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2017 DIGILAW 1129 (GAU)

Kamakhya Roy, S/o Baikuntha Roy v. State of Assam

2017-08-18

RUMI KUMARI PHUKAN

body2017
JUDGMENT AND ORDER : 1. Present appeal is directed against the judgment and order of learned Special Judge, Bajali Patsal in Sessions Case No. 150/2015, u/s 248/354 of IPC read with section 4 of the POCSO Act 2012, dated 1.02.2015 whereby the accused appellant has been convicted U/S 448 IPC r/w Section 4 of the POCSO Act. 2. I have heard Mr. A. Camua, learned amicus curie for the appellant and also heard Mr. B. Sarma, learned Addl. P.P. 3. The prosecution case in nutshell is that on 15.03.2015 in the afternoon at about 5 pm, while victim (name withheld) was alone at her house, accused Kamakhya Roy @ Lele forcefully committed sexual inter-course with her. In the mean time, mother of the victim reached home and saw the aforesaid act of sexual inter-course with the victim and caught him and tried to tie him with rope. However, accused was able to escape by assaulting the mother of victim. An FIR was lodged by the mother of the victim with the I.C Pathsala police out post under Patacharkuchi P.S Case No. 101/2015 and investigation was started for offence u/s 448/376 of IPC. 4. During the course of investigation the I.O visited the place of occurrence, and sent the victim for Medical examination and got her statement recorded u/s 164 Cr.P.C. After completion of investigation, charge-sheet was submitted against the accused person u/s 448/376 IPC read with Section 4 of POCSO Act. The learned Magistrate committed the case to the Court of learned Sessions being the offence triable exclusively by the learned Special Judge. 5. The accused faced the trial from behind the bar and denied the charges u/s 448/376 read with Section 4 of POCSO Act, which was framed against him. Plea of defence is of total denial. 6. In support of the case prosecution examined seven (7) witnesses and defence examined none. Plea of defence is of total denial. Statement of the accused person recorded u/s 313 Cr.P.C. and at the conclusion of the trial the learned trial Court held the accused guilty u/s 4 of the POCSO Act and sentenced him R.I for seven (7) years and fine of Rs. 5,000/- in default another S.I. for three (3) months. Further, he is also convicted u/s 448 IPC and sentenced him R.I. for seven (7) months and fine of Rs. 5,000/- in default another S.I. for three (3) months. Further, he is also convicted u/s 448 IPC and sentenced him R.I. for seven (7) months and fine of Rs. 500/- in default S.I. for 15 days, with a direction that the sentence will run concurrently and the period of detention shall be set of, it is directed that the fine if realised be given to the victim. Further the Court also directed for awarding the appropriate compensation to the victim under the provision of section 357(A) Cr.P.C. 7. Being aggrieved and dissatisfied with the aforesaid judgment the present appeal has been preferred. 8. Now, let us appreciate the evidence on record PW 1, mother of the victim in her evidence stated that her daughter was 13 years old at the time of occurrence. On the day of occurrence, at about 5 pm, she went out from her house to take goat from the grazing field, at that time her daughter Dipika was at home alone. While, she returned home and entered her bed room she saw that her daughter was in a fully naked condition and accused was having sexual inter-course with her. She also saw teeth bit marks on the cheek of her daughter. The accused while having sex with her daughter tied the hands and legs of her daughter with Gamocha, he also gagged the mouth of her daughter with cloth. She tried to tie the accused but he attacked her on the forehead and fled away. Accused came to their house with a bicycle and he fled away riding the bicycle. She chased him, at that time Kalmoni Roy was on the road and he saved her while the accused tried to assault her with a bamboo. She narrated the incident to Kalamoni Roy. Thereafter, she went to the house of Amani Roy and Sona Roy to inform the matter, but they were not at home. Thereafter, she returned home. In the mean time, she found Rekha Roy and her relative mahi at her house. Rekha Roy and Mahi washed the wearing cloth of her daughter and got her daughter bathed. Bed cover upon which accused committed sexual inter-course with her daughter was also washed. She cannot read and write. Her husband requested the villagers to hold Bichar but the villagers advised them to go to police station. Rekha Roy and Mahi washed the wearing cloth of her daughter and got her daughter bathed. Bed cover upon which accused committed sexual inter-course with her daughter was also washed. She cannot read and write. Her husband requested the villagers to hold Bichar but the villagers advised them to go to police station. She also observed sperms of accused scattered on the bed sheet and floor and the house. They were waiting for village Bichar and as such, she lodged ejahar late. 9. PW 2 is the victim, who stated that three months back, one day, at about 5 pm, she was alone at her house carrying water from the tube well and her mother went out to take goat. At that time, accused came to their house riding on a bicycle, and asked her to have sexual intercourse with him and while she refused, he assaulted her on her back and thereafter, he lifted her to their bed room and undressed her and lay her on the bed. He tied her hands and legs with gamocha and have sexual intercourse with her. He bites on her cheek. He also gagged her mouth with