Research › Search › Judgment

Gauhati High Court · body

2017 DIGILAW 1411 (GAU)

Azhar Hussain v. State of Assam

2017-11-07

HITESH KUMAR SARMA

body2017
JUDGMENT : 1. This is an appeal against the judgment and order, dated 22.5.2015, passed by the learned Sessions Judge, Tinsukia, in Sessions Case No. 55(T)/2014, convicting the accused-appellant to undergo rigorous imprisonment for 5 years and to pay a fine of Rs. 5,000, in default to suffer rigorous imprisonment for 6 months for offence under section 376(2)(i) of the IPC as well as to undergo rigorous imprisonment for 5 years and to pay a fine of Rs. 5,000, in default to suffer rigorous imprisonment for 6 months for offence under section 4 of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO’). Both the sentences are ordered to run concurrently. 2. Heard Mrs. R.D. Mozumdar, learned amicus curiae as well as Mr. N.K. Kalita, learned Additional Public Prosecutor, appearing for the State of Assam. 3. The prosecution case, as unfolded during the trial, is that the 8 years old daughter of the informant and his son Sahid Fakir used to go to the house of the accused-appellant Md. Azhar Hussain as his sister-in-law Smt. Helina was their tutor for last 3 months. The accused-appellant pinched aforesaid Sahid Fakir/brother of the victim, while both of them were leaving the house of the accused-appellant after the tuition, leaving his sister/victim there at about 7 p.m. on 19.5.2013. Then, the accused-appellant took the victim to his house and committed rape on her person, which the informant/father of the victim came to know on 19.5.2013 in the late evening after he was told about the same by his wife. On being asked, the victim also told to the informant/father that prior to 19.5.2013 also, the accused-appellant raped the victim. 4. On such facts, the informant who is the father of the victim lodged an FIR with the Makum Police Station on the basis of which a case, being Makum PS Case No. 98/2013 under section 376(f), IPC read with section 4 of the POCSO Act was registered. 5. After completion of investigation of the case, the Police laid charge sheet against the present accused-appellant under section 376 of the IPC and section 4 of the POCSO Act. 6. 5. After completion of investigation of the case, the Police laid charge sheet against the present accused-appellant under section 376 of the IPC and section 4 of the POCSO Act. 6. After exhausting all the required legal formalities, the court of the learned Sessions Judge/Special Judge under the POCSO Act framed a formal charge against the accused-appellant under section 376(2)(i) of the IPC read with section 4 of the POCSO Act to which the accused-appellant pleaded not guilty. Therefore, the trial commenced. 7. In the instant case, the prosecution examined as many as 9 witnesses, who were subjected to cross-examination by the defence. After closure of the prosecution evidence, the statement of the accused-appellant was recorded under section 313 of the Cr.PC. In his such statement, he is heard denying the allegation levelled against him. The defence examined 2 witnesses. 8. In the instant case, the most vital evidence is that of the PW1/victim. On a careful reading of the whole evidence on record, it has come out more than clear that the victim was a minor of about 8 years of age at the relevant point of time which remained unassailed and unshaken even by the defence. Even there is no attempt found to have been made by the defence to suggest otherwise in respect of the age of the victim. 9. The statement of the victim was recorded by the learned Magistrate under section 164 of the Cr.PC, which was exhibited by the prosecution as Ext. 1. Her evidence, on oath, was recorded by learned trial court, after being satisfied that she could give rational answers put to her. 10. The evidence of the victim, on oath, before the court and her statement recorded under section 164 of the Cr.PC, are so consistent that there is no contradiction at all. 11. It has come out from the evidence of PW1/victim that on the relevant time of occurrence, the victim was a student of class-III. She went to the house of the accused-appellant as his sister-in-law Smt. Helina was the home tutor for herself and her brother Sahid Fakir. 11. It has come out from the evidence of PW1/victim that on the relevant time of occurrence, the victim was a student of class-III. She went to the house of the accused-appellant as his sister-in-law Smt. Helina was the home tutor for herself and her brother Sahid Fakir. After the tuition was over, both the victim and her brother proceeded to their house and as soon as they reached the shop of the accused-appellant, her brother Sahid Fakir was pinched by the accused-appellant on his hand and also threatened him following which he ran away leaving his sister there. Thereafter, the accused-appellant caught hold of the victim and took her inside his tailoring shop, and thereafter, she was undressed and then committed sexual intercourse with her. He also touched her breast and even crossing all limits of vulgarity, he had put his penis in her mouth. The accused-appellant even offered Rs. 5 to the victim, which she refused. She was put under threat of dire consequences if the incident is disclosed by her to anyone. 12. The evidence of PW4/brother of the victim, who was with the victim just before the occurrence, is heard saying that he has seen the accused-appellant taking his sister/victim and he had to leave the victim at the hands of the accused-appellant as he was pinched and threatened by him compelling him to leave the place. 13. The evidence of PW7 makes it appear that at the relevant time of occurrence, he saw the victim on the lap of the accused-appellant in his tailoring shop. After two days, she came to know that the accused-appellant committed rape on the person of the victim. 