Ghukiye Achumi vs State of Nagaland and Anr

(A.M. Kalita, J)

Heard Mr. Sentiyanger, learned counsel for the Appellant. Also heard Mr. K. Angami, learned Public Prosecutor for the State of Nagaland as well as Mr. Toshi O. Longkumer, learned Legal Aid Counsel for the Complainant/Respondent No. 2.

The instant application under Section 374 (2) of the Cr.P.C., 1973 has been filed by the Appellant against the judgment and order dated 30.10.2019 and sentence order dated 01.11.2019 passed by the learned Special Judge, Zunheboto convicting and sentencing the Appellant for 10 years R.I. and to pay a fine of Rs.10,000/- only under Section 376 (2)(i) of the Indian Penal Code and same punishment under Section 4 of the POCSO Act, 2012.

An FIR dated 21.09.2015 was lodged before the Officer-in-Charge of Aghunato Police Station by the Informant, namely, Mr. Vikato Yeptho (the father of the victim girl) alleging that rape was committed on his minor daughter by the Appellant and therefore, requested to initiate necessary action against the Appellant. Pursuant to the FIR dated 21.09.2015, Aghunato P.S. Case No. 4/2015 was registered under Section 376 (2) (i) of the Indian Penal Code and section 4 of the POCSO Act, 2012. On completion of the investigation, the primary Charge sheet No.6/2015 was filed against the Appellant under Section 376 (2) (i) of the Indian Penal Code read with Section 4 of POCSO Act, 2012. Thereafter, the trial proceeded. The prosecution examined 17 (seventeen) witnesses, the defence examined 1 (one) witness and 1 (one) witness was also examined as Court witness. The Appellant was examined under Section 313 Cr.P.C. On completion of the trial, the impugned judgment and order dated 09.12.2026 was passed by the learned Sessions Judge, Zunheboto, whereby, the Appellant was found guilty under Section 4 of the POCSO Act, 2012 and sentenced to 7 years R.I. along with a fine of Rs.15,000/- and in default of payment, to undergo further 2 (two) months R.I. The Appellant was, however, acquitted from the liability of Section 376 (2) (i).

Being aggrieved by the aforesaid impugned judgment and order dated 09.12.2016, the Appellant has filed an appeal being numbered and registered as Crl. A. 1 (K) 2017 under Section 374 (2) of the Cr.P.C., 1973 assailing the judgment and order dated 09.12.2016 passed by the learned Sessions Judge, Zunheboto in G. R. Case No. 49/2015.

The Appellant by filing the aforesaid appeal had assailed the impugned judgment and order dated 09.12.2016 primarily on two grounds, namely, that there was inefficiency on the part of the defence counsel to defend the case of the Appellant and that Section 164A Clause (4) and (7) of the Cr.P.C has been violated. It was also contended that in consideration of the examination of witnesses, more particularly, the prosecution witnesses would clearly indicate that there was no proper cross-examination and the same had prejudiced the case of the Appellant, inasmuch as, the Appellant had not been adequately defended. The defence was perfunctory in nature and that due to the inefficiency of the defence counsel, the Appellant has been convicted under Section 4 of the POCSO Act 2012.

The learned Single Judge after perusal of the TCRs and after hearing the respective counsel appearing for the parties, came to a finding that the Court was left with no other option but to declare that the trial had not been a fair trial. Accordingly, the learned Single Judge set aside and quashed the impugned judgment and order dated 09.12.2016 passed by the learned Sessions Judge, Zunheboto in G.R. Case No. 49/15 convicting the Appellant under Section 4 of the POCSO Act, 2012. The learned Single Judge remanded the matter to the learned Trial Court for re-trial of the matter from the stage of evidence. It was also stated that the parties are also at liberty to adduce evidence and directed that the learned Trial Court shall ensure that the trial is expedited and completed within a period of 6 (six) months from the date of receipt of the copy of the order of the Court.

