Gauhati High Court
Anuj Kr. Das @ Animesh vs State Of Assam And Anr on 28 May, 2025
Author: Sk Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/16
GAHC010136322022
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./134/2022
ANUJ KR. DAS @ ANIMESH
S/O LATE NALINAKHYA DAS,
RESIDENT OF BISHNU NAGAR, PO, PS AND DIST SIVASAGAR, ASSAM,
785640
VERSUS
STATE OF ASSAM AND ANR.
REPRESENTED BY PP ASSAM
2:SMTI PARISHMITA MECH
W/O SRI RAJEN MECH
RESIDENT OF BISHNU NAGAR
PO
PS AND DIST SIVASAGAR
ASSAM 78564
Advocate for the Petitioner : MR. K M HALOI, MS. A BEGUM
Advocate for the Respondent : PP, ASSAM, .,MS. M BARMAN (AS LEGAL AID COUNSEL FOR
R-2)
BEFORE
HON'BLE MR. JUSTICE SANJAY KUMAR MEDHI
HON'BLE MRS. JUSTICE YARENJUNGLA LONGKUMER
Advocate for the appellant : Shri K.M. Haloi, Advocate.
Advocates for respondents : Ms. B. Bhuyan, Sr. Advocate &APP, Assam;
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Ms M. Barman, Legal Aid Counsel (R-2).
Date of hearing : 29.04.2025.
Date of judgment : 28.05.2025.
JUDGMENT & ORDER (Oral)
(SK Medhi, J)
This instant Appeal has been preferred under Section 374(2) of the Code of
Criminal Procedure, 1973 [corresponding to Section 415 of the BNSS] against the
judgment and order dated 04.06.2022 passed by the learned Addl. Sessions Judge-
cum-Special Judge (POCSO), Sivasagar in Case No. Special POCSO 36/2021 whereby
the appellant has been convicted under Section 6 of the Protection of Children from
Sexual Offences (hereinafter referred to as POCSO) Act and sentenced to undergo
Rigorous Imprisonment for a term of 20 years and to pay a fine of Rs.10,000/-
(Rupees Ten Thousand) only in default of fine, to undergo Rigorous Imprisonment for
a period of 6 (six) months.
2. The criminal law was set into motion by lodging of an Ejahar by the mother of
the victim (PW-1), alleging inter alia that she had sent her daughter to a nearby shop
owned by the appellant to bring some articles. Upon not returning for a long time, she
sent her elder daughter to the said shop. Thereafter, she had come to learn that the
shopkeeper had inserted his finger in the victim's vagina and on asking, she narrated
everything and said that the shopkeeper had offered her some chips and toffees to
not disclose about the incident at home.
3. Thereafter, PW1 along with few others had gone to the shop and questioned the
appellant regarding the incident on which, he asked for forgiveness. His wife and
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mother too had asked for forgiveness. Based on the aforesaid Ejahar which was
received by the police station on 10:05 PM on 28.07.2021, the investigation had begun
when the victim was sent for medical examination.
4. The statements of the witnesses were recorded and accused person was
arrested. The statement of the victim was recorded under Section 164 of the Code of
Criminal Procedure, 1973 (corresponding to Section 183 of the BNSS) and after
completion of the investigation, the charge sheet was laid. Accordingly, the Court
framed two charges against the appellant and on denial of the same, the trial
commenced in which, the prosecution had adduced evidence through 7 (seven) nos.
of witnesses.