cloth, while accused was having sexual inter-course with her. At that time her mother came and saw the incident. Her mother tried to tied him but he attacked her mother on her forehead and fled away. Thereafter Rekha Roy and her mother’s mahi came to their house. They also asked her to wear another dress by washing her wearing clothes. Her mother lodged ejahar. She was examined by doctor. Her statement was recorded. Nikunja Roy, PW 3 is the father of victim in his evidence he stated that the age of her daughter is about 13 years. She is a student of class VI at Parihareshwar M.E. School. On 5.03.2015, at about 5 pm, while her daughter was alone at home, the accused came to their house and forcefully committed sexual inter-course with his daughter. At that time, he was at Malipara at his shop. He was informed about the occurrence by his wife over mobile phone. Immediately, he returned home and his wife narrated the matter. On the next day, he met the village head man namely, Dhaneswar, Bijoy and Ramini Roy. They advised him to go to police station. He was waiting for village Bichar to settle the case. 10. He was informed about the occurrence by his wife over mobile phone. Immediately, he returned home and his wife narrated the matter. On the next day, he met the village head man namely, Dhaneswar, Bijoy and Ramini Roy. They advised him to go to police station. He was waiting for village Bichar to settle the case. 10. The prosecution has also examined some neighbours of the informant who were PW4, Smti Rekha Roy and PW 5 Smt Manju Devi and PW 6 Moni Kanta Roy. In their evidence PW 4 and PW 5 have stated that four months back, one day they came to know from the villagers that accused went to the house of victim and committed forcefully sexual inter-course with her. Hearing the matter both of them immediately went to the house of informant and on being asked the victim/PW 2 reported them that the accused has forcefully committed sexual intercourse with her. Then they advised her to wash her body and cloths. 11. The PW 6 was reported by the informant/PW 1 while he was standing in front of his house that the accused has committed rape upon his minor daughter aged about 12 years. 12. The investigating officer P.W. has stated all about the investigation by filing of charge-sheet. No any contradiction of witness is proved through I/O. It is to be noted that defence failed to prove any sort of omission or contradiction of any of the witnesses. The informant is the eye witness to the occurrence who happened to appear at the time of occurrence which is a living room of their house. There appears no any reason to on the part of the informant or the victim etc. to falsely implicate the accused person. The informant who went to bring the got from the grazing field and on her return she found the accused inside the room, while committing the sexual intercourse upon her daughter. She returned hurriedly as she left the victim alone her house so her presence at the time of occurrence is found natural. Further the she has also immediately informed the matter to her neighbours and those neighbours have also corroborated her testimony. 13. She returned hurriedly as she left the victim alone her house so her presence at the time of occurrence is found natural. Further the she has also immediately informed the matter to her neighbours and those neighbours have also corroborated her testimony. 13. Although the evidence of PW 4 to PW 6 are not eye witnesses to the occurrence but their evidence has much relevancy to the fact in issue and their evidence can be regarded as res-gestae under Section 6 of the Evidence Act. “RES-GESTAE”- The exclamations, statements and complaints of an injured or complaint of a rapped woman immediately before, during or after the occurrence are relevant and their evidence will be admissible in terms of section 6 of the Evidence Act. The principle of law embodied in Section 6 of the Evidence Act is usually known as rule of res-gestae. The essence of the doctrine is that a fact which though not in issue, if so connected to the fact in issue has to form the said part of transaction, became relevant by itself. The rule is an exception to the general rule that hearsay evidence is not admissible. The rational in making certain statement on fact admissible under section 6 of the Evidence Act is on account of spontaneity and immediacy of such statement or the fact in relation to the fact in issue. Such statement must have been made contemporaneous with the act which constitute the offence or at least immediately thereafter, without there being any scope for fabrication. For the application of Section 6 it is necessary that the fact must not be too remote but a part of single transaction. 