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GAHC010118092023

2025:GAU-AS:1122

THE GAUHATI HIGH COURT

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

Case No. : I.A.(Crl.)/553/2023

ABDUL BATEN,
S/O SONABUDDIN SHEIKH, R/O VILL. KATHALBARI, P.S. CHAPAR, SUB
DIVISION BILASIPARA, DIST. DHUBRI,ASSAM

VERSUS

THE STATE OF ASSAM AND ANR

REPRESENTED BY THE PP, ASSAM

2:ABDUL SAMAD
S/O HUSSAIN ALI
R/O VILL. DAUWAGURI
P.S. CHAPAR
DIST. DHUBRI
ASSAM
PIN-78337

Advocate for the Petitioner : MRS. B GOGOI, MR. S DAS,MS M BORAH

Advocate for the Respondent : PP, ASSAM, MR. A PHUKAN(AMICUS CURIAE FOR R-2)

Linked Case : Crl.A./169/2020

ABDUL BATEN
S/O SONABUDDIN SHEIKH
R/O VILL. KATHALBARI
P.S. CHAPAR
SUB DIVISION BILISIPARA
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DIST. DHUBRI
ASSAM

VERSUS

THE STATE OF ASSAM AND ANR

REP. BY THE SPECIAL P.P
ASSAM

2:ABDUL SAMAD
S/O HUSSAIN ALI
R/O VILL. DAUWAGURI
P.S. CHAPAR
DIST. DHUBRI
ASSAM
PIN-783371
------------
Advocate for :
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM AND ANR

BEFORE
HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND

JUDGMENT

CRL.A./169/2020

ABDUL BATEN,
S/O SONABUDDIN SHEIKH, R/O VILL.
KATHALBARI, P.S. CHAPAR, SUB DIVISION BILASIPARA, DIST. DHUBRI,ASSAM

VERSUS

THE STATE OF ASSAM AND ANR

REPRESENTED BY THE PP, ASSAM

2:ABDUL SAMAD
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S/O HUSSAIN ALI

R/O VILL. DAUWAGURI
P.S. CHAPAR
DIST. DHUBRI
ASSAM
PIN-78337
Linked Case : Crl.A./169/2020

ABDUL BATEN
S/O SONABUDDIN SHEIKH
R/O VILL. KATHALBARI
P.S. CHAPAR
SUB DIVISION BILISIPARA
DIST. DHUBRI
ASSAM

VERSUS

THE STATE OF ASSAM AND ANR

REP. BY THE SPECIAL P.P
ASSAM

2:ABDUL SAMAD
S/O HUSSAIN ALI
R/O VILL. DAUWAGURI
P.S. CHAPAR
DIST. DHUBRI
ASSAM
PIN-783371
------------
Advocate for :
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM AND ANR

For the PETITIONER :- Abdul Baten

For the RESPONDENTS :- The State Of Assam and

Mr. A. Phukan (Amicus Curiae for
Respondent No. 2)

BEFORE
HON’BLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
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Advocate for the Petitioner : Mrs. B GOGOI, Mr. S

DAS, Ms. M. BORAH
Advocate for the Respondent : PP, ASSAM, Mr. A PHUKAN
(AMICUS CURIAE FOR R-2)

Date of hearing : 26.11.2024

Date of Judgment : 04.02.2025

JUDGEMENT AND ORDER(CAV)

1. This appeal is directed against the Judgment and Order dated 26.06.2020, passed by

the learned Special Judge, Bilasipara in connection with Special (POCSO) case No. 11/2019,

convicting Abdul Baten hereinafter referred to as the appellant under Section 4 of the

Protection of Children from Sexual Offences Act, (POCSO Act for short) and sentencing him

to undergo rigorous imprisonment (RI for short) for 7 years and to pay a fine of Rs. 5000/-

with default stipulation and under Section 448 of the IPC and sentencing him to undergo R.I.

for 2 months.

