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2017 DIGILAW 864 (GAU)

Dilip Deka v. State of Assam

2017-07-10

HITESH KUMAR SARMA

body2017
JUDGMENT AND ORDER : This is an appeal from jail, preferred by accused/appellant, Sri. Dilip Deka, who has been convicted by judgment and order dated, 19.12.2015, passed by the learned Sessions Judge, Morigaon, in Sessions Special Case No. 22/2014, arising out of Jagiroad PS Case No. 343/2014 (corresponding to GR Case No. 2250/2014), under Sections 448/376 (2) (h) IPC, read with Section 4 of the Protection of Children from Sexual Offences Act, (hereinafter referred to as POCSO Act), to suffer S/I for 10 (ten) years and to pay a fine of Rs. 5,000/- (rupees five thousand), i/d, to suffer S/I for another 6 (six) months. 2. I have heard Ms. B Sarma, learned Amicus-Curiae for the accused/appellant. I have also heard Mr. N.K. Kalita, learned Additional PP for the state. 3. The victim, PW3, is a minor daughter of the informant. On 27.10.2015, at about 3:00 pm, while the father of the victim went out for work and the mother went to the house of the accused/appellant, the elder brother of the father of the victim, came to the house of the informant. The victim was alone in her house. He gagged her and penetrated his finger into the vagina of the victim. After putting off her clothes, when she raised alarm, the neighbours came out and the accused/appellant fled away from the place of occurrence. On the basis of such facts, the informant/PW2, lodged the FIR with the Jagiroad Police Station, which after registration of the case under Section 448/370(2)(h) read with Section 4 of the POCSO Act, investigated into it, collected evidence and finally submitted charge-sheet against the accused/appellant under the aforesaid sections of law. 4. The learned trial court, framed charge against the accused/appellant under Section 448 IPC and Section 4 of the POCSO Act. The accused/appellant pleaded innocence to the charge. 5. The prosecution, in this case, examined as many as 8 (eight) witnesses. The defence examined 1 (one) witness. 6. In his statement, recorded under Section 313 Cr.PC, the accused/appellant has taken the plea that there is a boundary dispute between the parties, and as warned earlier, with a view to teach the accused/appellant a lesson, they have filed this false case. He denied the accusation in his such statement. 7. The defence examined 1 (one) witness. 6. In his statement, recorded under Section 313 Cr.PC, the accused/appellant has taken the plea that there is a boundary dispute between the parties, and as warned earlier, with a view to teach the accused/appellant a lesson, they have filed this false case. He denied the accusation in his such statement. 7. Now, the issues for decisions are : whether the accused/appellant committed trespass into the house of the informant with a view to commit an offence, and, whether he has committed penetrative sexual assault on the person of the victim, a minor ? 8. For the decision of the above issues, let us look into the evidence on record. 9. PW3 is the victim. The learned trial court did not record her evidence on oath, as she was found to be not able to understand the consequence of oath. On her examination, she is found to have stated very categorically that while she was sleeping with her sister in her house, the accused/appellant came, gagged her with his right hand, and penetrated one of his left hand fingers in her vagina. She felt pain and started crying. The accused told her that he would pay her some money and asked her not to cry. He also did bite on her left thigh. It further came out from her evidence that at the relevant time of occurrence, her father was out for work and her mother went to the house of the accused/appellant. The accused/appellant is the elder brother of her father. In her cross-examination also, she is found to have stated that at the relevant time of occurrence, her sister was sleeping and she woke up later. She came out from the room crying, and then, met her mother who was coming back to her house. She informed her mother about the occurrence. Another lady was also with her mother. She also stated that there is a quarrel existed between her family and the accused/appellant prior to the occurrence. She answered in the negative that she falsely implicated the accused/appellant due to enmity and on being tutored. She also denied that the accused did not penetrate his finger into her vagina. The evidence of PW3, as regards the accusation, that the accused/appellant entered their house, gagged her and penetrated his finger in her vagina remained intact in her cross-examination also. She also denied that the accused did not penetrate his finger into her vagina. The evidence of PW3, as regards the accusation, that the accused/appellant entered their house, gagged her and penetrated his finger in her vagina remained intact in her cross-examination also. PW2 is the informant and mother of the victim. She deposed that the victim was 12 years of age on the date of occurrence, and that the accused/appellant is the brother of her husband. She was in the house of the accused/appellant at the time of occurrence, and her daughter/victim was sleeping in her house with her younger daughter. She rushed back to her house after hearing the cry of the victim, and, on being asked, the victim narrated to her that the accused/appellant penetrated his finger into her vagina continuously for which she felt pain on her lower abdomen. This witness saw the accused/appellant going out of their house at the relevant time. The accused/appellant also denied the accusation while the informant asked her about the occurrence. The father of the victim and husband of this PW2 was not present in the house. There was a meeting in her house about 4:30 pm on the same day, where Prabhat Medhi, Dimbeswar Medhi, Manto Medhi, Dip Deka and some others gathered for a “bichar” on the matter. The accused/ appellant was also present there. In presence of the said persons, the accused/appellant, according to PW2, said that he only kissed the victim. This witness filed the FIR, marked Ext.3. So, the evidence of PW3, victim and PW2, as regards the sequence of occurrence, corroborates each other. 