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2005 DIGILAW 720 (GAU)

Sahidur Rabbi @ Babul Sk v. State of Assam

2005-09-23

AFTAB H.SAIKIA

body2005
JUDGMENT A.H. Saikia, J. 1. The instant Criminal Appeal assails the conviction of the Appellant under Sections 376/511 IPC and the resultant sentence to suffer rigorous imprisonment for 7 years and also to pay a fine of Rs. 2,000/- in default to suffer R1 for 3 months handed down by the learned Sessions Judge, Goalpara by his judgment and order dated 03.12.2004 in Sessions Case No. 20/04. 2. The prosecution case in a short compass, as has been emerged from the materials available on record, is that P.W. 1, Md. Alimuddin Paramanik, the father of the victim girl, Ms. Elija Khatun on 28.7.03 lodged an ejahar with Joleswar Police Outpost under Lakhipur Police Station alleging that her daughter, above named, aged about 4 years, while playing at about 9.00 a.m. near the house of the Appellant alongwith other small children, was taken away by the Appellant and he raped her forcibly in his house. She, thereafter, returned weeping and reported the incident. 3. On the basis of said ejahar, the police registered a case being Lakhipur P.S. Case No. 92/03 and investigation ensued. During the investigation, the police caused medical examination of the victim girl and recorded her statement under Section 164 Code of Criminal Procedure. The investigation, on being completed, the police submitted charge sheet against the Appellant under Section 342/376(f) IPC. Since the offence under Section 376 IPC was triable exclusively by the Court of Sessions, the case was committed to the Court of learned Sessions Judge, Goalpara for trial. 4. The prosecution examined as many as 10 witnesses including the victim girl, P.W. 3 and Doctor, Mr. A.K. Bora, P.W. 3 who examined the victim girl on the following day of occurrence i.e., 29.7.03. 5. On conclusion of the trial, after proper appreciation and assessment of the materials evidence on record and upon hearing learned Counsel for the parties, the learned Sessions Judge accepted the evidence of victim girl, P.W. 3 and accordingly found the Appellant guilty of offences under Sections376/511 IPC and sentenced him accordingly as noticed hereinabove. 6. 5. On conclusion of the trial, after proper appreciation and assessment of the materials evidence on record and upon hearing learned Counsel for the parties, the learned Sessions Judge accepted the evidence of victim girl, P.W. 3 and accordingly found the Appellant guilty of offences under Sections376/511 IPC and sentenced him accordingly as noticed hereinabove. 6. Be it noted that in arriving at the decision of the impugned conviction, the learned Sessions Judge observed that though committing of an offence of rape was not established either from the testimony of victim girl, P.W. 3 or the Doctor, P.W. 9 who did not find any sign or symptoms of rape, an attempt to commit rape could be inferred as the accused person made the prosecutrix naked, removed her pant and lied her down on the ground being a previous stage of fulfilling his sexual desire. Since attempt was the constituent of an act, being the pre-requisite in order to complete the offence of rape, one had to pass that stage to commit the offence of rape and in the instant case, the prosecution appeared to have been able to prove that the accused person made that attempt to commit rape on P.W. 3. 7. Heard Mr. R.P. Sarma, learned Sr. Counsel assisted by Mr. A. Ojha and Mrs. M.A. Ozah, learned Counsel for the Appellant and Mr. B. Sinha, learned Public Prosecutor, Assam. 8. Impugning the aforesaid conviction and sentence, Mr. Sarma, learned Sr. Counsel has vehemently argued that as the conviction was founded precisely on the testimony of the victim girl who was admittedly a child witness, being aged about 5 years at the time of occurrence of the incident, the learned Judge committed a grave error in law as well as on facts in not appreciating the deposition of P.W. 3, the prosecutrix, in its proper and correct perspective. He has attacked the acceptance of the deposition of the victim girl by the learned Sessions Judge on two counts, firstly the prudence and competence of the victim girl, P.W. 3, admittedly being a child witness of tender age, was not determined by the Court prior to permitting her to testify and secondly the victim child witness was tutored as apparently evident from her own deposition. 