Nural Islam @ Nurul Islam vs The State Of Assam & Anr.

(M. Zothankhuma, J)

Heard Mr. N. Uddin, learned counsel for the appellant. Also heard Mr. R.R. Kaushik, learned Additional Public Prosecutor for the respondent no.1. No one appears for the respondent no.2, even though Mr. B.J. Mukherjee is the counsel for the respondent no.2.

This appeal is against the impugned judgment dated 08.09.2022 passed by the Special Judge, Bongaigaon, in Special(P) Case No.26(BGN)/2020, arising out of Bongaigaon PS Case No.350/2020, by which the appellant has been convicted under Section 376(3) IPC, read with Section 4 of the POCSO Act. The appellant has however been sentenced to undergo rigorous imprisonment for 22 years with a fine of Rs.50,000, in default simple imprisonment for 1 year under Section 376(3) IPC, in view of Section 42 of the POCSO Act.

The brief facts of the case is that an FIR dated 20.05.2020 was submitted by the informant (PW-3), who is the father of the victim, stating that his physically handicapped minor daughter whose date of birth was 16.07.2008, had been subjected to sexual intercourse on different occasions for the last one and half months by the appellant. Further, on 12.04.2020 between 6 to 7 p.m, the informant's mother (PW-4) had caught the appellant red handed, due to which the appellant had threatened to kill all of them, besides threatening to set fire to their house and driving them out of the village. The informant further stated that as he was a poor hawker and as their entire family had been threatened with loss of life and property, besides there being a lockdown, he was unable to go out of his house which caused delay in the filing of the FIR. Pursuant to the FIR dated 20.05.2020, Bongaigaon PS Case No.350/2020 under Section 376(2)(i) IPC read with Section 4 of the POCSO Act was registered. After having the victim medically examined and having her statement recorded under Section 164 Cr.P.C, besides examining all other witnesses, charge-sheet was filed, as the Investigating Officer (PW-5) had found a prima facie case under Section 376(3) IPC read with Section 4 of the POCSO Act established against the appellant.

The learned Trial Court thereafter framed charges under Section 376(3) IPC read with Section 4 of the POCSO Act against the appellant, to which he pleaded not guilty and claimed to be tried.

The learned Trial Court thereafter examined 7 Prosecution Witnesses and after examining the appellant under Section 313 Cr.P.C, it came to a finding that the appellant had committed an offence punishable under Section 376(3) IPC read with Section 4 of the POCSO Act. The learned Trial Court thereafter sentenced the appellant under Section 376(3) IPC on account of Section 42 of the POCSO Act.

The challenge made to the conviction and sentence of the appellant under Section 376(3) IPC and Section 4 of the POCSO Act, is on the ground that there has been a delay of 38 days in filing the FIR, inasmuch as, the last incident of sexual penetrative assault had occurred on 12.04.2020, while the FIR had been filed only on 20.05.2020. The second ground of challenge to the conviction of the appellant is that the Doctor (PW-6) in his evidence had stated that the age of the victim was between 15 to 17 years, after apparently going through the X-Ray report of the bones of the victim. Thus, the age of the victim would have to be considered to be around 19 years, by giving the benefit of +/- 2 years to the age of the victim, in terms of various decisions of the Supreme Court, wherein it has been held that if two views are possible, the view in favour of the accused should be taken by the Court. As such, the victim would have to be considered to be not less than 18 years of age at the time of the offence, by giving the benefit of plus 2 years to the age of the victim.

