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2013 DIGILAW 107 (GAU)

Prema Lama @ Mama v. State of Assam

2013-02-13

B.D.AGARWAL

body2013
JUDGMENT B.D. Agarwal, J. 1. The appellant herein has been convicted under Section 376 of the Indian Penal Code, 1860, vide impugned judgment dated 4.4.2009, passed by the learned Assistant Sessions Judge, Sonitpur at Tezpur, in Sessions Case No. 119 of 2008. After convicting the appellant for the offence of rape, he has been sentenced to undergo imprisonment for a term of 8 (eight) years along with payment of fine of Rs. 10,000/- with default stipulation of simple imprisonment for 1 (one) year. I have heard Sri R.P. Sarmah, learned Senior Counsel appearing on behalf of the appellant as well as Sri B.B. Gogoi, learned Additional Public Prosecutor for the State of Assam. I have also perused the impugned Judgment and the prosecution evidence proffered during the trial. The defence case was of total denial and no evidence in defence was tendered. 2. It is a case of pedophilia. The appellant has allegedly sexually ravished a girl of 10 (ten) years. The prosecution story in brief is that the appellant was running a tea-stall, which was situated very close to the house of the victim girl. On 16.05.2008, at about 08:30 in the morning, the victim girl was playing in the open compound. Suddenly, her minor sister aged about 1 year entered the tea-stall of the appellant. Hence, the victim girl also went to the hotel of the appellant to bring back her sister. Then she was kept confined by the appellant and she was subjected to sexual assault. 3. After the incident, the victim girl returned home and as usual went to her school without reporting the incident of sexual assault to her parents. While the victim girl was in the school she felt bleeding in her vagina After returning home from the school the victim girl reported about bleeding to her mother and on being enquired she took the plea that the bleeding had occurred as she had fallen down in the school. 4. The victim girl was then taken to a hospital where she disclosed that the bleeding was the result of sexual assault by the appellant. Subsequently, the grandfather of the victim girl lodged an FIR on 18.05.2008. On the basis of this FIR, a case under Section 376 was registered being Rangapara PS Case No. 72 of 2008 and after investigation the accused was accordingly charge-sheeted. Subsequently, the grandfather of the victim girl lodged an FIR on 18.05.2008. On the basis of this FIR, a case under Section 376 was registered being Rangapara PS Case No. 72 of 2008 and after investigation the accused was accordingly charge-sheeted. After the trial, the accused has been convicted for the offence of rape. 5. To establish the offence of rape, the prosecution examined altogether 12 (twelve) witnesses. PWs-2, 3 and 4 are the family members of the victim girl being grandfather, grandmother and maternal uncle respectively. PW-7 is the victim girl herself. PWs-8 and 10 are the parents of the victim girl. PWs-1, 5 and 6 are the independent witnesses from the locality. PWs-9 and 11 are the Medical Officers and PW-12 is the Investigating Officer. 6. Sri Sarmah, learned Senior Counsel for the appellant submitted that the prosecution evidence suffered from various deficiencies and discrepancies and, as such, the appellant ought to have been acquitted on benefit of doubt. According to the learned counsel, the prosecution failed to establish that there was penile penetration and this aspect was not seriously taken into consideration by the trial Court. According to the learned counsel, the victim had sustained injury on her private parts due to accidental fall in the school compound and it was not a case of sexual assault. This submission was made on the basis of the initial disclosure made by the victim girl to her mother. 7. Since the punishment for rape upon a woman of less than 12 (twelve) years is higher than the punishment for rape of an adult woman it is necessary to first ascertain the age of the victim girl. According to the prosecution, the victim girl was less than 10 years. This fact is supported by the evidence of the parents of the victim girl as well as the medical opinion. According to the parents and grandparents of the victim girl (PWs-2, 3 and 8), their daughter/grand-daughter was 9/9 years old. The victim girl herself has stated that she was a student of Class-IV at the relevant time. The doctor (PW-11) has also opined that the victim was in the age group of 10-12 years. In view of this corroborative evidence, I find no difficulty to accept the prosecution case that the victim girl was less than 12 years of age. The victim girl herself has stated that she was a student of Class-IV at the relevant time. The doctor (PW-11) has also opined that the victim was in the age group of 10-12 years. In view of this corroborative evidence, I find no difficulty to accept the prosecution case that the victim girl was less than 12 years of age. In fact, the age of the victim girl was not disputed by the learned counsel for the appellant. 8. Regarding the complicity of the appellant in the offence, the victim girl has given a vivid description as to why she had to enter the tea-stall of the appellant and as to how she was overpowered by the appellant and subjected to sexual intercourse. The victim girl (PW-7) has deposed that she was playing in the open field along with few other girls. Suddenly, she noticed that her minor sister had entered the tea-stall of the appellant. Hence, she went to the tea-stall to bring back her sister. Then, the appellant subjected her to sexual assault and held out a life threat if she reported the incident to anyone. According to the victim girl, she kept mum and did not disclose the incident to her parents out of fear. No suggestion was given to the victim girl that she had falsely implicated the appellant in the offence of rape because of any previous enmity with her parents or for any other motive. The only suggestion that was given to the victim girl was that she had sustained injuries on accidental fall in the school compound. Possibly, this suggestion was given to the victim girl because the victim girl herself had initially suppressed the incident of rape and did not report it to her parents. 