Page No.# 1/15 vs The State Of Assam And Anr
2025 Latest Caselaw 6933 Gua

Gauhati High Court

Page No.# 1/15 vs The State Of Assam And Anr on 3 September, 2025

                                                                      Page No.# 1/15

GAHC010083742024




                                                                2025:GAU-AS:11913

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

                              Case No. : Crl.A./114/2024

          MD. NISANUL ISLAM BARBHUIYA @ LISANUL BARBHUIYA
          S/O MD. SAJIQUR BARBHUIYA,
          R/O NISCHINTAPUR, P.S.- HAILAKANDI, DIST.- HAILAKANDI (ASSAM).



          VERSUS

          THE STATE OF ASSAM AND ANR.
          REP. BY THE PUBLIC PROSECUTOR.

          2:MD. ABDUL GAFFAR LASKAR
           S/O LATE ABDUL SATTAR LASKAR

          R/O BIDYAPUR
          P.O.- MRIAMGAHT
          P.S.- URIAMGHAT
          DIST.- GOLAGHAT (ASSAM)
          PIN- 785601

Advocate for the Petitioner : MR. M K HUSSAIN, MD A RAHMAN,MR. M ALOM,MS. F H
AHMED,MR K U AHMED,MRS. S Y AHMED

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

BEFORE HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND

Date of hearing : 03.06.2025 Date of Judgment : 03.09.2025 Page No.# 2/15

JUDGMENT AND ORDER (CAV)

1. This appeal is preferred challenging the judgment and order dated 28.03.2024, passed by the learned Special Judge, POCSO in connection with Special POCSO Case No. 52/2019, wherein vide order dated 28.03.2024, the learned Trial Court convicted the appellant, Mohammed Nisanul Islam Barbhuiya @Lisanul Barbhuiya (herein after referred to as the appellant or the accused), under Section 10 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act for short) and sentenced him to undergo rigorous imprisonment for five years and to pay a fine of Rs. 20,000/- with default stipulation, and also convicted the appellant under Section 354A(i)(iii) of the Indian Penal Code (IPC for short) and sentenced him to undergo rigorous imprisonment for three years and to pay a fine of Rs. 10,000/- with default situation. Both the sentences are to run concurrently.

2. It is contended on behalf of the appellant that the prosecution failed to bring home the charges leveled against the appellant but the learned Trial Court erroneously convicted the appellant. The learned Trial Court ignored the discrepancies and the contradictions in the evidence including the evidence of the prime prosecution witnesses which was not found to be creditworthy. The presence of appellant was not at all possible considering the place of occurrence at the relevant point of time. Without any direct evidence as well as circumstantial evidence, the Trial Court went ahead and convicted the appellant with a preconceived mind.

3. The learned Trial Court has completely ignored that the sole testimony of the PW's that the accused attempted to commit sexual assault is contrary to the contents of the FIR. The entire prosecution case hinges on circumstantial Page No.# 3/15

evidence, but the chain of circumstances was unmistakably incomplete and hypothetically the appellant was held guilty of offences which he did not commit. It is further submitted that the impugned judgment is liable to be set aside as the learned Trial Court decided the case in a very mechanical and arbitrary manner.

4. Learned Additional Public Prosecutor has raised serious objection against the argument stating that the Trial Court has arrived at a decision after an in- depth discussion and scrutiny of the evidence. The Trial Court has correctly passed the judgment and order and a lenient view was taken and thus no interference is required by this court.

5. The learned counsel for the respondent No. 2 laid stress in his argument that the evidence cannot be rejected by comparing it with the FIR. An FIR cannot be an encyclopedia. The victim can be considered to be a sterling witness. The conduct of the accused on the other hand invites flak. The accused has taken two pleas. He has given two different statements. His statements under Section 313 of the Code of Civil Procedure (Cr.PC for short) before and after alteration of charges insinuates two varied pleas taken by him.

