Md. Rafiqul Islam @ Rofikul Islam vs The State Of Assam And Anr
2023 Latest Caselaw 4303 Gua

                                                                  Page No.# 1/4

GAHC010024952023




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

                                  Case No. : Crl.A./56/2023

            MD. RAFIQUL ISLAM @ ROFIKUL ISLAM
            S/O MD. YUNUS ALI,
            RESIDENT OF VILLAGE SHARIATPUR, PS KALGACHIA, DIST BARPETA,
            ASSAM



            VERSUS

            THE STATE OF ASSAM AND ANR.
            REPRESENTED BY PP ASSAM

            2:SMTI DALIMI NAMASUDRA
            W/O SRI BALEN NAMASUDRA

            RESIDENT OF PUNIA
            PS TAMULPUR
            DIST BAKSA
            ASSAM
            78136

Advocate for the Petitioner   : MR H R A CHOUDHURY

Advocate for the Respondent : PP, ASSAM
                                                                         Page No.# 2/4



                        BEFORE
      HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
        HONOURABLE MRS. JUSTICE MITALI THAKURIA

                                    ORDER

Date : 13.10.2023

(M. Zothankhuma, J)

Heard Mr. A. Ahmed, learned counsel for the appellant. Also heard Ms. S. Jahan, learned Additional Public Prosecutor for the State respondent.

The appellant has put to challenge the impugned judgment and order dated 21.01.2023, passed by the learned Special Judge (POCSO), Baksa, in Special (POCSO) Case No. 114/2018, by which the appellant has been convicted under Section 4 of the POCSO Act, 2012 and sentenced to undergo Rigorous Imprisonment for 15 years and to pay a fine of Rs. 20,000/- (Rupees twenty thousand) only, in default to undergo Rigorous Imprisonment for 8 months.

Mr. A. Ahmed, learned counsel for the appellant, submits that though the appellant had questioned the age of the victim girl during trial before the learned Trial Court, to the effect that she was 18 years and above on the date of the incident, the prosecution did not prove the age of the victim as being below 18 years on the date of the incident. He submits that the said requirement of proving the age of the victim, as being below 18 years, was a requirement of law under Section 34 (2) of the POCSO Act, 2012. He further submits that the medical report of the victim girl implies that the hymen of the victim girl was intact and that in the opinion of the Doctor, there was no evidence of recent sexual intercourse. He also submits that though the Doctor had given an opinion Page No.# 3/4

that the girl was between the ages of 16 years and below 18 years, as per radiological evidence, the learned Trial Court was duty bound to come to a definite finding regarding the age of the victim girl. In this respect, he has relied upon the judgment of this Court in the case of Manirul Islam Vs. State of Assam & Ors., reported in 2021 (3) GLT 128. He also submits that in terms of cross-examination of the victim girl, there was no time for any rape to have occurred.

Ms. S. Jahan, learned Additional Public Prosecutor, submits that the statements made by the victim under Sections 161, 164 Cr.P.C. and before the learned Trial Court, were consistent and as such, there was no infirmity in the finding of guilt against the appellant. She also submits that the mother of the victim girl had seen the appellant jumping over the wall of the washroom. She also submits that in all her statements, the victim girl stated that her age was 15 years and as such, there was no reason to disbelieve the statements made by the victim girl. She accordingly submits that the victim, being a minor girl, the question of the girl being treated as an adult did not arise.

On considering the above submissions of the learned counsels for the parties, we are of the view that the learned Trial Court should make a finding with regard to the age of the victim girl as on the date of the incident, inasmuch as, the prosecution had not taken any step to prove the age of the victim girl on the date of the incident, except for relying upon the statement made by the victim girl and her mother. Accordingly, we are of the view that the learned Trial Court would have to take recourse to Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as 'Act of 2015') to come to a decision as to whether the victim girl was below 18 years of age at the time of the incident.

Page No.# 4/4

Consequently, we direct the learned Trial Court to take steps under Section 94 of the Act of 2015 to determine the age of the victim girl as on the date of the incident.

This has been done in terms of Section 391 Cr.P.C. for taking additional evidence.

The learned Trial Court shall give a report with regard to the above issue raised by this Court, within a period of 2 (two) months, from the date of receipt of a copy of this order.

Send back the LCR.

List the matter on 21.12.2023.

                             JUDGE                             JUDGE




Comparing Assistant