[Cites 17, Cited by 0]
Gauhati High Court
Page No.# 1/25 vs The State Of Assam And Anr on 24 March, 2026
Author: Michael Zothankhuma
Bench: Michael Zothankhuma
Page No.# 1/25
GAHC010022002020
2026:GAU-AS:4253
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./49/2020
SRI BASIR UDDIN
S/O- SHRI ALA UDDIN, R/O- PECHAWALA, GAMARIA, P.S. RAM KRISHNA
NAGAR, DIST.- KARIMGANJ, ASSAM
VERSUS
THE STATE OF ASSAM AND ANR
REP. BY P.P., ASSAM
2:SRI PILMAN SURONG
S/O- HOLI ROSMAT
R/O- SONICHERRA KHASIA PUNJI
P.S. R.K. NAGAR
DIST.- KARIMGANJ
ASSAM
Advocate for the Petitioner : MR. B K MAHAJAN, MR. A CHAUDHURY,MD R ALI,MR. P K
DAS,MR. N MAHAJAN
Advocate for the Respondent : PP, ASSAM,
Linked Case : Crl.A./45/2020
ROMJUL HUSSAIN
S/O- MD. ANCHAR ALI
VILL.- GAMARIA
P.S. R.K. NAGAR
DIST.- KARIMGANJ.
VERSUS
THE STATE OF ASSAM AND ANR
TO BE REP. BY THE PUBLIC PROSECUTOR
Page No.# 2/25
ASSAM
2:PILMAN SURONG
S/O- HOLI ROSMAT
VILL.- SONAICHERRA PUNJI
P.O. GAMARIA
P.S. R.K. MAGAR
DIST.- KARIMGANJ
ASSAM
PIN- 788156.
------------
Advocate for : MR H R A CHOUDHURY
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM AND ANR
BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
HONOURABLE MR. JUSTICE PRANJAL DAS
For the Appellants : Mr. A. Ahmed and Mr. N. Mahajan
For the Respondent(s) : Ms. A. Begum, learned
Senior Advocate and Additional Public Prosecutor,
Assam and Ms. J. Saikia and Ms. S. Sharma,
learned Legal Aid Counsel, respondent No. 2.
Date on which judgment was reserved :09.03.2026
Date of pronouncement of judgment :24.03.2026
Whether the pronouncement is of the
Operative part of the judgment? :No
Whether the full judgment has been
pronounced? : NA
JUDGEMENT AND ORDER (CAV)
(Pranjal Das, J)
Heard Mr. Mr. A. Ahmed and Mr. N. Mahajan, learned counsels for the appellants. Also
heard Ms. A. Begum, learned Senior Advocate and Additional Public Prosecutor, Assam and
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Ms. J. Saikia and Ms. S. Sharma, learned Legal Aid counsels, respondent No. 2.
2. The instant criminal appeal has been preferred under section 374(2) of the Criminal
Procedure Code 1973 (as it existed then) by the appellant Basir Uddin against the judgment
and order dated 09-12-2019, passed by the learned Sessions Judge, Karimganj, in Special
Sessions Case No. 2/2015, whereby the appellant has been convicted under section 376 D
IPC r/w section 6 of the POCSO Act 2012, and for such conviction sentenced to undergo
imprisonment for life, meaning imprisonment for remainder of his natural life. He was also
imposed with a fine of Rs.50,000/- and in default of fine to undergo rigorous imprisonment
for 1(one) year.
3. In Criminal Appeal No. 45/2020, the appellant Ramjul Hussain has assailed the same
judgment, whereby he was also convicted and sentenced on identical lines. Both these
criminal appeals are being disposed of by this common judgment.
4. Before proceeding further, the factual matrix of the prosecution case as revealed before
the learned trial court may be narrated as follows -
On 09-03-2015, telephonic information was received at Kalibari outpost under RK
Nagar police station in the district of Karimganj, whereby ASI Mihir Malakar informed over
phone that three boys had committed rape on a girl at Sunaicherra and large number of
people had gathered at the outpost in connection with the matter.
5. On the basis of the information, GD No. 207 dated 09-03-2015 was made. On the same
day, i.e. on 09-03-2015, at night, an FIR was lodged at the Kalibari outpost by informant
Pilimon Surang with the allegation that on the same day in the evening around 5.30 p.m., his
daughter (referred to her as X) and her cousin sister, June, were coming back to their house
from a Fair Price Shop and when they reached near the Hanuman Asthan situated at
Sunaichara garden, the accused persons caught his daughter, took her to the jungle forcibly
and repeatedly committed rape on her at knife point. It was further stated in the FIR that her
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cousin sister who was with the victim, came running and informed the matter, whereupon the
informant along with his relatives recovered his daughter in an unconscious state at the place
of occurrence and her footwear was also found at that place.
6. It was further alleged that his daughter was in critical condition and struggling for her
life. On the basis of the FIR, Kalibari outpost GD No. 115 dated 09-03-2015 was made and
the FIR forwarded to the RK Nagar police station, whereupon RK Nagar PS case No. 33 of
2015 was registered on 10-03-2025 under section 6 of the POCSO Act, 2012. The case was
investigated and upon completion of investigation, the I/O upon finding sufficient materials
laid charge-sheet being C.S. No. 31 dated 16-5-2015.