10. Let us now look into the evidence of PW1, the Senior Medical Health Officer, Morigaon Civil Hospital. She examined the victim on 28.10.2014, on the requisition of the police, in connection with the instant case, and her report is marked Ext.2. The victim went to her with the history of sexual assault and forceful entry of fingers into her vagina at her home on 27.10.2014, by her own relative. As per her evidence, the X-Ray examination was done for determination of the age of the victim and as per the X-Ray report, the age of the victim is 12-14 years. The victim went to her with the history of sexual assault and forceful entry of fingers into her vagina at her home on 27.10.2014, by her own relative. As per her evidence, the X-Ray examination was done for determination of the age of the victim and as per the X-Ray report, the age of the victim is 12-14 years. She is also found to have stated that as per her opinion, on the basis of the Clinical, Radiological and Laboratory examination, the age of the victim would be between 12-14 years. She also detected no injury except mild tenderness her lower abdomen and the private part, at the time of examination of the victim. The evidence of PW4 and PW5 also makes it appear that the victim was about 12 years of age. So, the evidence of the aforesaid witnesses, makes it more than clear that the victim was a minor at the relevant time of the occurrence, and, in any case, she was below 18 years of age. The victim claimed, in her evidence, that she felt pain due to penetrating finger in her vagina by the accused/appellant. The doctor, examined as PW1, also found that the victim had some tenderness in her lower abdomen and in the private part. Therefore, the consistent evidence of the PW1, PW2 and PW3, leaves no doubt that the victim was sexually assaulted. 11. Now, the question is, whether it was the accused/appellant who committed penetrative sexual assault on the victim ? 12. PW4 appeared in the place of occurrence after hearing hue and cry, and she saw the victim crying. The victim stated to her that the accused/appellant had penetrated his finger in her private parts, and also did bite on her right thigh. Similar is the evidence of PW5, who also appeared at the place of occurrence, after hearing hue and cry. There he found some persons and the victim narrated to them that while she was sleeping, the accused/appellant entered into her house, gagged her, put off her pant, and then, penetrated his finger inside her private parts. PW6 also found the victim crying and when he asked for the reason, she also narrated to him about the occurrence to the effect that the accused/appellant embraced her, gagged her, kissed her and penetrated his finger in her private parts. PW6 also found the victim crying and when he asked for the reason, she also narrated to him about the occurrence to the effect that the accused/appellant embraced her, gagged her, kissed her and penetrated his finger in her private parts. From such evidence, it is more than transparent that the accused/appellant committed sexual assault on her. That apart, when the informant rushed to her house back, she saw the accused/appellant leaving their house. So, the evidence of the victim to the effect that the accused/appellant sexually assaulted her and the evidence of such fact is corroborated by PW2, PW4, PW5 and PW6. The evidence of PW4, PW5, PW6 corroborates each other to the effect that they were narrated about the facts of the case by the victim herself, naming the accused/appellant as the person who did the penetrating sexual assault on her. PW7 also corroborates the evidence of PW4, PW5 and PW6. She appeared at the place of occurrence immediately after the occurrence. She was also narrated about the facts of the case by the victim. PW8 is the Investigating Officer. He investigated the case, recorded statements of the witnesses and got the victim examined by doctor as well as got the statement of the victim recorded by the Magistrate, under Section 164 Cr.PC. In her statement, under Section 164 Cr.PC also, the victim appears to be consistent with her evidence in the court. So, there is abundance of evidence to support and corroborate the evidence of the victim (PW3) as well as the PW1, as indicated above. On the other hand, even if, for a moment, the evidence of the witnesses for the prosecution are not believed, there is no reason to disbelieve the evidence of the victim/PW3, because her consistent evidence remained intact even after cross-examination by the defence. On the other hand, this court finds that the evidence of the victim, examined as PW3, inspires confidence because of the consistency in her evidence. On the other hand, this court finds that the evidence of the victim, examined as PW3, inspires confidence because of the consistency in her evidence. The Hon’ble Supreme Court in the case of State of Himachal Pradesh vs. Sanjay Kumar alias Sunny, reported in (2017) 2 SCC 51 , in paragraph 31 observed as follows : “………………………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. 