MD Akter Khan @ Bapon Khan Vs the State of Assam and 2 Ors.

1. Heard Mr. J. Laskar, the learned counsel for the appellant. Also heard Ms. B. Bhuyan, the learned Additional Public Prosecutor for the State and Ms. S. Sharma, the learned Amicus Curiae for respondent no. 3.

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2. The appellant has put to challenge the impugned judgment dated 23.02.2023 passed by the Special Judge, Dima Hasao, Haflong in Sessions Special Case No. 08 of 2019, by which the appellant was convicted u/s 376 IPC read with Section 4 of the POCSO Act. The sentence was however given u/s 376(1) IPC in terms of Section 42 of the POCSO Act, wherein the appellant was sentenced to undergo Rigorous Imprisonment for 15 years with a fine of Rs. 50,000/-, in default Simple Imprisonment for 1 year.

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3. The learned counsel for the appellant submits that the appellant could not have been convicted u/s 4 of the POCSO Act, 2012, inasmuch as, the age of the victim could not have been determined by the learned Trial Court, on the basis

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of a School Leaving Certificate. He also submits that there being no marks of violence or injury on the victim in terms of the Medical Report and the evidence of the doctor, the same clearly proved the fact that no rape had occurred. He also submits that the evidence of the prosecutrix alone could not be the basis for conviction of the appellant, in the absence of any corroboration from any other evidence, especially when there was no injury found on the body of the victim.

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4. The learned Additional Public Prosecutor, on the other hand, submits that the conviction of the appellant should not be interfered with, as the testimony of the victim was truthful and there was nothing to disbelieve the same. Further, when the medical evidence corroborated the fact that the victim had been raped. She submits that as the evidence of the victim has the equivalent value as the evidence of an injured witness, the appellant had been rightly convicted by the learned Trial Court.

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5. Ms. S. Sharma, the learned Amicus Curiae for the victim submits that the statement made by the victim u/s 164 Cr.PC corroborates the testimony given before the Court with regard to she being raped by the appellant. She also submits that the evidence of the prosecution witnesses have not been shaken during cross-examination and the same is borne out by the evidence of the Investigating Officer, i.e. PW-19.

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6. The learned Amicus Curiae however submits that there is nothing to prove that the age of the victim was below 18 years of age at the time of the incident, inasmuch as, the age of the victim had been determined on the basis of the School Leaving Certificate issued by the School. In terms of Section 94 of the Juvenile Justice (Care & Protection of Children) Act, 2015 (hereinafter referred as the Act of 2015), a School Leaving Certificate is not a document which can

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determine the age of juvenile in conflict with law and it may not be safe to hold the victim to be below 18 years at the time of commission of the offence in terms of Section 94(2)(i) of Act of 2015. The learned Amicus Curiae submits that even if this Court were to hold that there was no proof that the victim was below 18 years during the commission of the offence, for which Section 4(2) or Section 5 of POCSO Act may not be attracted, the fact remains that the appellant was rightly convicted u/s 376 IPC along with Section 4 of the POCSO Act, as there is no limitation on the age of the victim for attracting the offence of rape under Section 376(1) IPC. Further, the sentence that has been imposed upon the appellant had been made in terms of Section 376(1) IPC. As such, whether the victim was below 18 years of age or beyond 18 years of age at the time of the incident, the same does not change the character of the present case, as the appellant could be convicted u/s 376 IPC and sentenced on the basis of the said provision of law also. She accordingly submits that this Court should not interfere with the decision of the learned Trial Court.

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7. We have heard the learned counsels for the parties.

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8. As can be seen from the records, the FIR had been submitted by the brother of the victim on 18.08.2019 to the Officer Incharge, TOP, Sarkari Bagan, Haflong, stating that he had found his sister (victim) at around 8 PM on 17.08.2019 near Bagetar in an unconscious condition. After medical treatment was administered to her in the hospital, he asked his sister as to what had happened, to which she replied that the appellant who resided in Tilla Basti, Haflong Town, forcefully took her to Bagetar and raped her. Consequent to the FIR, Haflong P.S. Case No. 85/2019 u/s 376/325 IPC read with Section 4 of the POCSO Act, 2012 was registered.

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9. After the case had been investigated by the Investigating Officer (I.O),

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charge-sheet was submitted by PW-19, the I.O having found a prima facie case u/s 419/323/376/201 IPC read with Section 4 of the POCSO Act, 2012 against the appellant.

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10. After the case was committed to the learned Trial Court for trial, charge u/s 419/323/376/201 IPC read with Section 4 of the POCSO Act was framed against the appellant, to which he pleaded not guilty and claimed to be tried.