5. PW-1 is the informant and mother of the victim, who had deposed that her
daughter, who is the victim, is of 9 (nine) years of age. On the relevant day, at about
12:30 PM, she had sent the victim to bring chana from the shop of the appellant and
as she did not return for about fifteen minutes, she had sent her elder daughter to the
shop whereafter both the daughters came and on asking, the victim told that the
appellant had inserted his finger into her vagina by removing her panty. She had also
made other accusations against the appellant. Thereafter, PW-1 had gone to the
appellant's shop and on confronting him, he had initially denied the occurrence of any
such incident. However, later, he had admitted and begged for an apology. The matter
was informed by the informant to her husband over telephone and thereafter, the
matter was reported to Sivasagar Sadar Police Station by lodging of an Ejahar which
was proved as Exhibit-1. The original Birth Certificate of the victim was also seized and
proved in original as Exhibit-3. She had also clarified that there was a spelling mistake
in the name of the victim in the Birth Certificate and a fresh Birth Certificate was made
with the correct name of the victim which was also seized. In her cross-examination,
PW-1 was confronted with the contradictions in her statements made before the police
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which were, however denied and she asserted that the depositions made in Court
were consistent with her earlier statement given to the police. PW-1 was further
examined on the aspect of the Birth Certificate wherein she had clarified the aspect of
the error in spelling of the name of her daughter as well as writing 'Male' instead of
'Female' in the said Birth Certificate which was subsequently corrected.
6. PW-2 is the victim herself and it is seen that before her evidence was recorded,
the learned Court had recorded satisfaction on her ability to understand the questions
and to respond to the same which was tested by putting certain preliminary questions.
The said test was done as the victim was about 9 (nine) years old. In her deposition,
she had narrated the entire incident in clear terms and the said deposition is
consistent with the version narrated by her mother as PW-1. The PW-2 was cross-
examined, where she stated that one Deben Bharali had his shop near the one of the
appellant. It may be mentioned that the said Deben had deposed as DW-2 in the
present case. The suggestions given to PW-2, were, however negated by her.
7. PW-3 is a neighbour who had narrated that on the said date, when she was
cooking, she had received a telephonic call from PW-1 whereafter PW-1 had come to
her residence and narrated the incident to her. Accordingly, they had gone to the
appellant's shop at around 3:30 PM and found him in the shop. When they confronted
him, he denied about the incident but subsequently admitted and begged for an
apology and stated that he would not repeat such acts in the future. Thereafter, the
Ejahar was lodged. In her cross-examination, PW-3 had admitted that DW-2 had a
shop opposite to the appellant's shop. The contradictions tried to be made with her
statements made before the police were however negated by her.
8. PW-4 is a hearsay witness who had heard about the incident from PW-1 through
a telephonic conversation and hence his deposition may not be very relevant.
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9. PW-5 is the Doctor, who had examined the victim. She had deposed that on
29.07.2021 at about 1:30 PM, the victim was examined by her, and she found that
there was red inflammation around the genitalia and the age of the victim was below
16 (sixteen) years. For ready reference, the marks of violence noticed on the victim
are extracted herein below.
"Marks of violence on the body: None,
Genitalia: Clitoris - Normal, Labia Majora & Minora - Normal, Fourchette-
Normal, Hymen - absent, vagina -redness present, injuries -red inflamed area,
discharges and stain -slight bleeding.
...
On examination of Aswini Mech, I am of the opinion that (1) Red inflamed area
around the genitalia seen (2) the girl is below 16 years of age."
10. In her cross-examination, she had, however stated that in her report which was
proved as Exhibit-P4, the case number was not mentioned. She had, however clarified
that the victim was examined in connection of the present case. A suggestion was
given that the aforesaid injury might have been caused by falling from a bicycle which
was, however negated.
11. PW-6 is a resident of the same locality and is working as a driver in the Police
Reserve. The said witness was, however, declared hostile and was accordingly cross-
examined by the prosecution. The suggestion given by the prosecution regarding a
contradiction was however negated by him. The said witness had, however proved the
statement made by him under Section 161 of the Cr.PC (corresponding to Section 180
of the BNSS) as Exhibit-P5. In his cross-examination by the defence, the witness had,
however said that so far as his signature in Exhibit-2 (seizure list) is concerned, he
was made to sign a blank paper and was unaware of what was written there. He had
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also verified that he had not made the statement as appears in Exhibit-P5 which is his
statement under Section 161 of the Cr.PC (Corresponding to Section 180 of the BNSS).