9. According to the learned Sr. 9. According to the learned Sr. Counsel, the learned Judge ought to have made the preliminary examination in terms of Section 118 of the Evidence Act as regards competency of the prosecutrix so as to determine as to whether this witness was competent to testify or not keeping in view her tender age which was recorded to be 6 (six) years at the time of her deposition i.e., 23.6.04 immediately after about one year of the incident i.e., 28.7.03. Questioning the credibility of the child witness for being tutored, it is contended that from the cross-examination of this witness, it was absolutely clear that she was tutored by her father. In her cross-examination, she stated that her father told her to say like that and accordingly she deposed. So, on this piece of evidence itself, according to the learned Sr. Counsel, the learned Sessions Judge ought to have discarded the credibility of this witness and the Appellant ought to have been acquitted. 10. Referring to the medical evidence, Mr. Sarma has contended that there is convincingly nothing to draw from the medical evidence that the victim girl was ever raped. Evidence of Doctor, P.W. 9 is categorical on this point. The Doctor opined that he did not find any sign of injury on her body and even there was no sign of evidence of sexual violence upon her. In view of such facts situation based on the evidence on record, the impugned conviction and sentence is liable to be set aside and the Appellant maybe acquitted. 11. Mr. Sarma, learned Sr. Counsel, in support of the aforesaid submission pertaining the competency of child witness, has relied on a recent decision of the Apex Court namely, Ratansinha Dalsukhbhai Nayak v. State of Gujarat reported in (2004) 1 SCC 64 . In this cited case, the Apex Court in paragraph 7 of the judgment observed that the decision on the question whether the child witness had sufficient intelligence primarily rested with the trial Judge who noticed his manners, his apparent possession or lack of intelligence and the said Judge might resort to any examination which would tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial Court might, however, be disturbed by the higher Court if from what was preserved in the records, it was clear that its conclusion was erroneous. That precaution was necessary because child witnesses were amenable to tutoring and often lived in a world of make-believe. In the said paragraph itself it was also held that though it was an established principle that child witnesses were dangerous witnesses as they were pliable and liable to be influenced easily, shaken and moulded, but it was also an accepted norm that if after careful scrutiny of their evidence the Court came to the conclusion that there was an impress of truth in it, there was no obstacle in the way of accepting the evidence of a child witness. 12. Mr. B. Sinha, learned Public Prosecutor, supporting the conviction and sentence of the Appellant, has argued that the prosecutrix in her deposition clearly testified that on the date of occurrence while she was playing near the house of the Appellant, he with the plea of giving her Safurium took her to his house and compelled her to lie down on the bed and made her naked and used force and this statement was, thus, sufficient to convict the Appellant for the offence under Sections 376/511 IPC. According to him, the testimony of the victim girl was absolutely reliable and there should not be any hesitation to act upon such testimony without any corroboration and other material particulars and the learned Sessions Judge was absolutely justified in accepting the deposition of the witness who was a child of tender age. His submission is that P.W. 3 though she was a child witness, was competent to depose any evidence as evident from the reading of paragraphs 13 of the impugned judgment wherein the learned Sessions Judge expressly observed that P.W. 3 appeared to be a girl of 5 (five) years having capacity to narrate the story clearly as it was observed during her examination and as such there was no obstacle in accepting such evidence. 13. 13. In order to arrive at a just decision on the basis of the submissions canvassed by the learned Counsel for the contesting parties above noted, this Court is required to make a thorough appraisal and assessment of the depositions of the important and necessary witnesses including especially, the victim girl, P.W. 3, the informant, P.W. 1, the father and the Doctor, P.W. 9. 14. P.W. 3, in her deposition, evidenced that while she was playing, on the day of occurrence, near the house of the Appellant in the morning, he took her to his house on the plea to give Gauva (Sofurium). He compelled her to lie down in his bed and made her naked. He also gagged her and then using force caused pains on her vagina. Then he asked her to go with caution not to tell the incident to anybody. She, thereafter, came home and reported the matter to her mother. Afterwards her father took her to the police. This witness again said that it was her uncle who first took her to police than her father. In cross, the prosecutrix reiterating her earlier statements, however, stated that her father told her to say like this and accordingly she deposed. 