2. The genesis of the case was that the informant 'Y' and his wife are labourers working

in 'Sagar Itabhata'. He along with his three children including the victim 'X' were residing as

tenants in Abdul Sayed's house. On 25.02.2019, at about 2 p.m., the appellant with wrongful

intention came to the informant's house at Haldibari and committed criminal trespass.

Grabbing the opportunity of his and his wife's absence, the appellant paid 10 rupees to the

informant's sons 'Z' and 'A', and sent them to a shop. Thereafter, the appellant Abdul Baten

gagged the minor victim girl 'X' who was alone at home and committed rape on the victim.
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The accused Jul Hoque and Hazrat Ali confined the appellant and restrained the police from

registering the FIR. This led to the delay in lodgment of the FIR. The Investigating Officer

(I.O. in short) embarked upon the investigation. He recorded the statements of the witnesses

and forwarded the victim for medical examination and for recording her statements under

Section 164 of the Code of Criminal Procedure (Cr.PC for short). On completion of

investigation, he submitted charge-sheet against the appellant. At the commencement of

trial, a formal charge under Section 448 of the Indian Penal Code (IPC for short) read with

Section 4 of the POCSO Act was framed, read over and explained to the appellant. The

appellant abjured his guilt and claimed innocence.

3. To substantiate its stance, the prosecution adduced the evidence of 12 witnesses and

the defense cross-examined some witnesses to refute the charges. Some witnesses were

not cross-examined. The statement of the appellant was recorded under Section 313 of the

Cr.PC and his answers depicts a plea of total denial. The appellant did not tender any

evidence in defense.

4. Learned Trial Court delineated the following points to decide this case :-

POINTS FOR DETERMINATION

“(I) Whether accused on 25-02-2019 at about 02.00 P.M at village Haldhibari under
Chapar police station, committed criminal trespass by entering into the house of
informant with intent to commit sexual assault on 'x' and thereby committed offence
u/s 448 I.P.C.?

(II)Whether accused on 25-02-2019 at about 02.00 P.M at village Haldhibari under

Chapar police station, committed penetrative sexual assault on 'x', aged about 11
years old and thereby committed offence u/s 4 of POCSO Act?”

5. Now the question that falls for consideration is that whether the learned Trial Court has
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erred in convicting the appellant.

6. To decide this case in its proper perspective, the evidence is reappreciated.

7. The informant 'Y' deposed as PW-2 that the victim 'X' is his daughter and the incident

occurred about 4 months back. They used to reside in a rented house near the brick kiln, as

he used to work in the Sagar Brick Kiln at Haldibari. On the fateful day, while he was working

in the brick kiln, his wife brought him food. At about 3 p.m., his son 'Z' came and informed him

that the appellant molested his daughter. He along with his wife immediately rushed back

towards their house, but the appellant was not present in their house. Their daughter 'X'

informed them that the appellant asked for water, and after drinking water, the appellant

committed bad act (sexual assault) on her. The informant further deposed that he solicited a

Bichar (Meeting) in the village but, no Bichar was held. He then lodged the FIR, Ext-1 and he

has proved his signature on the FIR as Ext-1(1).

8. In sync with the evidence of PW-2, his wife 'W' deposed as PW-1 that the incident

occurred about 4-5 months back. After lunch, she was with her husband in the brick field and

her daughter 'X' was at home along with her younger son. At that time, the appellant went to

their house to drink water. The appellant sent her son to the Pan shop and then he gagged

her daughter(‘X’) by her mouth and committed 'bad act' on her. Her daughter 'X' then informed

her about the incident. She returned home when her son informed her about the incident and

an ejahar (FIR) was lodged after the incident. Meanwhile, the appellant escaped on his bike.

