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2017 DIGILAW 515 (GAU)

Debo Kanto Boruah v. State of Assam

2017-04-28

RUMI KUMARI PHUKAN

body2017
JUDGMENT & ORDER : Heard Mr. M. A. Seikh, learned counsel for the appellant and also heard Mr. B. Sarma, learned Additional Public Prosecutor for the respondent No. 1 and Mr. Manas Protim Choudhury assisted by Mr. Somir Bothari, learned counsel appearing for the informant. The daughter of the informant is about 7(seven) years was a student of Class-II, in the St. Elbert School, in the year 2015 and on 18.06.2015 and 26.06.2015, while the said minor girl was waiting for vehicle to return home then the accused person (the appellant herein), by offering chips to the girl made her seat nearby him and then he touches her private parts vagina and also inserted his finger. Although she did not imported the matter immediately to her parents but after completion examination she informed the matter to her mother and later her mother apprised the matter to her father. The accused was also asked about the matter by the parents the victim who begged apology. Immediately, thereafter, father of the victim girl lodged the FIR before the police narrating all the facts, and on the basis of which Bohngai Gaon P.S. Case No.497/15, under Section 354(A)(1)(i) IPC, read with Section 12 of Protection of Children from the Sexual Offence Act, 2012, was registered and on completion of the investigation charge-sheet was submitted against the accused person. 2. The accused appellant faced the trial and the learned special Judge Borgaiaon framed the charge u/s 354(A)(1)(i) IPC, read with Section 4 of POCSO, Act, against the accused person to which he pleaded guilty and claimed to be tried. During the course of trial for section examine six witnesses and defence examine none. Plea of defence is of total denial. At the conclusion of the trial the learned trial court hold the accused guilty u/s 8 of the POCSO Act, and sentence him to arrive for 5 years and also to pay a fine of Rs. 5000/- in default RI for another two months. 3. Challenging the aforesaid judgment and order of conviction the present appeal has been preferred on the ground that the learned trial Court has failed to appreciate the evidence on record in true perspective law and facts and has given the verdict even though the testimony of the victim is not who suffers from discrepancy as her evidence is contradictory as several times. None examination of other available witness from the school is also stated to be fatal apart from the fact the non-reporting of the matter of the victim immediately after the occurrence. 4. The learned counsel for the appellant in course of his argument has relied upon the ground of appeal that has been indicated above and has submitted that the case is that the prosecution has failed to explain the delay in filing the case and couple with the facts that there is several contradiction in the evidence of the victim girl, no explicit reliance can be given upon such testimony of a minor witness. And alternative submission has also been made that the accused may be provided the minimum sentence by reducing the sentence that has been imposed by the trial Court. 5. On the other hand, the learned counsel for the State has submits that the learned trial Court has rightly appreciated the evidence on record and has passed the order of conviction in legal manner and it calls for no interference. The mere fact of some contradiction in the part of the minor victim girl cannot be ipso facto discard the evidence of such minor girl. Similarly, the learned counsel appearing for the informant ahs also vehemently opposed the submission of the learned counsel for the appellant that there is no any reason on the part of the informant as well as the minor victim girl false implication of the accused applicant there being no any hostility between the parties and that being so, the evidence of the victim girl cannot be disputed only because of minor contradiction here and there. They have also raised objection for reduction of sentence as has been implicated by the trial Court considering the nature of offence and the age of the victim girl. 6. I have considered the rival submission of both the parties as well as gone through the evidence on record. 7. Obviously, there is no eye witness to the occurrence and the matter was reported by the victim after few days of the occurrence. The given background itself depicts that the victim girl is a very tender age of 7(seven) years at the time of occurrence, obviously, she has no idea about the essence of sex. 7. Obviously, there is no eye witness to the occurrence and the matter was reported by the victim after few days of the occurrence. The given background itself depicts that the victim girl is a very tender age of 7(seven) years at the time of occurrence, obviously, she has no idea about the essence of sex. As per her evidence as PW-2, while the school examination going on 2 days i.e. on 18.06.2016 and 26.06.2016, the accused by offering her chips touch her vegina over the wearing apparel and on the other day he also insert his finger in the vegina. The victim girl who had no sense of sex could not perceive the evil intention of the accused and she enjoyed the chips while at the time of such affair indulged by the accused person. However, after the second incident the victim girl reported the matter to her mother that the accused offered her chips Kurkure and also touch her vegina and about fingering in the vegina. 8. Although there are some sort of minor contradiction as about her statement under Section 164 Cr.P.C., and in course of trial but, same is not so vital as it has not affect the main allegation. That apart a victim of such tender age cannot expect to state the all details exactly in the same manner in all the time. Nothing surface that the victim girl has been tutored by her parents or has been persuaded for giving false evidence. 