6. Heard Mr. M.K. Hussain, learned counsel for the appellant; Mr. S Nawaz, learned Amicus Curiae for the respondent No. 2 and Mr. B. Sharma, learned Additional Public Prosecutor for the respondent State.

7. I have considered the submissions at the Bar with circumspection.

8. The genesis of the case was that the appellant was working as an employee in the pharmacy of Mohammed AGL (herein after the informant) since August Page No.# 4/15

2017, and was also residing in his house. During his tenure, the appellant never provided proper accounts to the informant and frequently committed theft. Then the informant expressed disapproval and shifted the appellant to his medicine shop.

9. It is further alleged that after a few days, the informant's daughter, Ms. X (herein after referred to as the victim) aged about 13 years returned home from her hostel. While the informant's daughter was staying in the house, the appellant used to show obscene gestures and attempted to molest the victim 'X'. When the informant learnt about the appellant's deplorable conduct, the informant contemplated to sack the appellant after paying his salary due to him. At that time, the appellant demanded Rs. 3 lacs and also asked for his daughter's hand lest he threatened that he would kidnap his daughter. The appellant then left the informant's house spreading rumors about his daughter in the bazaar. Thereafter, the appellant took shelter in the house of the other two accused Shabir Ahmed and Usman Ghani Komar.

10. On 07.09.2018, at about 10 p.m., all the accused came to the informant's

house and demanded Rs. 3 lacs from him. When the informant expressed his inability to pay the amount, the appellant and his co accused wielded sharp weapons and threatened to kill the informant and his family members and to kidnap his daughter. This impelled the informant in his angst to lodge the FIR narrating the aforementioned incidents. The FIR was registered as Uriamghat P.S. Case No. 70/2018 under Section 387/354(A) of the IPC read with Sections 12/18 of the POSCO Act and investigation commenced. Charge-sheet was laid against the appellant and his co-accused. At the commencement of trial, a formal charge was framed under Sections 08/12 of the POSCO Act against the appellant and under Sections 448/387/506 of the IPC against the other accused.

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All the accused abjured their guilt and claimed innocence.

11. At the stage of argument and after going through the evidence, charge was

altered and additionally framed under Sections 10/12 of the POSCO Act and alternately under Section 354A(i)(iii) of the IPC and read over and explained to the appellant to which he pleaded not guilty and claimed to be tried. It is further submitted that the incident occurred on 07.09.2018, whereas the FIR was lodged on 09.09.2018. To substantiate its stance, the prosecution adduced the evidence of seven witnesses including the I.O. and exhibited several documents. On the incriminating materials arising against them, several questions were asked to the accused prior to alteration of charge and after alteration of charge. The appellant's plea was of total denial.

12. It was held by the learned Trial Court that in this case, two offences were

reported, viz;

(A) Offence committed against the informant, and (B) Offence committed against the victim.

13. It was held by the learned Trial Court that at the stage of evidence, it

became apparent that the informant had to pay outstanding dues to the tune of Rs. 2-3 lacs to the appellant, who was his nephew by relation and was employed in his pharmacy. Admittedly, the appellant had claimed his salary which was due to him. It was observed by the learned Trial Court that the informant projected that his accounts maintained by the appellant did not match, but these accounts were finally settled. It was concluded by the Trial Court that the allegation of discrepancy in the accounts maintained by the appellant was not proved by the informant.

14. It was held by the learned Trial Court that the defence did not challenge

the informant's evidence that the appellant used to stay in his house. A Page No.# 6/15

rumour was circulated that the appellant was about to marry the informant's daughter and the allegation of sexual assault and sexual harassment is an added allegation, absolutely separate from the earlier allegation and personal to the victim. It was held that the victim was the best person to narrate the offence committed against her and no other person could speak on her behalf. It has been elicited from her evidence that she informed the incident to her mother who in turn informed her father about the incident of sexual assault and harassment.