12. PW-7 is the Investigating Officer who had conducted the investigation. He has
stated that on 28.07.2021, the Ejahar was lodged and upon registration of the same,
he had made the investigation in which, he interrogated the informant and recorded
her statement. He had also forwarded the victim to the hospital for medical
examination and seized the Birth Certificate of the victim from the informant. The
appellant was apprehended in the same evening and was interrogated. He had also
recorded the statements of the other witnesses and had also forwarded the victim for
recording her statement under Section 164 of the Cr.PC (corresponding to Section 183
of the BNSS) and also collected the Medical Report. After completion of the
investigation, the charge sheet was laid down under Section 376AB of the IPC
(corresponding to Section 65(2) of the BNS) read with Section 6/12 of the Protection
of Children from Sexual Offences Act, 2012 (POCSO). PW7 was cross-examined by
the defence wherein certain contradictions were proved, especially with regard to the
statements made by PW-1 and PW-3 during the investigation under Section 161 of the
Cr.PC (corresponding to Section 180 of the BNSS).
13. After completion of the prosecution witnesses, the incriminating materials were
put to him in his examination under Section 313 of the Cr.PC (corresponding to
Section 351 of the BNSS), wherein the truthfulness and veracity of the depositions of
the witnesses were denied and the appellant had also opted to adduce defence
witness.
14. The appellant had himself adduced evidence as DW-1 in which, he had admitted
on the said date i.e. 28.07.2021, the victim had come to his shop at around 11:45 AM
and the shop of DW-2 is near his shop which was open. The victim had asked for
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some goods on credit which was refused as there was some outstanding dues. He had
also deposed that he was busy in closing the shop due to the ongoing lockdown
during that time and thereafter did not see the victim. He had stated that after closing
his shop, he had gone home and at about 3:30 PM, the informant (PW-1), PW-3 and
another person had come to his house and raised a commotion for not providing
goods on credit and verbally abused him in this process. Thereafter, they left and at
night, the Police had come to his place and only then, he came to know that a case
had been lodged against him, which was a false case.
15. DW-1 was cross-examined by the defence in which he had denied the fact that
the victim had come to his shop on the said day at 12:30 PM to purchase chana. He
had, however admitted that the victim was about 10 (ten) years of age. The
accusation made against him of inserting his finger into her vagina was denied. He
had also denied that he had given her a packet of chips and told her not to tell her
mother about the incident. He had, however admitted that DW-2 is his relative and
that his shop was of pucca wall.
16. DW-2 is a nearby shopkeeper who had deposed that he saw the victim coming
to the shop of the accused as he was also present in his shop at the same time. He
had also stated that the victim took certain things from the shop of the appellant and
had gone away after taking a packet of chips. He had thereafter stated that the victim
on the said day did not enter the shop of the appellant. In his cross-examination by
the prosecution, he had, however deposed that he was unaware and did not see what
the appellant had done with the victim inside the shop.
17. Based on the aforesaid materials and depositions, the impugned judgment has
been passed which is the subject matter of challenge in this present appeal.
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18. We have heard Mr. K.M. Haloi, learned counsel for the appellant. We have also
heard Ms. B. Bhuyan, learned Senior Advocate and APP, Assam and Ms. M. Barman for
Respondent No. 2.
19. Shri Haloi, the learned counsel for the appellant has, at the outset, submitted
that the entire allegation which is the basis of the conviction is false and concocted
and has been made only to harass his client as there was an outstanding credit to be
paid to his client for articles taken from his shop by the family of PW-1. He has
submitted that though the FIR was lodged on 28.07.2021, it did not state on which
date the incident had taken place. He has submitted that though PW-3 had deposed
supporting the prosecution's case, and narrated of her involvement in accompanying
PW-1, on the other hand, PW-1, in her evidence, had not made any statement that
PW-3 was involved and was informed about the incident by her.
20. By drawing the attention of this Court to the deposition of the victim (PW-2), the
learned counsel for the appellant has submitted that the victim did not make any
statement that she had narrated the incident to PW-3 and therefore, the statements
made by PW-3 appear to be concocted and an afterthought, only to give support to
the case of the prosecution. He had also submitted that even assuming that the
occurrence was on 28.07.2021, the statement of the victim under Section 164 of the
Cr.PC (corresponding to Section 183 of the BNSS) was not recorded immediately and
the same was recorded on the next date and therefore, there was a scope of tutoring
the victim. He also submits that though the statement under Section 164 of the Cr.PC
(corresponding to Section 183 of the BNSS) appears to be consistent with her
deposition, the possibility to tutor her cannot be ruled out.