9. This witness was cross examined in extenso. She has admitted in her cross

examination that the FIR was lodged after 2 days of the incident. Their landlord's name is

Babu and they have been staying in his house for 4-5 months. They are a family of seven

members and her husband has another wife. Her stepson is Safiqul Islam. She has also

testified in her cross examination that when they returned home, they found their daughter in
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their house. They did not witness the incident as the incident occurred after they left for the

brick kiln. The manager, Sardar Sadek Ali and other people came to their house after the

incident. The incident took place on the weekly payment day and many people were present

in the brick field. As it was a market day at Rongamati, she went to the market and reached

home at about 7/8 p.m. When she returned home, she found their children at home and

slapped her daughter because her daughter did not inform her about the incident. Meanwhile,

her husband went out looking for the appellant. At that time, her husband was accompanied

by the manager Sardar Ali and Mohori Sadek Ali. Her daughter informed her about the

incident in presence of Sadek, Afroza and Ishma. About 10/12 people assembled in their

house and her husband's brother also reached her house .She was expecting a 'Bichar', but

there was no ’bichar’ or settlement. After one day, she lodged the Ezahar (FIR) against the

appellant.

10. It is pertinent to mention, at this juncture that no contradictions as per Section 145 of the

Indian Evidence Act, 1872 (the Evidence Act for short) qua Section 162 of the Cr.PC could be

elicited through the cross examination of the witnesses. However, the learned counsel for the

appellant laid stress in his argument that the FIR was lodged by PW-2 whereas, on the

contrary, PW-1 has stated that the FIR was lodged by her and this casts a shadow of doubt

over the veracity of her evidence.

It is pertinent to mention that no contradictions could be elicited through the cross

examination of PW-2 vis-a-vis the cross examination of the Investigating Officer, PW-11, Shri

Nirod Chandra Das. In his cross examination, PW-2 has mentioned that he could not recall

who lodged the Ezahar. At this juncture, it is apt to mention that the learned counsel for the

appellant laid stress in his argument that the scribe of the FIR was not examined as a

witness. PW-2 has deposed that they used to reside as tenants in Babu's house who has a
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family of six members. PW-2 has stated that he informed Babu and his wife, Margina about

the incident. He has also testified that his daughter immediately informed him about the

incident in the presence of the manager, Sardar and Mohori. His wife also informed that she

slapped her daughter. His daughter was also bleeding. About 10-12 odd persons set out in

search of the appellant. They decided to lodge a case as no 'Bichar' was held in the village.

He has further stated that on the day of the incident, his daughter did not go to school and so

on and so forth. He has denied the suggestions of the defense.

11. 'Z', who was 10 years old at that time, when his evidence was recorded, deposed as

PW-3 that the victim is his elder sister. The appellant was married to a girl from their

neighborhood. The incident occurred about 5/6 months ago at about 12 /1’O clock. His

parents work in the brick field and on the day of the incident, he was at home with his victim

sister. He further deposed that at that time, the appellant came to their house and sent him to

the shop to get Gutka(Bimal). It takes about 5 minutes to reach the shop and when he

returned home from the shop, he saw the appellant atop his sister 'X'. He immediately went to

the brick kiln and informed his parents about the incident. His parents immediately rushed to

their house but did not find the appellant.

12. PW-3 further deposed that at the time of the incident, his sister was naked. She

informed her parents that the appellant had committed bad act on her. His parents lodged a

case against the appellant. This witness was cross examined in extenso. However, no

contradictions as per Section 145 of the Indian Evidence Act vis-a-vis Section 162 of the Cr.

PC could be elicited through his cross examination despite the fact that this witness was a

naive boy aged only 10 years. The cross examination is irrelevant and is not a deciding factor

in this case and thus not noteworthy. However, some relevant evidence elicited through the

cross examination may be discussed. He (PW-3) has mentioned in his cross examination that
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he goes to school at 8 in the morning and it takes about an hour to reach his school and the

school was open on the day of the incident. The victim also attends school and she studies at

Dawagori. Barek and Noor Islam are their neighbors. It takes around 10 minutes to reach the

brick kiln from their house. He went to call his parents after witnessing the incident. The

manager of the brick kiln also came to their house and so did their neighbours. He denied the

remaining part of the suggestions by the defense.