9. I have consider the evidence of the victim girl, that has been given at the time of investigation as well as in course of trial and as it reflects that she does not deviate from her actual allegation. Let us appreciate her evidence that has been given in course of trial, it reveals that the learned trial Court has tested her capacity to ensure to give evidence and on after satisfaction the Court has recorded her evidence. It has been stated by her that one of the accused also is the student of the said school and the accused offered her chips one day and another day he pressed his hand on her private parts and also other day he again insert his finger into her private parts and also offered her ‘phuska’. It has been stated by her that one of the accused also is the student of the said school and the accused offered her chips one day and another day he pressed his hand on her private parts and also other day he again insert his finger into her private parts and also offered her ‘phuska’. Although she did not reported the matter to anybody later on she reported the matter after examination was over. It has been stated that the incident occurred when she was waiting for the auto for returning home. She was cross examined at length, wherein she has stated that after the school while she was sitting on a bench waiting for the auto for returning home along with friend but at the time the accused approached to him she was alone she has reveal that she did not reveal the matter to her best friend nor her teacher nor she made any hue and cry. She was given suggestion that she did not stated before police or in the Court that the accused offer her ‘phuska” after the accused inserted his finger in her private parts, to which she denied. Similarly, she has denied the suggestion that the accused never offered her chips and did no bad things with her. She has stated that she reported the matter to her mother as on 27.06.2015. 10. The parents of the victim Dhaneshwar Rava/PW-1 (Father) and Smti. Tinku Rani Rava/PW-3 (Mother) both of them have stated that on 27.06.2015, their daughter/PW-2, aged seven years reported PW-3 that on 18.06.15 and 26.06.15, after the examination was over while PW-2 was waiting for auto then the accused offered her chips and seated with her on the bench and press his hand on his private parts and ask her not to report the matter to anybody. The PW-3 immediately informed to the matter to PW-1 and both of them properly enquired the matter from PW-2 to ascertain the same and she told that the incident is true. Then only PW-1 went to the house of the accused as his son also a student of the said school in a upper class, but he did not found the accused after one hour the accused and his wife came to their house and on asking the accused admitted his guilt and begged apology. Thereafter, the PW-1 filed the FIR on next day. Thereafter, the PW-1 filed the FIR on next day. 11. It has been stated in cross examination they have stated that their daughter did not reported the matter to anybody earlier and no reason has been explained for the delay in filing the FIR. It has also been stated that the general PW-1 left their daughter near the gate and there is no security guard except Chowkidar. Nothing could be exploited in the cross examination to bring out any material omission and contradiction of any of the witnesses to suggest the false implication of the accused. 12. One neighbour of the informant has been examined by prosecution namely Pampi Kalita Mahatu/PW-4, has stated that on 27.06.15, PW-3, come to their house in the evening at about 8 PM, and told her all the details of the incident that the accused person by offering chips to the daughter of the informant has indulges sexual activities upon her by touching her private parts and also fingering her at two times as on 18.06.15 and 26.06.15. So the said PW-4 was immediately informed by the mother of the victim. She has however stated that she was not told by the victim herself. She has denied all the suggestion of the defence side that she has not stated before the police as has been stated before this Court. 13. The investigating officer Ajit Kumar Roy/PW-6 in his deposition has stated all about the investigation and recording of the statement of the victim and other witnesses and during the investigation he found no eye witness to the occurrence. He however, recorded the statement of the chowkidar. Regarding contradiction of the PW-1 it has been stated that he did not stated that he came to know from his wife about the incident and PW-2 did not stated before him that the accused offered him Phuska, after he inserted his finger into her private parts. The PW-3 also did not stated before him that she came to know the incident from PW-2 at about 7.30 on 27.06.15. Similarly, PW-4 also did not stated all details of the incident as told in course of trial, before him. Accordingly, it is found no vital contradiction is proved through I.O. to disprove the genesis of the prosecution case. Some contradictions here and there is inherent in every case. 14. Similarly, PW-4 also did not stated all details of the incident as told in course of trial, before him. Accordingly, it is found no vital contradiction is proved through I.O. to disprove the genesis of the prosecution case. Some contradictions here and there is inherent in every case. 14. Lastly, the evidence of PW-5 Dr Minakshi Kalita can be referred into who in her evidence has stated that on 01.07.15 she has examined the PW-2 aged seven years accompanied by her mother and home guard who gives her a history of putting of fingers in the vegina two days back. No mark of injury was found on her body and no opinion can be given whether she was raped or not. 15. It is to be noted that the accused person has taken the plea of alibi in the course of examination of witness that he did not went to the school on the days of occurrence, but, he has not adduced any defence evidence to prove the plea. Accept giving some mere suggestion he has failed to rebut the prosecution case in any manner as has been referred above there is nothing emerges that the as to the reasons for false implication of the accused in the given case who is with whom the informant has no any sort of hostile relation, so as to false implication of the accused. 16. The learned counsel for the appellant has submitted that the evidence of victim suffers from several contradictions coupled with the fact that she did not lodge the complaint to anybody not to speak of parents and the medical report also did not support any such sexual assault upon the victim so, her testimony cannot be relied on. The alternative submission of the learned counsel for the appellant is that as no damage is caused to the victim girl so minimum punishment can be given to the appellant. 