21. The learned counsel for the appellant also submitted that there is an
inconsistency in the Birth Certificate and accordingly, the issue as to whether the
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victim could come under the POCSO Act is itself doubtful. He has also drawn the
attention of the Court to the further examination of PW-1 in this regard, wherein it has
been stated that in the initial Birth Certificate, the name of the victim was written as
Achini Mech and the gender was written as 'Male'. He submits that there is gross
discrepancy in the Birth Certificate which cannot be relied upon.
22. In support of his submission, the learned counsel for the appellant has relied
upon the case of Mahendra Singh& Ors. vs. The State of Madhya Pradesh ,reported
in(2022) 7 SCC 157. In the said case, a note of caution has been put while
appreciating evidence as there are 3 types of witnesses. For ready reference, the
relevant observations of the Hon'ble Apex Court are extracted hereinbelow:
"13. It could thus be seen that this Court has found that witnesses are of three
types, viz., (a) wholly reliable; (b) wholly unreliable; and (c) neither wholly
reliable nor wholly unreliable. When the witness is "wholly reliable", the Court
should not have any difficulty inasmuch as conviction or acquittal could be
based on the testimony of such single witness. Equally, if the Court finds that
the witness is "wholly unreliable", there would be no difficulty inasmuch as
neither conviction nor acquittal can be based on the testimony of such witness.
It is only in the third category of witnesses that the Court has to be circumspect
and has to look for corroboration in material particulars by reliable testimony,
direct or circumstantial."
23. Lastly, Shri Haloi, the learned counsel has submitted that even if the conviction is
upheld, the sentence may be reduced in the interest of justice.
24. Strenuously opposing the appeal, Ms. Bhuyan, the learned Senior Counsel and
APP has submitted that there exists no dispute on the age of the victim. She submits
that under Section 94 of the Juvenile Justice (Care and Protection of Children) Act,
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2015, there are three modes to determine the age of the victim and the primary mode
to have such determination is from the Birth Certificate, which has been done in the
present case. She has also drawn the attention of the Court to the testimony of the
Doctor who had adduced evidence as PW-5 in which, the age of the victim has been
stated to be below 16 years. She has submitted that in an accusation of this nature,
the sole testimony of the victim should be sufficient if the said testimony appears to
be trustworthy and believable. To buttress the aforesaid point, the learned APP has
drawn the attention of this Court to the statement of the victim made under Section
164 of the Cr.PC (corresponding to Section 183 of the BNSS) and has submitted that
the same is consistent with her evidence as PW2.
25. By referring to the evidence of the Doctor (PW5) who had examined the victim,
the learned APP has submitted that the findings arrived at by PW5 in the report, which
has been proved as Exhibit-P4 matches with the nature of the allegation made by the
victim against the appellant. She further submits that as the Doctor is an independent
witness and her testimony reveals no apparent discrepancies or inconsistencies, there
is no reason to disbelieve her evidence. In this connection, the learned APP has relied
upon a judgment of the Hon'ble Supreme Court in the case of Nawabuddin v. State
of Uttarakhand, reported in (2022) 5 SCC 419. In the said case, the Hon'ble Apex
Court had laid down that there is no reason to doubt the deposition of a Doctor who is
an independent witness, which is also consistent with the allegations made by the
victim. It may be mentioned that in the said case before the Hon'ble Supreme Court,
the other witnesses were seen to be won over by the side of the accused. The learned
APP accordingly submits that the impugned judgment has been passed by taking into
consideration all the relevant factors and in accordance with law and therefore, the
appeal is liable to be dismissed.
26. Ms. M. Barman, learned Legal Aid Counsel, appearing for Respondent No. 2, has
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supported the impugned judgement and has endorsed the submissions and
contentions made by Ms. B. Bhuyan, learned Senior Advocate and APP, Assam. On the
aspect of reducing the sentence, she has submitted that there is no scope for such
reduction, as the punishment imposed is in consonance with the prescription of law.
27. The rival submissions of the parties have been considered and the materials
available on records, including the TCRs have been carefully examined.
