GAUHATI HIGH COURT ISSUES ORDER ON MD. AFTAR HUSSAIN V/S THE STATE OF ASSAM AND ANR

GUWAHATI, India, Dec. 14 -- Gauhati High Court issued the following order on Nov. 14:

1. Heard Mr. H.R.A. Choudhury, learned Senior Counsel for the appellant assisted by Mr. I.U. Choudhury, learned counsel. Also heard Ms. B. Bhuyan, learned Senior Counsel and Additional Public Prosecutor, Assam assisted by Ms. R. Das, learned Counsel.

2. This is an appeal against the impugned judgment dated 14.11.2024 passed by the Special Judge, Udalguri, in Special (POCSO) Case No.21/2022, by which the appellant has been convicted under Section 376(AB) and Section 6 of the POCSO Act, 2012. The learned Trial Court by applying Section 42 of the POCSO Act, sentenced the appellant under Section 6 of the POCSO Act, 2012, to suffer rigorous imprisonment for 20 (twenty) years with a fine of Rs.20,000/-, in default, simple imprisonment for 2 (two) months. The appellant was also convicted under Section 342 IPC for wrongful confinement of the victim and sentenced to suffer rigorous imprisonment for 1 (one) year.

3. The Prosecution case in brief is that an FIR dated 06.06.2021 was submitted to the Officer-inCharge of the Orang Police Station, Udalguri, Assam by the father of the victim, i.e. Prosecution Witness (PW) No.1. The FIR stated that at around 12:30 noon on 06.06.2021, his daughter who was playing with her friends in the courtyard of the house of the appellant was called inside the house, where she was shown obscene videos. The appellant thereafter raped her. Frightened, the victim went home crying and narrated the entire incident to her mother. Pursuant to the FIR, Orang P.S. Case No.72/2021 under Section 376(3) of IPC read with Section 6 of POCSO Act was registered and investigation was initiated.

4. After the investigation had been completed by the Investigating Officer (IO), the IO submitted a Charge-sheet against the appellant, having found a prima facie case against the appellant under Section 342/376(AB) of IPC read with Section 6 of POCSO Act, 2012.

5. On the case being committed to the learned Trial Court, the learned Trial Court framed 3 (three) charges against the appellant, i.e. under Section 342 &, 376(AB) IPC and Section 6 of the POCSO Act, 2012, to which the appellant pleaded not guilty and claimed to be tried.

6. The learned Trial Court thereafter examined 9 (nine) PWs and 3 (three) Defence Witnesses (DWs). After examining the appellant under Section 313 Cr.P.C, the learned Trial Court came to a finding that the appellant was guilty of having raped the victim, who was below 12 years of age. The learned Trial Court accordingly convicted the appellant under Section 342 & 376(AB) of IPC read with Section 6 of POCSO Act, 2012. In view of Section 42 of the POCSO Act, the appellant was sentenced under Section 342 IPC and under Section 6 of the POCSO Act, 2012 only.

7. Being aggrieved with the conviction and sentence, the appellant has put to challenge the impugned judgment passed by the learned Trial Court by way of this appeal.

8. The learned Senior Counsel for the appellant submits that the appellant could not have been convicted under Section 6 of the POCSO Act, in view of the fact that there was no proof that the victim was below 12 years of age at the time of the incident, inasmuch as, the Birth Certificate of the victim girl had not been exhibited, though it had been seized by the police. Secondly, the evidence of the Doctor and the Medical Report did not prove that rape had been committed upon the victim. Thirdly, the stand taken by the victim in her statement under Section 161 Cr.P.C & 164 Cr.P.C and her testimony before the Court was at variance with one another. Fourthly, the evidence of the DWs showed that there was enmity between the family of the victim and the appellant and as such, a false case had been foisted upon the appellant.

*Rest of the document can be viewed at: (https://hcservices.ecourts.gov.in/ecourtindiaHC/cases/display_pdf.php?filename=bzPoyUlszYLCUcCpirIpqDTvw%2B4LKLLcppVVun%2FnnDObUfkCMta%2Bbm4dP1BbsDSD&caseno=Crl.A./445/2024&cCode=1&cino=GAHC010266952024&state_code=6&appFlag=)

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