13. An assessment of the evidence clearly reveals that the evidence of the witnesses are

corroborating and no contradictions could be elicited through the cross examination of the

witnesses. The victim 'X' deposed as PW-4 that her father has lodged this case against the

appellant. The incident took place at around 2 p. m. She, her brother 'Z' and 'A' reside with

her parents. Her parents went to the Sagar brick kiln and she was alone at home with 'Z'. At

that time, the appellant came to their house and asked for water, and when she went inside to

fetch water, the appellant then grabbed her by her waist. Meanwhile, ‘Z’ reached the road.

The appellant removed her pants and committed bad act (sexual assault) on her. She raised

alarm as the appellant gagged her with cloth and also showed her a knife and threatened her.

Meanwhile, her brother 'Z' reached home and he then went to inform his parents about the

incident. Both her parents returned home and they set out on a frantic search for the appellant

to confront him about the incident. She informed her parents about the incident and her father

lodged a case against the appellant. She gave her statement before the Magistrate.

14. This witnesses (PW-4) has proved her statement before the Magistrate as Ext-2 and

Ext-2(1), 2(2), 2(3), 2(4) and 2(5) as her signatures. The defense tried to project

contradictions through the cross examination of the witnesses but has miserably failed to do

so. Several questions were asked to this witness before recording her evidence and after

assessing her intelligence, oath was not administered by the Magistrate. It was observed by
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the Magistrate that the victim girl could give rational answers to the queries. This witness ‘X’

has denied the suggestion that she has not stated before the Magistrate that her brother 'Z'

went to school and ‘A’ was at home at that time. A scrutiny of the statement of the victim under

Section 164 of the Cr.PC reveals that she has mentioned that her brother went to school but

she has not mentioned that ‘Z’ is the brother who went to school. She has three brothers to be

precise. However, the remaining part of the statement of the victim under Section 164 of the

Cr. PC is similar to her deposition in the Court. She has denied the suggestion of the defense

counsel that she has not stated before the Magistrate that her brother ‘Z’ came home from

school or the appellant went away. However, a close scrutiny of the victim's evidence depicts

that she has mentioned in her statement under Section 164 Cr.PC that her brother came from

school and witnessed the incident and then he immediately went to inform their parents about

the incident. Although, the victim has not mentioned which brother came home from school, it

appears that ‘Z’ may be the brother who returned from school and witnessed the incident. A

contradiction that ‘Z’ did not return from school but he returned from the shop and witnessed

the incident, is projected. ‘X’ deposed that ‘Z’ who was on the road came and witnessed the

incident and then he went to inform his parents about the incident.’Z’ deposed that he came

back from the shop and witnessed the incident. Will this contradiction be a major contradiction

to cast doubt over the veracity of the victim's evidence? I do not agree with this argument.

Invariably ‘Z’ returned home and witnessed the incident. The fact remains that the evidence is

loud and clear that ‘Z” returned home and witnessed the incident. A victim who is being

assaulted will barely remember if her brother reached home from the school or from the shop.

15. The Medical Officer Smt. Aruna Saikia deposed as PW-12 that on 27.02.2019, she was

serving as M&HO at Bilashipara Civil Hospital and on that day, she examined the victim 'X' in

connection with this case and found the following:

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(1) Approximate radiological age was : 14.5 years to 15.5 years on

laboratory investigation.

(2) No spermatozoa seen in the smear as supplied.

On the basis of physical, radiological, laboratory investigation:

(1) No evidence of recent sexual/physical assault found.

(2) Approximate radiological age was : 14.5 years to 15.5 years.

This witness has proved the medico-legal report as exhibit-6 and exhibit-6(1) as her

signature.

(1) In her cross examination, she has deposed that hymen was ruptured, there was no

bleeding on her private parts, and

(2)no injury on vulva area was detected.