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11. The learned Trial Court thereafter examined 20 prosecution witnesses and after examining the appellant u/s 313 Cr.PC, it came to a finding that the appellant was guilty of having committed the offence u/s 376 IPC and u/s 4 of the POCSO Act, 2012. The appellant was accordingly convicted u/s 376 IPC and Section 4 of the POCSO Act. In view of Section 42 of the POCSO Act, the learned Trial Court sentenced the appellant u/s 376(1) IPC.

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12. The evidence of the victim (PW-1) is to the effect that she was about 17 years on the date of recording of her evidence i.e. 06.01.2020, while the incident had occurred on 17.08.2019. PW-1, in her testimony, stated that she had studied upto Class-VI at Longmang L.P. School, Haflong and that she knew the appellant before, as the appellant used to visit his friend Reshma, who was the neighbor of PW-1. She also identified the appellant in the Court. PW-1 stated that the incident occurred on 17.08.2019 and that she had met the appellant earlier near Synod point, Haflong Town, i.e., on 15.08.2019.

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13. In her evidence PW-1 stated that on 17.08.2019, the appellant had talked to her over phone about 3 or 4 times and while she was walking from her home towards Haflong Civil Hospital at about 3 PM, to enquire about the health of her neighbor Niang, the appellant had stopped his car near her. The appellant then and asked her to board the vehicle, stating that he would drop PW-1 at the

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Haflong Civil Hospital. PW-1 thereafter boarded the vehicle. The vehicle however did not stop at Haflong Civil Hospital but went towards Haflong bazaar and stopped near the Cultural Institute Hall. The appellant went out and came back after about 10 minutes, bringing some potato chips and coca-cola. The appellant then drove the car towards Jatinga via convent road and asked the victim to eat the potato chips and drink the coca-cola, which she did. Though PW-1 requested the appellant to drop her at Haflong Civil Hospital, the appellant continued driving the car and closed all the windows of the car. The appellant took the victim to Ethnic village (Park) near Jatinga village by which time it was nearly 4 to 4:30 PM. PW-1 felt dizzy and drowsy and on reaching the park, the appellant parked the car and locked the doors. The appellant then undressed her and started touching her body which ended with rape. As she was in a daze, PW-1 could not resist the appellant. PW-1 stated that the appellant had sexual intercourse with her 2 or 3 times inside the car and took her to some other place. Thereafter she lost consciousness. When she regained consciousness, she found herself in Haflong Civil Hospital and thereafter her elder brother, the informant (PW-9) lodged an FIR with the police. The evidence of PW-1 has been corroborated by her statement made u/s 164 Cr.PC.

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14. The evidence of PW-2 who is an auto driver, is to the effect that he heard a hue and cry about 7:30 PM on a day around Independence Day, 2019. On reaching the spot where people had collected, he found a young Nepali girl lying totally unconscious by the side of the road at Upper Bagetar. After making efforts to identify her, he came to know that she was from Maryland, Surat Nagar, Haflong. The brother of the victim was called and she was taken to Haflong Civil Hospital in an auto rickshaw by her brother.

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15. The evidence of PW-3 is hearsay evidence with regard to the victim being

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raped. However, his evidence corroborates the evidence of PW-1 and 15 that the victim had lost consciousness.

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16. The evidence of PW-4, 5, 6, 7 & 8, is to the effect that they had reconstructed the crime scene. The further evidence of PW-7 (photographer) and PW-8 (civil servant) is that the appellant had admitted to them that he had raped the victim, when they were recreating the crime scene.

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17. The evidence of PW-9 is to the effect that he received a phone call from his friend PW-15, at around 8 PM on 17.08.2019, informing him that his sister had met with an accident and that she was lying unconscious at Bagetar. He reached Bagetar with an auto-rickshaw along with three others. Thereafter, he took PW15’s younger sister/victim to Haflong Civil Hospital. On regaining her consciousness, the victim informed him that she had been raped by the appellant.

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18. The evidence of PW-10, 13 & 14 is basically to the effect that the appellant was the owner of the vehicle. The entire evidence of PW-10, 13 & 14 are reproduced herein below as follows:-

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“Deposition of PW-10 Md. Kayam@Khayem Khan, S/O-Lt. Bulla Khan, Age-57 years, Occupation- Retired Driver, Resident of Hagjer Nagar (Tilla Basti), Presently resident of Mahadev Tilla, P.S.- Haflong, Dist – Dama Hasao.