After such remand by the learned Single Judge, the trial proceeded again from the evidence stage and as the learned PP had declined to conduct fresh chief examination or to adduce additional evidence and both the parties agreed for cross-examination of the prosecution witnesses. After the completion of the evidence, the matter was finally heard on 01.10.2019 and judgment was delivered on 30.10.2019 and sentence was pronounced on 01.11.2019, whereby the Appellant was sentenced to 10 years R.I. and to pay a fine of Rs.10,000/- under Section 376 (2) (i) of the Indian Penal Code and the same punishment under Section 4 of POCSO Act, 2012. It was directed that the punishment awarded shall run simultaneously.

Being aggrieved by the aforesaid judgment dated 30.10.2019 and sentence order dated 01.11.2019, the instant appeal has been filed by the Appellant challenging the same.

Mr. Sentiyanger, learned counsel appearing for the Appellant submits that the learned Trial Court has erred in law in enhancing the sentence from 7 years to 10 years for the Appellant when the matter was sent for re-trial from the evidence stage. He submits that the learned Trial Court on the earlier occasion, vide judgment and order dated 09.12.2016, had convicted and sentenced the Appellant for 7 years R.I. along with a fine of Rs.15,000/- and in default of payment, to undergo further two months R.I. He submits that after the matter was sent back for re-trial, the learned Trial Court could not have enhanced the sentence of the Appellant to 10 years R.I. He submits that once the judgment and order has been challenged before the Hon’ble High Court and on perusal of the records and hearing, the High Court remanded the matter to the learned Trial Court for re-trial, the same has to be treated as continuation of the appeal and therefore, the learned Trial Court does not possess any jurisdiction to enhance the sentence already passed by the learned Trial Court in its earlier trial. He submits that since the appeal has been filed by the convict, before the High Court challenging his conviction and sentence by the learned Trial Court, there is no jurisdiction of the Trial Court to enhance his sentence passed in the earlier trial by the learned Trial Court. He submits that in a de novo trial, sentence cannot be enhanced or an appeal by the convict.

The learned counsel for the Appellant submits that the Police after investigation, filed the charge sheet which is a preliminary charge sheet, therefore, the charge sheet is incomplete. He submits by referring to the charge sheet No. 6/15 dated 16.12.2015 that the same is a preliminary charge sheet and it has been specifically mentioned that a supplementary charge sheet will be submitted on receipt of the forensic report from CSFL, Kolkatta. He submits that in spite of the aforesaid mention of submission of supplementary charge sheet, neither the supplementary charge sheet nor any FSL report has been submitted in the instant case. He submits that due to non-submission of the supplementary charge sheet along with the FSL report, the Appellant has been prejudiced and therefore, the Appellant has been denied of a fair trial in the instant case. He submits that after the incorporation of Section 53 (A) in the Criminal Procedure Code, with effect from 23.06.2006, it has become mandatory for the prosecution to go for a DNS test in a case of alleged rape, facilitating the prosecution to prove its case against accused person. He submits that in the instant case, no DNA report has been submitted along with the medical report which vitiated the whole trial being violative of Section 53 (A) of the Cr.P.C.

Though several other grounds have been taken in the instant appeal before this Court, the learned counsel appearing for the Appellant has specifically stated that he is not pressing on other grounds relating to the merit of the case, but he desires to mainly stress on the above stated legal aspects of the case. He submits that it is due to the fact that the Appellant had earlier approached this Hon’ble Court by filing an Appeal against the conviction and due to which the matter was sent back for de novo trial by the learned Single Judge and therefore, de novo proceeded before the learned Trial Court culminating enhancement of the sentence of the Appellant from seven years to ten years. He submits that due to the aforesaid fact, without giving any notice to the Appellant, the sentence of the Appellant could not have been enhanced by the learned Trial Court. In support of his submission, the learned counsel for the Appellant has referred to following cases:-

