Sri Dilip Debnath vs The State Of Assam
2025 Latest Caselaw 5106 Gua

Gauhati High Court

Sri Dilip Debnath vs The State Of Assam on 29 May, 2025

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GAHC010028912025




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

                                Case No. : I.A.(Crl.)/145/2025

            SRI DILIP DEBNATH
            S/O. LT. RAKHAL DEBNATH, R/O. NAMDANG BASHBARI, P/O. AND P/S.
            MARGHERITA, DIST. TINSUKIA, ASSAM.TINSUKIA ASSAM

            VERSUS

            THE STATE OF ASSAM
            REPRESENTED BY THE PP, ASSAM

            2:PINTU RAI
             S/O. LT. BHASBESH GOSH
            WHO BEING INFORMANT REP. THE VICTIM-MISS X (PW-3) R/O.
            NAMDANG BASHBARI
             P/O. AND P/S. MARGHERITA
             DIST. TINSUKIA
            ASSAM

Advocate for the Petitioner   : MR. R S MISHRA, MR. A K GUPTA,MR. R K MAHANTA

Advocate for the Respondent : PP, ASSAM, MR SARFRAZ NAWAZ, AMICUS CURIAE (R2)


                                    BEFORE
                    HONOURABLE MR. JUSTICE KAUSHIK GOSWAMI

                                          ORDER

Date : 29.05.2025

Heard Mr. A. K. Gupta, learned counsel appearing for the applicant. Also heard Mr. S. Nawaz, learned Amicus Curiae appearing for the respondent No.2 and Mr. P. S. Lahkar, learned Additional Public Page No.# 2/8

Prosecutor appearing for the State respondent.

2. This application is filed under Section 430(1) of BNSS, 2023 for suspension of the sentence passed by the learned Additional Sessions Judge Cum Special Judge, POCSO, Tinsukia in POCSO Case No.62/2022 vide judgment dated 18.12.2024, convicting the applicant under Section 10 of the Protection of Children from Sexual Offences Act, 2012 and sentencing thereby to undergo Rigorous Imprisonment for 5 (five) years and to pay a fine of Rs.10,000/- in default of payment of fine, Rigorous imprisonment for 4 (four) months.

3. By the aforesaid judgment and order dated 18.12.2024, the Additional Sessions Judge Cum Special Judge, POCSO, Tinsukia in POCSO Case No.62/2022, convicted the accused/applicant under Section 10 of the POCSO Act, and sentence the accused/applicant thereby.

4. Mr. A. K. Gupta, learned counsel for the accused/applicant submits that the conviction being solely based on the testimony of the victim girl, which is unbelievable in view of the medical report wherein no injury was found in her vagina, the judgment of the trial Court is palpably erroneous. He accordingly submits that the accused/applicant is likely to succeed in the present appeal and therefore the judgment and order of the trial court be suspended pending adjudication of the appeal and that the accused/applicant be released on bail.

5. Per contra, Mr. S. Nawaz, learned Amicus Curiae submits that a bare perusal of the judgment and order of the trial Court amply demonstrates that the victim girl has consistently maintained her Page No.# 3/8

version of the incident right from the initial stage of her statement before the Investigating Authorities till her deposition before the trial Court. He further submits that the trial Court having found testimony of the victim girl to be trustworthy and credible, no further material corroboration is required and a conviction can be based solely on such trustworthy and credible testimony of a victim girl.

6. Mr. P. S. Lahkar, learned Additional Public Prosecutor appearing for the State submits that in cases of POCSO especially, in a case of child victim, non existence of an injury mark in the medical report is not sufficient to disbelieve the victim's version of the allegation that the accused/applicant had inserted his finger into her vagina when her testimony is of trustworthy and sterling quality. He further submits that the trial Court has analyzed the evidences in the proper perspective and has accordingly convicted the accused/applicant. He further submits that in cases arising out of POCSO, the general presumption of accused being innocent is not available to the accused/applicant, even at the pre-conviction stage. Hence, upon conviction being rendered the question of suspending such conviction does not rise.

7. I have heard the learned counsel appearing for both the parties and have perused the material available on record including the case records.

8. Reading of the judgment of the trial Court, it appears that the trial Court after scrutinizing the evidences, especially the evidence of the victim i.e. PW-3 has held that her stand as regards the accused/applicant inserting his finger into her vagina and pressing her Page No.# 4/8

breast remain consistent and firm throughout at all stages. It is further revealed from her statement that learned Magistrate recorded within brackets that the victim physically mimicked taking off her clothes and has pointed to her vagina and she mimicked by twisting her nipples while she stated about the material part of the prosecution story. In light of the aforesaid material, the trial Court has held her testimony to be credible.

9. Apt to refer to relevant paragraphs of trial Court, which are reproduced hereunder for ready reference:-

"21. In this case the evidence of the victim is very vital for the prosecution as there is no eyewitness of the alleged incident. Therefore, I will assess the evidence of the victim first.

22. PW 3 being the victim testifies that she knows the accused and she calls him "JETHO". She deposes that the accused inserted his finger into her vagina. She again deposes that the accused pressed her breast. It is pertinent to mention here that at the time of deposition the victim showed her vagina and breast by hands and this was noted in the deposition sheet. She further deposes that the accused also pressed her mouth. She testifies that all these happened in the house of the accused. She goes on to depose that there was bleeding from her vagina. That she told about the incident to her mother.