15. On the other hand, the informent P.W. 1, Alimuddin Paramanik, father of the prosecutrix, deposed that at the time of occurrence he went to market and his wife, P.W. 1. Sabura Khatun and P.W. 3 his daughter were in his house. At about 11.30 a.m. when he returned from the market, he met his brother, Ashraf Ali, P.W. 4 on the road who was taking her daughter, P.W. 3 on his lap. On being asked, P.W. 4, Ashraf Ali told him that the Appellant committed rape on her in his house and he took his daughter to the police station and informed the police. While P.W. 1 asked his daughter, she narrated the entire story to him stating that while she was playing in front of his house, the Appellant took her in his house and raped her. According to this witness, his daughter sustained injury in her private part and he saw injury in her vagina and accordingly he filed Ejahar with Jaleswar Out post. In cross-examination, this witness stated that there was no bleeding in her vagina but it was found becoming red. According to this witness, his daughter sustained injury in her private part and he saw injury in her vagina and accordingly he filed Ejahar with Jaleswar Out post. In cross-examination, this witness stated that there was no bleeding in her vagina but it was found becoming red. He also stated that the father of the Appellant instituted a case against his relative few years back. He denied the suggestion that he gave false evidence against the Appellant out of grudge. 16. P.W. 2, Mst. Sabura Khatun, mother of the victim girl testified that at the time of occurrence her husband went to market and she herself alongwith her daughter P.W. 3 were in their house. In the morning after preparing meal when she went out in search of her daughter to tell her to take the meal she found her daughter Elija weeping on the road. When she asked about the reason why she was weeping, she told that while she was playing near the house of the Appellant, he took her to his house with a plea of giving Guava and committed rape after being laid her down on the bed removing her pant. She deposed that she saw marks of injuries in her private part. Soon she was taken home and thereafter her brother-in-law, P.W. 4, Ashraf Ali Paramanik took her to the police station. Ashraf met her husband on the way to the police station. In cross, she reinforced her deposition telling that she found her daughter crying on the village road near her house. She was alone there but many people came to house. About 40/50 persons gathered. She stated that Osman Fakir, Ibrahim Ali, Rajab Ali and many others came to that place. She also stated in cross that she found bleeding in her vagina Blood stains were there in her pant. But the said pant was not seized by the police. 17. P.W. 4, Ashraf Ali, the brother of the P.W. 1 and the uncle of the victim girl, deposed that at the relevant time, he was harvesting jute crops on his field. On coming home, he found her niece Elija crying. She told him that when she went to take chakkari, the Appellant took her to his house and committed rape. Then he went to the house of the Appellant taking Elija with him but he found none in his house. On coming home, he found her niece Elija crying. She told him that when she went to take chakkari, the Appellant took her to his house and committed rape. Then he went to the house of the Appellant taking Elija with him but he found none in his house. After finding Appellant's mother in the house, he narrated the occurrence to her. He told the matter to Moinuddin Dewan who did not tell anything. Subsequently, he took the victim girl to the police station and on the way he met his brother P.W. 1, father of the prosecutrix and returned home. In cross, this witness stated that he found 5/7 persons in his house when he came from the field. He found Md. Ali and Dilbar Hussain present in his house. 18. P.W. 5 Md. Ali, an independent witness, deposed that on the day of occurrence he was working in the field and the house of P.W. 1 was situated near his house. Hearing the hulla in the house of Alimuddin, he went there and found many women being gathered there. On enquiry he came to know that the Appellant took P.W. 3, Elija and committed nasty things upon her. When he asked Elija she told that while she was playing chakkari on the road the Appellant took to his house and committed rape. In cross, he said that he did not found any male member in the house of Alimuddin. 19. In the background of the testimony of the prosecution witnesses abovenoticed, now let us proceed to examine the medical evidence i.e. P.W. 9, the Doctor. In his deposition, the Doctor stated that on the next day of occurrence i.e., 29.7.03 he examined the victim girl aged about four years and found the following: Height 3 feet, weight 13 K.g. dentles upper 12 lower 12 decidous, brest not developed, no sign of injury on breast, public heir and auxiliary hair not developed. Genital Examination: Hymen intact, vaginal orifice closed. No sign of injury. Radiological examination was done on 29.7.03 by Dr. M.A. Faruquer. Her age is 4/5 years. 