Per contra, Mr. K. Angami, learned Public Prosecutor submits that there is no wrong committed by the learned Trial Court in convicting and sentencing the Appellant in the instant case. He submits that since the matter was remanded back to the learned Trial Court for re-trial from the evidence stage, the learned Trial Court after completion of the examination and cross-examination of the witnesses, finally heard the matter and having found that the Appellant guilty of Section 376 (2) (i) of the Indian Penal Code as well as Section 4 of the POCSO Act, 2012, has rightly enhanced the sentence of the Appellant from seven years to ten years R.I. He submits that since the learned Trial Court was directed to have a re-trial of the matter which means re-appreciation of the evidence, the learned Trial Court definitely has the jurisdiction to enhance the sentence of the Appellant after due appreciation of the available evidence. He submits that in the instant case, a minor girl of seven (7) years has been raped several times by the Appellant and her statement before the Investigating Officer, the Magistrate as well as before the learned Trial Court are in sink having utmost consistency. He submits that Hon’ble Supreme Court in a catena of cases had held that the sole testimony of the prosecutrix is sufficient to establish the commission of a rape even in the absence of corroborating evidence.

In view of the aforesaid, he submits that the prosecution is successful in proving its case against the Appellant and therefore, the instant appeal is liable to be dismissed. In support of his submission, the learned Public Prosecutor has relied on the following cases:

Mr. Toshi O. Longkumer, learned Legal Aid Counsel appearing for the Informant/Respondent No. 2 has adopted the arguments made by the learned PP for the State. In connection to the submissions made by the learned counsel appearing for the Appellant that the re-trial is a continuance of the appeal filed by the Appellant, he submits the same to be totally misplaced. He submits that an appeal before the High Court is totally different from a trial before the learned Trial Court due to simple fact that the High Court does not have the original jurisdiction whereas the learned Trial Court having the original jurisdiction is the original Court which appreciates and analyses the evidence of the witnesses. Therefore, he submits that by no kind of wild imagination also, it cannot be said to be correct that the re-trial in the instant case is a continuation of the appeal filed by the Appellant on the earlier occasion. He submits that in a case of rape, the sole testimony of the prosecutrix is enough and further corroboration may not be required in many occasions. In the instant case also, he submits that victim child has been all through consistent about her statement without any variation and therefore, there is nothing for the learned Trial Court to disbelieve the version of the prosecutrix in the instant case. He submits that the version of the prosecutrix has also been corroborated by the Medical report as well as the evidence of the Doctor, who is the author of the Medical report. He submits that the power to direct the accused to be re-tried has been conferred on the Appellate Court not only when it deals with an appeal against the acquittal but also when it deals with an appeal against the conviction. He submits that re-trial and de novo trial are distinguishable and submits that in the instant case, though, the learned counsel appearing for the Appellant has submitted a de novo trial has been conducted by the learned Trial Court but the same is incorrect which is evident from the order of the learned Single Judge dated 24.08.2018 which specifically mentions the term “re-trial”. In view of the aforesaid submissions, the learned Legal Aid Counsel submits that the instant appeal being lack of any merit, should be dismissed. In support of his submissions, the learned Legal Aid Counsel has referred to the following cases:

The TCR in the instant case has been received and same has been perused. The submissions made by the respective counsel appearing for respective parties have been duly considered.

The learned Trial Court, after receipt of the case back, started with the retrial, framing 3 (three) issues to be decided. Following are those three issues:

After the consideration of the evidence recorded, as far as issue No.1 is concerned, the learned Trial Court has come to the conclusion that though the exact date of commission of offense is not proved, that ground alone cannot bring the case to its logical conclusion to absolve the accused Ghukiye Achumi for the alleged charge. Accordingly, the case proceeded further for the interest of justice. As far as the second issue is concerned, the learned Trial Court has come to a conclusion that the prosecutrix had raped the victim child under the definition of Section 3(b) of the POCSO Act and under Section 175(b) of the IPC. For the Issue No. 3, the learned Trial Court after going through the evidence on record and in consideration of several cases decided by the Hon’ble Supreme Court, has come to a finding that the prosecution was able to prove that the accused Ghukiye Achumi has committed rape on the victim child.

