused/appellants which needs no interference by this Court.
44. It is not and cannot be disputed that prior to the alleged incident of dacoity, in
view of compromise between the victim and the accused Sahidul Ali, around Rs.60,
000/- was paid to the informant. Though it is alleged that on the date of incident of
dacoity in the house of the informant, the accused/appellants had taken away the
said money but the alleged money was not recovered from the possession of the
accused/appellants.
45. As regards taking away of money from the house of the informant, P.W-1
stated that she came to know from her husband that on settlement between the
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parties on pregnancy of their daughter Rs. 60,000/- was paid and her husband
kept the said amount in their house. Her husband had returned from shillong on the
day before the last instalment was supposed to be paid. While they were sleeping at
night, someone called them from outside. When she opened the door, accused
Kumar Ali, Sukur, Sahidul, Jikir, Siddique, Shahjahan, Halim and Halim's wife Majeda
entered into their house and assaulted her, her husband and her daughter.
Thereafter they broke open a box and took away an amount of Rs. 60,000/- which
had been given to her husband earlier and also took an additional amount of Rs.
6,000/- from their house.
46. According to P.W-4, the victim, on the settlement of issues on her pregnancy,
Rs.60,000/- was paid to her by the father of the accused Sahidul Ali. Before payment
of last instalment her father came home. On that day, at about 11 P.M. accused
Halim's wife called his father from outside of their house. When her father opened the
door, accused Jikir, Siddique, Halim, Sukur, Sahidul, Kumar and Halim's wife entered
their home. Kumar hit her mother on her head and her mother fell down. Someone
amongst the accused person slapped on her right cheek near the ear and hit on her
head with a stick. Her father screamed and he grabbed Halim, Sukur dealt blow to
her father. Halim's wife tried to kill her 18 days old child. When they cried for help, the
neighbouring people came to the spot. The accused persons took away the amount
of Rs. 66,000/- from the box where the said money was kept by her father.
47. P.W-9, the father of the victim deposed in his evidence that the accused
persons gave him an amount of Rs. 60,000/- in view of the agreement reached
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between the parties on pregnancy of her daughter. Accused persons took one
month time for payment of the remaining amount. One month later he returned from
shillong to take the remaining amount of Rs. 20,000/-. On that day, at about 11 P.M.
the accused persons namely Sahidul, Sukur, Shahjahan, Halim, Jikir, Majeda Begum,
Kumar and Siddique entered into his house and snatched away an amount of Rs.
66,000/-.
48. It is interesting to note that though P.W-4, the victim alleged that on the date
of incident while the aforesaid accused/appellants entered into their house to take
the money which was paid by them as a matter of compromise and also assaulted
her and her parents but P.W-1 i.e. mother of the victim and P.W-9 i.e. father of the
victim did not utter a single word regarding assault hurled by the accused/appellants
towards P.W-1, P.W-4 and P.W-9 at the time of commission of dacoity. It is an
admitted fact that the stolen money was not recovered from the possession of the
accused/appellants. Though P.W-4 stated that having heard their cries some
neighboring people came to their house but P.W-5, stated that after payment of
money by Sahidul Ali to the victim, one day she heard the shout of father of the
victim and she went there and saw that Halim's wife Majeda was trying to snatch
away the child from the victim. Then she took the child to her house. But P.W-5,
nowhere stated that she had seen other accused persons in the house of the
informant. P.W-5 also did not say that she came to know about taking away of the
money by the accused persons from the informant. P.W-6, had simply stated that the
following morning, he came to know from the father of the victim that a dacoity had
been committed in his house on the previous night. P.W-7 and 8 also did not say that
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they came to the house of the informant on the night of dacoity after hearing the
shout of the victim. Apparently it is not proved that some villagers came to the house
of the victim on the night of the dacoity.
49. Section 395 IPC provides punishment for dacoity.
Section 391 IPC defines dacoity which reads as follows - when five or more
persons conjointly commit or attempt to commit a robbery, or where the whole
number of persons conjointly committing or attempting to commit a robbery, and
persons present and aiding such commission or attempt, amount to five or more
every person so committing, attempting or aiding, is said to commit "dacoity".
50. Section 392 IPC prescribes punishment for robbery.
Section 390 IPC deals with the offence of robbery which says that in all robbery there
is either theft or extortion.
When theft is robbery- Theft is "robbery" if, in order to the committing of the
theft, or in committing the theft, or in carrying away or attempting to carry away
property obtained by the theft, the offender, for that end, voluntarily causes or
attempts to cause to any person death or hurt or wrongful restraint, or fear of instant
death or of instant hurt, or of instant wrongful restraint.
When extortion is robbery. -Extortion is "robbery" if the offender, at the time of
committing the extortion, is in the presence of the person pur in fear, and commits the
extortion by putting that person in fear of instant death, of instant hurt, or of instant
wrongful restraint to that person or to some other person, and, by so putting in fear,
induces the person so put in fear then and there to deliver up the thing extorted.
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51. On a conjoint reading of these provisions, it is clear that to constitute an
offence of dacoity, robbery essentially should be committed by five or more persons.
Similarly, to constitute an offence of robbery, there must be either theft or extortion.
The chief distinguishing element in robbery is the presence of imminent fear of
violence. The second para distinguishes robbery from theft, the third distinguishes it
from extortion. When robbery is sought to be established through theft, then before
one may be convicted of robbery, theft must be proved and established. Where
theft is not established, the accused is entitled to an acquittal.
52. To prove the offence of robbery, what is required to be proved by the
prosecution is that the nexus between robbed article and the accused. It is pertinent
to note that in theft/robbery cases, in order to prove the guilt of the accused, the
recovery of stolen/robbed articles plays an important role. The prosecution is required
to prove that the accused made a confessional statement and part of the statement
led to discovery of fact that the stolen/robbed article was seized.
53. Now coming to the case in hand, though P.W-1, P.W-4 and P.W-9 stated in
their deposition that the accused/appellants entered into their house at night and
took away Rs. 66,000/-, after breaking lock and the key of a box from their house, but
there was no allegation against them that they put the informant and his family
members in imminent fear of violence. P.W-4 and P.W-9 also did not make any
allegation that due to assault hurled by the accused/appellants they sustained injury
on their person.
54. It is curious to note that the police did not make any effort in this case to
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recover the stolen money. It is also not known what efforts were made by the police
to recover it.
55. In the absence of any evidence to prove the alleged theft or robbery, the
accused/appellants are entitled to acquittal. Hence, the conviction under Section
147/448/323/395/149 IPC is set aside. All the accused/appellants pertaining to
Criminal Appeal No. 19/2020 are acquitted and set at liberty forthwith.
56. Criminal Appeal No. 19/2020 stands allowed.
57. Send down the LCR.
JUDGE JUDGE
Comparing Assistant
