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2018 DIGILAW 1749 (GAU)

Achyut Turi @ Babatu v. State of Assam

2018-12-15

RUMI KUMARI PHUKAN

body2018
JUDGMENT : Rumi Kumari Phukan, J. Heard, Dr. B. N. Gogoi, learned Amicus Curiae for the accused/appellant. Also heard Ms. S.H. Bora, learned Addl. P.P., Assam representing the State respondent. 2. The present appeal is directed against the judgment and order dated 09.06.2017, passed in Special Case No.14/2016, by the learned Special Judge, Jorhat, wherein the accused appellant has been convicted under Section 6 of the Protection of Children From Sexual Offences Act, 2012 (in short 'the POCSO Act'), sentencing him to R.I. for 10 years and to pay a fine of Rs.15,000/- in default R.I. for another six months, with a further direction to award compensation to be determined by the Secretary, District Legal Services Authority, Jorhat. 3. The present case relates to a story wherein the victim is none other than the daughter of the accused person and the informant is the wife of the accused. As per the prosecution case, the accused had the habit of consuming alcohol and he used to beat his wife under the influence of alcohol. On 15.03.2016, at about 9 P.M., as usual the accused person assaulted his wife with a piece of wood and chased her from his house and out of fear, the wife of the accused took shelter in the neighbour's house for the night. Thereafter the accused/appellant made sexual assault upon his minor daughter who was sleeping inside the house and thereafter he committed rape on her by gagging her mouth. In the morning, the daughter of the accused went to her mother and informed the same by showing her private parts and the mother of the victim also noticed bleeding from her private parts. On the aforesaid facts, the FIR was lodged before the Officer-in-charge concerned and accordingly the Pulibar P.S. Case No.77/2016 was registered under Section 376 IPC read with Section 6 of the POCSO Act. During the course of investigation, the victim was examined by the Doctor and her statement was also recorded under Section 164 CrPC and on completion of the investigation, charge sheet was submitted against the accused/appellant, under the said Section of law. 4. The case was transmitted to the Court of Special Judge for trial and the learned Court of Special Judge, Jorhat framed the charge under Section 376 IPC read with Section 6 of the POCSO Act and the accused denied the charges. 4. The case was transmitted to the Court of Special Judge for trial and the learned Court of Special Judge, Jorhat framed the charge under Section 376 IPC read with Section 6 of the POCSO Act and the accused denied the charges. As many as 10 witnesses were examined by the prosecution in support of the case and the defence examined none. The plea of the defence is of total denial. The statement of the accused person was also recorded under Section 313 CrPC and at the conclusion of the trial, the learned Court below hold the accused guilty as aforesaid and hence the appeal. 5. Dr. B.N. Gogoi, the learned Amicus Curiae, appearing on behalf of the appellant has made a submission that the evidence of victim is inconsistent with her earlier statement given under Section 164 CrPC and that apart, her evidence is also not supported by the medical evidence. Over and above, the other evidence on record is also not clinching to suggest the complicity of the accused with the offence charged. The conduct of the victim is also stated to be another relevant factor to adjudge her credibility as because she made no any sort of hue and cry at the time of incident. Accordingly it has been submitted that in the given facts and circumstances, the benefit of all should lean in favour of the accused/appellant. 6. The learned counsel for the State respondent, Ms. S.H. Bora on the other hand however contended that merely because certain omission here and there, the testimony of the victim cannot be discarded, whereas the other facts and circumstances have fully implicated the complicity of the present accused/appellant and there is nothing to disbelieve the testimony of the victim, there being no any other reason for false implication of the accused, who is her own father. It has also been contended that even though the medical report is not specific about the sexual intercourse upon the victim but the Doctor who examined the victim has also opined that there was bleeding in her private parts. More so leaving apart, from the medical evidence also, the verbal testimony of the victim is fully corroborated by the other evidence on record and the accused/appellant failed to rebut the statutory presumption under Section 29 of the POCSO Act. More so leaving apart, from the medical evidence also, the verbal testimony of the victim is fully corroborated by the other evidence on record and the accused/appellant failed to rebut the statutory presumption under Section 29 of the POCSO Act. The evidence of other witnesses also do not suffer from any sort of infirmity so as to disbelieve their statement and accordingly it has been contended that there is nothing to interfere with the impugned judgment and order rendered by the learned trial Court. 7. Now in the given case, there is no dispute that the victim is minor at the time of occurrence and the accused being the father of the victim has also failed to nullify the allegation or any other ground as to why such a wild allegation has been cropped up against him, devoid of reason. 