The learned counsel for the appellant further submits that the manner in which the age of the victim had been proved, i.e. on the strength of the Birth Certificate issued by the school, which had been compared with the entry in the original Admission Register of the school where she joined in Class-III, was not proper, inasmuch as, the age of the victim would have to be considered with respect to the Admission Register of the first school in which she had joined. However, the age of the victim had been proved on the basis of the Admission Register of the school where she had joined in Class-III only. He also submits in the alternative, that if the age of the victim is found to be 18 years and there appears to be a consensual relationship between the two, no case of rape can be said to have been committed by the appellant. In support of his submissions, the learned counsel for the appellant has relied upon the decisions of the Supreme Court in the case of (i) Babloo Pasi vs. State of Jharkhand & Another, reported in (2008) 13 SCC 133, (ii) P. Yuvaprakash vs. State, represented by Inspector of Police, reported in 2023 0 Supreme (SC) 641 and (iii) Birad Mal Singhvi vs. Anand Purohit, reported in 1988 Supp 1 SCC 604.. He accordingly submits that the impugned judgment should be set aside and the appellant should be acquitted of the charges framed against him.

On the other hand, the learned Additional Public Prosecutor submits that the reason for the delay in the filing of the FIR has been clearly spelt out in the testimony of PW-2, wherein PW-2 has stated that the delay had occurred due to the parents and the brother of the appellant having assured them that they would settle the matter and as there was a full lockdown during the relevant period, due to the Covid-19 pandemic. The learned Additional Public Prosecutor further submits that Section 94 of the Juvenile Justice (Care & Protection of Children) Act, 2015 [hereinafter referred to as the “2015 Act”], does not require determination of age of the child in conflict with law or the victim, on the basis of the Admission Register of the first school, in which the said victim had been first admitted into. Accordingly, there was no infirmity with the determination of the age of the victim on the basis of the Admission Register of the school in which the victim had been admitted in Class-III, which had corroborated the Birth Certificate of the child issued to the victim by the school. He accordingly submits that the testimony of the Doctor that the child was between 15 to 17 years would have to be ignored in view of the determination of age of the victim in terms of sub-Section 2(i) of Section 94 of the 2015 Act. The learned Additional Public Prosecutor further submits that there was no consensual sexual act between the parties, inasmuch as, the appellant had been caught red handed by PW-4, as the victim had shouted during the assault made on her by the appellant. He accordingly submits that when the medical evidence of the Doctor had corroborated the fact that the hymen of the victim was absent, the learned Trial Court did not commit any infirmity in convicting the appellant under Section 376(3) IPC, read with Section 4 of POCSO Act.

We have heard the learned counsels for the parties.

The evidence of PW-1, who is the victim, is to the effect that at the time of the occurrence, she was studying in Class-V in the school. On 12.04.2020 at around 6:00 to 7:00 p.m, the victim had gone to the toilet. The appellant suddenly grabbed her and by showing her a dagger, took her inside the bathroom and locked the same. Thereafter, while threatening her with a dagger, the appellant removed the victim's pant and inserted his private parts into her private parts. As one of her hands did not function, she could not resist the appellant. As it hurt her, she shouted, due to which her grandmother (PW-4) came to the bathroom. The appellant then threatened her grandmother by showing her a dagger. The appellant also threatened the victim not to disclose the matter, saying that he would kill her parents if she told anyone. The victim, however, narrated the incident to her parents when they returned home. Her grandmother also spoke of the incident, due to which their neighbours had gathered there. Though it was decided that a meeting would be held, no meeting was held. The victim also stated that at the time of occurrence, she was 12 years old. She also stated that her statement was recorded by a Magistrate and that she had been medically examined. She also stated that prior to the incident on 12.04.2020, the appellant had sexual intercourse with her on 6 days.

In her cross-examination, the victim stated that the appellant along with his brother, sister-in-law and a child resided as a tenant in the rented house of the landlord. The landlord had around 10/12 houses and that the victim was a tenant in one of the houses. The victim also stated that her father had lodged the FIR 1 ½ months after the occurrence of the crime. She also denied the suggestion that her father had asked the appellant to pay money and due to non-payment of the same, the FIR had been filed.