20. In his opinion, Doctor declared that after all examination, age of the victim was found around 5 years and there was no sign of injury on her body nor was there any recent evidence of sex violence. 21. No sign of injury. Radiological examination was done on 29.7.03 by Dr. M.A. Faruquer. Her age is 4/5 years. 20. In his opinion, Doctor declared that after all examination, age of the victim was found around 5 years and there was no sign of injury on her body nor was there any recent evidence of sex violence. 21. Looking at the medical evidence as well as depositions of the witnesses mentioned above, especially the victim girl, P.W. 3, this Court feels that the testimony of these two witnesses would be sufficient to arrive at a finding as to whether the impugned conviction and sentence needs interference or not. From the medical evidence it would appear clearly that there was no sign of injury on her body, even there was no recent evidence of any sex violence. Such opinion was based on the medical findings that hymen was found intact and vaginal orifice was also closed. This piece of medical evidence fully corroborated with the statements of P.W. 1, the father, who stated in his cross that there was no injury in her vagina but it was red in colour. 22. Although in terms of the medical evidence, no injury was found on the private part of the victim girl, P.W. 3, she in her chief, stated that the Appellant compelled her to lie down on his bed and made her naked and she felt pain in her vagina when the Appellant used force. In her cross, while asserting her deposition in this context, she said that her father told her to say like this and accordingly she deposed. However, relying on this sole statement of being tutored, as claimed by Mr. Sarma, the evidence of P.W. 3 cannot be brushed aside inasmuch as in her statement, as had been recorded by the police on 29.7.03 under Section 164 Code of Criminal Procedure (Ext. 4) on the next date of occurrence, P.W. 3 Elija, categorically stated that in the morning, the boy named Babul pulled her to his house from the "Kachu" cultivation field near their house and then made her naked forcefully and lied her down on the bed and raped her. She was bleeding and weeping. 4) on the next date of occurrence, P.W. 3 Elija, categorically stated that in the morning, the boy named Babul pulled her to his house from the "Kachu" cultivation field near their house and then made her naked forcefully and lied her down on the bed and raped her. She was bleeding and weeping. Since this statement was made immediately on the next day of the incident and was also fully corroborated in her evidence, P.W. 3, was, in my view, not tutored and minor discrepancies as regards the place from where she was taken by the Appellant would not hinder the credibility of this victim eye witness. 23. Going through the material evidence of the witnesses i.e., P.W. 1, P.W. 2 and P.W. 3 including medical evidence, this Court is of the firm opinion that though the offence under Section 376 could not be committed by the Appellant, the prosecution was satisfactorily able to establish a case against the Appellant for his specific involvement in making an attempt to commit rape on P.W. 3. 24. From the perusal of the impugned judgment, it appears that the learned Judge observed that the victim girl, being aged about 5 years had capacity to narrate the entire story clearly as it was observed during her examination. In paragraph 15 and 16 of the judgment, the learned Sessions Judge relying on two decisions of Apex Court in cases of (i) Shivji Genu Mohite v. State of Maharashtra reported in AIR 1979 SC 55 and (ii) Suresh v. State of U.P. reported in AIR 1981 SC 1122 , held as follows: 15. There is no other eye witness of the prosecution excepting the victim girl (P.W. 3). The established law is that the evidence of a child witness requires to be scrutinized with care and caution. The Hon'ble Supreme Court also in a decision reported in AIR 1973 SC 55 held that: The evidence of the child witness should be scrutinized with care and caution not only because she is teenager but also because she is only witness to be a witness. It was noticed during examination, as it appears from the endorsement, that P.W.-3 although was a girl of five years at the time of her examination, but she attained such maturity to narrate things clearly. It was noticed during examination, as it appears from the endorsement, that P.W.