Debesh Biswas vs The State Of Assam And Anr
2023 Latest Caselaw 2767 Gua

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GAHC010177522022




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

                                 Case No. : Crl.A./215/2022

            DEBESH BISWAS
            S/O SRI KAMAL BISWAS,
            R/O WARD NO. 12, BIDHANPALLI,
            P.S. AND DIST.- DHUBRI, ASSAM, PIN- 783323.

            VERSUS

            THE STATE OF ASSAM AND ANR.
            REP. BY THE P.P., ASSAM.

            2:BABY BARMAN
            W/O SRI JAYANTA BARMAN

            R/O WARD NO. 12
            BIDHANPALLI

            P.S. AND DIST.- DHUBRI
            ASSAM- 783323

Advocate for the Petitioner   : MR. B M CHOUDHURY

Advocate for the Respondent : PP, ASSAM




                                  BEFORE
                HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
                   HONOURABLE MRS. JUSTICE MARLI VANKUNG

                                          ORDER

Date : 01.08.2023 (M. Zonthankhuma, J)

Heard Mr. B.M. Choudhury, learned counsel for the appellant. Also heard Page No.# 2/5

Ms. B. Bhuyan, learned Additional Public Prosecutor and Mr. K. Bhattacharjee, learned counsel for the respondent no. 2.

2. This appeal has been preferred against the impugned Judgment dated 07.07.2022 passed by the Additional Sessions Judge-cum-Special Judge, POCSO, Dhubri in Special Case no. 27/2020, by which the appellant had been convicted under Section 376 [AB] IPC read with Section 6 of the POCSO Act, 2012. The appellant was thereafter sentenced under Section 6 of the POCSO Act, 2012 to undergo rigorous imprisonment for life and a fine of Rs. 1,00,000/-, in default, rigorous imprisonment for 1 [one] year vide sentence order dated 11.07.2022.

3. The prosecution case in brief is that the Prosecution Witness No. 1 [P.W.1], who is the mother of the victim girl [P.W.3], had submitted a FIR dated 19.01.2020 before the Officer In-Charge, Dhubri Sadar Police Station, stating that while the victim girl went to the terrace of the house of the appellant to collect clothes, the appellant called the victim girl to his room and after closing the door, made her naked. He thereafter abused her sexually and when the victim girl started shouting, the appellant gagged her and threatened her that he would kill her. The said incident was stated by the victim girl to her father's sister-in-law [P.W.4]. When P.W.2 arrived home at 07-45 P.M., she came to know about the incident. When she raised the matter with the wife and father of the appellant, they both stated that it was a false accusation and made threats to her. Though the matter was supposed to be settled through discussion, but the appellant, wife of the appellant and father of the appellant did not abide by the decision of 'Bichar' i.e. an extra judicial settlement.

4. In pursuance to the FIR, Dhubri Police Station Case no. 110/2020 under Section 376(AB)/506 IPC read with Section 6 of POCSO Act, 2012 was registered. After investigation of the case, the Investigating Officer submitted a Page No.# 3/5

charge sheet, on finding a prima facie case under Section 376(AB) IPC and under Section 6 of POCSO Act against the appellant. Thereafter charges under Section 376(AB) IPC and under Section 6 of POCSO Act was framed by the trial Court against the appellant, to which he pleaded not guilty and claimed to be tried.

5. The trial Court thereafter examined 8 [eight] prosecution witnesses and 4 [four] defence witnesses. After examination of the appellant under Section 313 Cr.P.C., the learned trial Court came to a finding that the appellant was guilty of having committed the offence under Section 376(AB) IPC and Section 6 of the POCSO Act. Consequently, the appellant was convicted on the basis of the charges framed against him and was sentenced under Section 6 of the POCSO Act.

6. The learned counsel for the appellant submits that the impugned Judgment has to be set aside, as the case has been fabricated due to the family of the victim girl trying to extend their roof, so that it joined the roof of the house of the appellant. He submits that in view of the appellant's family not allowing the illegal design of the family of the victim girl in extending their roof, the appellant's family was threatened by P.W.2. With regard to the merits of the case, he submits that though the incident had allegedly occurred at 04-00 P.M. on 16.01.2020 and the same had been known to the family of the victim girl on 16.01.2020 itself, the FIR had been filed by P.W.2 only on 19.01.2020 at 11-30 A.M. He further submits the victim girl's family had not informed their relatives who were living in the nearby vicinity about the incident as was expected of a normal family to inform all the nearby relatives about an illegal act, if it had actually happened. He further submits that the medical evidence, that is the evidence of the Doctor (P.W.1) does not support the prosecution case that the Page No.# 4/5

appellant sexually assaulted the victim girl. He also submits that the evidence of D.W.1, D.W.2, D.W.3 and D.W.4 is to the effect that on 16.01.2020 while they were celebrating Magh Bihu festival, Motu and Chiku, who were the nephews of P.W.2, had come to their house at 03-00 P.M. and left at 07-30 P.M. As such, the evidence of Motu and Chiku would have proved that the victim girl had not gone into their house at 04-00 P.M. on 16.01.2020. He further submits that even in the absence of evidence of Motu and Chiku, the materials on record had not proved that the appellant had committed the crime against the victim girl, as alleged by the victim girl, who had probably been tutored.

7. Ms. B. Bhuyan, learned Additional Public Prosecutor, on the other hand, submits that the evidence of the victim girl vis-à-vis her statements made under Sections 161 Cr.P.C. and 164 Cr.P.C. are the same and as such, there is nothing to doubt the veracity of the testimony of the 10 year old victim girl. She accordingly submits that no interference with the impugned Judgment is called for. The same submission has been made by the learned counsel for the respondent no. 2.

8. Considering the submissions made by the learned counsel for the parties, we are of the view that Motu and Chiku who have been reflected as nephews of P.W.2 in the cross-examination of P.W.2, are material witnesses. The evidence of the defence witnesses shows that the house of the appellant's house consists of two rooms, with no door in between the rooms. The appellant and his wife reside in one room, while the appellant's father and mother reside in another room. We are of the view that the evidence of Motu and Chiku would be vital to decide the issue whether the victim girl had been in the room of the appellant at around 04-00 P.M. on 16.01.2020. Thus, it would be in the interest of justice that Motu and Chiku are examined before a final decision is taken in this appeal.

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Accordingly in terms of Section 391(2) Cr.P.C., additional evidence of Motu and Chiku should be taken by the concerned trial Court, which shall thereafter be certified as such. The additional evidence and the LCR shall thereafter be transmitted to this Court for final disposal of the appeal.

9. The learned trial Court shall take the additional evidence within a period of 3 (three) months from the date of receipt of the records. Accordingly, Registry to send back the lower court records to the learned trial Court for recording additional evidence.

10. The appellant, State and victim/guardian shall have the right to be present and cross-examine the witnesses when additional evidence is taken.

11. List the matter on or before 20.11.2023.

JUDGE

Comparing Assistant