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On Oath ,

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The accused Md. Akhtar Khan @ Bapon is my son who is present in the Court today. My son accused Md. Akhtar Khan @ Bapon purchased one Maruti Alto Car bearing Registration No. AS-01-AF-2807 from Debojit Naiding on 22.05.2019 and executed a sale deed in that regard.

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During investigation the police seized one Mobile handset from my son Md. Akhatar Khan @ Bapon on 19.08.2019 and prepared a seizure list. I put my signature on it as witness. Ext.-4 is the seizure list and Ext-4(1) is my signature thereon. The prosecution also produced the seized article before the Court which I identified as the seized article which is exhibited as Material Ext-2 .

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Cross-Examination,

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Declined”

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“Deposition of PW-13 Abdul Hussain, S/O – Abdul Aziz, Age – 40 years. Occupation – Shopkeeper of Eggs. Resident of Mahadev Tilla, P.S. – Haflong, Dist – Dima Hasao.

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On Oath ,

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I know the accused Md. Akhtar Khan@ Bapon who is present in the Court today. The accused Md. Akhtar Khan @ Bapon used to park his Chevrolet Aveo Car in the premises of his grandfather, Lt. Bulla Khan located at Mahadev Tilla, Haflong. I am also a resident of Mahadev Tilla and as such I know this fact.

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Cross-Examination,

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XXXXX

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Declined.”

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“Deposition of PW-14 Badrul Islam, S/O – Abdul Rup, Age – 30 years. Occupation – Mason. Resident of Mahadev Tilla, P.S. – Haflong, Dist – Dima Hasao.

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On Oath ,

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I know the accused Md. Akhtar Khan@ Bapon who is present in the Court today. The accused Md. Akhtar Khan @ Bapon used to park his Chevrolet Aveo Car in the premises of his grandfather located at Mahadev Tilla, Haflong. I am also a resident of Mahadev Tilla and as such I know this fact.

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Cross-Examination,

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XXXXX

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Declined.”

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19. The evidence of PW-16 is to the effect that on 15.08.2019, while she and the prosecutrix were returning from the market, the appellant had stopped his car near them. This made PW-16 and the victim frightened, as they did not know the appellant. On the insistence of the appellant to accompany him in his car, PW-16 and the victim boarded the appellant’s car. PW-16 further states that

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after boarding the appellant’s car, the appellant drove the car around Haflong Town and also took them to Ethnic Village near Jatinga, instead of taking them towards their home at Suratnagar. Only on their repeated requests did the appellant drop them near Dima Hasao, Suratnagar, Haflong.

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20. The evidence of PW-17, who is a psychiatric, is to the effect that the appellant who was 18 years of age, was examined by him on 22.08.2019. He found the victim to be anxious but cooperative, though the victim appeared to be pre-occupied with the recent incident that had happened to her. In his crossexamination, PW-17 denied the suggestion that the victim did not develop stress related anxiety problem/symptom following the sexual abuse.

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21. The evidence of PW-19 who was posted as Traffic Incharge under Haflong police station, is to the effect that he was made the Investigating Officer. On getting information that the appellant was hiding in his home, he rushed there and found the appellant, who was arrested. He also stated that the appellant had confessed his guilt before him u/s 161 Cr.PC. He also stated that as he found a prima facie case against the appellant, the charge-sheet had been submitted by him against the appellant.

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22. The evidence of PW-20 who is the doctor, is to the effect that he examined the victim girl on 19.08.2019. He found no minor or major injuries on the body of the victim, though there was sign of sexual intercourse. PW-20 further states that as per X-Ray findings, her age was approximately 18 to 19 years and there was no marks of violence on her body. PW-20 further stated that he could not say whether the torn hymen on the victim was old or fresh, or whether the sign of sexual intercourse was old or new.

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23. In his examination u/s 313 Cr.PC the appellant made a blanket denial of all

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the evidence that had been adduced against him.

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24. In the case of Lok Mal allias Loku v. State of Uttar Pradesh , reported in (2025) 4 SCC 470 the Supreme Court has held that – “It is not necessary that in each and every case rape is alleged, there has to be injury to the private parts of the victim and it depends on the facts and circumstances of a particular case. It also stated that the absence of injuries on the private parts of the victim is not always fatal to the case of the prosecution.”

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25. The Supreme Court further held that the evidence of a prosecutrix in a case of rape is of the same value as that of an injured witness.

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26. In the case of State of Punjab v. Gurmit Singh, reported in (1996) 2 SCC 384 the Supreme Court has held that – “Court should examine the broader probabilities of a case and not get straight by minor contradiction or insignificant discrepancies in the statement of the proseucutrix which are not of fatal nature, to throw out an otherwise reliable prosecution case. If the evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement immaterial particulars.”