23. In her cross examination she has denied the suggestion of deposing before the court as per instruction of her parents. She has categorically denied the suggestion that the accused had not inserted his fingers into her vagina and he had not pressed her breast. She is consistent and firm regarding the fact of the accused inserting his finger into her vagina and pressing her breast. Such consistent and firm evidence inspires credence.

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24. From a meticulous analysis of the evidence of PW 3 it transpires that her evidence is inherently firm and intrinsically probable. There is nothing to show that whatever she has deposed is untrue or embellished. There is no exaggeration of facts in her evidence. Her evidence is quite terse. Unexaggerated and unembellished evidence of PW 3 inspires confidence.

25. The evidence of PW 3 is corroborated in all material particulars of the prosecution case by her previous statement recorded u/s 164 Cr.P.C. On careful perusal of her statement it is seen that she stated the following facts:

i. While she was in the house of the accused, the accused put off her top and pant and inserted his finger inside her vagina (She stated in Bengali like "Niche ungli dhukaile, buku tiplo").

ii. The accused touched her chest and twisted her nipples.

iii. He grabbed her face and pressed both her cheeks hard with one of his hands.

iv. He took off his pant, took his penis in his hand and touched it to her palm. (She stated in Bengali like: "Putu ta ulai eikhane lagai dilo").

v. Then he dressed her back.

vi. Later on, her BABA came to take her home.

vii. Her JETHO told her not to tell anyone but she told her mother.

viii. She would never go to JETHO's home again.

26. It is quite evident that the victim is consistent in her stand about the accused inserting his finger into her urinating organ and pressing her breast. The consistent and firm evidence of the victim can implicitly be relied upon.

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27. It is revealed from her statement that learned Magistrate recorded within brackets that the victim physically mimicked taking off her clothes and has pointed to her vagina and she mimicked by twisting her nipples while she stated about the material part of the prosecution story. These facts lend more weight to the credibility of the evidence of PW 3.

28. At this point it would be apt to consider the contention of learned defence counsel regarding the statement of the victim recorded under section 164 Cr.P.C. Wise Imran, learned defence counsel appearing for the accused, has drawn the attention of this court to the fact of presence of the mother of the victim at the time of recording her statement by the magistrate and contended that no oath was administered to the mother. This court has given thoughtful consideration to this contention of learned defence counsel. Section 26(1) of the POCSO Act 2012 mandates the presence of the parents of the victim at the time of recording her statement. Again clause (3) of section 26 of the POCSO Act 2012, gives the magistrate the discretion to seek the assistance, inter alia, of any person familiar with the manner of communication of the child in the case of a child having mental or physical disability. In view of the said legal provisions and amid the factual matrix of this case there is no illegality in recording the statement of the victim in presence of her mother. Nowhere in her statement it is mentioned that her mother worked as interpreter. Situated so I humbly decline to accept this contention of learned defence counsel."

10. It is well settled that the appellate court at the stage of Section 389 of Cr.P.C would not re-appreciate the evidence and would not try to pick up few lacunas or loop holes here or there in the case of prosecution. The test is to see as to whether the case presented by Page No.# 7/8

the prosecution and accepted by the trial Court can be said to be a case in which, ultimately a convict stands fair chances of acquittal. If the answer to the above said question is to be in the affirmative, as a necessary corollary, if ultimately the convict appears to be entitled to have an acquittal at the hand of this Court, he should not be kept behind the bar for a pretty long time till the conclusion of the appeal, which usually takes a long time for decision and to be disposed of. However, while undertaking the said test, to ascertain whether the convict has fair chances of acquittal, what is to be looked into is something palpable. In other words, something which is very apparent or gross on the face of record, on the basis of which the court can arrive at the prima-facie satisfaction that the conviction may not be sustainable.

11. Pertinent that, under the provisions of POCSO Act, 2012, even at the pre-conviction stage, statutory presumption of offence, is drawn against the accused unless the contrary is proved.

12. In the present case, undoubtedly, the offence is grave.

13. It further appears that that inevitable conclusion of the evidence/material available on record is that the accused/applicant inserted his finger into the vagina of the victim girl and also pressed her breast. The medical report having disclosed no injury mark in the vagina is of no consequence in such offences, especially when the evidence of the victim girl appears to be fully trustworthy, credible, unblemished and of sterling quality.

14. It is further apparent that the victim girl has remain Page No.# 8/8

consistent while accounting the brief facts constituting the incident right from her statement given under Section 161 before the police till her deposition before the trial Court. Therefore, if the aforesaid test is applied to the facts and circumstances of the present case, I do not find any palpable or apparent error on the face of the record.

15. As such, I am of the considered opinion that this is not a fit case to suspend the sentence. Thus, the prayer made by the accused/applicant for suspension of the execution of sentence against him and for his release on bail is found bereft of merit.

16. Resultantly, the instant application stand dismissed.

17. It is needless to be clarified that the observations made hereinabove are only for the purpose of considering the accused/applicant's prayer for suspension of the sentence passed against him and for his release on bail and such observations shall not have any bearing on the merits of the accompanying appeal.

JUDGE

Comparing Assistant