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

GUWAHATI, India, March 1 -- Gauhati High Court issued the following order on Jan. 29:

1. Heard Mr. H.R.A. Choudhury, learned Senior Counsel assisted by Mr. J. Islam, learned counsel for the appellant. Also heard Ms. A. Begum, learned Additional Public Prosecutor, Assam for the State and Mr. H. Talukdar, learned counsel for the respondent no.2

2. The appellant has put to challenge the impugned judgment dated 13.12.2022 passed by the Court of the learned Additional Sessions-cum-Special Judge (POCSO) at Barpeta in Special POCSO Case no.101/2018, by which the appellant has been convicted under Section 4(2) of the POCSO Act, 2012 and sentenced to undergo rigorous imprisonment for 20 years with a fine of Rs.15,000/-, in default to undergo rigorous imprisonment for another 2 years.

3. The appellant's counsel submits that the incidents of rape had occurred in between 18.06.2018 till 23.06.2018, when Section 4 of the POCSO Act, 2012 was as follows :

"Punishment for penetrative sexual assault - Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than 7 years but which may extend to imprisonment for life, and shall also be liable to fine".

4. However, the appellant has been convicted and sentenced under the amended Section 4(2) of the POCSO Act, 2012, after insertion of Section 4(2) by way of Act 25/2019, which came into effect on 06.08.2019. The learned Senior Counsel thus submits that even if the appellant had been convicted under Section 4 of POCSO Act, 2012, he could not have been sentenced under Section 4(2), as the said sub-Section was not a part of the un-amended Section 4 of the POCSO Act, 2012, at the time the incident/offence had occurred.

5. The second ground of challenge to the impugned judgment by the appellant, is that the age of the victim had not been proved by the prosecution, inasmuch as, the original Birth Certificate of the victim had not been produced before the Court. The third ground of challenge to the impugned judgment is that the appellant had not raped the victim. In respect of the third ground of challenge, the alternative submission made by the learned Senior Counsel for the appellant, is to the effect that if at all there was any sexual intercourse between the appellant and the victim, the same was consensual in nature.

*Rest of the document can be viewed at: (https://hcservices.ecourts.gov.in/ecourtindiaHC/cases/display_pdf.php?filename=zDLovBVSUw02H8XukOjXfLQdEm0AfO98YgoM%2BfI1llpV1peMRWMNNbuAFVZGpH2D&caseno=Crl.A./13/2022&cCode=1&cino=GAHC010008682022&state_code=6&appFlag=)

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