Ujjal Jyoti Borah @ Babu vs The State Of Assam
2022 Latest Caselaw 4015 Gua

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GAHC010128952021




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

                                Case No. : Crl.A./210/2021

            UJJAL JYOTI BORAH @ BABU
            S/O SRI MOTIRAM BORAH, R/O PARAKHOWA ERDANG ENGTIGAON, P.S.-
            DOKMOKA, DIST- KARBI ANGLONG, PIN-782481



            VERSUS

            THE STATE OF ASSAM
            (NOTICE THROUGH THE PUBLIC PROSECUTOR, ASSAM)



Advocate for the Petitioner   : MR. R GOSWAMI

Advocate for the Respondent : PP, ASSAM

BEFORE HONOURABLE MR. JUSTICE AJIT BORTHAKUR

JUDGMENT & ORDER Date : 19-10-2022

Heard Mr. R. Goswami, learned counsel for the petitioner. Also heard Mr. P. S. Lahkar, learned Additional Public Prosecutor, Assam.

2. This appeal under Section 378 Cr.P.C. is preferred against the judgment and order, dated 03.05.2021, passed by the learned Special Judge (POCSO Act), Page No.# 2/7

Karbi Anglong at Diphu in POCSO Case No. 14/2019 arising out of G.R. Case No. 310/2019 convicting the appellant under Section 4 of the Protection of Children from Sexual Offences Act, 2012 ('POCSO Act' for short) and sentencing him to undergo rigorous imprisonment for 7 years and to pay fine of Rs.10,000/-, in default, to suffer simple imprisonment for 90 days as well as simple imprisonment for 3 months under Section 323 of the IPC.

3. The appellant's case precisely is that on 10.04.2019, an F.I.R. was lodged before the officer-in-charge of Dokmoka PS alleging that on 16.12.2017 at about 8 p.m., the appellant took away the informant's minor daughter, put vermillion on her forehead without performing any social ritual and kept her in their house as his wife. Thereafter, the appellant started torturing her, physically and mentally and finally, on 11.03.2019 at about 6.30 p.m., the appellant deserted the minor victim at her parental home without informing her parents.

4. Based on the above F.I.R., Dokmoka PS Case No. 25/2019, dated 10.04.2019 under Section 366 A of the IPC was registered and after completion of investigation laid a charge-sheet under Sections 363/366 of the IPC read with Section 4 of the POCSO Act against the appellant. Thereafter, the learned Special Judge (POCSO Act), Karbi Anglong at Diphu, on perusal of the case diary and hearing of both sides, having found prima facie material framed charges under Sections 363/323 of the IPC and Section 4 of the POCSO Act against the appellant on 29.06.2019 and after examining 8 prosecution witnesses as well as recording statement under Section 313 Cr.P.C., convicted and sentenced the appellant as stated above.

5. Mr. R.Goswami, learned counsel appearing for the appellant, submitted, interalia, that the learned trial court relied on the evidence of the prosecution Page No.# 3/7

witnesses who are either close relatives or neighbors and there was no evidence of any eye witness to appellant's alleged assault on the victim woman. Mr. Goswami further submitted that the F.I.R. in the case had come to be lodged after several years of commission of the alleged offences without any sufficient explanation for such inordinate delay. It has also been submitted that the victim, so called wife of the appellant, may have had heated argument over trifle domestic differences and then out of anger, left his companion voluntarily and filed the case. Summarizing the argument, Mr. R. Goswami, learned counsel for the appellant, submitted that the appellant has been made victim of a false and cooked up story.

6. Per contra, Mr. P.S. Lahkar, learned Additional Public Prosecutor appearing for the state respondent, submitted that the evidence on record is quite convincing unerringly pointing to the guilt of the appellant and as such, no interference is warranted in the impugned well reasoned judgment and order.

7. I have given due consideration to the arguments advanced by the learned counsel of both sides and perused record including the impugned judgment and order.

8. A perusal of the impugned judgment and order, it is noticed that the learned trial court on appreciation of the evidence led by the prosecution having found that the age of the victim was below 18 years at the time of the alleged occurrence and having found sufficient incriminating evidence beyond reasonable doubt found the appellant guilty of the charges under Section 323 of the IPC and Section 4 of the POCSO Act. However, the appellant was acquitted of the charge under Section 363 of the IPC giving the benefit of doubt.

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9. The F.I.R., dated 10.04.2019, filed by the victim's mother (PW-2) vide Ext.1 basically revealed the allegations that pursuant to love relationship for several years, the appellant kidnapped her young aged daughter to his house on 16.12.2017 at about 8 p.m. and then put vermillion on her forehead. No social marriage was solemnized. Thereafter, they started living together, but on 11.03.2019 at about 6.30 p.m., the appellant left their house and since then, she has been living with her parents. The incident was not reported to the police thinking about welfare of the victim and with an expectation of restoration of their marital life. However, all their efforts failed due to negative attitude of the family members of the appellant.