15. It was held by the learned Trial Court that the informant who had already

settled the matter will never adduce evidence against the appellant. This finding of the learned Trial Court appears to be absurd. Further, it was held by the learned Trial Court that the informant who has not supported the FIR is not a witness, who can be relied upon on the allegations of sexual offence against his daughter on his single statement that subsequently, "X" stated the contrary. It was held by the learned Trial Court that it was in the interest of the informant not to depose anything against the appellant as he had already settled all the financial disputes with the appellant.

16. Rejecting the argument of the defence counsel, it was held by the learned

Trial Court that as the victim's father had changed his stance during the evidence, the victim's father is unreliable and on the contrary, the victim was found to be reliable as her evidence was substantiated by her mother's evidence. It was held by the learned Trial Court that the victim was a sterling witness as her evidence was consistent to her statement under section 164 of the Cr.PC regarding the manner of sexual assault and sexual harassment committed on her by the appellant. It was held that no material discrepancy could be elicited from the evidence of the victim.

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17. It was held by the learned Trial Court that on the previous statement of

the victim under section 164 of the Cr.PC, her evidence before the Court and her mother's evidence, it could be held beyond a reasonable doubt that the appellant who was residing in their house at the time of the incident, committed sexual assault on the victim. It was held that at about 7:30 p.m., while she was sleeping, the appellant came and removed her blanket which led her to raise alarm and then her mother rushed to her room. When her mother tried to resist, the appellant attempted to assault her mother. It was held by the learned Trial Court that the defence has not challenged the birth certificate and thereby the victim was held to be a minor who was around 13 years 5 months 2 days at the time of the incident.

18. It was held by the learned Trial Court that in the light of the decision of

the Hon'ble Supreme Court in Virendra Kumar vs. State of Madhya Pradesh reported in 2022 (8) SCC 668 and State of West Bengal vs. Mir Mohammed Omar reported in 2000 (8) SCC 382, that efforts should be made by courts to see that criminal justice is salvaged despite defects in investigation. It was held by the learned Trial Court that only at the fag end of the trial, without any plea appellant has made a statement under section 313 of the Cr.PC, that the dispute was only between the appellant and the informant relating to purchase of land and lending of money.

19. Now, the question that falls for consideration is that whether the learned

Trial Court erred while holding the appellant guilty of offences under Section 10 of the POCSO Act read with section 354(A)(i)(iii) of the IPC.

20. To decide this case in its proper perspective the evidence has to be re-

appreciated:-

21. The informant deposed as PW1 that his daughter was 15 years old at the Page No.# 8/15

time of the incident. He heard that the appellant misbehaved with his daughter, but subsequently his daughter stated in the negative and she did not disclose the details to him. PW1 further testified that the other accused threatened him to pay the dues payable to the appellant which was about Rs. 2-3 lacs. As the appellant was not entitled to Rs. 2-3 lacs, he lodged the case. Now, they have settled their dispute as the appellant was remorseful. In his cross-examination, PW1 stated that the victim used to reside in a hostel at Hojai and the appellant used to work in his pharmacy. There were discrepancies in the accounts maintained by the appellant and this resulted in the misunderstanding between him and the appellant. He failed to recall his daughter's date of birth.

22. PW2 is Abdul Hakeem and he was declared as a hostile witness as he

stated that he heard that the appellant threatened the informant and demanded Rs. 3 lacs. This witness was cross-examined by the prosecution but his cross-examination is not noteworthy and no incident of sexual assault could be detected after exhibiting his initial statement as Exhibit-3.

23. Another witness Nurul Hoque deposed as PW3 that the incident occurred

about 3 years ago. He did not witness the incident but one day, he noticed the three accused persons coming out of the complainant's house. He heard that the appellant intended to marry the informant's daughter but subsequently the informant told him that it was a misunderstanding.