The evidence of PW-2, who is the mother of the victim, is to the effect that she knew the complainant and the appellant. When she had come back from the market around 1 ½ years ago at about 6:00 to 7:00 p.m with her husband, she saw some villagers gathered outside their house. She saw her daughter crying and on asking her, the victim told her that the appellant had threatened her with a knife and had raped her inside the bathroom of the rented house. The victim also told PW-2 that the appellant had raped her earlier 6 times. When the appellant’s parents and brother were called, they assured the family of PW-2 that they would settle the matter. However, the same was not done. After 1 ½ months of the incident, an FIR was lodged. Further, during the time of the incident, there was a full lockdown, due to which there was a bar on people coming together and gathering. Due to the lockdown, the FIR could not be filed in time. PW-2 also stated that at the time of the incident, her daughter was 12 years old.

In her cross-examination, PW-2 stated that the landlord had around 12/14 houses which he rented out to tenants, including themselves. There were about 20/30 persons living in the rented houses with only one bathroom and one latrine shared by all the tenants. PW-2 denied the suggestion that there was a meeting and in the meeting they had demanded money and as no money had been paid, they lodged the FIR. PW-2 also denied the suggestion that they had lodged an FIR to get the victim married with the appellant.

The evidence of PW-3, who is the informant and father of the victim, is to the effect that on reaching their house from the market with his wife on 12.04.2020 at about 6:00 to 7:00 p.m, there was a hue and cry outside their house. On enquiring about the same, PW-4 told PW-3 that the appellant had raped his elder daughter in the bathroom-cum-toilet. The appellant had then fled after pushing PW-4. Further, PW-4 had seen the victim in a naked condition. On asking the victim about the same, the victim told PW-3 that the appellant had raped her after threatening her. Further, he had raped her 6 or 7 times earlier. PW-3 further stated that he informed the matter to the family members of the appellant, who told him that they would settle the matter. However, no settlement was made. He also exhibited the School Certificate of his daughter who was studying in Class-VI and also testified that the date of birth of his daughter was 16.07.2008.

In his cross-examination, PW-3 denied the suggestion that there was any quarrel between the family of the appellant and the victim, regarding the use of the latrine. He also stated that in the house of the landlord there were 20/30 tenanted rooms and that they all shared two toilets. One was used for toilet purposes only and the other one was used as a toilet-cum-bathroom. PW-3 also denied the suggestion that he had filed a false FIR, to enable his victim daughter to get married with the appellant. He also denied the suggestion that due to not being paid money in terms of the village meeting, he had lodged the FIR.

The evidence of PW-4, who is the grandmother of the victim and the mother of the informant, is to the effect that she knew the appellant and that her son had filed the present case. PW-4 stated that about 1 ½ years ago around 6:00 to 7:00 p.m, her son and daughter-in-law had gone to the market. On hearing an alarm raised by her granddaughter from the bathroom and on the door being opened, she saw the appellant who fled away. PW-4 stated that she saw the victim inside the bathroom in a naked condition. She also saw the panty of the victim below her knees. The victim told her that the appellant had sexual intercourse with her. She then took the victim to her room and on arrival of her son and daughter-in-law, she told them about what had happened. The matter was also brought to the notice of the parents of the appellant. People had also gathered at the place of occurrence and the family members of the appellant stated that they would take steps against the appellant. However, no steps were taken by the appellant’s family. Further, there was a lockdown during that period. Her son filed the FIR and that at the time of the incident, the victim was 13 years old and that she was physically handicapped from birth.

In her cross-examination, PW-4 denied the suggestion that the FIR had been filed so that the victim would get married with the appellant. She also denied the suggestion that due to non-payment of money which was settled in the meeting, the case had been filed against the appellant.