-3 although was a girl of five years at the time of her examination, but she attained such maturity to narrate things clearly. She fearlessly and without hesitations stated that the accused person, with the plea of giving guava (sofurium), took her to his house, made her asked and lied her down and used force when she felt pains. This discloses that the accused person, with the plea of giving guava, wanted to have his sexual desire with that girl and in order to materialize the same, removed her wearing pant and touched her vagina with aim of committing sexual crime which ultimately could not be done when, feeling pains, Elija started crying. The evidence of P.W. 3 is also clear to the extent that the accused person asked her to go out and cautioned not to tell it to anybody. P.W. 3 came out with weeping when she was found in such a condition, by her mother and subsequently by other villagers who have been examined in the case. P.W. 3 appears to be quite believable so far as making attempts by the accused person to commit rape is concerned. 16. The Hon'ble Supreme Court also in a decision reported in AIR 1981 SC 1122 observed that where there are unimpeachable and the most eloquent matters on the record which lend an unfailing assurance that the child is a witness of truth, not a witness of imagination as most children of that age generally are, the conviction can be held up. This was the observation while dealing with a case involving uncorroborated testimony of a witness of a young boy of five years. In the instant case also, the P.W. 3 appears to be a witness of truth and not a witness of imagination who had the capacity to narrate the things clearly and her statement that after allowing her to come out of the house of the accuse person when she was weeping on the road her mother (P.W. 2) met her there in such a condition when she narrated the story. P.W. 3 although is the sole eye witness, she can be relied upon. 25. P.W. 3 although is the sole eye witness, she can be relied upon. 25. In view of the above discussions of the Sessions Judge, this Court is of the view that P.W. 3 was competent to testify and consequently this Court approves the finding of the learned Judge in this respect and the testimony of P.W. 3 is accepted as credible and trustworthy. Although from the material evidence on record, the offence of rape under Section 376 could not be established in the given facts and circumstances of the case, it can be rightly held that as per deposition of P.W. 3 that the Appellant made her naked, removed her pant and she was lied down on the bed, it was a preparation for committing a rape, meaning thereby that an attempt was made for commission of such offence for which the impugned conviction and sentence under Section 376 read with Section511 IPC, in my view, need not be disturbed. 26. At this stage Mr. Sarma, learned Sr. Counsel has submitted that since at the time of commission of offence the Appellant was aged only about 19 years, the provisions of law under Sections 4 and 6of the Probation of Offenders Act, 1958 (for short 'the Act') are applicable to the Appellant and as such, extending the beneficial provisions of the Act, the Appellant maybe released on probation without keeping him any further custodial detention. 27. On consideration of the attending facts and circumstances of the case, this Court is of the considered view that since it is an attempt to commit an offence of rape on minor child aged about 5 (five) years, such an act so intended to be committed is heinous crime and against the society. The Court should take sensitive approach while dealing with such type of cases relating to sexual assault on the children. The offence committed by the Appellant depicts the perverse mindset of the Appellant as he did not spare even the little child from his lost in pursuit of his sexual pleasure. Such incident generally left a lasting imprint on the mind of child to have an adverse affect in her future life. There was every possibility that the child might be utterly traumatized due to such shocking incident occurred to her at the very tender age. Such incident generally left a lasting imprint on the mind of child to have an adverse affect in her future life. There was every possibility that the child might be utterly traumatized due to such shocking incident occurred to her at the very tender age. This Court, therefore, is not inclined to take any lenient view against the conviction of the Appellant. Considering the gravity of the offence and also keeping in view the fact situation of the case in hand, this Court has no hesitation to uphold the conviction of the Appellant under Section 376/511 IPC. However, sentence of 7 years is reduced to rigorous imprisonment (R1) for 31/2 years (three and half) i.e., half of the original award awarded by the trial Court of 7 years and with fine of Rs. 2,000/-. 28. For the foregoing reasons and modification of the sentence as aforesaid, this appeal is partly allowed. Send down the records immediately. Appeal partly allowed.