10. In the above backdrop of facts, the first question that arises is the age of the informant's victim daughter on the alleged date of the incident. It appears from the evidence of PW-2, the mother of the victim, that at the time of occurrence, the victim's age was about 16 years and in this connection, she handed over her daughter's birth certificate to the police and the police seized the same by Ext.2, the seizure memo. Perusal of the evidence of PW-8, the investigating officer shows that after seizure of the victim's birth certificate, it was given back in zimma. The aforesaid birth certificate remained not exhibited during trial of the case. PW-3, the victim, in her cross-examination stated her date of birth as 09.10.2002 and in her statement under Section 164 Cr.P.C., dated 11.04.2019 vide Ext-3 stated her age to be 17 years on that day. An unexhibited inadmissible photocopy of the Certificate of Birth of the victim showing her date of birth as 09.10.2002 is available on record. PW-1, brother- in-law of PW-2, the mother of the victim, estimated her approximate age as 15- 16 years and PW-7, an independent witness also estimated her age to be approximately 16 years at the relevant time of the occurrence PW-8, the doctor, Page No.# 5/7

who examined the victim on 11.04.2019, stated that as per radiologist's report, her age was below 18 years, between 16/17 years vide Ext-4 the medical examination report. Having considered thus, the Court is of the opinion that on 16.12.2017, the victim woman was aged 15 years 2 months being her date of birth is 09.10.2002 and as such a 'child' as defined in Section 2(1)(d) of the POCSO Act beyond all reasonable doubt.

11. Now, the second relevant point to be considered is whether the appellant committed penetrative sexual assault on the victim woman, who was a child. Section 3 of the POCSO Act defines what is 'penetrative sexual assault'. A perusal of the evidence of PW-3, the victim woman, reveals that on 16.12.2017, she eloped with the appellant and since then both lived together for about 1½ years at the appellant's house. During the aforesaid period of together stay and after the appellant put vermillion on her forehead, the appellant committed sexual intercourse which made her pregnant twice, but on both the occasions the appellant compelled her to terminate her pregnancy by showing threat and physical torture. She (PW-3) stated the aforesaid fact in her statement under Section 164 Cr.P.C. vide Ext-3. There is, of course, no medical report/evidence in support of the victim's claim of her pregnancy and its forcible termination by the appellant. PW-6, the doctor, stated that the victim 'refused for physical examination'. There was not even circumstantial convincing and reliable ocular testimony in this regard. On perusal of the evidence of PWs. 1, 2 (informant/mother of the victim), 3 (the victim), 4, 5 and 7, it is revealed that the appellant and the victim minor woman, lived together representing to be husband and wife for about 1 ½ years continuously beyond doubt. The defence has not denied their stay together for the aforesaid long period. Therefore, the victim minor woman's statement to the effect that the appellant committed Page No.# 6/7

sexual intercourse on her during their period of stay together is quite convincing and as such, can be relied on without any shadow of doubt. The judicial precedents are well settled that solitary evidence of the victim of sexual assault, if inspires the confidence of the court is enough to hold the accused guilty of the offence. Therefore, the evidence of PW-3, the victim minor woman, so far it relates to the appellant's commission of penetrative sexual assault on her appears to be absolutely trustworthy.

12. For the aforestated reasons, this court finds no fault with the finding of the learned trial court that the appellant is guilty of the charge under Section 4 of the POCSO Act does not require interference and accordingly affirmed.

13. The third relevant question is whether the appellant voluntarily caused hurt on the person of the victim woman during the period of her stay with the appellant. It may be pointed out that in order to convict a person for voluntarily causing 'hurt' as defined in Section 319 of the IPC, there will either be bodily pain, disease or infirmity. In the instant case, PW-3, the victim woman, in her evidence and statement under Section 164 Cr.P.C. alleged of physical torture on her by the appellant during her period of stay with him in his house. However, there was no eye witness to such physical torture on her. Even PW-6, the doctor, stated that she refused for physical examination. Perusal of the evidence of PWs 4, 5 and 7 reveals that there was domestic quarrel between the victim woman and the family members of the appellant without any allegation of physical assault on her, for which reason the appellant took her on motorcycle and left her dropping at her parental home. Therefore, in the absence of any credible and convincing evidence beyond reasonable doubt, this Court is of the considered opinion that the appellant cannot be held guilty of the offence under Page No.# 7/7

Section 323 of the IPC and accordingly acquitted.

14. For the above stated reasons, the appeal stands partly allowed. The conviction and sentence of the appellant under Section 4 of the POCSO Act stands affirmed and the conviction and sentence under Section 323 of the IPC is hereby set aside.

Accordingly, the appeal stands disposed off.

Return the LCR.

JUDGE

Comparing Assistant