7. Four persons were charge-sheeted, namely the present two appellants and two other
accused who were, however, forwarded to the JJB for being a CICL. The charge-sheet was
filed against the appellants under section 120(B) IPC r/w section 6 of the POCSO Act 2012.
Subsequently, after completion of the usual formalities, the learned trial court vide order
dated 11-11-2019, framed charges against both the appellants under section 376D IPC r/w
section 6 of the POCSO Act 2012.
8. The charge upon being read over was denied by the appellants as accused and
accordingly, the trial commenced. During the trial, the prosecution examined 13(thirteen)
witnesses, including the informant, victim, MO and I/O. Two court witnesses were also
examined.
9. After closure of the prosecution evidence, the appellants were examined under section
313 CrPC. The defence did not adduce any evidence. After completion of the trial, the learned
trial court convicted and sentenced the appellants as already narrated earlier. Aggrieved by
the same, the instant appeals have been filed.
10. It is submitted by the learned counsel for the appellants that Test Identification Parade
(herein after TIP) in the instant case was done after 25 days and that the identification of the
Page No.# 5/25
appellant, especially Ramjul Hussain, is highly defective. It is submitted that the appellants
have been falsely implicated.
11. It is submitted that before conducting the TIP, appellant Ramjul was already exposed to
the victim girl. It is submitted that in the initial information regarding the incident received at
the outpost based on which GD No. 207 was dated 09-03-2015 was made, the appellants
were not named. It is submitted that the testimony of the I/O has revealed that the
appellants as accused were not masked.
12. It is submitted in this context that as a result of the same, the victim girl had seen
them before the TIP. It is submitted that from the evidence, it can be said that the victim girl
along with her father has visited the court and seen the appellants before the TIP. It is
submitted and reiterated that due to enmity, the appellants have been falsely implicated in
this case.
13. In support of his submissions, the learned counsel for the appellants has placed
reliance on the following case laws -
(i) Gireesan Nair & Ors. Vs. State of Kerala, reported in (2023) 1 SCC 180.
(ii) Reena Hazarika vs. state of Assam, reported in (2019) 13 SCC 289
(iii) Ganesh Gogoi vs. state of Assam, reported in (2009) 7 SCC 404.
14. On the other hand, the learned Additional Public Prosecutor submits that the appellants
have not been falsely implicated in the case and that PW-3/victim has denied in her cross-
examination that she had falsely implicated the appellants. The prosecution submits that no
cross-examination was conducted on the point of revealing the identity of the appellants to
the victim before her TIP. It is submitted that the present case has been successfully proved
before the learned trial court.
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15. In support of her submissions, the learned Additional Public Prosecutor for the State
has placed reliance on the following case laws -
(i) State of Uttar Pradesh vs. Krishna Master & Ors. Reported in (2010) 12 SCC
324.
(ii) Mulla and Anr. vs. State of Uttar Pradesh, reported in (2010) 2 SCC 508.
16. Supporting the contentions of the prosecution, Ms. Sarma, the learned Legal Aid
counsel for the informant, submits that the testimony of PW-3/victim receives full support
from the medical evidence and the testimony of the MO. It is submitted that the medical
evidence clearly proves the commission of rape upon the victim girl. It is submitted that the
evidence clearly shows that the victim knew the appellant Basir from before. With regard to
the aspect of false implication, the learned Legal Aid counsel submits that no defence
evidence has been adduced in support of the story of false implication.
17. The learned counsel further submits that during all the three rounds of the TIP, the
appellants were identified by the victim girl. Summing up her submissions, the learned Legal
Aid counsel contends that the testimony of the victim is reliable in this case and along with
the other parts of the prosecution evidence, the learned trial court rightly convicted and
sentenced the appellants.
18. In support of her submissions, the learned Legal Aid counsel for the respondent No.
2/informant has placed reliance on the following case laws -
(i) P. Sasikumar vs. State represent by the Inspector of police, reported in
(2024) 8 SCC 600.
(ii) Motilal vs. state of Madhya Pradesh, reported in (2008) 11 SCC 20.
Page No.# 7/25
(iii) Bhupen Kalita vs. State of Assam, reported in 2020 Supreme (Gau) 300.
DISCUSSION AND DECISION
19. PW- 12, Dilip Kumar Chanda is one of the investigating officers of the case and in his
cross-examination stated that during the investigation he had not collected any document of
age or of date of birth of the victim. The medical officer, Dr. Ranobijoy Malakar, who had
examined the victim after the incident adduced evidence as PW-10 and after such medical
examination, he opined that her age was between 13 to 14 years. In his testimony, he has
stated about her radiological examination and in cross-examination, he denied the suggestion
that his opinion regarding the victim being aged between 13 to 14 years was not correct. In
her statement recorded before the learned JMFC during the investigation, which has been
exhibited as Exhibit-4 during the trial, she has stated her age to be 13 years. The said
statement was recorded on 11-03-2015. The date of the alleged incident is 09.03.2015.