16. The evidence of the Medical Officer clearly reveals that the hymen of the victim was

ruptured and there was no explanation as to why the hymen of the victim was ruptured. The

radiological age of the victim was found to be 14.5 to 15.5 years which belies the age given

by the victim as 11 years. It has to be borne in mind that no mens rea could be attributed as to

why false charges would be leveled against the appellant. The appellant was around 29 years

of age at the time of the incident, whereas, the victim was below 16 years of age as per her

radiological age. Neither through his statements under Section 313 of the Cr. PC, nor through

the cross examination of the witnesses, mens rea could be assigned as to why the witnesses

would give false evidence against the appellant. Minor contradictions cannot dispel the

evidence against the appellant. The witness ‘Z’ may have returned from school or from the

Pan shop but the evidence of the witnesses is consistent and corroborating that 'Z' returned

home and saw the appellant straddled atop his sister.

17. The testimony of the victim is consistent to her statement under Section 164 of the Cr.
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PC that the appellant removed his lower garment and her underwear and committed

penetrative sexual assault on her. The hymen was found absent but as the victim was taken

for medical examination after a certain lapse of time, no injuries could be detected on her

private parts. But this does not negate the fact that the hymen was detected to be ruptured,

when the victim was examined by the Medical Officer- PW-12. The argument of the learned

counsel for the appellant that there was a delay in lodgment of the Ezahar (FIR) has been

refuted, as it has been mentioned in the FIR that on 25.02.2019, the accused Jul Hoque and

Hazrat Ali prevented the informant from lodging the FIR which resulted in the delay in

lodgment of the FIR. The naivette of the child witnesses cannot be ignored. The Act of the

appellant was incomprehensible for them. The victim was around 15 1/2 years old, and her

younger brother was definitely below 15 years at the time of the incident. The minor

contradictions that the victim's brother returned home from the road or from the shop does not

cast doubt over the veracity of the evidence, more so when no mens rea could be attributed

for foisting a case against the appellant. The evidence has to be assessed in a pragmatic

manner and the Court cannot get swayed by minor contradictions to reject the clinching and

overwhelming evidence against the appellant.

18. The other witnesses are independent witnesses. Shamin Ali-PW5, Bahor Ali-PW6,

Shabira Bibi-PW7 and Pyar Ali-PW8 are independent witnesses and they denied any

knowledge about the incident.

18. The informant's brother Abdul Hamid deposed as PW-9 that the incident occurred

about 4-5 months back. His brother 'Y' informed him that the appellant committed rape on the

victim 'X'. The Police seized the school certificate of the victim. He has proved the seizure list

as Ext-3 and Ext-3(1) as his signature.

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19. The Investigating Officer, PW-11 has deposed that on 26.02.2019, he was endorsed to

investigate this case and the informant was at the Police station and he recorded his

statement. On the following day, he went to the place of occurrence, prepared the sketch map

and recorded the statements of the witnesses. He forwarded the victim for medical

examination and for recording her statement under Section 164 of the Cr.PC. He arrested the

accused/appellant and forwarded him to judicial custody. Meanwhile, he was transferred and

he handed over the Case Diary to the Officer-in-Charge. The investigation was thereafter

taken up by Shri Ganesh Das, PW-10 who deposed that after taking charge of the

investigation, he collected the medico-legal report and on finding sufficient materials, he

submitted charge-sheet against the appellant. He has proved the charge-sheet as exhibit-4

and exhibit-4(4) as his signature.

20. A close scrutiny of the cross examination of PW-10 and PW-11 clearly depicts that no

contradictions could be elicited through the cross examination of the witnesses vis-a-vis the

cross examination of the Investigating Officers PW-10 and PW-11.

21. In the wake of the following discussions, it is held that the evidence of the victim inspires

confidence. This case cannot be considered to be a case of consensual relationship. The

victim was too young at the time of the incident. It has also not surfaced through the

evidence including the cross examination of the witnesses that a consensual relationship was

prevalent between the appellant and the victim. Considering the age of the victim given by

the Medical Officer to be 15 years, such a consensual relationship between the victim and the

appellant who was 29 years of age cannot be conjectured. So the question of considering the

age of the victim to be 2 years or 3 years on the higher side in favour of the appellant as a

mitigating circumstance does not arise at all. A lenient view was taken while sentencing the
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appellants, as he was imposed the minimum punishment prescribed under Section 4 of the

POCSO Act.