8. The evidence on record surfaced that the accused has the habit of consume alcohol and assault his wife quite oftenly, which has given background. If we examine the testimony of the victim girl (PW.1), coupled with the evidence of PW.2 (mother of the victim), it would go to show that there is consistency in their evidence. It is stated by both the witnesses in their evidence that on the day of incident, the accused/appellant returned home after consuming alcohol and as the accused assaulted the PW.2/wife with a catapult and out of fear, she ran out of the house leaving apart the PW.1 and her son inside the house. The story further reveals that while the PW.1 was sleeping on her bed, then the accused went inside her room and touched her private parts and as she wanted to shout, the accused gagged her mouth with his hands and committed sexual intercourse upon her. She was also threatened by the accused to assault if she made hue and cry. Even the accused directed her not to speak about the incident to her mother. Obviously the said incident occurred in the late hours of night and her mother was forced to leave her house after 9 P.M. and the incident happened thereafter. 9. The victim/PW.1 in her statement stated that she was about 11 years old at the time of occurrence. Obviously the said incident occurred in the late hours of night and her mother was forced to leave her house after 9 P.M. and the incident happened thereafter. 9. The victim/PW.1 in her statement stated that she was about 11 years old at the time of occurrence. So it was natural on the part of such a child to get afraid of such unexpected and tortuous act of her own father and it can be inferred that as she was under the shock and surprise, she may not be able to resist an able bodied person by her little effort. So in the given circumstances, non-giving of resistance on the part of the victim is of no consequences. The victim has given a consistent statement during the course of trial as well as investigation under Section 164 CrPC and there appears no material omission. 10. On examination of other witnesses it reflects that the evidence of PW.4 is crucial in the sense that on the next date of occurrence, while the mother of the victim/PW.2 was working in their house, the victim girl/PW.1 came to their house and narrated the whole story about the rape committed upon PW.1 by her father. The victim was found to be frightened and crying while stating the incident. Similarly the other witnesses i.e. PW.5 and PW.6 also supported the case of the informant that on the next day of occurrence, the PW.2/informant informed them that the accused has committed rape upon his own daughter/PW.1. Such a conduct of the informant and the victim who immediately reported the matter to their neighbours, is found to be natural leaving no any scope for false implication of the accused. Even otherwise also, by no stress of imagination it can be hold that such a minor daughter of the accused/appellant will come up with a concocted story against her own father. In the natural parlance, the relation between the daughter and father is so divine and of purity that there cannot be any other version of having grudge by a minor daughter against her father. 11. We are aware that the present case is unlike any other criminal cases where we have to adjudge the credibility of a victim by seeking corroboration of other circumstances, where there occasioned no reason for false implication of her own father. 12. 11. We are aware that the present case is unlike any other criminal cases where we have to adjudge the credibility of a victim by seeking corroboration of other circumstances, where there occasioned no reason for false implication of her own father. 12. On the next, the PW.2 in her statement has categorically stated about the incident that on the day of incident, as the accused returned home by consuming alcohol and chased her with a view to assault, she fled away from the house leaving behind her husband/accused appellant and her daughter (PW.2) and her minor son and she went to the house of one neighbor, where she worked. On the next day morning, her daughter arrived in the house where she worked and inform the incident. Then she immediately went to the Police Station along with the victim daughter. Her evidence sufficiently corroborated by the testimony of PW.4, where the PW.2 used to work that on the next day of occurrence, the victim came to their house and disclosed all about the incident. 13. Pw.7 narrated the incident that the PW.2 while working in their house one day, the accused tried to drag away the PW.2 from their house. They restrained the accused not to beat PW.2 and the public also gathered there. Although she was declared hostile by the prosecution, but still her evidence indicate the blameworthy conduct of the accused towards the informant for which perhaps she was compelled to leave the house on the date of incident leaving alone her minor daughter inside the house with the minor son. 14. All the above circumstances indicated that the victim was alone in her house while the accused under the influence of alcohol has committed rape upon his won daughter. No any major omission and contradiction etc. brought forward from the evidence of those witnesses, save and except the PW.7, who was declared hostile in the case. 15. The officer who recorded the statement of the victim i.e. PW.8 has also proved the statement made by the victim under Section 164 CrPC, which is akin to the statement given during the course of trial. PW.3, the scribe of FIR has stated that he found the informant and the victim at the Pulibar Police Station and as told by them, he wrote the FIR (Ext.2) and put his signature. 16. PW.3, the scribe of FIR has stated that he found the informant and the victim at the Pulibar Police Station and as told by them, he wrote the FIR (Ext.2) and put his signature. 16. Now so far the evidence of Medical Officer (PW.9) is concerned, although he has examined the victim but he has not specifically give any opinion regarding sexual intercourse upon the victim. He has simply opined that : (1) Her age is about 14 years below 16 years; (2) evidence of recent sexual intercourse is not detected on her person and (3) there is no injury detected on her person at the time of examination but in her cross-examination she has stated that fresh blood was oozing out of vagina but the said injury was not mentioned in his report. 