20. In the FIR lodged by the father of the victim girl, he has mentioned her to be aged 13
years and a student of Class VII. The examination-in-chief of the victim who adduced
evidence as PW-3 was taken in two phases. In the first phase recorded on 07.12.2016, she
indicated her age as 14 years and in the second phase recorded on 01.12.2018, she indicated
her age at the time of deposition as 16 years. In her examination-in-chief, though she has not
mentioned about her age, she has stated about studying in Class VII at the time of the
incident. However, she denied the suggestion that she was above 18 years of age at the time
of the incident.
21. Pilman Surong, the father of the victim, adduced evidence as PW-5 and he is also the
informant of the case. We also find that in the cross-examination of PW-5, the informant and
father of the victim, no suggestion or question was put on the question of the victim girl
being a minor or otherwise. Thus, on the basis of the aforesaid evidence, it is clear that the
victim girl was a minor aged below 18 years at the time of the incident.
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22. Before proceeding further, the statement of the victim girl recorded under section 164
CrPC during the investigation may be seen. As mentioned above, the said statement was
exhibited and proved by her during the trial as Exhibit-4 and she also proved her signatures
thereon as Exhibit 4(1), 4(2), 4(3) and 4(4).
23. In her statement, she stated that on the day of the incident at around 5.30 PM, she
along with her little sister June went to a shop situated half a kilometer away from their
house. Then on the way back, they took a shortcut route where there was a forest and fewer
passersby. She further stated that while they were going on that route, three boys, one of
them being Basir, son of Ala Uddin, who used to serve them on a daily basis, came out from
the jungle and saw them. Upon seeing them, her sister ran away. The victim further stated
that when she tried to run away, the three boys pushed her from behind and she fell down.
Thereafter, one of them pressed her mouth and another caught hold of her legs and they
committed bad acts upon her, one after the other removing her clothes. She lost her
consciousness and regained her senses when her father took her home. She stated that the
three boys took her to the jungle from the road and committed the heinous act. She also
stated that the accused persons committed the heinous act by tying her mouth by means of a
hanky and keeping hold of her hands and legs.
24. As mentioned above, during the trial, the victim adduced evidence as PW-3. She stated
in her deposition that on 09.03.2015, in the afternoon, she was returning from the ration
shop along with her younger sister named above through a shorter route to the house,
whereupon three boys came out of the jungle and held her and at that time, her sister ran
home to inform her parents. PW-3 further testified that the boys then forcefully took her
inside the jungle and one held her by her legs and one gagged her, while the other
committed rape upon her and that in this manner, one by one, all the boys committed rape
upon her. She stated that she could recognize one of the miscreants as Basir and that the
said Basir used to work in their Khasia Punji as labour. During her deposition, she identified
the said Basir in the dock. She stated that she became unconscious after the incident and
when she regained her senses, her father had already arrived.
Page No.# 9/25
25. PW-3 further stated in her examination-in-chief that she could identify the other
accused Ramjul, if she saw him and that she came to know his name after the incident and
after he was arrested in the case. She stated that she identified him as one of the persons
involved in the incident and that she used to notice him prior to the incident when he used to
go to college, but did not know his name. PW-3 further stated that the incident took place on
09-03-2015 and that she had gone to the ration shop with her mother's sister's daughter
named June, for purchasing rice and was coming back by the shortcut after purchasing rice
and the said route passed through a jungle. While on the way, three persons came and
stopped in front of them. One was accused Basir Uddin and the other was Ramjul. She could
not identify the third miscreant. She stated that they pushed her from behind, whereupon she
fell down and her sister fled. She further testified that the three persons dragged her inside
the jungle, removed her clothes and Ramjul grabbed both her hands and spread the two
hands on both sides and the third unidentified miscreant grabbed her legs by spreading them
apart. Thereafter, Basir raped her. She further stated that thereafter the other two also
committed rape upon her. She testified that the accused persons also scratched her breast
and chest. She specifically testified that all the three accused persons had inserted their
private parts into her private part, leading to bleeding. She stated that she had resisted them
but they overcame her. She stated that after committing rape, they threw her and escaped
from the place and she became senseless. She proved her statement before Magistrate as
Exhibit-4 and her signature thereon as Exhibit-4(1), 4(2), 4(3) and 4(4). She stated about
police seizing her clothes that she was wearing at the time of the incident. She proved her
signature on the seizure list as Exhibit-2(2). She proved as Material Exhibit-1 the frock she
was wearing and as Material Exhibit-2, the shorts she was wearing at the time of the incident.
The testimony of PW-3 regarding the commission of rape and the nature of the
incident remained unshaken in cross-examination and her testimony regarding the nature of
the incident has not been demolished in cross-examination. She denied the suggestion that
no incident as alleged by her had taken place. She specifically denied that there was any
quarrel between her and Basir regarding detaining of Basir's cow.
Page No.# 10/25
26. The sister mentioned by the victim in her testimony and who was stated to be with her
at the time of the incident is a crucial witness and she testified as PW-4.
27. At the time of PW-4's deposition, her age was stated to be 12 years and therefore, the
learned trial court conducted preliminary questioning regarding her name, father's name, the
Class in which she was studying and during this preliminary questioning, she also stated that
she would speak the truth. Upon being satisfied, the learned trial court proceeded to examine
her. The said PW-4 child witness and cousin sister of the victim has lent support to the
testimony of the victim.