22. The argument of the learned counsel for the appellant that the victim and her parents

have falsely given her age and this is evident from the evidence of the Medical Officer holds

no water. The age given by the victim and her parents as 11 years does not belie the

evidence of the victim and her parents. It would be apt to reiterate that the victim's parents are

labourers working in the brick kiln and the victim herself was below 15 1/2 years at the time of

the incident. The Medical Officer, PW-12, has categorically stated that the victim was below

151/2 years at the time of the incident. The victim's statement was recorded by the Magistrate

on 28.02.2019, and she has given her age as 11 years. The naivette of the victim and her

parents cannot be ignored. The offence could not be negated as the victim was a minor at

the time of the incident. The other argument of the learned counsel for the appellant that the

scribe of the FIR was not examined as a witness can be safely brushed aside. The non

examination of the scribe does not thwart the evidence.

23. At this juncture, I would like to gainfully rely on the decision of the Hon'ble Supreme

Court in Ganesan Vs The State represented by its Inspector of Police reported in

(2020) 10 SCC 573, wherein it has been observed that :

“11. In State of Punjab v Gurmit Singh, this Court held that in cases involving

sexual harassment, molestation, etc the court is duty-bound to deal with such

cases with utmost sensitivity Minor contradictions or insignificant discrepancies

in the statement of a prosecutrix should not be a ground for throwing out an

otherwise reliable prosecution case Evidence of the victim of sexual assault is

enough for conviction and it does not require any corroboration unless there
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are compelling reasons for seeking corroboration The court may look for some

assurances of her statement to satisfy judicial conscience The statement of the

prosecutrix is more reliable than that of an injured witness as she is not an

accomplice The Court further held that the delay in filing FIR for sexual offence

may not be even properly explained, but if found natural, the accused cannot

be given any benefit thereof The Court observed as under (SCC pp. 394-96 &

403. paras 8 & 21)

XXX XXX XXX XXX

21. The courts should examine the broader probabilities of case and not get

swayed by minor contradictions or insignificant discrepancies in the statement

of the prosecutrix, which are not of a fatal nature, to throw out an otherwise

reliable prosecution case. If evidence of the prosecutrix inspires confidence, it

must be relied upon without seeking corroboration of her statement in material

particulars. If for some reason the court finds it difficult to place implicit

reliance on her testimony, it may look for evidence which may lend assurance to

her testimony, short of corroboration required in the case of an accomplice The

testimony of the prosecutrix must be appreciated in the background of the

entire gase and the trial court must be alive to its responsibility and be sensitive

while dealing with cases involving sexual molestations.”

In the light of the decision of the Hon'ble Supreme Court in Ganesan's case (Supra), it is
held that the minor contradictions and discrepancies projected by the learned counsel for the
appellant, as discussed in my foregoing discussions does not cause a dent in the robust
evidence against the appellant. The other two accused named in the FIR, Jul Hoque and
Hazrat Ali are alleged to be responsible for the delay in lodgment of the FIR. They prevented
the complainant from lodging the FIR immediately after the incident. After completion of
investigation, accused Jul Hoque and Hazrat Ali were not sent up for trial and trial progressed
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against the appellant Abdul Baten. It would also be apt to reiterate that there is clinching
evidence against the appellant and the date and time mentioned by the witnesses are similar
to the date and time mentioned in the FIR.

24. This appeal is held to be devoid of merits and is hereby dismissed. The Judgment and
Order dated 26.06.2020, in connection with Special POCSO Case No. 11/2019, is upheld.

25. Both the sentences under Section 448 of the IPC and Section 4 of the POCSO Act are to
run concurrently and the period of detention already undergone by the appellant during
investigation and trial is to be set off with the custodial sentence.

26. Send back the Trial Court Records.

JUDGE

Comparing Assistant

Order downloaded on 27-04-2025 11:49:38 PM