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.” 13. Therefore, on the basis of the evidence discussed above, this court has absolutely no hesitation to hold that the accused/appellant committed sexual assault on the person of the victim. 14. Now, let us see as to whether the defence has been able to disprove the prosecution case. Therefore, on the basis of the evidence discussed above, this court has absolutely no hesitation to hold that the accused/appellant committed sexual assault on the person of the victim. 14. Now, let us see as to whether the defence has been able to disprove the prosecution case. 15. The defence examined one witness, namely, Rupa Deka. She is found to have stated in her evidence that the accused/appellant and the informant were next door neighbours. The accused/appellant has been residing there since last 2 years, and the plot of land, over which he is residing, belonged to his brother. The land was under the possession of the informant before construction of the house by the accused/appellant. There is a dispute between the informant and the accused/appellant in connection with demarcation of boundary, and therefore, their relationships got strained. The accused/appellant’s daughter got married to a muslim boy, which, people of the village did not like, and rather, objected. Under such facts, the people of the village conspired to frame accused/appellant falsely with a view to teach him a lesson. She has no knowledge about the occurrence. She is also found to have stated in her cross-examination that at the relevant time of occurrence, she was talking to the informant, and accused/appellant was not at his home. Such evidence of the DW1 is not convincing in view of the fact that neither the victim nor the informant are found to have stated that she was with the informant/PW2 at the relevant time of occurrence. What is most important in her evidence is that she deposed that the accused/ appellant was not at his home at the time of occurrence. This is but natural in view of the fact that at the relevant time, the accused/appellant was in the house of the victim. So, the non-availability of the accused/appellant in his own house at the relevant time of occurrence rather lends support to the story of the prosecution that the accused/appellant went to the house of the victim and committed the offence at that time. Therefore, it appears that the defence completely failed to disprove or to create any doubt in the veracity of the prosecution story. 16. Therefore, in view of the evidence on record, the prosecution has been able to prove the commission of sexual assault by the accused/appellant on the victim/PW3. 17. Therefore, it appears that the defence completely failed to disprove or to create any doubt in the veracity of the prosecution story. 16. Therefore, in view of the evidence on record, the prosecution has been able to prove the commission of sexual assault by the accused/appellant on the victim/PW3. 17. The defence has taken the plea, during argument, that the offence, does not fall within the purview of the provisions of Section 3, and as such, the charge under Section 4 of the POCSO Act is incorrect. Section 4 of the POCSO Act is the penal provision for commission of any of the offences enumerated in Section 3 of the POCSO Act. Section 3(b) of the POCSO Act, provides that, a person is stated to commit “penetrative sexual assault” if 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. 18. The evidence of the victim is categorical to the effect that the accused/appellant penetrated his left finger into her vagina repeatedly. Therefore, the offence committed by the accused/appellant falls under the category of offence narrated in Section 3(b) of the POCSO Act. 19. Now, it appears that the accused/appellant committed the offence in the house of the victim. This fact has been established from the evidence on record discussed above. Therefore, that the accused/appellant trespassed into the house of the victim with a view to commit an offence, is a fact established on the basis of the evidence on record. Therefore, both the charges, under Section 448 IPC and Section 4 of the POCSO Act, have been proved in this case. 20. In view of the above, the learned trial court rightly recorded the order of conviction of the accused/appellant. However, the learned trial court imposed maximum punishment prescribed by Section 4 of the POCSO Act. In the considered view of this court, in the facts and circumstances of the case, if the substantive sentence is reduced to simple imprisonment for 7 it years will suffice to meet the ends of justice. In respect of punishment in the form of fine, and the default clause, this court finds no reason to interfere with. The substantive sentence of simple imprisonment is reduced to simple imprisonment of 7 years. 21. In respect of punishment in the form of fine, and the default clause, this court finds no reason to interfere with. The substantive sentence of simple imprisonment is reduced to simple imprisonment of 7 years. 21. Accordingly, the appeal is partly allowed. 22. Send down the LCR with a copy of this judgment. 23. A copy of the judgment shall also be furnished to the Superintendent, District Jail, Morigaon for furnishing a copy thereof to the accused/appellant. 24. This court records its appreciation for the assistance rendered by learned Amicus Curiae. The learned Amicus-curiae be paid an amount of Rs. 7,000/- as remuneration.