28. PW-4 stated that on the fateful day, she and the victim girl had gone to ration shop to
get rice and on the way back at around 5.30 PM, three miscreants held her sister while one
other person did not do anything against the victim. She stated that she got scared and ran
to inform the victim's father about the incident. PW-4 also stated about recognizing accused
Basir Uddin at that time. She denied in cross-examination that she had given false
evidence and she has also denied that she could not identify the miscreants. She has also
reiterated that upon returning from the ration shop, the four miscreants pounced upon her
sister and three of them held her and then she ran towards her sister's house to inform her
father about the incident. The testimony of PW-4 lends vital corroboration to the nature of
the incident and the evidence adduced by the victim.
29. We next go to the medical evidence and the testimony of PW-10, Dr. Ranobijoy Malakar,
who examined the victim after the incident as mentioned earlier. In his testimony, he has
stated about examining her on 09-03-2015 at S.K. Roy Civil Hospital, Hailakandi in connection
with R.K. Nagar P.S. Case No. 33/2015. He stated that the victim was identified by WPC
Anjana Dey. PW-10 stated that marks of violence was found on her body and private parts;
that, vulva was reddish and swollen; there was laceration over labia minora. He also testified
that the victim gave a history of rape. He further stated in his testimony that vaginal swab
gave positive results for presence of spermatozoa under microscopic examination. He opined
that there were signs of recent sexual intercourse; marks of violence present on her private
Page No.# 11/25
parts and that she was found to be having difficulty walking during the time of examination.
He proved the medical report as Exhibit-10 and his signature thereon as Exhibit- 10(1). He
proved the vaginal swab report as Exhibit-12, and x-ray report as Exhibit-13.
30. In cross-examination, he reiterated that he had examined the victim in connection with
R.K. Nagar P.S. Case No. 33 of 2015 by denying the suggestion in this regard. Therefore, we
find that apart from the testimony of the victim as PW-3, which finds corroboration from the
testimony of her sister(PW-4) - the medical evidence clearly reveals that there was sexual
assault in the nature of rape upon the victim girl. The injuries on her private parts, the
tenderness and swelling on her private parts, and laceration on her labia minora/private parts
clearly indicate sexual assault. The MO has specifically opined about signs of recent sexual
intercourse and marks of violence on her private parts. Another very important aspect is
finding of spermatozoa on the vaginal swab, which fortifies the medical opinion regarding
penetrative sexual assault.
31. PW-1 Nur Uddin is the writer of the FIR and he has proved the ejahar as Exhibit 1 and
his signature thereon as Exhibit 1(1). He stated about taking thumb impression of the
informant on the ejahar.
32. In cross-examination, he stated that it was mentioned in the FIR that it was according
to the narration of the informant. PW-2 Samar Das also lends an important corroboration to
the testimony of the victim and her sister as he has stated that at the relevant time around 4
PM, the victim had come to his shop to purchase ration articles and she was accompanied by
a younger girl and that after purchasing, they left his shop. As already mentioned, both PW-3
victim and her minor sister PW-4 have stated about the incident taking place while they were
returning from the ration shop after purchasing rice.
33. PW-5 Pilman Surong, the informant and father of the victim, corroborating the
testimony of PW-4 child witness has stated about the child coming to his house and informing
that some miscreants had restrained and caught hold of the victim. He stated that he
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immediately, accompanied by some other people, went to the place of occurrence and found
his daughter in a senseless condition and that upon being asked, when she regained her
senses, she stated about being raped by the three miscreants. In this context, the victim has
stated in her testimony that after the incident, she had become senseless and she reiterated
the same in cross-examination by denying the suggestion to the contrary that when her
father reached there, she was conscious. Therefore, this part of the testimony of the
informant PW-5 has been corroborated by the testimony of his daughter.
34. PW-6 Mathius Sutnga testified that on the day of the incident, he was informed by the
victim's father that he was informed by the child June, who came rushing to him and telling
him about three men committing rape on the victim. He also accompanied the informant to
the place of occurrence and found the victim in a very exhausted condition and she was not
in a position to speak and he stated about bringing the victim back to her residence, giving
massage to her body and when she felt better, she told him that accused Basir Uddin and two
others had committed rape on her.
35. In cross-examination, he stated inter alia that at the place of occurrence, he had found
a slipper.
36. PW-7 Gabriel Namba stated that he was also told by the informant about his daughter
being raped. He stated about the nature of the incident on similar lines and the victim telling
about the incident after regaining senses, thereby lending support to the testimony of the
victim about losing consciousness after the incident.
37. It is important to note that PW-7 revealed in his testimony that while the informant was
carrying the victim back, her pants were removed and her upper garments were torn and he
had seen blood coming out of her breast. He stated that it appeared to him that the
miscreants had bitten or scratched her breast. In this context, PW-3, the victim had stated
that during the incident, the miscreants had scratched her breast and chest.
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38. This is also in harmony with the findings of the medical examination about marks of
violence on her body, including private parts. In her testimony, the victim had stated about
the police seizing clothes which she was wearing at the time of the incident, while exhibiting
two seizure lists. In this regard, investigating officers PW-11 Mihir Malakar and PW-12 Dilip
Kumar Chanda stated about seizing male hawai slippers, leather sandals and nylon female
slipper upon being produced by the informant and others. These were stated to have been
seized by I/O as Material Exhibit- 3, 4 and 5. The recovery of the female slipper from the
place of occurrence is significant. It may be mentioned here that the initial information was
given by ASI Mihir Malakar of Kalibari outpost under RK Nagar police station over phone that
three boys had committed rape on a girl and large number of people had gathered before the
outpost. The pertinent GD No. 207 dated 09-03-2015, extract copy of which was exhibited
during the trial as Exhibit-15.