Though several grounds have been taken in the appeal by the Appellant, the learned counsel appearing for the Appellant has clearly stated that he is desirous of arguing on the following points alone:

Before we get into consideration of the aforesaid four arguments made by the learned counsel appearing for the Appellant, it may be relevant to refer to the evidence produced before the trial court.

Mr. Vikato Yeptho (PW.2) stated that he had lodged the FIR against the Appellant on the charge of rape upon his daughter. He stated that after learning from his wife about the incident, he took his minor daughter and the friend of his daughter (PW.7) to find out the culprit. Though, they could not properly locate the shop as all the shops were closed at that time, his daughter’s friend (PW.7) told them that she knew the house of the accused and therefore, they proceeded to the residence of the accused. He stated that the wife of the accused opened the door and the accused was standing behind her wearing a black spectacle though it was dark at that point of time. He stated that his daughter and her friend got confused due to that but his daughter’s friend told them that she would be able to locate the shop, therefore, they all proceeded towards the shop and by that time, a crowd had already gathered there. When they reached there by that time, the accused also reached the shop area and his daughter and his daughter’s friend identified the shop when the accused came. He stated that he did not see his daughter at all and he will go to the Court on the next day. Thereafter, they disbursed from the place and he went to the police station and lodged the FIR. In his cross-examination, he stated that his daughter was raped by the accused but he did not know the date and time. He stated that he took his daughter to the Zunheboto Hospital on the next day for medical check-up. He stated that, in fact, he slapped his daughter because she got scared after seeing the accused in the spot. On his re-examination, he stated that he pursued for identifying the culprit when he was told by his wife that his daughter was fiddling with the baby sister’s private part and when the baby started crying, his wife asked her daughter whether she had gone made to be playing with the private part of the baby, upon which. his daughter said that one Asu used to do the same with her. He identified the person standing on the dock to be the accused person.

Ms. Kiyeli H. Achumi (PW. 3) stated that she works in the NGO within Aghunato & Zunheboto. She stated that on 21^st September, 2015, she heard a commotion below her house and when she looked out from the window, she saw Vikato (father of the victim child) with a stick and his daughter proceeding to somewhere. When she asked what is the problem, he did not tell her but his brother-in-law Phhoi came to her house and told her about the incident of rape. Thereafter, she also proceeded with the group and gathered at Ghukiye’s residence; Ghukiye was standing inside the house with his hand on the side of the door. When she asked the victim child and her friend, they pointed towards Ghukiye who was standing inside but since Ghukiye was wearing a pair dark glass, the girls got confused and they said that was Asu. Since the children got confused, they went to the shop areas and started enquiring about the person who might have committed the rape. At that point of time, Ghukiye reached the spot and in front of everybody, he bent down to the victim child with his hands on his knees and asked whether he was the one, who raped her, to which the victim child said “yes”. He stated that the victim child expressed sadness/shock before her. She stated that on the next date, she went along with the victim child and parents to Zunheboto Hospital and after medical check-up by the Doctor of the Hospital, she took the victim child and her parents to Zunheboto Police Station and the statement of the victim child was recorded by the Investigating Officer. On her cross-examination, she stated that she had not physically examined the victim child. She identified the accused person in the dock as the rapist in the instant case.

Ms. Kheliho Yeptho (PW. 4) is the mother of the victim child. She narrated the same statements as made by her husband. She stated that before her husband came, her daughter told her that while on her way home from school, they had to cross the shop, therefore, Asu used to call her and give her sometimes Rs.5/-, sometimes Rs.20/-. She stated that Asu used to take out her uniform before sleeping with the victim child and when she used to scream, he used to cover her mouth and scolded her and warned her not to tell anybody including her parents. She identified the person standing in the dock to be the person who raped her daughter. In her cross-examination, she stated that she is not the real mother of the victim child and so, she doesn’t know the date and month of her actual birth but she was told that the victim child was born in the year, 2007. She stated that she did not check her daughter physically. In her re-examination, she stated that before they got to know about the incident of rape, her daughter used to soil her clothes and pee in school times. She stated that she initially thought that it was due to diarrhea and gave her medicine but it did not help. In her cross-examination, she stated that in front of the shop, in the midst of the crowd, she pointed towards the accused Ghukiye, saying that he was the one who raped her. She stated that the victim child gained conscious only after the slap of her father as she was shocked after seeing the accused Ghukiye.