9. PW-3 (mother) has deposed that initially, she was reported by her sister-in-law about the sexual assault upon her daughter by the appellant. According to PW-3, subsequently, the victim girl herself reported the incident to her, more particularly, implicating the appellant/accused in the offence of rape. PW-8 is the grandfather of the victim girl. He has also deposed that initially his grand-daughter told them that she had sustained injury on her private part while falling down on the ground of the school. Only on the next day, the victim girl reported about the sexual assault by the appellant in the hospital. 10. PW-8 is the grandfather of the victim girl. He has also deposed that initially his grand-daughter told them that she had sustained injury on her private part while falling down on the ground of the school. Only on the next day, the victim girl reported about the sexual assault by the appellant in the hospital. 10. It appears from the evidence that the victim girl disclosed the incident of rape in the hospital and thereafter, it spread in the village. In view of this, the testimony of the remaining witnesses can be termed as a hearsay one. However, as noted earlier, the defence could not project any convincing story in the cross-examination that the appellant was not at all involved in the incident. No plea was taken by the appellant that he was not present in his hotel on the relevant day nor is there any plea of false implication. 11. Before examining and appreciating the prosecution and defence evidence, it should be borne in mind that the crimes against women have to be scrutinized and dealt with sensitively. The reasons forgiving this special attention in such matters have been lucidly underlined by the Hon'ble Supreme Court of India in the case of State of Punjab Vs. Ramdev Singh; (1996) 2 SCC 384 in the following words:- Sexual violence apart from being a dehumanizing act is an unlawful intrusion on the right of privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity - it degrades and humiliates the victim and where the victim is a helpless innocent child or a minor, it leaves behind a traumatic experience. A rapist not only causes physical injuries but more indelibly leaves a scar on the most cherished possession of a woman i.e. her dignity, honour, reputation and not the least her chastity. Rape is not only a crime against the person of a woman, it is a crime against the entire society. 12. Similarly, while appreciating the oral evidence of the witnesses, court should not start with a presumption that the victim girl/woman must have been a consenting party nor any adverse inference can be drawn on the ground that the victim woman was promiscuous in sexual behavior. We have to overcome with this stereotyping attitude. It is because myth and prejudices have no place in the justice delivery system. We have to overcome with this stereotyping attitude. It is because myth and prejudices have no place in the justice delivery system. Rather it is now the established rule of law that conviction for offences like kidnapping and sexual assault can be recorded on the sole testimony of the victim girl alone, subject to it being wholly reliable. This legal principle was authoritatively pronounced in the case of Rafique Vs. State of U.P. ( AIR 1981 SC 96 ). The root of this legal principle has embedded firmly in the criminal justice system of India. It has been restated by the Apex Court in a catena of judgments, virtually making the said principle as a statutory law. 13. In the case of State of Punjab Vs. Gurmit Singh & Ors., reported in (1996) 2 SCC 384 , the Hon'ble Supreme Court has made these trend setting observations:- The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge leveled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self-inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. ....................... ....................... Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable. 14. Prior to that, in the case of State of Maharashtra Vs. Chandraprakash Kewal Chand Jain (1990) 1 SCC 550 , the law was laid down by the Apex Court in this way:- A prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under S. 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the Court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge leveled by her. If the Court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to S. 114 which requires it to look for corroboration. If the Court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to S. 114 which requires it to look for corroboration. If for some reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the Court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence. 15. The judgment of this Court rendered in the case of Nabin Bora Vs. State of Assam 2004 (1) GLT 478, cited by the learned counsel for the appellant is based on different facts. In that case, the victim was an adult woman and the offence of rape was reported after 14 (fourteen) days and, on these counts, the accused was acquitted. 16. The submission of the learned counsel for the appellant that the prosecution has failed to establish the fact of penile penetration, which is a must to establish the offence of rape is also unacceptable since no such plea was taken by the defence during the examination of the witnesses. Similarly, the initial version of the victim girl that she had sustained injury on her private part due to accidental fall on the school compound also cannot be looked with much significance as the victim girl had attempted to suppress the incident of rape out of fear. 17. The learned counsel for the appellant also submitted that the appellant was 70 years old person at the time of the alleged offence and the prosecution failed to establish that the appellant was capable to indulge into sexual intercourse with a minor girl. 17. The learned counsel for the appellant also submitted that the appellant was 70 years old person at the time of the alleged offence and the prosecution failed to establish that the appellant was capable to indulge into sexual intercourse with a minor girl. In my considered opinion, it was the burden of the appellant to raise this plea during the trial. However, at no stage of the trial, this plea was taken. Be that as it may, in view of the reliable testimony of the victim girl I find no ground to consider the defence plea at this stage. 18. For the foregoing reasons, I hold that there is no merit in the appeal. Consequently, it is dismissed. Return the LCRs along with a copy of this judgment to the trial Court, immediately. Appeal dismissed