17. On the other hand, learned counsel for the State submitted that there is no scope for interference to the impugned judgment and order of conviction, there being no illegality. The learned trial Court has property appreciated the evidence on record and there is no reason whatsoever, to disbelieve the testimony of the victim girl. Further, the learned counsel appearing for and on behalf of the informant Mr. The learned trial Court has property appreciated the evidence on record and there is no reason whatsoever, to disbelieve the testimony of the victim girl. Further, the learned counsel appearing for and on behalf of the informant Mr. Choudhury has also vehemently opposed the submission of the appellant that the discrepancy in the evidence in case of minor child is not so fatal so as to discard her evidence. Equally he has also resisted the prayer for reduction of conviction in view of severity of the offence. 18. I have duly considered the submissions of rival parties canvassed before this Court and also considered the given facts and circumstances of the case. It is pertinent to note that the victim is a very minor one aged about 7 years and she has no real sense about the sex and as such she was unaware about the affair conducted by the accused appellant. The victim was engaged in enjoying chips while the accused appellant touches her private parts in the meantime as discussed above and, of course, it was not indulged in aggravated forms. Generally in such playing age of a child they remain under their impulse, than to reasons, that is why she may not report the matter to her mother being unaware about the evil conduct of the appellant. However, she reported the matter to her parents after little bit few days of the occurrence while the accused repeated his conduct. Although she has narrated more detail in her evidence before the Court but the same is not found to be contradictory to her initial deposition and the only thing is that there is some minor omission in her evidence. From overall totality of her evidence it can be assumed that her evidence does not suffer from any sort of major discrepancy to disbelieve her evidence. 19. The parents of the victim have given corroborative evidence as regards the fact that has been depicted by the victim girl and they also reported the matter to their neighbour/PW.4. In the given circumstances, there being no other reason for false implication of the accused, the prosecution case cannot be discarded. In case of a minor victim their evidence is to be visualised from realistic view so as to appreciate the matter in true perspective. In the given circumstances, there being no other reason for false implication of the accused, the prosecution case cannot be discarded. In case of a minor victim their evidence is to be visualised from realistic view so as to appreciate the matter in true perspective. In a recent case, the Hon’ble Apex Court in State of Himachal Pradesh-vs-Sanjay Kumar @ Sunny, reported in 2016 0 SC 992, it has been discussed as follows: “(B) Indian Penal Code, 1860-Section 376-Rape-Testimony of a victim in cases of sexual offences is vital and unless there are compelling reasons which necessitated looking for corroboration of a statement, court should find no difficulty to act on testimony of victim of a sexual assault alone to convict accused accused-Seeking corroboration to a statement before relying upon the same as a rule, in such cases, would literally amount to adding insult to injury-Deposition of prosecutrix has to be taken as a whole-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 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 rarest of rare cases, is to equate one who is a victim of 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 case of an accomplice to a crime.” 20. In case of State of Rajasthan –vs-Om Prakash, reported in (2002) 5 SCC 745 it has been held as follows:’ “19 Child rape cases are cases of perverse lust for sex where even innocent children are not spared in pursuit of sexual pleasure. There cannot be anything more obscene than this. It is a crime against humanity. Many such cases are not even brought to light because of the social stigma attached thereto. According to some surveys, there has been a steep rise in child rape cases. Children need special care and protection. In such cases, responsibility on the shoulders of the courts is more onerous so as to provide proper legal protection to these children. Their physical and mental immobility call for such protection. According to some surveys, there has been a steep rise in child rape cases. Children need special care and protection. In such cases, responsibility on the shoulders of the courts is more onerous so as to provide proper legal protection to these children. Their physical and mental immobility call for such protection. Children are the natural resource of our country. They are the country's future. Hope of tomorrow rests on them. In our country, a girl child is in a very vulnerable position and one of the modes of her exploitation is rape besides other modes of sexual abuse. These factors point towards a different approach required to be adopted. The overturning of a well considered and well analysed judgment of the trial court on grounds like non-examination of other witnesses, when the case against the respondent otherwise stood established beyond any reasonable doubt was not called for. The minor contradiction of recovery of one or two underwears was wholly insignificant." 21. In view of all above, this Court is not agreeable to the submission of the learned counsel for the appellant that only because of minor contradiction of the victim and non-finding of injury on the private parts of the victim by the Medical Officer, the prosecution cannot succeed to establish the offence. On the contrary, in view of the simple nature of the assault and examination of the victim after several days of the occurrence, non finding of injury on the body of the victim is quite natural. 22. However, taking into note that no substantial bodily injury has been caused to the victim girl and also considering the fact of detention of the accused appellant behind the bars since the day of his arrest, while maintaining the conviction, the sentence is reduced to minimum sentence of three years and the amount of fine will be the same. 23. The appeal stands disposed of with the modification as indicated above.