PW. 5 (name not mentioned) stated that he was studying in Class-III and a friend of the victim child and he is the brother of the victim child’s friend. He stated that one day while returning from school, his sister showed him a sum of Rs.10/- saying that Asu Ghukiye had given her the money.

PW. 6 (name not mentioned) also stated that he was studying in Class-III at that point of time and he is a friend of the victim child. He also stated that PW. 7 (name not mentioned) said that Assu Ghukiye had given a sum of Rs.10. He identified the accused person standing in the dock.

PW. 7 (name not mentioned) stated that she was studying in Class-II and the victim child is her best friend and they were class-mates during the time of the incident. She stated that they were neighbors and used to go school and come back together. She stated that sometimes, they played hide and seek and when she touched her friend, she ran away but after reaching Asu Ghukiye’s shop, she used to disappear. She stated that one day, while returning home, the victim child stated that Asu Ghukiye gave her Rs.10/- and told her to go home. On other occasion, Asu Ghukiye gave her Rs.10/-, she took the money and bought certain packets of mimi and shared with others. She identified the accused person standing in the dock. In her cross-examination, she stated that she has not seen Asu Ghukiye committing any offence against her friend but every time, her friend used to get lost near the shop of Asu.

(XXX, the victim child) stated that she was studying in Class-II at middle school, Sukhalu. She stated that during the time of the incident, she was studying at Aghunato Government Primary School in Class-I. She stated that Tolika (PW.7) is her best friend and she is her neighbor and they used to go school together. She stated that Tolika and herself always used to play “Lucky”. She stated that Asu Shop is on the road side from where they used to go the school and come back. She stated that it was not always Asu used to call her and gave her money but occasionally, she was given Rs.10/- or sometimes, Rs.20/-. She stated that she did not remember how many times Asu gave her money. She stated that Asu never called her by name but he usually showed her Rs.10/- and by gesture, he usually call her inside his shop. She stated that he used to place a cartoon on the floor and remove her clothes saying that it would get dirty. He made her lie on the floor and puts his finger in her shame-shame and afterwards alapu. She also stated that it was so painful that she used to shout and cry but he used place his hands on her mouth and kept her silent. He threatened her not to tell anyone including her parents and that if she ever told anyone, he would beat her. He used to slap on her buttock sometimes. She stated that he used to dress her up and send her back home. The victim child identified the accused standing in the dock. She also identified the cartoon which was used in the commission of the rape. In her cross-examination, she stated that only Asu Ghukiye gives her money while she crosses the shop.

Ms. Itoli Achumi (PW.9) is the wife of the accused Asu Ghukiye. She stated that her husband on an earlier occasion, had sexual affair with one girl who came to stay with them to help her. She stated that her husband as well as the said girl admitted to have involved in sexual relationship. She stated that she had forgiven her husband for that and thereafter, they live together.

Dr. Shevosa Vese (PW. 10) is the Doctor who has done the medical examination of the victim child. He stated that the victim child and the alleged rapist were brought for medical examination on 27.09.2015. During the examination of the victim child, it was confirmed that:

He stated that at the time of medical examination of the victim, hair of the victim swab of vagina, L Minoria and L. Majoria. He also examined the alleged accused and extracted swab taken from prepuce, Glands penis and urethral opening along with public hair and underwear. He stated that the accused is healthy and fit for sexual intercourse and there is no abnormality detected during examination. He stated that the victim is of tender age and physically she can be easily overpowered, so there is no question of struggling or resistance. He stated during the time of examination, both the alleged accused and the victim came neat and clean as they have taken bath before examination. He stated that, in his opinion, the rape must have been committed four to five days back. While examining the victim child, the private part of the child (hole of vagina) was wider than the normal size of the age of the child. He identified the accused person standing in the dock, whom he had examined.