24. Immamuddin as PW4 adduced evidence in a similar manner stating that

the incident occurred about 2 years ago, in the complainant's house. He did not witness the incident but one day, he saw the three accused persons on the road adjacent to the complainant's house. He heard that a case has been filed against the accused persons. Thus, there is no evidence adduced against the Page No.# 9/15

accused/appellant by PWs 1, 2, 3 & 4. However, a new allegation was introduced by PW5, who is the victim and she deposed that, this case was lodged in the year 2018. At that time, she was a student of Class-VII and was studying at Markaz Academy in Hojai. The appellant who was working in her father's pharmacy, used to reside in their house and she used to come home from the holidays. During her stay in her house, the appellant inappropriately groped her breasts and stomach. He inappropriately touched her on several occasions and she informed her mother about the incident. When her mother confronted the appellant, he threatened to assault her and also rebuked her mother with obscene words. One day at about 8 p.m., when she was sleeping, the appellant removed her blanket and she screamed. Her mother rushed to her room and the appellant attempted to assault her mother.

25. It is further alleged by the victim that the appellant attempted to show her

nude videos on several occasions, but she did not watch those videos. Her father then sacked the appellant who defamed her by circulating rumours that he would marry her. PW5 further deposed that after this incident, she sank into depression. She was forwarded by the police to the Magistrate who recorded her statement. The victim proved her statement before the Magistrate as Exhibit-4. It was further deposed by the victim that she could not remember the dates when the appellant assaulted her, but it was in the year 2018. When her father removed the appellant from the pharmacy, she was in her hostel. She heard that the appellant lodged a case against her father at Sorupathar Court. Every time after her tests/examinations, she used to come to her house from the hostel.

26. The I/O, Dhrubjyoti Bora who deposed as PW7 affirmed through his cross-

examination that the victim did not mention before him that the appellant Page No.# 10/15

threatened to assault her mother. The victim did not mention before him that the appellant removed her blanket. The I.O. also affirmed that the victim did not mention that the appellant used to show her nude videos. The I.O., PW7 has also affirmed through his cross-examination that the victim did not mention before him that the appellant defamed her in order to marry her. Thus, it is clear from the cross-examination of the victim vis-à-vis the cross- examination of the I.O. that she vacillated from her earlier statements before the I.O. under Section 161 of the Cr.PC. Although, no contradictions were elicited through the cross-examination of the victim and her statement before the Magistrate under section 164 of the Cr.PC, the evidence of the victim is not found to be reliable, more so, when there is not even a whisper in the FIR relating to any sexual assault committed by the appellant to the victim.

27. The criminal case was set into motion by the FIR which was lodged by the

father of the victim who did not testify in the court that the appellant molested his daughter nor did he mention in the FIR that the appellant committed sexual assault on his daughter. The victim mentioned about various incidents of sexual assault during the year 2018, but when the victim's father brought up this case against the appellant in the same year, i.e., 2018, vide FIR dated 09.09.2018. There is not even a whisper in the FIR about any sexual assault on the victim. Why was the victim or even her mother hesitant to lodge an FIR relating to the incidents of sexual assault? If they were subjected to threats by the appellant then the victim's father would not have lodged any FIR against the appellant and the victim would not have had the courage even to depose against the appellant in a case which had no allegations of sexual assault against the appellant initially.

28. It is held that the learned Trial Court has stretched this case too far to Page No.# 11/15

convict the appellant on the basis of vacillating statements of the victim without even a hint of sexual assault in the FIR. The learned Trial Court has totally ignored that the victim's father has not implicated the appellant of any sexual assault or sexual harassment.

29. The evidence of the victim's mother as PW6, implicates that the accused

had assaulted her daughter. The appellant used to stay in her house. A case was lodged against him on 09.09.2018. At that time, her daughter was studying in Class-VII at Markaz Academy in Hojai and was staying in a hostel. During vacations, her daughter used to come home from the hostel. During her stay at home, the appellant used to touch her daughter inappropriately. Her daughter informed her about the sexual assaults committed by the appellant on several occasions. When she confronted the appellant, he threatened to assault her and rebuked her daughter uttering obscene words. One day at about 7:30 p.m., when her daughter was sleeping, the appellant removed her blanket. As soon as her daughter raised alarm, she reached the room and saw the appellant in the room and when she resisted, the appellant attempted to assault her. Her daughter informed her that the appellant attempted to show her nude videos but she did not watch those videos. She informed her husband about the incident. Her husband then drove out the appellant from their house as he was worried about their daughter's future. The appellant to avenge this circulated rumours that he would marry their daughter. She proved the birth certificate of her daughter as M Exhibit- 1, which reflects that her daughter's date of birth was 02.05.2005.

