Page No.# 1/5 vs The State Of Assam
2022 Latest Caselaw 3070 Gua

                                                         Page No.# 1/5

GAHC010072872022




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


          Case No: I.A.(Crl.)/171/2022

         SUKUR ALI AND ANR
         S/O MD. KASEM ALI

         RESIDENT OF VILLAGE ANTHAIBARI
         PS GOSSAIGAON
         DIST KOKRAJHAR
         BTAD
         ASSAM

         2: NAJIR HUSSAIN
         S/O MD. ABU SK.
         RESIDENT OF VILLAGE ANTHAIBARI
          PS GOSSAIGAON
          DIST KOKRAJHAR
          BTAD
         ASSAM
         VERSUS

         THE STATE OF ASSAM
         REPRESENTED BY PP ASSAM


         ------------

Advocate for : MR H R A CHOUDHURY Advocate for : PP ASSAM appearing for THE STATE OF ASSAM Page No.# 2/5

BEFORE HON'BLE MR. JUSTICE N. KOTISWAR SINGH HON'BLE MRS. JUSTICE SUSMITA PHUKAN KHAUND order

18-08-2022

(N.K. Singh, J)

Heard Mr. A. Ahmed, learned counsel for the applicants. Also heard Ms. S. Jahan,

learned Additional Public Prosecutor, Assam.

2. The present application has been filed for enlarging the applicants on bail during the

pendency of Criminal Appeal No. 60/2022. The learned Special Judge (POCSO), Kokrajhar by

its judgment and order dated 22.12.2021 passed in Special Case No.08/2018 on 22.12.2021

has convicted the applicants under Section 6 of the Protection of Children from the Sexual

Offences (POCSO) Act, 2012 read with Section 376 (D) of IPC and sentenced each of them to

undergo rigorous imprisonment for 20 years and also to pay fine of Rs.50,000/- each in

default to undergo further imprisonment for 2 years.

3. Learned counsel for the applicants submits that the prosecution case is full of

contradictions and ambiguities and as such, the conviction is, prima facie, not sustainable

entitling the applicants to be enlarged on bail during the pendency of the appeal. Learned

counsel for the applicants submits that the very foundational fact of the applicants

committing rape on the victim girl has not been established. It has been submitted that the

medical evidences are contrary to the prosecution case, inasmuch as, the Doctor who

examined the victim girl had categorically stated that no injuries were found on the body and

private parts of the victim girl and also in the cross-examination, the Doctor has stated that

the victim girl was not subjected to sexual intercourse within 72 hours of her medical Page No.# 3/5

examination. The incident apparently occurred on 21.07.2017 and the victim girl was

examined on the next day on 22.07.2017. Accordingly, it has been submitted that the

aforesaid medical report has clearly shown that no rape was committed upon the victim girl.

Further, it has been submitted that the identity of the perpetrators of the crime has not been

properly disclosed either in the FIR or in the statement made by the victim girl under Section

164 of Cr.P.C.

4. Learned counsel for the applicants has taken great pains by referring to various

depositions to show that the identity of the persons who had allegedly sexually assaulted the

victim has not been really established. It has been also submitted that the victim girl herself

did not know the identity of the perpetrators and as such, it can be a miscarriage of justice if

this Court does not intervene in the present case.

5. We have given our anxious considerations on such important issues raised in this bail

application. However, we are dealing with the conviction under the POCSO Act which is a

special Act which provides for stringent provisions relating to prosecution and as also

submitted by the learned counsel for the applicants, the prosecution has to prove the charge

not on the basis of proof beyond reasonable doubt but on the basis of the preponderance of

probabilities. It may be also noted at the same time Section 29 of the POCSO Act also makes

it obligatory on the part of the accused to prove such presumption raised against them to the

contrary. Thus, a heavy burden is placed on the accused after the prosecution has been able

to draw presumption based on the preponderance of probability.

6. We have also given our anxious consideration on the Forensic Report, which has also

been highlighted by the learned Additional Public Prosecutor, which shows that not only there

is a trace of human semen in the dress worn by the victim girl but also on the clothing Page No.# 4/5

recovered from the accused. Though the Forensic Report reflects that there is no matching of

DNA, it has also been pointed out by the learned Additional Public Prosecutor that the said

matching could not be done perhaps because of the low quality of the specimen which was

sent for examination but there is a specific finding to the fact that the semen was found on

the clothings which were recovered from the accused as well as from the minor victim girl. It

has been submitted that it was not a case that after Forensic tests, the DNAs did not match,

rather, it was a case where the matching test was not done, thus, there was no matching of

DNA.

7. Under such circumstances, though there may be certain inconsistencies which are

sought to be established by the learned counsel for the applicants, we are of the view that it

is not a case of total absence of evidence, and whether such evidence was sufficient to draw

the presumption against the applicants on the basis of preponderance of probability is a

question which is required to be examined further. We have also noted that the victim girl has

specifically identified the accused persons in the Court in course of the trial. Though

suggestions were made in the cross-examination that the accused were not really the

perpetrators, yet, we have noted that the defence has not led any specific evidence to dispel

the presumption sought to be raised against them.

8. We have also gone through the statements of the applicants recorded under Section

313 of the Cr.P.C. We have also noted that they have taken the plea of total denial. But, no

evidence was led by them in support of any plea.

9. Be that as it may, we are of the view that the issues raised by the applicants deserve a

thorough examination as POCSO Act is a statute with stringent provisions. However,

considering the overall evidence on record and after hearing the learned counsel for the Page No.# 5/5

parties, we are not inclined to allow this Interlocutory Application at this stage.

10. Accordingly, I.A. stands closed.

                                            JUDGE                                     JUDGE


Comparing Assistant