Anato UBSI (PW. 17) who was serving at Pughoboto Police Station and he was endorsed with the case by the Officer-in-Charge of Aghunato Police Station to investigate the present case. He stated that during investigation, he placed a petition before the JMFC for obtaining blood sample of accused and the victim and sent to CFSL, Kolkata. Subsequently, on 30.09.2015, swab was taken from the accused and also extracted from the victim; the hair of the victim etc. were sent for CSFL examination. He stated that, vide a letter dated 26.10.2015, the Director of CSFL, Kolkata had accepted the exhibit for biological examination in the laboratory but the report is still awaiting and the same shall be submitted as soon as the laboratory result is received along with the supplementary charge sheet. He identified the accused person standing in the dock. In his cross-examination, he stated that he made the victim child to identify the accused by photograph. He stated that though he saw some stains on the cartoon, he did not send the same for examination. He stated that it would be wrong to suggest that money was given to the victim child by the accused was in a good gesture. He also stated that there was no enmity between the accused and the father of the victim child.

Ms. Honali Achumi (DW.1) is the daughter of the accused person. She stated that in front of gathering crowd, the victim child said that she was not raped by her father. She stated that when Vikato, the father of the victim child slapped her, only then out of fear, she stated that her father had raped her. In her cross-examination, she stated that it is a fact that she was present when the victim child identified the accused person. She also stated that when the women STH member questioned the victim child inside the cabin, the victim child pointed to that place about the occurrence of the incident.

After examination and re-examination of the witnesses including the above mentioned, accused was examined under Section 313 Cr.P.C., wherein, he denied the charges leveled against him. He stated that the victim child replied in conformity to his question whether he had raped her due to the fact that the victim child’s father slapped her. He stated that the victim child got scared and she must have answered ‘yes” due to that fact.

From the evidence recorded, it is seen that all throughout, the statement of the victim child is consistent. Her statement has been corroborated by her friends who have deposed before the learned Trial Court. It is seen that though no one had witnessed the alleged crime of rape, the circumstances, namely, the payment of Rs. 10/- or Rs.20/- to the victim child and her friends corroborate the statement of the victim that she used to be given Rs.10/- or Rs.20/- by the Appellant whenever he used to rape her. The evidence of the victim child and her friends could not be rebutted by the defence in any manner.

The statement of PW. 3, namely, Kiyeli H. Achumi who is a NGO worker and independent witness corroborates the allegation of rap. It is seen that she was present during the family of the victim to the response of the Appellant as well as she was present when they went to the shop of the Appellant and the victim child identified the Appellant who had committed rape upon the victim child.

The Medical report, i.e. Exhibit-P.8 also suggests sexual intercourse as the hymen of the victim child was ruptured. The Medical report being relevant is extracted hereinbelow:

Taking into account the aforesaid, we are of the considered opinion that as far as the conviction of the Appellant under Section 376 (2) (i) of the IPC read with Section 4 of the POCSO Act, 2012 by the learned Trial Court, there is no infirmity, as there was no eye witness, the witnesses who have been examined by the Trial Court, they have corroborated the circumstances as stated by the victim child. This is also due to the fact that there is reliable consistency in the statement of the victim child who is also supported by the statements of her parents and other witnesses.

Now, coming back to the submissions made by the learned counsel appearing for the Appellant, we shall examine the legal position and the correctness vis-à-vis the submissions of the learned PP as well as of the learned Legal Aid Counsel appearing for respondent No. 2.

In the case of Krishan Kumar Malik (Supra), the Hon’ble Supreme Court has held as follows:

In the instant case in terms of Section 53-A as per the Medical Report, the vaginal swab, hair from vagina, L. majora, L. minora, and hair of victim were collected from the victim child. As per the Medical Report, swabs taken from the prepuce, glands penis, and urethral opening were handed over to the police. Pubic hair and underwear of the accused were also handed over to the police. It is also seen from the record that the I.O., accordingly, sent the following items collected from the victim child: (a) Vaginal swab, (b) hair from vagina, (c) L. Majora (d) L. Minora (e) hair from victim (f) Pubic hair (g) Prepuce (h) Glands penis (i) Urethra orifice (j) Underwear etc. were sent to the FSL for examination and opinion.