28. In the instant case, the accusation, which is followed by the conviction and
sentencing, is under Section 6 of the POCSO Act. For such a conviction, the basic
requirement is that the victim has to fall within the meaning of Child as provided in
Section 2(d) of the aforesaid statute. In the instant case, the victim in her deposition
has recorded her age as 9 years. To prove the age, the Birth Certificate of the victim
has been examined and proved as Exhibit-3. It is true that there were certain
inconsistencies in the Birth Certificate with regard to the name as well as gender of
the victim. We have carefully examined the said aspect and it, indeed appears that the
name of the victim is Ashwini, which is a name given to either a male or female child
and therefore, it is not improbable to have some error in the Birth Certificate. Be that
as it may, it is on record that a corrected Birth Certificate was procured and was
proved before the Court and there is no serious dispute to the said fact. Under Section
34(1) of the POCSO Act, so far as determination of age is concerned, the tests laid
down in Section 94 of the JJ Act, 2015 are applicable and in the instant case, the
prosecution has been successfully able to overcome the said test.
29. Under those facts and circumstances, we may come to a finding that the
foundational facts were clearly laid down that the victim falls within the ambits of the
POCSO Act. Consequently, the presumption as provided under Section 29 of the said
Act would be applicable.
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30. This brings us to the aspect regarding the accusation made by the victim
against the appellant. The victim, in her statement as PW2, has clearly narrated the
facts and the incident which had happened on the fateful date. It is also important to
note that the victim was examined under Section 164 of the Cr.PC [Corresponding to
Section 183 of BNSS] on the very next date. Though there is an argument made on
behalf of the appellant that there was delay in recording the statement of the victim
from the time of the incident, we are unable to accept the said argument of the
learned counsel for the appellant, as the recording of the statement under Section 164
of the Cr.PC was done on the very next date. What is also important to note is that
both the versions of the victim under Section 164 of the Cr.PC and as PW2 are
consistent. At this stage, we may also refer to the contention of the learned APP that
even her statement made to the police under Section 161 of Cr.PC [Corresponding to
Section 180 of BNSS] is consistent. The victim has clearly narrated the incident and
the same narration is corroborated by the findings given by PW5, who is the Doctor
who examined the victim on 29.07.2021.
31. We have also noted that a suggestion was given to the Doctor (PW5) whether
such injuries can occur by falling from a bicycle which was negated. As relied upon by
the learned APP, in the case of Nawabuddin (supra), the Hon'ble Supreme Court has
held that a Doctor's evidence should be given credence when the same is consistent
with the narration of the victim inasmuch as, the Doctor is an independent witness.
32. In a case of present nature, the testimony of the victim is of immense
importance and unless, such testimony appears to be grossly inconsistent or
unreliable, the same is liable to be taken into consideration. The Hon'ble Supreme
Court in a catena of cases has laid down that sole testimony of a victim of rape would
be enough to come to a finding of guilt against the accused person. In the instant
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case, as we have noted above, the testimony of the victim as PW2 is not only
consistent with her previous statement recorded under Section 164 of the Cr.PC
[Corresponding to Section 183 of BNSS] but is also corroborated by the evidence of
the Doctor as PW5. The narration of the events by the mother of the victim as PW1, is
also consistent with the narration by the victim. It may be mentioned that the learned
counsel for the appellant had strenuously argued that the testimony of PW3 is not
reliable, as her role had not been mentioned, either by PW1 or PW2 and, in this
connection, he had also referred to the case of Mahendra Singh (supra). The said
contention, however would not carry much weight inasmuch as irrespective of the
testimony of the said PW3, the other testimonies in record, more importantly, the
unimpeached testimony of the victim as PW2 would itself be sufficient to prove the
allegations beyond all reasonable doubt.
33. From the records and as discussed above, it is seen that the defence side had
tried to project a case that a false accusation was made which was connected to some
outstanding dues to be paid by the family of the victim to the appellant who was
running a shop. In this connection, the appellant had adduced evidence through
himself as DW1 and another person as DW2. It, however appears from the record that
DW2 is a relative of the appellant. We are conscious of the fact that mere relationship
with the appellant would not make the evidence of DW2 unacceptable and such
testimony can be considered after testing with the other materials on record.