39. Subsequently, the formal FIR was lodged by the father of the victim whereupon Kalibari
out post GD No. 115 dated 09-03-2015 was made and forwarded to the police station for
registering a case. PW-12, the second investigating officer testified that upon completion of
investigation, he submitted charge-sheet which he exhibited as Exhibit-19 during the trial and
proved his signature there on as Exhibit-19(1).
40. Thus, from the prosecution evidence narrated and discussed above, it is proved that
the victim girl was a minor aged below 18 years at the time of the incident and that she was
also subjected to sexual assault in the nature of rape by several miscreants.
41. As stated at the outset, 4(four) accused persons were sent up for trial out of which
2(two) were found to be CICL and were forwarded to the Juvenile Justice Board. The present
convict appellants namely Basir Uddin and Ramjul were found to be adults and they faced
trial before the learned trial court and after their conviction and sentence, they are before this
Court with this appeal.
42. Now, we are confronted with the most important question as to whether the identity of
Page No.# 14/25
the present convict appellants as two of the assailants involved in the gang rape of the minor
child has been proved by the prosecution during the trial.
43. It may be mentioned here that in the telephonic information mentioned above (GD No.
207), there is reference to 3(three) boys. However, in the FIR lodged by the father of the
victim, against the miscreants, Basir Uddin S/o Ala Uddin, is mentioned and two others are
mentioned without taking the names. Thus, in the FIR Exhibit-1, the name of appellant Basir
is mentioned. In her statement under section 164 CrPC also, the victim has mentioned about
Basir being one of the assailants. In her testimony as PW-3, the victim has clearly stated
about one of the miscreants being Basir and that he used to work as a labour in their Khasiya
Punji and she identified the said accused in the dock during deposition. In cross-examination
on behalf of the said Basir, the victim has stated about his father's name as well and also
testified about seeing him on the day of the incident while she was going to the shop.
44. As already mentioned earlier, she specifically denied about any quarrel between her and
Basir with regard to any cow. Even the child witness PW-4, the younger sister of the victim,
has stated about recognizing accused Basir out of the three appellants in her examination-in-
chief. Such testimony of PW-4 identifying the accused Basir has remained unshaken in cross-
examination.
45. PW-5, the informant has stated about being told by the informant that she could
recognize one of the miscreants at the time of the incident. From the testimony of PW-6 also,
it has emerged that upon regaining her consciousness when she was asked about the
incident, she narrated the same and also mentioned accused Basir Uddin and two others. In
cross-examination of PW-6, Mathius Sutnga also, he has reiterated that the victim told him
about Basir committing rape on her.
46. It may be mentioned here that during the investigation, TIP was done regarding
identification of assailants. The TIP report has been exhibited during the trial and the learned
Magistrate who conducted the TIP has also adduced evidence as PW-9. In his deposition, PW-
Page No.# 15/25
9 Tarun Dey, the then learned JMFC, stated that upon order of the learned CJM, Karimganj,
the conducted TIP on 07.04.2015 in the district jail at Karimganj. He stated that upon
reaching there in the late afternoon, he directed positioning of nine persons and one accused,
in one row and in the said manner formed four rows consisting of nine individuals and one
accused each. He stated that the accused persons were Ramjul Hussain, Basir Uddin and
there were two CICLs. The witness was the victim of the case and three rounds of
identification were carried out.
47. In the first round, she identified Ramjul Hussain, Basir Uddin and one CICL. In the
second round, she identified Ramjul Hussain, Basir Uddin and the same CICL. In the third
round, she identified Ramjul Hussain, Basir Uddin, the aforementioned CICL and another
CICL.
48. PW-9 stated in his deposition that each of the rows consisted of persons of similar looks
and heights and before each round, the witness was sent to a room separate from the
accused and dresses of the persons were changed and police personnel were excluded from
jail premises. The victim was also in a room where police personnel were not there. He
further testified that TIP was conducted in the presence of head warden Kajal Chakraborty
and assistant jailor Sudip Banerjee. PW-9 proved the TIP report as Exhibit-5 and his
signatures there on Exhibit-5(3) & 5(4) and the signature of the witness as Exhibit-5(5), 5(6),
5(7) and 5(8). He stated that after the TIP, he passed a detailed order which he exhibited as
Exhibit-9 and Exhibit-9(1) being his signature.
49. We have perused the Exhibit-5 being the TIP report and in the heading under serial No.
8, it has been stated that the witness identified Ramjul Hussain and Basir Uddin and one
other in the first and second round and another person in the third round. It may be
mentioned here in that in the testimony of the victim also, she has stated about participating
in the TIP. She stated that police took her to the jail where number of persons were lined up
and she identified the accused persons and she stated that she had identified two accused
persons. She had identified both the present appellants during such TIP. During her
Page No.# 16/25
deposition also, she identified the accused Basir Uddin in the dock. Thus, on the basis of the
identification evidence; three rounds of TIP; mentioning of the name of Basir in the
statement before Magistrate during investigation; mentioning of his name in FIR; implicating
Basir Uddin by name in her testimony during the trial - the identity of appellant Basiruddin is
sufficiently proved.