It is seen from the records that though the FSL report was sought from the Director, CFSL, MHA, Government of India, Kolkata, the same was not received by the Investigating Officer. Accordingly, the Charge Sheet was filed without the FSL report.

Section 53A of Cr.P.C. is a provision enabling medical examination of a person accused of rape for the purpose of collecting scientific evidence such as semen, blood, hair samples, or DNA profile. However, the provision is facilitative in nature and not mandatory and therefore, failure to conduct DNA profiling cannot by itself be treated as fatal to the prosecution case. In this connection, the case of Veerendra -vs- State of Madhya Pradesh, reported in (2022) 8 SCC 668, can be referred to and the following observations of the Hon'ble Supreme Court are extracted hereinbelow:

From the above, it is discernible that Section 53-A of the Cr.P.C. is facilitative in nature and not mandatory and therefore, failure to conduct DNA profiling cannot by itself be treated as fatal to the prosecution case. Consequently, the non-submission of the supplementary charge sheet in the instant case along with the FSL report cannot be termed as fatal to the prosecution's case. In view of the aforesaid, the case of Krishan Kumar Malik (supra) may not be of much help to the cause of the Appellant.

The learned counsel for the Appellant has submitted that the High Court has no right to remand a matter to the learned Trial Court for enhancing the sentence imposed on the Appellant. In this connection, he has referred to the case of Sachin (supra), wherein, the Hon’ble Supreme Court has observed as follows:-

The learned counsel appearing for the Appellant has further referred to the case of Badan Das (supra), wherein, the Hon’ble Kolkata High Court observed as follows:-

The observation of the Kolkata High Court in the aforesaid case cannot be applied to the facts of the instant case in hand.

In the aforesaid case, the learned Single Judge found that the conviction of the appellants under Section 326 and 149 of the IPC to be inadequate. Therefore, the matter was remanded to the trial court for hearing from the stage of arguments to decide as to why the appellants should not be convicted under Section 302 and 149 of the IPC afresh. In that case, in an appeal by the convict, the learned Single Judge issued a suo motu rule to the appellants to show cause as to why the order of acquittal under Section 302 read with Section 149 IPC could not be set aside, and the matter was sent back to the trial court from the hearing stage to decide as to why the appellants should not be convicted under Section 302 and Section 149 of the IPC afresh. But in the instant case in hand, neither any show-cause notice was issued nor was the matter sent back to the Trial Court for enhancing the sentence. In the instant case, while passing the judgment and order dated 24.08.2018, the learned Single Judge has come to the following finding:

From the above, it is seen that in the instant case, the learned Single Judge has remanded the matter back to the trial court due to the inefficiency of the defense counsel in cross-examination of the witnesses. He has also come to a finding that the defense of the case was not effectively projected, and in that context, the learned Single Judge remanded the matter to the trial court for a re-trial from the stage of evidence, and parties were given liberties to adduce additional evidence, if they desire so. Therefore, it is seen from the direction of the learned Single Judge that there was no direction for any enhancement of the conviction nor any comment has been made on the merit of the case by the learned Single Judge other than having found the conducting of the trial by the defense counsel to be inefficient.

In view of the aforesaid, the case of Badan Das (supra) relied on by the learned counsel for the Appellant shall be of no help in the instant case to argue that in an appeal against conviction, the High Court is prohibited to order a retrial.

We have also considered the case of Nagarajan (supra), wherein the Hon'ble Supreme Court held that in an appeal filed by the accused/convict and in absence of any appeal filed by the victim, the complainant or the State, the High Court cannot exercise suo-motu revision either to enhance the sentence or to convict the appellant on any other charge. In the case of Nagarajan (supra), the learned Single Judge, after observing that the evidence relating to the abetment of suicide was not duly appreciated and noting that the State had not filed an appeal against the acquittal, the High Court by its order suo-motu directed the registration of a criminal revision case to examine the propriety of the acquittal. Thereafter, the High Court, by asserting its inherent power, initiated suo-motu revision under Section 401of the Cr.P.C., dismissed the criminal appeal filed by the appellant and allowed the suo-motu criminal revision petition, thereby convicting the appellant under Section 306 and 448 of the IPC. Against the aforesaid backdrop of facts, the Hon'ble Supreme Court has observed as mentioned above.