34. The appellant, as DW1, in his chief examination did not deny that the victim had
indeed come to his shop. In the cross-examination, the denial is only with regard to
the time of her coming and that being given a packet of chips. Although DW2 initially
stated that he saw the victim enter the appellant's shop, take certain goods, and
leave, he later contradicted himself by stating that the victim did not enter the
appellant's shop at all. However, in the cross-examination by the prosecution, he had
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clarified that he was not aware whether the victim had entered the shop of the
appellant. It is on record that the shop of the appellant was bounded by pucca wall
and DW2 was not in a position to see as to who had entered the shop.
35. As noted above, the argument made of behalf of the appellant, that the victim
appears to have been tutored does not hold good inasmuch, as her testimony has
been found to be consistent all along. We have also come to a conclusion that there is
nothing on record to persuade us to regard the victim's testimony as untrustworthy
and without any credence.
36. Section 29 of the POCSO Act provides for drawing a presumption. For ready
reference Section 29 is extracted herein below:
"Presumption as to certain offences:
Where a person is prosecuted for committing or abetting or attempting to
commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special
Court shall presume, that such person has committed or abetted or attempted
to commit the offence, as the case may be unless the contrary is proved."
37. It has, however been well settled that in spite of the existence of such
presumption, it is the duty of the prosecution to lay down the foundational facts and
only upon such laying down of such foundational facts, the onus would shift upon the
accused to disprove the allegation. In the instant case, we are of the view that the
prosecution has successfully laid down the foundational facts of application of the
POCSO Act. We have already held that the victim falls within the ambit of the statute
with regard to her age, and the nature of the allegation constitute an offence
punishable under Section 6 of the said Act.
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38. The learned counsel for the appellant had also made an argument on the aspect
of reducing the sentence by contending that the enhancement of the sentence has
been done only after an amendment of the year 2019. Though, we have considered
the said argument, since the incident is of the year 2021 and after the amendment,
there exists no scope to impose any punishment which is less than the prescribed one.
In this connection, one may refer to the case of Mohd. Hashim v. State of Uttar
Pradesh& Ors., reported in (2017) 2 SCC 198, in which the Hon'ble Supreme Court
had made the following observations:
"19. The learned counsel would submit that the legislature has stipulated for
imposition of sentence of imprisonment for a term which shall not be less than
six months and the proviso only states that sentence can be reduced for a term
of less than six months and, therefore, it has to be construed as minimum
sentence. The said submission does not impress us in view of the authorities in
Arvind Mohan Sinha 10 and Ratan Lal Arora. We may further elaborate that
when the legislature has prescribed minimum sentence without discretion, the
same cannot be reduced by the courts. In such cases, imposition of minimum
sentence, be it imprisonment or fine, is mandatory and leaves no discretion to
the court. However, sometimes the legislation prescribes a minimum sentence
but grants discretion and the courts, for reasons to be recorded in writing, may
award a lower sentence or not award a sentence of imprisonment. Such
discretion includes the discretion not to send the accused to prison. Minimum
sentence means a sentence which must be imposed without leaving any
discretion to the court. It means a quantum of punishment which cannot be
reduced below the period fixed. If the sentence can be reduced to nil, then the
statute does not prescribe a minimum sentence. A provision that gives
discretion to the court not to award minimum sentence cannot be equated with
a provision which prescribes minimum sentence. The two provisions, therefore,
are not identical and have different implications, which should be recognised
and accepted for the PO Act."
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The aforesaid observations have been endorsed and reiterated in the subsequent
case of State of Madhya Pradesh v. Vikram Das, reported in (2019) 4 SCC 125.
39. In view of the aforesaid facts and circumstances and based on the discussions
made above, we are of the considered opinion that the impugned judgement and
order dated 04.06.2022 passed by the learned Special Judge, POCSO, Sivasagar in
Case No. Special POCSO 36/2021 does not warrant any interference.
40. Accordingly, the appeal stands dismissed.
41. Send back the TCRs.
JUDGE JUDGE
Comparing Assistant