The evidence of PW-5, who is the Investigating Officer, is to the effect that while working as the In-Charge Officer at North Bongaigaon Police Post on 20.05.2020, he received an FIR filed by PW-3, which was registered as Bongaigaon P.S. Case No.350/2020. He recorded the statement of the informant and the victim and sent the victim for medical examination to Bongaigaon Civil Hospital. He also sent the victim to the Magistrate for recording her statement under Section 164 Cr.P.C. He also seized the School Certificate of the victim which was exhibited as M. Ext.-1. He also stated that while he received the FIR on 20.05.2020, the date of the incident was 12.04.2020. He denied the suggestion that the cause of delay in filing the FIR was not properly mentioned in the FIR. He also denied the suggestion that the victim was a major at the time of the incident.

The evidence of PW-6, who is the Senior Medical and Health Officer at Bongaigaon Civil Hospital, is to the effect that on 20.05.2020 at about 3:20 p.m, she examined the victim. On examination, she found that her hymen was absent and could easily admit two fingers.

The evidence of PW-7 is to the effect that he joined as an Assistant Teacher in the victim's school in the year 1992 and became the Headmaster in the year 1996. He brought the Admission Register of the year 2017 pertaining to serial numbers 1 to 86 with effect from 23.12.2017, i.e, from page nos.1 to 8. PW-7 stated that the victim was admitted in their school on 29.12.2017 in Class-III and as per their Admission Register, her date of birth was 16.07.2008. He also identified the School Certificate as M. Ext.-1 and he also identified his signature which was exhibited as M. Ext.-1(1).

In his cross-examination, PW-7 stated that the date of birth of the victim was mentioned in the Admission Register on the basis of the date of birth given by the victim's guardian. He also stated that there was no valid document in support of her date of birth, to prove whether the statement made by the guardian at the time of recording the date of birth of the victim in the Admission Register, was correct or not.

The examination of the appellant under Section 313 Cr.P.C shows that he has made a blanket denial with regard to all the incriminating evidence adduced against him. However, when asked as to whether he had anything else to say, the appellant stated in reply to Question No.11 as follows:-

The statement made by the victim under Section 164 Cr.P.C and which had been exhibited by the victim as Ext-1, is to the following effect:-

In the case of R. Shaji Vs. State of Kerala, reported in (2013) 14 SCC 266, the Hon’ble Supreme Court held that statements under Section 164 Cr.P.C can be used for both corroboration and contradiction. In the present case, the statement made by the victim under Section 164 Cr.P.C corroborates her testimony given before the learned Trial Court, that the appellant raped her. We also find that the evidence of the Doctor (PW-6), which is to the effect that the hymen of the victim was absent, corroborates the testimony of the victim that she had been subjected to sexual intercourse by the appellant.

With regard to whether the victim was a minor or had attained 18 years of age at the time of the occurrence of sexual intercourse on 12.04.2020, we would have to rely upon the provisions of Section 94 of the 2015 Act, which states as follows:-

A reading of Section 94(2)(i) of the 2015 Act clearly shows that the Birth Certificate issued by a school can be the basis for determining the age of the victim.

In the case of P. Yuvaprakash (supra), the Supreme Court has outlined the procedure to be followed in cases where age determination is required, i.e, in terms of Section 94 of the 2015 Act.

In the present case, the School Certificate showing the date of birth of the victim as 16.07.2008 had been issued on 03.12.2021. The date of birth mentioned in the School Certificate which has been exhibited as M. Ext.-1, has been proved by the Admission Register of the school pertaining to the year 2017, wherein the date of birth of the victim as 16.07.2008 had been recorded on 29.12.2017 by the Headmaster of the school. As the contents of the School Certificate showing the date of birth of the victim has been proved by the Admission Register of the school, the age of the victim would have to be considered to be 12 years at the time of the incident. The evidence of the Doctor that the age of the victim was between 15-17 years would have to give way to the date of birth recorded in the School Certificate, in terms of Section 94(2)(i) of the 2015 Act.