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27. In the case of Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat , reported in (1983) 3 SCC 217 the Supreme Court has held that – “In the Indian setting, refusal to act on the testimony of victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or other woman who complains of rape or sexual molestation be viewed with the aid of a spectacle, fitted with lenses, pinched with doubt, disbelief or confusion.”

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28. In the case of Deepak Kumar Sahu v. State of Chhattisgarh , reported in (2025) SCC OnLine SC 1610 the Supreme Court has held that - “It is well

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settled that corroboration is not a sine qua non of conviction in a rape case, if the evidence of the victim does not suffer from any basic infirmity.”

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29. On considering all the above facts and the law laid down by the Supreme Court, we do not find any reason to doubt the testimony of the victim, as to what had transpired on 17.08.2019 between the appellant and the victim. The appellant has not taken the plea of alibi in his examination u/s 313 Cr.PC. In fact no explanation has been given by him, with regard to the evidence adduced against the appellant in his 313 Cr.PC examination, except for giving a blanket denial to the evidence.

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30. In the case of Raj Kumar vs. State of U.P. reported in (2014) 5 SCC 353, the Supreme Court has held that complete denial or silence or nonexplanation of incriminating materials would entitle a Court to draw an inference, including an adverse inference against the accused, as may be permissible in accordance with law.

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31. Besides the blanket denial given by the appellant to the evidence adduced against him in his examination under Section 313 Cr.PC, the appellant had taken a plea that he wanted to lead defence evidence and in fact he had given a list of defence witnesses to the learned Trial Court. Though numerous dates had been fixed for recording the evidence of defence witnesses, no defence witness appeared. Later it transpired that the defence witnesses which the appellant wanted to produce before the learned Trial Court, were prosecution witnesses no. 10, 13 & 14. Prosecution witness No. 10 was the father of the appellant and prosecution witness nos. 13 and 14 were known to the appellant. As has been reflected in the earlier paragraphs, the evidence of PW-10, 13 & 14 were recorded by the learned Trial Court and it relates only to the fact that the appellant owned a car and that he used to park the same in the premises of his

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grandfather. Though the appellant had ample opportunity to cross-examine PWs-10, 13 & 14, to prove his innocence or cast a doubt on the prosecution case, the records show that the appellant had declined to cross-examine PW-10, 13 & 14. As such, it is clearly seen that the appellant did not have any evidence to prove that he was innocent of the charges framed against him.

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32 . With regard to whether the victim was below 18 years of age at the time of the incident and whether the appellant could have been convicted u/s 4 of the POCSO Act, 2012, we find that the School Leaving Certificate that had been relied upon by the prosecution, could not have been the basis for determining the age of the victim. Section 94 of the Act of 2015 states as follows:-

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“Section 94 Presumption and determination of age.

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(1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age.

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(2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining—

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(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;

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(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;

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(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test

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conducted on the orders of the Committee or the Board:

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Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.

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(3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person.”

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33. In the case of P. Yuvaprakash v. State represented by Inspector of Police reported in 2023 SCC OnLine SC 846 the Supreme Court has held that it was incumbent for the prosecution to prove through acceptable medical test examination that the victim age was below 18 years as per Section 94(2) (iii) of the 2015 Act, when the documents produced during trial did not answer to the description of the document provided in Section 94.

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34. In the present case, the School Leaving Certificate, not being a document as prescribed u/s 94 of the 2015 Act, we are of the view that it cannot be said that the age of the victim has been proved to be under 18 years during the relevant period of time. As such the conviction of the appellant could not have been done u/s 4 of the POCSO Act, 2012. However, as rape of a person below and above 18 years of age would attract Section 376(1) IPC, we do not find any infirmity with the conviction and sentence given to the appellant on the basis of Section 376(1) IPC.

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35. In view of the we find the evidence of the victim to be trustworthy which inspires the confidence of this fact that Court, we do not find any reason to doubt or interfere with the impugned judgment passed by the learned Trial Court.

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36. The appeal is accordingly dismissed.

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37. Send back the TCR.

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38. In appreciation of the assistance provided by Ms. S. Sharma, the fee of the learned Amicus Curiae should be paid by the Assam State Legal Services Authority.

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JUDGE JUDGE

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Comparing Assistant

MD Akter Khan @ Bapon Khan v. the State of Assam and 2 Ors.

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MD Akter Khan @ Bapon Khan v. the State of Assam and 2 Ors.

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