It is apparent that the aforesaid facts of the case and the jurisdiction exercised by the High Court in that case are totally distinguishable from the facts and the order passed by the Gauhati High Court in the instant case. Therefore, in the instant case, neither any suo-motu case was registered nor any direction or order was passed while remanding the matter back to the learned Trial Court for enhancement of the conviction. What the learned Single Judge in the instant case has done is only for the purpose of a fair trial and the matter was sent back from the stage of evidence with a liberty to the parties to adduce additional evidence for re-trial.

In the aforesaid case of Sachin (supra), the High Court of Judicature at Bombay, Nagpur Bench, Nagpur remitted the case to the Special Court for reconsideration of the quantum of the sentence to be imposed upon the appellant by way of an enhancement for the offence said to have committed by the appellant. In that case, the appellant was produced before the High Court and was made aware for issuance of notice regarding hearing of enhancement. After issuance of such notice, the aforesaid order was passed by the High Court by remanding the matter with a direction for enhancement of sentence for the offence. Therefore, the facts of the case of Sachin (supra) being distinguishable is not applicable in the instant case.

We have considered the cases relied on by the learned PP as well as of the learned Legal Aid Counsel for the respondent No. 2.

In the case of Sushi Kumar Tiwari (supra), the Hon’ble Supreme Court held that merely on account of non-availability of DNA, the case of the prosecution cannot be discarded especially because the purpose of identification has been fulfilled on the strength of other credible evidence. Therefore, when there are other credible evidence and circumstances surrounding the incident go on to show the guilt of the accused then other corroborating evidence like DNA analysis may not be so relevant in convicting an accused person.

The learned PP has relied on the case of Mukesh (supra) to stress the point that the sole testimony of the witness is sufficient to establish the commission of rape even in the absence of corroborative evidence.

The learned Legal Aid Counsel for respondent No. 2 has also relied to the case of Deepak Kumar Sahu (supra), wherein, the Hon’ble Supreme Court has held that the statement of the prosecutrix is sufficient in a case of rape.

This Court has considered the submissions of the learned counsel appearing for the parties and has also gone through the TCR that has been produced before this Court.

After consideration of the legal positions as discussed above, we find that there was no infirmity in the Judgment and Order dated 24.08.2018 of the learned Single Judge of the Gauhati High Court while remanding the matter for a re-trial from the evidence stage. After the said re-trial and appreciation of the evidence, the learned Trial Court has come to a finding that the Appellant is liable to be convicted under Section 376 (2) (i) of the IPC as well as under Section 4 of the POCSO, Act, 2012. Therefore, the sentence of 10 years R.I. under Section 376 (2) (i) of the IPC and the same punishment under Section 4 of the POCSO, Act, 2012 cannot be termed as not as per law.

Though, there was a submission made by the counsel for the Appellant that since the Appellant has already spent more than 7 (seven) years, his conviction should be reduced to the term that he has already spent in the jail. We are not convinced with the aforesaid prayer of the learned counsel.

In view of the aforesaid discussions and in consideration of the entire matter, taking into account the case laws submitted by the learned counsel appearing for the respective parties, we are not inclined to interfere with the Judgment and Order dated 30.10.2019 and Sentence dated 01.11.2019 passed by the learned Special Judge, Zunheboto. Accordingly, the instant Criminal Appeal stands dismissed.

Bail if any granted to the Appellant, is hereby cancelled. The Applicant is directed to surrender before the Jail authorities within one week from the date of passing of this judgement & order to serve out the rest of the sentence. The Registry shall transmit a copy of this judgment to the Superintendent of District Jail, Zunheboto.

Registry to send back the Trial Court Records immediately.