Md. Abdul Noor vs The State Of Assam And Anr
2023 Latest Caselaw 721 Gua

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GAHC010031242020




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

                                  Case No. : Crl.A./91/2020

             MD. ABDUL NOOR
             S/O- LATE IDRIS ALI, VILL.- HILCHAR, P.O. SRIGOURI, P.S. BADARPUR,
             DIST.- KARIMGANJ, ASSAM, PIN- 788806.
             VERSUS
             THE STATE OF ASSAM AND ANR
             TO BE REP. BY THE PUBLIC PROSECUTOR, ASSAM.
             2:MD. ABDUL HAKIM
              S/O- LATE WAID ALI
             VILL.- HILCHAR
              P.O. SRIGOURI
              P.S. BADARPUR
              DIST.- KARIMGANJ
             ASSAM
              PIN- 788806

Advocate for the Petitioner   : MR H R A CHOUDHURY

Advocate for the Respondent : PP, ASSAM




                                   BEFORE
                 HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
                    HONOURABLE MRS. JUSTICE MALASRI NANDI

                                          ORDER

23-02-2023 (M. Zothankhuma, J)

Heard Mr. A. Ahmed, learned counsel for the appellant. Also herad Ms. B. Bhuyan, learned Additional Public Prosecutor for the State and Mr. U. Choudhury, learned Legal Aid Counsel for the informant.

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The appellant has challenged the impugned judgment and order dated 16.12.2019 passed by the learned Sessions Judge, Karimganj in Sessions Case No. 18/2015, by which the appellant has been convicted under Section 376(2)(i) IPC and Section 6 read with Section 5(j)(ii) of POCSO Act, 2012. The appellant was thereafter sentenced to undergo rigorous imprisonment for the remainder of his life with a fine of Rs. 1,00,000/- in default, rigorous imprisonment for 1 (one) year under Section 376(2)(i) IPC.

The appellant's counsel submits that the appellant could not have been convicted and sentenced under Section 376(2)(i) IPC, in view of the fact that the said provision of law came into force only w.e.f. 21.04.2018, while the offence was alleged to have been committed in the early part of the year 2013.

The learned counsel for the appellant submits that in the charge-sheet filed by the Police, the age of the victim girl was not mentioned. At the time of framing of charge on 05.05.2015 the appellant had been charged under Section 417 IPC and under Section 376 IPC. However, the impugned judgment and order shows that not only the has appellant been convicted under Section 376(2)(i) IPC, but also under Section 6 and 5(j)(ii) of POCSO Act, 2012. He submits that the appellant could not have been convicted under the POCSO Act, as no charge was framed under the POCSO Act.

The appellant's counsel further submits that prior to the amendment of the IPC and insertion of Section 376(2)(i) IPC, the condition precedent for convicting a person for rape of a minor under Section 376 IPC was that the victim girl should have been less than 16 years, as provided in Section 375 (sixthly) IPC. He submits that the evidence of the father of the victim girl, PW-1, was recorded on 28.05.2015 by the learned Trial Court. PW-1 in his cross- examination had stated that there was no Birth Certificate of his daughter, i.e. Page No.# 3/3

the victim girl. However, the prosecution produced a Birth Certificate of the victim girl which was issued on 10.11.2016, showing that the victim girl had been born on 11.11.1999. He also submits that though a School Certificate dated 07.07.2015 had been issued showing the victim girl's date of birth as 11.11.1999, the same had been issued only after the deposition of PW-1 had been taken. He submits that in terms of the Division Bench judgment of this Court in Manirul Islam vs. The State of Assam & Others , Criminal Appeal No.64/2020, the Birth Certificate and School Certificate of the victim girl cannot be admissible in evidence, in view of the delay in issuing the same and the contents not being proved, but also due to the fact that the Doctor, who had examined the victim had stated that the age of the victim girl was between 16 to 17 years.

Ms. B. Bhuyan, learned Additional Public Prosecutor, on the other hand submits that additional charges were framed against the appellant on 07.01.2017 and 13.12.2019 under the POCSO Act, 2012 and the same has been recorded in the orders of the Trial Court dated 07.01.2017 and on 13.12.2019.

The said orders dated 07.01.2017 and 13.12.2019 passed by the Trial Court, besides the documents dated 07.01.2017 and 13.12.2019, framing the charge under the POCSO Act, are not a part of the Paper Book.

Registry is accordingly directed to make a supplementary Paper Book, with respect to the above four documents and give copies of the same to the parties.

List the matter after 2 (two) weeks.

                                        JUDGE                JUDGE

Comparing Assistant