Gauhati High Court
Saimuddin Sk vs The State Of Assam And Anr on 28 February, 2023
Page No.# 1/7
GAHC010254612022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Linked Case : I.A.(Crl.)/812/2022
SAIMUDDIN SK
S/O LATE NOSATULLAH SK
VILL.- SATAGURI
PT- II
P.S.- BAGRIBARI
DIST.- KOKRAJHAR
ASSAM
PIN- 783348.
VERSUS
THE STATE OF ASSAM AND ANR.
REP. BY THE P.P.
ASSAM.
2:DEBEN BARMAN
S/O LATE TUFAN BARMAN
VILL.- SATAGURI
PT- II
P.O.- MAKRIJHARA
P.S.- BAGRIBARI
DIST.- KOKRAJHAR
ASSAM
PIN- 783349.
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Advocate for : MR. M U MAHMUD
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Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM AND ANR.
BEFORE
HON'BLE MR. JUSTICE MICHAEL ZOTHANKHUMA
HON'BLE MRS. JUSTICE MALASRI NANDI
Date of hearing & Judgment : 28.02.2023
JUDGMENT AND ORDER (ORAL)
(M. Zothankhuma, J)
Heard Mr. M U Mahmud, learned counsel for the applicant. Also heard Ms. S.
Jahan, Addl. Public Prosecutor.
2. This is an application for suspending the sentence to be undergone by the
applicant in pursuant to the Judgment & Order dated 23.11.2022 passed by the
Special Judge (POCSO), Kokrajhar in Special POCSO case No. 32/2020, by which the
applicant has been convicted under Section 6 of the POCSO Act and sentenced to
undergo rigorous imprisonment for 20 years with a fine of Rs. 20,000/-, in default
rigorous imprisonment for 1 year. The applicant is also praying for bail.
3. The case of the prosecution is that on 14.09.2020, the informant had lodged an
FIR alleging that on 12.09.2020 at about 7:00 PM, the applicant had committed rape
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upon the informant's minor daughter inside his grocery shop. Hearing a hue and cry
raised by the victim, the local villagers caught the applicant red handed inside his
shop.
4. After charge-sheet had been filed, charge framed and prosecution witnesses
were examined, the learned Trial Court examined the applicant under Section 313
Cr.P.C. Thereafter, it convicted the appellant under Section 6 of the POCSO Act, with
the sentence reflected in the foregoing paragraphs.
5. The applicant's counsel submits that a reading of the evidence of the
prosecution witnesses does not prove that the applicant had raped the victim girl,
especially when PW-4 has stated in his cross-examination that when he went to the
shop of the applicant, the victim girl was sitting comfortably.
6. The applicant's counsel submits that the doctor's evidence is to the effect that
the hymen was present and that there were no injury marks found on the body and
private parts of the victim. Further, as per the Medical Examination report, it was
difficult to admit one little finger in the vaginal canal of the victim. He submits that the
doctor's evidence does not indicate that rape was committed by the applicant.
7. The learned counsel for the applicant also submits that while the incident
apparently took place on 12.09.2020, the FIR was lodged only on 14.09.2020, i.e,
after a delay of 2 (two) days, without any explanation being given for the delay in
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filing the FIR.
8. The learned counsel for the applicant submits that as there is no evidence by
the prosecution witnesses, except the victim girl, which is to the effect that the victim
girl had been raped, the sentence passed should be suspended and the applicant be
allowed to go on bail. He also submits that suspension of suspense should be
considered liberally. In this regard, he has relied upon the judgment of the Apex Court
in the case of Bhagwan Rama Shinde Gosai Gosai & Ors. vs. State of Gujarat,
reported in (1999) 4 SCC 421.
9. Ms. S Jahan, the learned Addl. Public Prosecutor, on the other hand, submits
that the age of the victim has been proved by the birth certificate, which is exhibited
as Exbt-1. She submits that as per the birth certificate, the victim's age as on the date
of the incident was 11 years and 6 months. She also submits that the victim girl had
gone into the shop to buy pickles and the applicant had taken the victim girl into the
back of the shop and closed the door of the shop. It was only due to the constant
knocking of PW-4 that the shop door was opened. She submits that the evidence of
the prosecutrix is enough to convict a person accused of rape, provided the testimony
of the prosecutrix inspires of the confidence of the Court. As the testimony of the
prosecutrix was found to be reliable by the learned Trial Court, the appellant has
accordingly been convicted. She also submits that the delay in filing the FIR was due
to the fact that some kind of settlement was being contemplated by the villagers, as
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reflected in the evidence of PW-3 at page 6 para 13 of the judgment. She accordingly
submits that the application should be rejected.
10. We have heard the learned counsels for the parties.
11. The evidence of the victim girl is to the effect that she went to the shop of the
applicant to purchase pickles and the applicant asked her to come inside and when
she entered, the applicant told her not to scream. Thereafter, he opened her under
garments and applied some oil. He thereafter put his penis in her private parts. She
also deposed that at that time, someone knocked the door of the shop asking for
"bidi". The applicant was reluctant to open the shop, but the customer kept insisting,
due to which he opened the shop. The customer confronted the applicant that he had
seen a girl entering the shop. Initially, the applicant denied the same, but later on he
asked the victim girl to come out from behind a bag. Thereafter, the victim girl was
handed over to her maternal uncle.
12. Though the learned counsel for the applicant has submitted that PW-4 had
stated that he had seen the victim sitting comfortably in the shop, which would not be
possible for a rape victim, we are of the view that the use of the words "sitting
comfortably" is subjective and could have been for any number of reasons. The sitting
position could be due to a threat, being afraid or being at ease. However, we cannot
presume as to whether the said words "sitting comfortably" would mean that no harm
had come to the victim.
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13. We also find that the birth certificate of the victim girl shows her to be below 12
years at the time of the incident and as such, the said issue need not detain this Court
any further. The closing of the shop door which required PW-4 to knock on the door
for opening the same, gives rise to an inference that something suspicious was
happening.
14. In the case of Bhagwan Rama Shinde Gosai Gosai (supra), the Apex Court
has held that when a convicted person is sentenced to a fixed period of sentence and
when he files an appeal under any statutory right, suspension of sentence can be
considered by the appellate court liberally, unless there are exceptional circumstances.
However, despite stating the above, the Apex Court has put a rider when the sentence
is life imprisonment, when it says, "similarly, when the sentence is life imprisonment
the consideration for suspension of sentence could be of a different approach". In the
present case, though the applicant has been sentenced to 20 years rigorous
imprisonment, we find that the punishment that can be imposed under Section 6 of
the POCSO Act is for a minimum of 20 years to life imprisonment or death. In that
view of the matter, the approach for considering suspension of the sentence and grant
of bail in this case will have to stand on a different footing, compared to conviction
under Section 392 & 397 IPC, which was the offence committed in the above case of
Bhagwan Rama Shinde Gosai Gosai (supra).
15. On considering the above facts and keeping in view the gravity of the offence,
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we are not inclined to allow the present application. Any observation made in this
order should not be considered to be a finding on the merits of the case, at the time
of hearing of the appeal.
16. The application is accordingly rejected.
JUDGE JUDGE
Comparing Assistant