With regard to the submission made by the learned counsel for the appellant that only the Admission Register of the school which a student had first attended, can be considered for determining the age of the victim has some force, in terms of Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007, wherein it is held that the juvenility of a person in conflict with law, could be determined by the matriculation or equivalent certificates, if available, and in the absence whereof, the Date of Birth Certificate from the school first attended. However, Clause (i) of Section 94(2) of the 2015 Act does not place any restriction with regard to determining the age of a child in conflict with law or the victim, by relying only upon the Date of Birth Certificate issued from the school first attended. As such, there is no infirmity with the learned Trial Court relying upon the School Certificate and the Admission Register of the school where the victim joined in Class-III to determine the age of the victim. In any event, the date of birth of the victim has been recorded in the school register in the year 2017 and the offence had been committed in the year 2020. It cannot be said that the date of birth of the victim had been wrongly recorded in the year 2017, as it could never have been known that the victim would have been subjected to sexual intercourse 3 years later, unless there was a crystal ball which had been seen earlier in point of time.

On considering the testimony of the victim, it appears that the appellant and the victim had sexual intercourse even prior to 12.04.2020, as the victim had stated that she had been raped around 6 times earlier. The silence of the victim with regard to the earlier episodes of rape could imply that there was consent on the part of the victim, to have sexual intercourse with the appellant on earlier occasions. However, keeping in view the fact that the victim was a minor, she could not have given any consent in violation of the statutory law.

In the case of Babloo Pasi (Supra), the Supreme Court has held that to render a document admissible under Section 35 of the Evidence Act, 1872, three conditions have to be satisfied, namely:- “(i) entry that is relied on must be one in a public or other official book, register or record; (ii) it must be an entry stating a fact in issue or a relevant fact, and (iii) it must be made by a public servant in discharge of his official duties, or in performance of his duty especially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded. (See Birad Mal Singhvi v. Anand Purohit [1988 Supp SCC 604] .)”

In the case of P. Yuvaprakash (supra), the Supreme Court has held that it was incumbent on the Prosecution to prove that the victim's age was below 18 as per Section 94 of the 2015 Act.

In the case of Birad Mal Singhvi (Supra), the Supreme Court held that the date of birth mentioned in the scholar's register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined. The entry contained in the admission form or in the scholar’s register must be shown to be made on the basis of information given by the parents or a person having special knowledge about the date of the person concerned. It also held that if the entry in the scholar's register regarding the date of birth is made on the basis of information given by the parents, the entry would have evidentiary value, but if it is given by a stranger or by someone else who had no special means of knowledge of the date of birth, such an entry would have no evidentiary value.

In the present case, not only has the Headmaster of the school in which the victim had studied proved the date of birth of the victim, in terms of the School Certificate and the Admission Register, PW-7 has also stated in his cross-examination that the date of birth of the victim was recorded in the Admission Register, on the basis of the date of birth given by her guardian. As such, it cannot be said that the date of birth of the victim as given in the Admission Register was wrong.

On considering all the above facts, it is quite apparent that there is no infirmity with the conviction of the appellant under section 376(3) IPC read with Section 4 of the POCSO Act. We have noticed that at the time of hearing the appellant under section 235(2) Cr.P.C, the appellant had stated that his age was 21 years. The above implies that the appellant was apparently around 18 or 19 years of age at the time of the crime.

On considering the age of the appellant at the time of the crime, we are of the view that justice would be served if the minimum sentence is awarded to the appellant under Section 376(3) IPC, i.e, 20 years. Accordingly, the sentence to be undergone by the appellant is reduced to rigorous imprisonment for 20 years with a fine of Rs.10,000/- (Rupees Ten Thousand) only, in default of payment of fine, to undergo simple imprisonment for 1(one) month. The sentence awarded by the learned Trial Court pursuant to the impugned Judgment and Order dated 08.09.2022 is accordingly interfered with to the extent indicated above, although the conviction under section 376(3) IPC read with Section 4 of the POCSO Act is upheld.

The appeal is accordingly disposed of.

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