14. PW8 is the Doctor, who examined the victim, proved the medical examination report of the victim vide Ext-3 as well as the laboratory examination report, vide Ext-4. On radiological examination the victim was found to be aged between 7-8 years. PW8 also found the following on examination of the victim: “General configuration-Average. Mental state-Normal. Weight-22 kg. Height-150 cm, Dentition-24, permanent-12, temporary-12. Abdomen-NAD. Breasts-Not developed. Areola-absent. Nipples-not developed. Pubic hair and axillary hair-absent. Menstrual history-menarche not attained. Genitals-redness, swelling and inflammation present. External genitalia-not fully developed. Vulval injury-Inflammation and redness around vaginal area. Labia majora and minora-Inflammation present with bruises. Hymen-absent. Vagina-admits tip of the ginger. Uterus-not palpable. Vaginal bleeding-bleeding present on touch. Examination was painful, tenderness present. Abdomen-NAD. Breasts-Not developed. Areola-absent. Nipples-not developed. Pubic hair and axillary hair-absent. Menstrual history-menarche not attained. Genitals-redness, swelling and inflammation present. External genitalia-not fully developed. Vulval injury-Inflammation and redness around vaginal area. Labia majora and minora-Inflammation present with bruises. Hymen-absent. Vagina-admits tip of the ginger. Uterus-not palpable. Vaginal bleeding-bleeding present on touch. Examination was painful, tenderness present. Injury on the body other than genitals-absent. Radiological examination was done and as per radiological report, her age is between 7 to 8 years. Laboratory examination was done and as per laboratory examination, the swab does not show any spermatozoa. Opinion : In my opinion - (1) sign of forceful sexual assault present and committed forceful intercourse. (2) Marks of injury present over private parts. (3) Clinically not having pregnancy. (4) From physical, dental and radiological examination, the girl is about 7 to 9 years of age.” 15. The evidence of the victim, examined as PW1, the evidence of PW4, her brother, and PW7 makes it appear that the presence of the victim at the relevant time of occurrence at the tailoring shop of the accused-appellant is found to be a fact established. The fact that at the relevant time of occurrence the victim was alone with the accused-appellant has also been established. 16. There is no evidence to assail that the victim was seen on the lap of the accused-appellant at the relevant time of occurrence by the PW7. Such facts coupled with the evidence of PW8, i.e., the Doctor that there is sign of forceful sexual intercourse with the victim read in combination with the evidence of the victim herself that she was raped by the accused-appellant left absolutely no doubt in the mind of the court that it was none but the accused-appellant who committed sexual assault on the victim including forceful sexual intercourse. The evidence on record has remained unshaken as far as the age of the victim was concerned. The victim was in between 7-8 years of age at the relevant point of time. The evidence on record has remained unshaken as far as the age of the victim was concerned. The victim was in between 7-8 years of age at the relevant point of time. The evidence of the informant (PW2) who is the father and the evidence of PW3, who is the mother of the victim appears to be consistent as regard the fact that they were told about the commission of rape on her person by the victim herself on being asked which is quite but natural under the facts and circumstances of the case and their such evidence lends credence to the evidence of the victim/PW1. 17. The hon'ble Supreme Court in the case of State of Himachal Pradesh v. Sanjay Kumar alias Sunny, (2017) 2 SCC 51 , in paragraph 31 observed as follows: “31. After thorough analysis of all relevant and attendant factors, we are of the opinion that none of the grounds, on which the High Court has cleared the respondents, has any merit. By now it is well settled that the testimony of a victim in cases of sexual offences is vital and unless there are compelling reasons, which necessitate looking for corroboration of a statement, the courts should find no difficulty to act on the testimony of the victim of a sexual assault alone to convict the accused. No doubt, her testimony has to inspire confidence. Seeking corroboration to a statement before relying upon the same as a rule, in such cases, would literally amount to adding insult to injury. The deposition of the prosecutrix has, 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 pedestal than an injured witness does. If the court finds it difficult to accept her version, it may seek corroboration from some evidence which lends assurance to her version. To insist on corroboration, except in the rarest of rare cases, is to equate one who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her claim of rape will not be believed unless it is corroborated in material particulars, as in the case of an accomplice to a crime. It would be adding insult to injury to tell a woman that her claim of rape will not be believed unless it is corroborated in material particulars, as in the case of an accomplice to a crime. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? The plea about lack of corroboration has no substance (See Bhupinder Sharma v. State of H.P). Notwithstanding this legal position, in the instance case, we even find enough corroborative material as well, which is discussed hereinabove.” 