Gauhati High Court
Probison Hasda vs The State Of Assam And Anr on 9 August, 2024
Author: Manish Choudhury
Bench: Manish Choudhury
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GAHC010067662024
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Crl.)/359/2024
PROBISON HASDA
S/O SAMUEL HASDA, VILL.- KANDABIL JUILAGA, P.S.- SIDLI, DIST.-
CHIRANG, BTR, ASSAM.
VERSUS
THE STATE OF ASSAM AND ANR.
TO BE REP. BY THE LEARNED P.P., ASSAM.
2:SANJITA MURMU
W/O PROBISON HASDA
VILL.- KANDABIL JUILAGA
P.S.- SIDLI
DIST.- CHIRANG
BTR
ASSAM
Advocate for the Petitioner : MR A W AMAN, MR SARFRAZ NAWAZ,MS SURAYA
RAHMAN,MR. SURAJIT DAS,MR S A BARBHUYAN,SAMIM RAHMAN
Advocate for the Respondent : PP, ASSAM,
BEFORE
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
HONOURABLE MR. JUSTICE KAUSHIK GOSWAMI
ORDER
Date : 09.08.2024
[M. Choudhury, J]
Heard Mr. S. Nawaz, learned counsel for the applicant-appellant; Ms. A.
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Begum, learned Additional Public Prosecutor for the opposite party no. 1, State
of Assam; and Mr. J. Abbas, learned counsel for the opposite party no. 2-victim.
2. The instant application under Section 389[1], Code of Criminal Procedure,
1973 ['the Code' and/or 'the CrPC', for short] is preferred seeking suspension of
execution of the sentence passed against the applicant-appellant and for his
release on bail.
3. The applicant as the appellant has preferred the connected appeal, Crl.A.
no. 108/2024 against a Judgment and Order dated 02.02.2024 passed in Special
[POCSO] Case no. 09/2023, which arose out of Sidli Police Station Case no.
07/2023, by the learned Special Judge, Chirang, Kajalgaon ['the Special Court',
for short]. By the impugned Judgment and Order dated 02.02.2024, the
applicant-appellant has been convicted for the offence under Section 6 of the
Protection of Children from Sexual Offences [POCSO] Act, 2012 and he has
been sentenced to undergo rigorous imprisonment for 20 [twenty] years and to
pay a fine of Rs. 10,000/-, in default of payment of fine, to suffer further
imprisonment for 1 [one] year. The connected criminal appeal, Crl.A. no.
108/2024 has already been admitted for hearing on 20.04.2024.
4. Mr. Nawaz, learned counsel for the applicant-appellant has contended that
to bring home a charge framed under any of the penal provisions of the POCSO
Act, 2012, more particularly, Section 6 thereof, the prosecution has to
conclusively establish that the victim was a 'child' on the date of commission of
the offence. Highlighting the fact that neither the victim nor any of the
parents/guardian of the victim had filed the First Information Report [FIR], Mr.
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Nawaz has submitted that the case was instituted on the basis of an FIR filed by
an Assistant Sub-Inspector of Police as an informant, who filed the FIR on the
basis of information received purportedly from a reliable source. He has
submitted that it has clearly emerged from the evidence on record that the
applicant-appellant and the victim-opposite party no. 2 had entered into marital
relationship and out of their conjugal relationship, they have a child, who was
born in April, 2023. He has further submitted that the prosecution side has
failed to bring on record any of the documentary evidence mentioned in Section
94 of the Juvenile Justice [Care and Protection of Children] Act, 2015 ['the J.J.
Act, 2015', for short] to establish the victim as a 'child'. In view of such failure
on the part of the prosecution, the applicant-appellant is clearly entitled to the
benefit of doubt.
5. Ms. Begum, learned Additional Public Prosecutor appearing for the State
has submitted that as per the Aadhar Card produced by the prosecution, the
date of birth of the victim is 15.03.2007, meaning thereby, the victim was a
child, on the date of commission of the alleged offence. Ms. Begum has
contended that in a prosecution under the POCSO Act, 2012, what is material is
that a 'child', defined therein, had been subjected to sexual assault.
6. Mr. Abbas, learned counsel for the opposite party no. 2-victim has
submitted that the date of birth mentioned in the Aadhar Card cannot be a basis
to hold the victim as a child in view of the provisions contained in Section 94 of
the J.J. Act, 2015. He has further pointed out that when the victim gave her
testimony as P.W.2 before the trial court, she clearly stated that she was living
with the applicant-appellant in his house since two years and she testified that
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she had attained 18 years at that time when she started living with the
applicant-appellant. He has contended that the I.O. of the case did not collect
the date of birth certificate from the School despite having the knowledge that
P.W.2 studied in school up to Class IX.
