GAUHATI HIGH COURT ISSUES ORDER ON RAJESH BAG V/S THE STATE OF ASSAM AND ANR. B

GUWAHATI, India, Sept. 30 -- Gauhati High Court issued the following order on Aug. 29:

1. Heard Mr. A. Thakuria, learned counsel for the appellant. Also heard Mr. B. Sarma, learned Additional Public Prosecutor for the State respondent No. 1.

2. This is an appeal under Section 374(2) of the Code of Criminal Procedure, 1973 against the impugned judgment and order dated 12.10.2023, passed by the learned Additional Sessions Judge-cum-Special Judge (POCSO), Tinsukia in Sessions Case No. 08/2023, whereby, the appellant has been convicted to undergo Rigorous Imprisonment for 4 (four) years with fine of Rs.5,000/-, in default of payment to undergo Simple Imprisonment for 3 (three) months for committing the offence under Section 354 IPC. The accused is also sentenced to undergo R.I. for another 6 (six) months for committing the offence under Section 448 IPC, wherein, both the sentences are to run concurrently.

3. The prosecution case, in brief, is that on 06.11.2022 at about 9:00 p.m. while the informant was sleeping at her room, at that time her neighbour Rajesh Bag entered her house and put out all the lights and tried to commit rape on her. As the informant woke up, the miscreants fled away from there. Thereafter, the informant chased the miscreants and disclosed the incident to the wife of said Rajesh Bag. Thereafter, the informant lodged an Ejahar before the Officer-in-Charge of Doomdooma Police Station and on the basis of the said Ejahar, Doomdooma P.S. Case No. 341/2022 under Section 448/376/511 IPC was registered.

4. Thereafter, on completion of investigation, the I.O. laid Charge-Sheet against the present accused/appellant before the learned Additional Sessions Judge-cum-Special Judge (POCSO), Tinsukia, under Sections 448/376/511 of IPC. Accordingly, the learned Additional Sessions Judge-cum-Special Judge (POCSO), Tinsukia, after considering the materials available on record and also finding prima facie case, framed charges against the present accused/appellant under the aforesaid Sections. The charges were read over and explained to the accused/appellant, to which he pleaded not guilty and claimed to be tried.

5. During the trial of the case, the prosecution examined as many as 7 (seven) numbers of witnesses including the victim, who was examined as PW-1, the Medical Officer and the Investigating Officer and few exhibits. The accused/appellant was also examined under Section 313 Cr.P.C., wherein he took the plea of total denial and declined to adduce any evidence. Thereafter, the learned Additional Sessions Judge-cum-Special Judge (POCSO), Tinsukia, hearing both the parties and on perusal of the materials available on records, vide judgment & order dated 12.10.2023, in Sessions Case No. 08/2023, convicted the appellant under Sections 354/448 IPC and sentenced him, as aforesaid.

6. On being aggrieved and dissatisfied with the aforesaid impugned judgment and order dated 12.10.2023, passed by the learned Additional Sessions Judge-cum-Special Judge (POCSO), Tinsukia in Sessions Case No.8/2023, the present appeal has been preferred by the accused/appellant.

7. Mr. Thakuria, learned counsel for the appellant submitted that the learned Special Judge (POCSO) misread and misinterpreted the evidence on record and as such, the impugned judgment is liable to be set aside and quashed.

8. He further submitted that the learned Special Judge (POCSO) did not appreciate the evidence in its proper perspective and thus, arrived at the wrong decision, convicting the accused appellant under Sections 448/354 IPC. The entire conviction is based only on the testimony of the prosecutrix/PW-1, whose evidence is found to be contradictory and thus, it is not believable and trustworthy. Further, he submitted that there is no eye witness to the prosecution case and all the witnesses examined by the prosecution are hearsay witnesses, who were not present at the place of occurrence. He also submitted that the wife of the accused, before whom, the matter was first reported by the victim was also not examined by the prosecution, who was one of the vital witnesses for the prosecution.

*Rest of the document can be viewed at: (https://hcservices.ecourts.gov.in/ecourtindiaHC/cases/display_pdf.php?filename=bzPoyUlszYLCUcCpirIpqDaSChneSazhQ4lGhVrgLZBjrrm5at%2FhvnKInI36xPra&caseno=Crl.A./189/2024&cCode=1&cino=GAHC010011102024&state_code=6&appFlag=)

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