14. In the instant case as has been discussed above, the victim as well as the informant disclosed the incident to their neighbours immediately after the occurrence and the father of the victim has also informed the matter to village headman. Matters on record that there was no any scope for fabrication or exaggeration of the matter and from the totality of the evidence on record there appears no any reason to discard or disbelieve the evidence of victim as well as other set of evidence discussed above. On the other hand, the evidence of Medical Officer, PW 7 Dr. Matters on record that there was no any scope for fabrication or exaggeration of the matter and from the totality of the evidence on record there appears no any reason to discard or disbelieve the evidence of victim as well as other set of evidence discussed above. On the other hand, the evidence of Medical Officer, PW 7 Dr. Bharati Das has also lends support to the testimony of the victim to the extent that there is a bite mark on her left cheek and her hymen was torn although no sign of recent sexual intercourse was found by the MO. 15. Learned Amicus Curiae Mr.Chamua by hammering upon the findings given by MO who has opined that vagina admits one finger there was no sign of sexual intercourse, it has been contended that the said findings has belied the testimony of the victim as about the rape. 16. I have duly considered the above submission but unable to accept the same on the following counts- The victim herein is a minor girl, aged about 12/13 years and a student of class-VI, having no adequate knowledge of sex and by all implications, she has stated that accused by removing her clothes and laying upon her committed rape and in the process she may not be able to explain the extent of such penetration. In the given circumstances all that can be inferred that either there was full penetration or partial penetration and because of immediate presence of the mother of the victim, the accused may not be able to go for full penetration as he had to hurriedly fled away on being chased by the mother of the victim. So far as the definition of rape even the slightest penetration amounts to offence of rape. Section 3 of the Protection of Children From the Sexual Office Act read as follows: . “PENETRATIVE SEXUAL ASSAULT AND PUNISHMENT THEREFOR. 3. So far as the definition of rape even the slightest penetration amounts to offence of rape. Section 3 of the Protection of Children From the Sexual Office Act read as follows: . “PENETRATIVE SEXUAL ASSAULT AND PUNISHMENT THEREFOR. 3. Penetrative sexual assault .-A person is said to commit "penetrative sexual assault" if— (a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or (b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or (c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or (d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person .” As per the provision of the Act even the manipulation of any part of the body of a child so as to cause penetration would amount to penetrative sexual assault which is punishable under Section 4 of the Act. 17. The offence within the meaning of definition of the aforesaid Act has been proved by the evidence of victim, supported and corroborated by eye witness as well as other witnesses including MO. The testimony of a raped victim, that too a child victim cannot be discarded at all only because of opinion of the MO about having no sign of sexual intercourse. 18. As has been held in (1983) 3 SCC 217 Bharwada Bhoginbhi Hirjubhai-vs-State of Gujrat and (1996) 2 SCC 384 State of Punjab –vs- Gurmit Singh, testimony of victim of sexual assault is vital and unless there are compelling reasons which necessitates looking for corroboration of her statement, the Court should not find difficulty in acting on the testimony of the victim of sexual assault alone to convict an accused when her testimony inspires confidence and found to be reliable. Seeking corroboration of her statement before relying upon the same as rule in such cases amounts to adding insult to the injury. 19. Seeking corroboration of her statement before relying upon the same as rule in such cases amounts to adding insult to the injury. 19. The decision of Gurmit Singh (supra) is still followed which reflected from the decision of Hon’ble Supreme Court of India in (2016) 0 supreme (SC) 992, which is reproduced below: “31. By now it is settled that the testimony of a victim in cases of sexual office is vital and unless there is compelling reasons which necessitating looking for corroboration of a statement, the Court should not find difficulty to act on the testimony of victim alone on sexual assault to convict the accused………………………........................ The deposition of the prosecutrix thus to be taken as a whole. Needless to reiterate that the victim of rape is not an accomplice and her evidence can be acted upon without corroboration. She stands at a higher pedestral than an injured witness thus.” 20. It would be relevant to reproduce the following passage from the judgment reported in (2002) 5 SCC 745 State of Rajasthan –vs- Om Prakash: “Child rape cases are cases of perverse lust for sex where even innocent child are not spared in pursuit of sexual pleasure. There cannot be any obscene than this. It is a crime against humanity. Many such cases are not even brought into light because of social stigma attached thereto.” 21. In the instant case the victim is a student of Class-VI, who has no perception as regards the sex, as yet but she has been subjected to such sexual assault, is enough to demoralize her for the whole life ahead. Her testimony, even though tested by cross examination, remained unshaken found to be reliable and free from any sort of coercion or to infer any false implication of the accused appellant. The learned trial Court properly appreciated all the evidence on record and has rightly convicted the accused appellant. There appears no any illegality or irregularity in the findings of the trial Court. The appeal is found devoid of merit and accordingly dismissed. Return the LCR along with a copy of this Judgment. 22. Before parting with the record, we appreciate the valuable assistance rendered by learned Amicus Curiae, Mr. Chamua while conducting the appeal. An amount of Rs. 7500/- be paid to him as his remuneration by the Legal Services Authority of Gauahati High Court, Guwahati.