50. Further, from the TIP evidence rendered by the learned JMFC and also, the testimony of
the victim during the trial - there is no manner of doubt that the identity of the appellant
Basir Uddin as one of the assailants committing the gang rape upon the minor girl has been
proved sufficiently by the prosecution.
51. As regards the identity of Ramjul, it is true that initially, his name did not come into the
picture. In the FIR, he was not named and in the statement before learned JMFC also, there
is no mention of his name. However, the TIP was conducted on 07.04.2015 and the incident
had taken place on 09.03.2015. During TIP, the victim identified appellant Ramjul Hussain
during all the three rounds of the TIP. This has also been testified by the learned JMFC
who had conducted the TIP, in his testimony as PW-9. It is also revealed from the TIP report
exhibited as Exhibit-5.
52. Regarding her testimony during the trial, PW-3 victim in her examination-in-chief of the
first phase did not mention about Ramjul. But in her second phase of examination-in-chief,
conducted on 01-12-2018, she stated that she identifies the said Ramjul as one of the
persons involved in the incident and that she came to know his name after the incident.
However, the TIP was conducted within a month of the incident and in the said TIP, she
clearly identified Ramjul as one of the assailants in all the three rounds as mentioned above.
53. The identification of Ramjul in court on 01-12-2018 during the second phase of her
examination-in-chief by the victim was not identification of Ramjul for the first time and that
such identification during her examination-in-chief on 01-12-2018 - would only fortify
her TIP identification of assailant Ramjul on 07-04-2015. The appellant side has contended
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that during the period between the date of the incident and the TIP, perhaps the identity of
Ramjul might have been exposed. However, in view of the cogent testimony of the TIP as
revealed from the TIP report, the testimony of the learned JMFC regarding the same and the
clear testimony of PW-3, the victim - we are of the view that there is no infirmity in the
identification of Ramjul as well and that the evidence clearly proves that he was one of the
assailants involved in the heinous crime.
54. One aspect of the case that needs to be clarified is with regard to whether there
were three or four accused persons involved in the sexual assault made on the victim. The
evidence of the victim and her sister (PW-4) shows that three persons had stopped in front of
them while they were passing through the jungle and those three persons who had
stopped them had raped the victim. However, there was a fourth person in the jungle along
with the three other persons who did not do anything against the victim. This is clearly spelt
out in the evidence of the victim (PW-3), who stated that one of the persons was standing at
some distance at the time of the incident and he had not done anything to her. The retract of
the evidence of PW-3 is as follows -
"One of the persons was standing at some distance at the time of the incident
and he had not done anything to me."
55. PW-4 in her evidence has also stated in her cross-examination as follows -
"........It is not a fact that I have falsely stated that while returning from the
ration shop with Kuin, 4(four) miscreants pounced upon the victim Kuin and 3
(three) held her, while the other did not hold her and then I ran towards Kuin's
house and informed her father about the incident.
.........It is not a fact that I have not stated before the police that when we
returned from the ration shop there were 4 people, and 3 pounced upon the
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victim while the other did not hold the victim."
56. Thus, it is clear that there were actually 4(four) persons at the scene of the crime
besides the victim, at the time the victim was being raped. Just because the informant had
not made a mention of there being a fourth person at the time of rape in the FIR, does not
mean that there was no fourth person besides the victim, at the time the victim was being
raped. An FIR is not an encyclopedia. Besides the above, when rape had been committed by
three of the four accused persons and the fourth one had not done anything against
the victim, it is possible that the victim did not say anything about a fourth person to the
informant, as the fourth person did not do anything against her. This non-disclosure of the
fourth person in the FIR does not take away the fact that the rape of the victim had been
committed by three persons and the non-disclosure of the fourth person does not vitiate the
testimony of the informant or the contents of the FIR.
57. Another important aspect of the materials with regard to appellant Ramjul is his clear
statement in examination under Section 313 CrPC with regard to question No. 35 - that
he/they do not have any dispute with the victim and her father. He had only mentioned about
one dispute between him and Gabriel who was one of the prosecution witnesses. Therefore,
in view of his clear statement, as well as other materials, we do not find any basis indicating
the possibility of false implication of the appellant Ramjul. As regards the other appellant
Basir Uddin, in view of the overwhelming evidence, including identification evidence with
regard to him, the feeble attempt in his section 313 CrPC examination to make out a story of
false implication due to some dispute over grazing of cows is not found to be convincing to
make any significant dent on the prosecution case.
58. In the case of Gireesan Nair (supra) relied upon by the appellant side, it was held
inter alia that the TIP would not have a legal value if witnesses had opportunity to see the
accused before such TIP.
59. However, in the instant case, TIP was conducted within a month of the incident and in
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all the three rounds the victim has identified the accused persons, including assailant Ramjul.
This was further fortified by her clear identification in court during her deposition. The victim
has admitted in her testimony that earlier she did not know his name and later she came to
know his name after the incident and that she clearly identified him as one of the assailants
who committed the gang-rape.