17. On careful scrutiny of evidence of Medical Officer, it goes to show that his opinion runs counter to his own findings, because in his report on genital examination he has disclosed that there was swollen, redness present with tenderness on touch on the valve. Further hymen was ruptured at 6 o' lock position, margin of the tear red with oozing of blood and there was tenderness at vagina and cervix. Despite such finding, in the report itself the medical officer has given opinion that no any sexual intercourse upon the victim is not at all proper. It appears that the medical officer has given her opinion mechanically without proper appreciation, which was her bounded duty. The overall examination of such medical report obviously indicates some sort of injuries on her private parts as discussed above which is apparently indicative of sexual assault upon the victim girl. Thus it can be held that such medical evidence is supportive of verbal testimony of the victim girl. 18. The evidence of the I.O. is formal in nature who has stated about the usual course of investigation conducted by him including sending of victim for medical examination, for recording her statement, preparation of trace map and filing of charge sheet, etc. etc. 18. The evidence of the I.O. is formal in nature who has stated about the usual course of investigation conducted by him including sending of victim for medical examination, for recording her statement, preparation of trace map and filing of charge sheet, etc. etc. He moreover proved the statement of PW.7, who was declared hostile by the prosecution that the said witness stated before him that the accused/appellant came to her house while the PW.2 was working in her house and started beating up her and nearby people restrained him and after sometime, the PW.1 also came to her house wiping and tell something to her mother i.e. about the incident that has happened. 19. Thus the evidence on record is found consistent with the version of the informant as well as the victim that on the day of incident, the accused taking advantage of absence of her mother, after taking alcohol committed sexual assault upon his daughter. Nothing emerges to disbelieve the story depicted by the informant as well as the victim towards false implication of the accused as such. It is to be noted that the accused persons in his statement under Section 313 CrPC, except some denial has not disclosed anything to rebut the case of the prosecution or stated nothing towards his false implication by his daughter and his wife. 20. As has been discussed by the Trial Court, that false explanation or no explanation by the accused, provides the missing link, if any, in the prosecution case, as has been held in (State of Maharashtra vs. Suresh, (2001) 1 SCC 471). 21. Although the statement of the accused cannot be the basis to form the conviction of an accused but still having regard to the relation of the victim and the accused person, in the given circumstances, the accused is under obligation to explain the circumstances but he refrain himself from disclosing the same and simply stated that the case has been filed out of grudge, which is not a plausible answer. 22. We are aware that Section 29 of the POCSO Act created some presumption which reads as follows:- 29. 22. We are aware that Section 29 of the POCSO Act created some presumption which reads as follows:- 29. Presumption as to certain offences.- Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3,5,7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved. 23. Further Section 30 of the POCSO Act also provides presumption of culpable mental state, which provides as follows:- 30. Presumption of culpable mental state.- 1. In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. 2. For the purposes of this section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability. 24. In the instant case, as it reflects, the presumption of culpable mental state of the accused is discernable and he also failed to rebut the presumption under Sections 29/30 of the POCSO Act. That being so and there being no any discrepancy/infirmity in the prosecution case, to disregard the testimony of the victim which inspires the confidence in the mind of the Court, there is no other conclusion than the accused in the perpetrator of the crime. 25. The learned Trial Court relying on the decision of the Apex Court reported in Datta Ramrao Sakhare vs. State of Maharashtra reported in, (1997) 5 SCC 341 , it has been held that conviction can be rest on the basis of the evidence of child witness, if her evidence found to be credible in the given circumstances of the case. It appears that having regard to all the oral evidence as well as the legal presumption that has been referred above, the learned Trial Court has rightly come to a finding about the guilty of the accused, as has been stated above. It appears that having regard to all the oral evidence as well as the legal presumption that has been referred above, the learned Trial Court has rightly come to a finding about the guilty of the accused, as has been stated above. There is no denial that the accused is the father of the victim and in that sense, the offence will come within the purview of aggravated penetrative sexual assault, liable to be punished under Section 6 of the POCSO Act. The learned Trial Court has also imposed the statutory punishment upon the accused/appellant, which call for no any interference. Appreciation of evidence by the Trial Court is on proper perspective. 26. In the result, the appeal stands dismissed and the accused will undergo the sentence that has been imposed by the Trial Court. However compensation can only be utilized by the mother/informant and father being the accused, cannot be permitted to utilize the same. Matter of compensation is modified accordingly. 27. This Court appreciate the assistance rendered by Dr. B.N. Gogoi, the learned Amicus Curiae while conducting the case and the High Court Legal Services Authority is hereby directed to provide him a sum of Rs.7,000/- (Rupees seven thousands) only as remuneration. 28. Return back the LCR along with a copy of this order.