30. Although, the evidence of PW6, substantiates the evidence of PW5, her

cross-examination and the cross examination of the I.O. reflects several contradictions. The I.O. affirmed that PW6 did not mention in her earlier Page No.# 12/15

statement that the appellant tarnished their image by circulating rumours that he would marry their daughter. The evidence in chief and cross-examination of PW6 does not at all inspire confidence. Although charges were altered and the witnesses were examined on the offence of sexual assault and sexual harassment committed by the appellant to the victim, yet owing to the contradictions elicited by the cross-examination of the victim, it appears that a benefit of doubt has to be extended to the appellant.

31. The appellant has relied on the decision of the Hon'ble Supreme Court in Ganeshan vs. The State represented by Its Inspector of Police, reported in 2020 (10) SCC 573, wherein it has been observed that:-

10.3. Who can be said to be a sterling witness has been dealt with and considered by this Court in Rai Sandeep v State (NCT of Delhi) in para 22, it is observed and held as under (SCC p. 29)

22. In our considered opinion, the "sterling witness" should be of very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain Page No.# 13/15

of circumstances to hold the accused guilty of the offence alleged against him.

Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can

be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."

32. Reverting back to this case, it is held that although the victim was a minor,

her statements right from the beginning has not remained inconsistent. It is held by the learned Trial Court that the statement of the victim under Section 164 of the Cr.PC was not similar to her evidence in the Court. Without considering the entire statement of the victim under section 164 of the Cr.PC, it is held that the victim has vacillated from her earlier statement before the I.O. which has been contradicted by the defence as per Section 145 of the Indian Evidence Act, 1872 qua Section 162 of the Cr.PC. A statement under section 164 of the Cr.PC can be brought into evidence only by contradiction or corroboration, but in the instant case, if the statement of the victim under Section 164 of the Cr.PC is carefully scrutinized, contradictions indeed surfaces.

33. The age of the victim was proved through Exhibit-1, which clearly reflects

that the Exhibit-2 was not proved by the authority who had issued the certificate which was obtained to prove the date of birth of the victim was 14.04.2005.

34. The appellant on the other hand in his statement under Section 313 of the Page No.# 14/15

Cr.PC stated that his payment was pending even after working for 18 months in the informant's house, who did not pay him his dues. The senior citizens in the village were apprised of this conduct of the informant and on 30.03.2017, a family meeting was organized but nothing was settled and he left his job. Thereafter, on 30.06.2017, he was physically assaulted by the informant and two others and so he did not return to Hailakandi.

35. The informant through his cross-examination as PW1 stated that the

appellant had indeed claimed his dues and this resulted in a misunderstanding between him and the appellant. They have now settled their dispute and they are living peacefully. He also stated that he did not witness any offence committed on his daughter. He also stated that his daughter was 18 years old at the time of the incident.

36. From the evidence adduced by the prosecution, it is held that the

prosecution has failed to bring home the charges leveled against him who was able to assert through his statement and cross-examination of PW1 that there was indeed a misunderstanding between him and the appellant relating to settlement of accounts.

37. In the wake of the foregoing discussions, it is thereby held that a benefit of

doubt has to be extended to the appellant.

38. It is held that the judgment and order dated 28.03.2024 passed by the

learned Special Judge, POCSO in connection with Special POCSO Case No. 52/2019, is unsustainable and is hereby set aside. The appellant is acquitted from the charges under Section 10 of the POCSO Act and under Sections 354(i)(iii) of the IPC on benefit of doubt and is set at liberty forthwith. The appellant may be released forthwith if he is not wanted in any other case.

39. Send back the Trial Court Records with a copy of the judgment and order.

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JUDGE

Comparing Assistant