Research › Search › Judgment

Gauhati High Court · body

2018 DIGILAW 1309 (GAU)

Manmath Das v. State of Assam

2018-09-04

MIR ALFAZ ALI

body2018
JUDGMENT : MIR ALFAZ ALI, J. 1. Heard learned counsel, Mr. S.K. Jain for the appellant and learned Addl. Public Prosecutor, Mr. B.B. Gogoi for the State-respondent. 2. This appeal is directed against the judgment and order dated 24-06-2015 passed in Sessions Case No. 208/13, whereby the learned Sessions Judge convicted the appellant u/s 4 of the POCSO Act and sentenced him to rigorous imprisonment for seven years and fine of Rs. 5,000/- with default stipulation. 3. As per prosecution case, on 07-05-2013 in the evening, while the victim was reading in her room, the appellant went there and uttered some obscene words and pushed his finger into her private part. She raised alarm, hearing which, her mother and aunt came there and the accused left the place. The Ext.-1 FIR was lodged on 13-5-2013, on the basis of which, police registered a case and after usual investigation submitted charge-sheet against the appellant u/s 376 IPC read with Section 4 of the POCSO Act and eventually the accused stood trial. 4. In course of trial, prosecution examined nine witnesses and on appreciation of evidence, learned Addl. Sessions Judge convicted the appellant u/s 4 of the POCSO Act and awarded sentence as indicated above. 5. Learned counsel for the appellant submits that there was no legal evidence on record to bring home a charge u/s 4 of the POCSO Act. Learned counsel for the appellant fairly submits, that at best, conviction could be u/s 8 of the POCSO Act. 6. Learned trial court basically relying on the oral testimony of the victim (PW 3), her mother (PW 6) and aunt (PW 7) as well as medical evidence of PW 1, convicted the appellant. 7. Pw 3, the victim stated in her evidence, that while she was reading in her room in the evening at about 7 O'Clock, the accused came there and sat by her side. Her mother was ironing clothes in a different room. The accused uttered some slang words and without her knowledge, removed her pant and put his finger into her private part. The victim raised alarm, hearing which, her mother and aunt came and the accused left the place. She also stated that she sustained injury on her private part and there was bleeding. The accused uttered some slang words and without her knowledge, removed her pant and put his finger into her private part. The victim raised alarm, hearing which, her mother and aunt came and the accused left the place. She also stated that she sustained injury on her private part and there was bleeding. However, cross-examination of the PW 3 and her previous statement show, that she did not state before police or in her statement recorded u/s 164 Cr.P.C regarding raising any alarm. She stated in her statement u/s 164 Cr.P.C that the accused put his finger into her private part, but she prevented him by her hands and the accused silently left the place. Later on, she informed her mother about the occurrence. 8. Pw 6, mother of the victim stated, that at the time of occurrence, Sushil Kr. Das and Damodar Das were in her house in connection with some discussion. She was also there with her daughter. At that time, the accused came there and she left for cooking. Immediately thereafter, hearing scream of PW 3, she (PW 6) came and found that the accused was running away. According to PW 6, the victim was crying and on being asked by PW 6, the victim told that the accused put her finger into her private part. Sushil Kr. Das and Damodar Das who were independent witnesses and examined as PW 4 & PW 5 respectively did not support the prosecution. 9. Pw 7 stated that the victim is the daughter of her husband's brother. According to her, the mother of the victim was crying and seeing her crying, she came and asked her as to what had happened. She told that the accused hit the private part of her daughter. Immediately other people also assembled there. The father of the victim, examined as PW 2 stated to have learnt about the occurrence from his wife (PW 6). The doctor, who examined the victim, stated that there was no recent sign of sexual intercourse. However, she found swelling and tenderness on the vulva. Hymen was found intact. The doctor also stated that she did not find any scratch mark on the private part of the victim. According to the doctor, swelling and tenderness could be due to various reasons. 10. However, she found swelling and tenderness on the vulva. Hymen was found intact. The doctor also stated that she did not find any scratch mark on the private part of the victim. According to the doctor, swelling and tenderness could be due to various reasons. 10. What is evident from the oral testimony of PW 3 (victim) is that there were considerable improvement and embellishment in her statement given in court. In the statement recorded u/s 164 and 161 Cr.P.C, she did not state about raising alarm. Rather, she stated that the accused stealthily removed her clothes and put his finger into her private part, but she prevented him by her hands and the accused silently left the place. Later on, she informed her mother about the occurrence. Although she stated that there was bleeding, such oral testimony with regard to bleeding injury on her private part was not supported by the medical evidence. Thus, the statement of the victim recorded u/s 164 Cr.P.C. coupled with the medical evidence and the oral testimony of PW, 4, PW 5 & PW 7 negated the factum of penetration into the vegina as deposed by the PW 3 in her evidence in court. Therefore, this part of the evidence that the accused penetrated his finger appears to be an improvement and embellishment during trial and such statement is hardly worthy of credence. Lodging of the FIR after six days of the occurrence without proper explanation coupled with statement of the victim recorded u/s 164 Cr.P.C. also demonstrated that the victim has given an improved version in her evidence. Therefore, the oral testimony of the PW 3 that the accused penetrated his finger into her private part was hardly worthy of trust. However, the oral testimony of the victim clearly shows that the accused touched the private part of the victim. In absence of evidence of penetration, mere touching of the private part would not constitute an offence under Section 4 of the POCSO Act, and as such, the conviction and sentence of the accused u/s 4 of the POCSO Act cannot be sustained. 11. In absence of evidence of penetration, mere touching of the private part would not constitute an offence under Section 4 of the POCSO Act, and as such, the conviction and sentence of the accused u/s 4 of the POCSO Act cannot be sustained. 11. Though the statement of the victim recorded u/s 164 Cr.P.C. and the medical evidence coupled with the facts and circumstances negated the factum of penetration into the private part of the victim, the evidence of the victim that the accused touched her private part and on her protest the accused left the place clearly established an offence u/s 8 of the Act. 12. Accordingly, on the basis of the evidence, as discussed hereinabove, the conviction of the accused is modified and he is convicted u/s 8 of the POCSO Act. 13. It is submitted by the learned counsel for the appellant that the appellant has been in jail for about four years. Having considered the facts and circumstances of the case and the nature of offence, I am of the view that the sentence for the period which the accused has already undergone in custody would commensurate with the offence u/s 8 of the POCSO Act. Accordingly, the sentence of the accused is modified and reduced to the period which he has already undergone in jail. The appeal is partly allowed. The appellant be released forthwith if not required in any other case. 14. Registry to issue release order accordingly. A copy of this judgment along with the release order be sent to the concerned jail. 15. Send down the LCR.