18. It has been laid down in State of Himachal Pradesh (supra) that if the evidence of the victim is inspiring confidence and reliable then court can act upon such evidence. In the instant case, the victim, who is a minor of 7-8 years of age, and in whose private parts, signs of sexual intercourse is detected by the Doctor and who named the accused-appellant to be the person who committed rape on her person does not appear to have staged a false story and rather her evidence appears to be inspiring confidence of this court. 19. Mrs. R.D. Mozumder, learned amicus curiae, appearing for the accused-appellant has submitted that a quarrel took place between the accused-appellant and the mother of the victim on the day of the occurrence itself, following which a false case was instituted by tutoring the victim to make statement in the court as was told to the victim by her. 20. The submission of the learned amicus curiae does not inspire confidence of this court, in view of the fact that the consistent and corroborative evidence of PWs 1, 4 and 7 leads this court to believe the story of the prosecutrix/victim. 21. The learned amicus curiae further submits that the PW8/Doctor did not mention the age of the injuries which, according to her, might be due to infectious injuries also. But, when in the medical report, marked as Ext. 3, it has clearly been stated that there was forceful sexual penetration, such submission of the learned amicus curiae lost its ground. 22. On the other hand, the defence has not been able to bring out anything to discredit the prosecution version, thus, to disbelieve the facts as narrated by the PWs 1,4 and 7. 3, it has clearly been stated that there was forceful sexual penetration, such submission of the learned amicus curiae lost its ground. 22. On the other hand, the defence has not been able to bring out anything to discredit the prosecution version, thus, to disbelieve the facts as narrated by the PWs 1,4 and 7. Therefore, the evidence of the defence witnesses is of no avail for the defence. 23. Therefore, the prosecution has been able to establish the prosecution case on the basis of evidence led by it and discussed above, and the judgment of the learned trial court, recording the order of conviction, is based on proper appreciation of evidence and, thus, this court has not found any illegality, incorrectness and impropriety in recording the order of conviction. 24. As regards the sentence imposed upon the accused-appellant is concerned, it is found that the learned trial court sentenced the accused-appellant to undergo rigorous imprisonment for 5 years and to pay a fine of Rs. 5,000, in default to suffer rigorous imprisonment for 6 months for offence under section 376(2)(i) of the IPC as well as to undergo rigorous imprisonment for 5 years and to pay a fine of Rs. 5,000, in default to suffer rigorous imprisonment for 6 months for offence under section 4 of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO’) and both the sentences were ordered to run concurrently. 25. Section 42 of the POCSO Act provides that when the offence falls under the POCSO Act as well as punishable under the various provisions of the Indian Penal Code, including section 376 of the IPC, then notwithstanding anything contained in any law for the time being in force, the offender found guilty of such offence shall be liable to punishment under this Act (POCSO Act) or under the Indian Penal Code as provides for punishment which is greater in degree. 26. So, in the instant case, the victim being a minor of 7-8 years of age, offence in the instant case is covered by section 3(a) of the POCSO Act punishable under section 4 of the said Act. The offence in the instant case is also punishable under section 376(2)(i) of the IPC. Punishment prescribed in section 4 of the POCSO Act is less than the punishment prescribed in section 376(2)(i) of the IPC. The offence in the instant case is also punishable under section 376(2)(i) of the IPC. Punishment prescribed in section 4 of the POCSO Act is less than the punishment prescribed in section 376(2)(i) of the IPC. Therefore, the punishment, in the instant case, ought to have been under section 376(2)(i) of the IPC being greater in degree than the punishment prescribed under section 4 of the POCSO Act and not under both the statutes. Accordingly, the conviction of the accused-appellant under section 376(2)(i) of the IPC is maintained and the punishment under section 4 of the POCSO Act is set aside. 27. So far the quantum of punishment is concerned under both the sections, i.e., section 376(2)(i) of the IPC and section 4 of the POCSO Act, the minimum punishment prescribed is rigorous imprisonment for 10 years and which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life under section 376(2)(i) of the IPC. Section 4 of the POCSO Act prescribes 7 years minimum imprisonment but which may extend to imprisonment for life. It appears from the judgment appealed against, and as indicated in para 24 above, the punishment in the form of imprisonment imposed upon the appellant is less than the minimum prescribed. 28. As there is no appeal from the State on the above aspect, this court cannot interfere with the sentence awarded by the learned trial court except for setting aside the conviction and the sentence under section 4 of the POCSO Act retaining the conviction and sentence under section 376(2)(i) of the IPC. 29. Accordingly, the order of conviction as well as sentence recorded by the learned trial court, against the accused-appellant for commission of the offence under section 376(2)(i) of the IPC is upheld. 30. Accordingly, the present criminal appeal is partly allowed. 31. Send down the LCR along with a copy of this judgment. 32. Appreciating the assistance rendered by Mrs. R.D. Mozumder, learned amicus curiae, we hereby provide that she will be entitled to Rs. 7,000 which shall be paid to her by the Assam State Legal Services Authority upon production of a copy of this judgment.