7. We have duly considered the submissions of the learned counsel for the
parties as well as the materials available in the case records.
8. It has emerged from the case record that FIR in connection with Sidli
Police Station Case no. 07/2023 was filed by an Assistant Sub-Inspector of
Police on 02.02.2023. The basis of lodging the FIR was receipt of information
from a reliable source [name or details not disclosed]. It was alleged that the
marriage between the victim-opposite party no. 2 and the applicant-appellant
was solemnized in December, 2022. On the basis of the said FIR, the case, Sidli
Police Station Case no. 07/2023 was registered under Section 6 and Section 17
of the POCSO Act, 2012 read with Section 9, Section 10 and Section 11[1] of
the Prohibition of Child Marriage Act, 2006. After submission of the Charge-
Sheet, charges under Section 6 and Section 17 of the POCSO Act, 2012 and
Section 9 & Section 11 of the Prohibition of Child Marriage Act, 2006 against the
applicant-appellant [A-1] and the father of the applicant-appellant, Samuel
Hasda [A-2] were framed. When they claimed not guilty to the charges, the trial
proceeded and at the end of the trial, the applicant-appellant has been
convicted only for the offence under Section 6 of the POCSO Act, 2012. The
father of the applicant-appellant, Samuel Hasda [A-2] had been acquitted of all
the charges framed against him. Hence, the connected criminal appeal.
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9. In Clause [i] and Clause [ii] of sub-section [2] of Section 94 of the J.J. Act,
2015, the documents which are treated as relevant evidence for determination
of the age of child have been mentioned. It has been further provided that only
in the absence of the documents mentioned Clause [i] and Clause [ii], the age is
to be determined by ossification test or any other latest medical age
determination test.
10. In the case in hand, the prosecution during the course of the trial has not
brought any document mentioned in Clause [i] and Clause [ii] of sub-section [2]
of Section 94 of the J.J. Act, 2015. Prima facie, an Aadhar Card does not come
within the documents mentioned in Clause [i] and Clause [ii] of sub-section [2]
of Section 94 of the J.J. Act, 2015. During the course of investigation, the
Investigating officer did not take any steps for medical examination of the
opposite party-victim. In the absence of any evidence regarding determination
of age, even, by radiological examination or from dental formation of the
alleged victim, the trial court proceeded to hold the opposite party no. 2-victim
as a child on the basis of the age mentioned in the Aadhar Card.
11. It has emerged from the materials on record that the applicant-appellant
prior to his conviction, was in cohabitation with the opposite party no. 2-victim
since 2022 and they have a son, who was born in April, 2023. The opposite
party no. 2-victim testified before the Court on 15.09.2023. In her testimony,
she stated her age to be around 18/19 years. She further testified that by the
time she started living with the applicant-appellant, she had attained 18 years of
age. No family member either from the family of the applicant-appellant nor any
family member of the opposite party no. 2-victim was examined by the
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prosecution during the trial.
12. Having considered the materials, discussed above, we are not persuaded
prima facie to agree with the view of the learned trial court that the prosecution
was able to prove with any cogent, relevant and reliable evidence that the
opposite party no. 2-victim was a child on the date of commission of the alleged
offence. Having regard to the principle of criminal jurisprudence that if two
views are possible, the benefit, at all stage, should enure to the accused. It is
settled that while considering the application for suspension of the execution of
sentence, the prime aspect which is to be looked into as to whether there
appears to be a fair chance of acquittal of the accused then he should not be
kept in incarceration for a long time till conclusion of the appeal, which usually
takes some time for disposal.
13. We are of the considered view that the applicant-appellant has made out a
prima facie case for suspension of the execution of sentence passed against
him. Accordingly, we allow this application by observing that execution of the
sentence passed against the applicant-appellant in Special [POCSO] Case no.
09/2023 shall remain suspended till disposal of the connected appeal, Crl.A. no.
108/2024. Consequently, the applicant-appellant is allowed to go on bail on
furnishing a bail bond of Rs. 25,000/- with one surety of the like amount to the
satisfaction of the learned trial court with the condition that the accused-
petitioner shall not leave the territorial limits of the trial court without the prior
written permission of the trial court.
14. The instant application stands allowed to the extent indicated above.
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15. It is, however, made clear that the observations made hereinabove are
only for the purpose of considering the prayer for suspension of execution of the
sentence and grant of bail to the applicant-appellant and the same shall not be
construed as observations made with regard to the merits of the connected
appeal.
JUDGE JUDGE
Comparing Assistant