60. Therefore, in our view, this decision does not help the case of the appellants. The
decision in Ganesh Gogoi (supra) was in the context of TADA and also dealt into
circumstantial evidence and some aspects of defective investigation. In the instant case, we
have not found any significant infirmities in the investigation. And the instant case is not
solely based on circumstantial evidence as the victim girl is an eyewitness herself and her
little sister is a vital eyewitness to part of the incident. The decision in Reena Hazarika
(supra) also does not help the appellants' side as we have found the defence story of false
implication to be unconvincing and rather a faint attempt at denting the prosecution case. It
also has to be noted that the defence has not adduced any evidence during the trial.
61. In the case of Mulla and Anr. (supra) relied upon by the prosecution, the Hon'ble
Supreme Court has discussed the law regarding TIP and its evidentiary value. The relevant
para 41, 42, 43 and 44 may be reproduced herein below -
"41. Now, let us consider the arguments of the learned amicus curiae on the
delay in conducting the test identification parade. The evidence of test
identification is admissible under Section 9 of the Evidence Act, 1872. The
identification parade belongs to the stage of investigation by the police. The
question whether a witness has or has not identified the accused during the
investigation is not one which is in itself relevant at the trial. The actual
evidence regarding identification is that which is given by witnesses in court.
There is no provision in CrPC entitling the accused to demand that an
identification parade should be held at or before the inquiry of the trial. The fact
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that a particular witness has been able to identify the accused at an
identification parade is only a circumstance corroborative of the identification in
court.
42. Failure to hold test identification parade does not make the evidence of
identification in court inadmissible, rather the same is very much admissible in
law, Where identification of an accused by a witness is made for the first time in
court, it should not form the basis of conviction.
43. As was observed by this Court in Matru v. State of U.P. identification tests
do not constitute substantive evidence. They are primarily meant for the
purpose of helping the investigating agency with an assurance that their
progress with the investigation into the offence is proceeding on the right lines.
The identification can only be used as corroboration of the statement in court.
(Vide Santokh Singh v. Izhar Hussain.)
44. The necessity for holding an identification parade can arise only when the
accused persons are not previously known to the witnesses. The whole idea of
a test identification parade is that witnesses who claim to have seen the culprits
at the time of occurrence are to identify them from the midst of other persons
without any aid or any other source. The test is done to check upon their
veracity. In other words, the main object of holding an identification parade,
during the investigation stage, is to test the memory of the witnesses based
upon first impression and also to enable the prosecution to decide whether all
or any of them could be cited as eyewitnesses of the crime."
62. In the case of State of Uttar Pradesh vs. Krishna Master & Ors. (supra) relied
upon by the prosecution, the Hon'ble Apex Court has emphasised the importance of reading
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the evidence as a whole and that minor discrepancies or inconsistencies not touching the core
of the case should not justify rejecting the evidence as a whole. The Hon'ble Apex Court has
also stated the well-settled principle that FIR does not have to be an encyclopaedia of all the
facts and circumstances on which the prosecution relies. Para 66 and 67 may be reproduced
herein below -
"66. As far as this aspect is concerned, this Court notices that the FIR need not
be an encyclopaedia of all the facts and circumstances on which the prosecution
relies. The main purpose of the FIR is to enable a police officer to satisfy
himself as to whether commission of cognizable offences is indicated so that
further investigation can be undertaken by him. The purpose of the FIR is to set
the criminal law in motion and it is not customary to mention every minute
detail of the prosecution case in the FIR. FIR is never treated as a substantive
piece of evidence and has a limited use i.e. it can be used for corroborating or
contradicting the maker of it.
67. Law requires FIR to contain basic prosecution case and not minute details.
The law developed on the subject is that even if an accused is not named in the
FIR he can be held guilty if prosecution leads reliable and satisfactory evidence
which proves his participation in crime. Similarly, the witnesses whose names
are not mentioned in the FIR but examined during the course of trial can be
relied upon for the purpose of basing conviction against the accused. Non-
mentioning of motive in the FIR cannot be regarded as omission to state
important and material fact. As a principle, it has been ruled by this Court that
omission to give details in the FIR as to manner in which weapon was used by
the accused is not a material omission amounting to contradiction. Further, this
is a case wherein FIR was filed by a rustic man and, therefore, non-mentioning
of motive in the FIR cannot be attached much importance."
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63. In P. Sasikumar (supra) relied upon by the learned counsel for the Informant, the
Hon'ble Supreme Court has discussed about TIP. The relevant para 21 and 22 are reproduced
herein below -
"21. It is well settled that TIP is only a part of police investigation. The
identification in TIP of an accused is not a substantive piece of evidence. The
substantive piece of evidence, or what can be called evidence is only dock
identification that is identification made by witness in court during trial. This
identification has been made in court by PW I and PW 5. The High Court rightly
dismisses the identification made by PW I for the reason that the appellant i.e.
Accused 2 was a stranger to PW 1 and PW I had seen the appellant for the first
time when he was wearing a monkey cap, and in the absence of TIP to admit
the identification by PW I made for the first time in the court was not proper.
