Gauhati High Court
The State Of Assam vs Parag Goswami And Anr on 21 June, 2023
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GAHC010163972022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.L.P./51/2022
THE STATE OF ASSAM
REPRESENTED BY PP ASSAM
VERSUS
PARAG GOSWAMI AND ANR.
S/O LATE RADHA NATH GOSWAMI, RESIDENT OF VILLAGE B.G ROAD,
JYOTI NAGAR, PS AND DIST SIVASAGAR, ASSAM
2:SMTI GEETA KAKOTI @ GEETA KAKOTI BARUAH.
W/O SHRI DIGANTA BARUAH
RESIDENT OF VILLAGE GANAKPATTY
WARD NO. 10
SEUJPUR
PS AND DIST SIVASAGAR
ASSAM
Advocate for the Petitioner : PP, ASSAM
Advocate for the Respondent : MR H R A CHOUDHURY (R-1,2)
BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA
ORDER
21.06.2023
(M. Zothankhuma, J.)
1. Heard Ms. B. Bhuyan, learned Additional Public Prosecutor and Mr. G.
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Choudhury, learned counsel appears for the respondent no.1. Mr. Choudhury
submits that he will not be appearing for the respondent no.2 as he has not
heard from the respondent no.2, despite trying to contact the respondent no.2.
2. We find that this case has been adjourned on 4 consecutive dates by the
learned counsel for the respondent no.1 and accordingly, no adjournment is
being allowed today.
3. This is an application under Section 378(3) Cr.P.C, praying for leave to file
an appeal against the impugned judgment of acquittal dated 28.12.2021 passed
by the learned Court of the Special Judge, Sivasagar, in Special (POCSO) Case
No.30/2020.
4. At the very outset, it may be stated that the respondent no.1 had been
charged with sexually abusing a minor girl and accordingly the police had
initially registered a case under Section 120(B)/354 A/34 IPC and Section 10 of
the POCSO Act. The respondent no.2, on the other hand had been charged with
voluntary causing hurt and as such, she was charged under Section 323/120(B)
IPC. The FIR that had been registered against the respondents resulted in the
registration of Sivasagar P.S. Case No.897/2018 against the respondents.
However, pursuant to a Public Interest Litigation taken suo moto by this Court,
the police submitted a supplementary charge-sheet, wherein they added Section
10 and 16 of the POCSO Act. Thereafter the learned Special Judge (POCSO) in
Special (POCSO) Case No.30/2020 framed charges against the respondent no.1
under Section 354 IPC and Section 10 of the POCSO Act and against the
respondent no.2 under Section 323/354/109 IPC and Section 10/17 of the
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POCSO Act. The charges were later altered by the learned Special Court against
the respondent no.1 under Section 376(2) IPC and Section 6 of the POCSO Act.
Against the respondent no.2, charges were framed under Section 323 of the
IPC.
5. After examination of prosecution witnesses and examining the respondents
under Section 313 Cr.P.C., the learned Special Judge, Sivasagar acquitted the
respondents of the charges framed against them.
6. The learned Additional Public Prosecutor submits that the learned Trial
Court had found the victim girl to be above the age of 18 years, after the
ossification test conducted on her, by applying the margin of error of (-) or (+)
2 years in favour of the respondent no.2, by adding 2 years to the age of the
victim girl. She submits that if 2 years could have been added to the age of the
victim girl, similarly 2 years could have been taken away from the age of the
victim girl, thereby showing the victim girl's age to be 14 years. She submits
that despite the victim having stated clearly that the respondent no.1 had given
her a drink, which made her fall asleep and that the respondent no.1 had seen
she had been raped one particular day, when she had not taken the drink, the
learned Trial Court had however not accepted the statement of the prosecutrix
on the ground that she had given contradictory statements. The Additional
Public Prosecutor submits that the victim girl had never given contradictory
statements, as clearly seen from the evidence given by the victim girl. She
further submits that despite the statement of the victim girl under Section 161
Cr.P.C. and under Section 164 Cr.P.C. having clearly disclosed the guilt of the
respondent no.1, the learned Trial Court had not considered the same. Further,
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the fact that the respondent no.2 used to beat up the victim girl having been
proved in the evidence, the learned Trial Court's finding that the charge under
Section 323 IPC could not be established beyond all reasonable doubt, as no
such statements had been made by her under Section 164 Cr.P.C. was not
correct. Further, if any alleged contradiction had been made by a witness, the
witness has to be confronted with the same during recording of evidence, in
terms of the statement recorded under Section 161 and 164 Cr.PC. Thereafter,
the I/O has to questioned to contradict the witness's statement in her evidence,
as provided in the judgment of the Apex Court in the case of V.K. Mishra &
Another vs. State of Uttarakhand & Another reported in (2015) 9 SCC
588.
7. The learned counsel for the respondent no.1, on the other hand submits
that the victim girl was not a minor at the time of commission of the offence
and the learned Trial Court having considered her age to be above 18 years
after the ossification test, no POCSO case could be made against the
respondent no.1. He also submits that the evidence does not show that the
provisions of Section 376 IPC can be attracted. As such, there is no ground to
allow the application for leave to appeal.
8. We have heard the learned counsels for the parties.
9. We are of the view that an application under Section 378(3) Cr.P.C. can be
allowed when there are reasons to believe that the order of acquittal was
erroneous or resulted in a miscarriage of justice. The conditions for allowing
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such an application can vary, depending upon various factors. In the present
case, the crime is very heinous and no doubt requires the Court to look into the
evidence of the parties very carefully. The consideration and finding of the age
of the victim girl by the learned Trial Court as over 18 years, after the
ossification test and after adding 2 years, due to there being a margin of error
of plus or be an addition or minus 2 years in the age of a victim, in our mind
does not appear to be unjustified, keeping in view the fact that there are two
views possible for coming to a decision with regard to the age of the victim girl.
With regard to the offence under Section 376 (2) IPC, the learned Trial Court
had acquitted the respondent no.1 from the charge, on the ground that the
victim girl had not stated in her statement under Section 161 Cr.P.C. or under
Section 164 Cr.P.C. that the respondent no.1 had committed rape upon her,
which had been stated in her evidence before the learned Trial Court. Thus, the
learned Trial Court did not find the evidence of the victim to be reliable. The
manner in which the evidence of a witness is to be contradicted has been
clearly spelt out in the case of V.K. Mishra (supra), i.e. the contradictions to
that part of the statement under Section 161 or Section 164 Cr.P.C. has to be
put to the witness by confronting her with the same and it has to be recorded in
the evidence. Thereafter, the person who records the statement under Section
161/164 Cr.P.C. is also required to be questioned with regard to whether the
said statement had been made by the witness. The same, prima facie, does not
appear to have been done by the learned Trial Court. As such, the evidence of
the victim girl had to be considered by the learned Trial Court as it was given
and coming to a finding whether it inspired the confidence of the Court, without
juxtaposing the same with the other statements. However, the same has not
been done.
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10. We are of the view that sufficient reasons have been made out by the
applicant for preferring an appeal against the impugned judgment.
Consequently, we allow the application under Section 378(3) Cr.P.C. and grant
leave to appeal. It is made clear that any observations and findings made in this
order, shall not taken to be the final observations and findings in the case at the
time of hearing the appeal.
11. I.A. is accordingly disposed off.
JUDGE JUDGE
Comparing Assistant