22. However, the High Court has believed the testimony of PW 5 who has
identified Accused 2 under similar circumstances! The appellant was also
stranger to PW 5 and PW 5 had also seen the accused i.e. the present appellant
for the first time on that fateful day i.e. on 13-11-2014 while he was wearing a
green-coloured monkey cap. The only reason assigned for believing the
testimony of PW 5 is that he is after all an independent witness and has nо
grüdge to falsely implicate the appellant. This is the entire reasoning."
64. Moti Lal (supra) relied upon by the informant also touches upon the well-settled
principle that in a rape case, the conviction can be based on the sole testimony of the
prosecutrix. However, in the instant case, we have not only found the testimony of the
prosecutrix to be cogent and satisfying, but it finds significant corroboration from other parts
of the prosecution evidence such as testimony of the minor sister, the medical evidence, the
seizure evidence, the testimony of the father of the victim and another person.
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65. In the leading case of Bhupen Kalita (supra) relied upon by the informant side, this
Court had summarized certain legal principles under the POCSO Act and held that the
prosecution has to prove the foundational facts by preponderance of probability, where after
the burden shifts to the accused to dispel the absence of the statutorily presumed culpable
mental state upon proof of certain such foundational facts. The relevant Para 71 will be
reproduced herein below -
"71. In the light of the discussions above, the following legal positions emerge
in any proceeding under the POCSO Act.
(A) The prosecution has to prove the foundational facts of the offence charged
against the accused, not based on proof beyond reasonable doubt, but on the
basis of preponderance of probability.
(B) Accordingly, if the prosecution is not able to prove the foundational facts of
the offence based on preponderance of probability, the presumption under
section 29 of the Act cannot be invoked against the accused.
(C) If the prosecution is successful in establishing the foundational facts and the
presumption is raised against the accused, the accused can rebut the same
either by discrediting the prosecution witnesses through cross-examination or
by adducing his own evidence to demonstrate that the prosecution case is
improbable based on the principle of preponderance of probability. However, if it
relates to absence of culpable mental state, the accused has to prove the
absence of such culpable mental state beyond reasonable doubt as provided
under section 30(2) of the Act.
(D) However, because of legal presumption against the accused, it may not
suffice by merely trying to discredit the evidence of the prosecution through
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cross-examination, and the defence may be required to adduce evidence to
dismantle the legal presumption against him and prove that he is not guilty. The
accused would be expected to come forward with more positive evidence to
establish his innocence to negate the presumption of guilt."
66. Now, coming back to the facts of the instant case, upon appreciating the evidence on
record as narrated and discussed above, we come to the considered finding that during the
trial, the prosecution successfully proved that on the day of the incident, three out of the four
assailants including the present two convict appellants, accosted the minor victim girl,
dragged her to the jungle and committed rape upon her. The fourth person did not do
anything physical against the victim. The evidence on record - including the testimony of the
victim of her little sister, the medical evidence, the testimony of the other witnesses and
materials - convincingly proves that both the convict appellants were involved in the heinous
crime of committing gang rape upon the minor girl.
67. As regards identification, the identity of appellant Basir Uddin as one of the convict
appellants is convincingly proved by the evidence on record, including the TIP evidence and
identification evidence. With regard to the other appellant Ramjul Hussain also, though his
name did not emerge initially, but the evidence and materials regarding the subsequent
emergence of his name, including his identification by the TIP evidence along with the
identification in court by the victim, also leaves no room for doubt that he was one of the
partner perpetrators of the heinous crime.
68. Consequently, we do not find any infirmity in the conviction recorded by the learned
trial court under section 376 D IPC r/w Section 6 of the POCSO Act and the said conviction is
hereby upheld and confirmed. Section 6 of the POCSO Act pertaining to aggravated
penetrative sexual assault is punishable with imprisonment not less than 20(twenty) years,
but which could extend to non-remittable life imprisonment and also liable to fine.
69. In the instant case, the learned trial court has imposed stringent and maximum
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punishment of life imprisonment without remission. Sexual abuse upon children leaves them
traumatized and such emotional scars can remain lifelong sometimes. To mitigate and remove
such trauma and emotional scars, significant effort at counselling and rehabilitation would be
necessary. For victims hailing from poor families, such an effort and process would be that
much more difficult. The stringent punishment provided under the penal provision - section 6
of the POCSO Act - are meant to indicate zero tolerance for child rape and designed to send
a chilling message to offenders of such heinous crimes.
70. In the instant case, considering the heinous nature of the crime of committing gang
rape on a minor girl hailing from a poor family and the trauma that she underwent as
revealed by the evidence - we are not persuaded to make any modification in the sentence
on the lower side. Accordingly, the sentence imposed by the learned trial court on the convict
appellants for their conviction under section 376 D r/w Section 6 of the POCSO Act is also
upheld and confirmed. Consequently, the judgment and order dated 09.12.2019 passed by
the learned Sessions Judge, Karimganj in Special Sessions Case No. 02/2015 is hereby
upheld and confirmed. Resultantly, the appeals stand dismissed.
71. In paragraph 48 of the impugned judgment and order, the learned trial court already
directed the jurisdictional DLSA to process victim compensation for the victim. Therefore, no
additional directions are necessary from this appellate court. However, it is hoped that
suitable and adequate victim compensation would be awarded to the victim girl to help her in
the process of rehabilitation.
72. The criminal appeals stand disposed of accordingly.
JUDGE JUDGE
Comparing Assistant
