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2018 DIGILAW 181 (GAU)

HANIF ALI v. STATE OF ASSAM

2018-01-31

HITESH KUMAR SARMA

body2018
JUDGMENT & ORDER : 1. This appeal, under Section 374 (2) of the Cr.P.C., is preferred against the judgment and order, dated 17-09-2016, passed by learned Special Judge-cum-Sessions Judge, Darrang, Mangaldai, in Sessions Case No. 81 (DM) of 2014, convicting the accused-appellant, under Section 8 of the Protection of Women from Sexual Offence Act, (in short, POCSO Act) and sentencing him to rigorous imprisonment for 4 years and to pay a fine of Rs.15000/-, in default, rigorous imprisonment for 3 months. The accused-appellant was also sentenced to suffer rigorous imprisonment for 2 years and to pay a fine of Rs. 10,000/-, in default, rigorous imprisonment for 3 months, for the offence under Section 354 of the IPC. The sentences were directed to run concurrently. 2. I have perused the appeal memo, the impugned judgment and order as well as the record of the learned trial Court including the evidence of the witnesses for both sides. 3. I have heard Mr. W Rahman, learned counsel appearing on behalf of accused-appellant and Mr. B Sarma, learned Additional Public Prosecutor, Assam. 4. The prosecution case, in brief, is that the victim was sexually assaulted by the accused- appellant in his house and to that effect, an FIR, marked as Ext.1, was lodged by Sarafat Ali, paternal uncle of the victim with the Daipam Police Outpost under Dalgaon Police Station. 5. On receipt of the FIR, Daipam Police Outpost forwarded the same to Dalgaon Police Station for registration of a case. Accordingly, Dalgaon Police Station registered a case, being No. 23/2014, under Sections 366 (A)/354 (A) of the IPC, investigated into it, collected evidence, arrested the accused and, finally, submitted the charge-sheet against the accused- appellant for commission of offences, under Section 376 (2) (g) of the IPC and under Sections 6/7 of the POCSO Act. 6. During the course of investigation, police got the statement of the victim recorded under Section 164 Cr.P.C. and also she was examined by a doctor in the hospital. 7. After exhausting all the required formalities, the learned trial Court of Special Judge, under the POCSO Act, Darrang, Mangaldoi framed a formal charge against the accused- appellant, under Section 7 of the POCSO Act as well as under Section 376 (2) (g) of the IPC, to which the accused-appellant pleaded innocence. 8. 7. After exhausting all the required formalities, the learned trial Court of Special Judge, under the POCSO Act, Darrang, Mangaldoi framed a formal charge against the accused- appellant, under Section 7 of the POCSO Act as well as under Section 376 (2) (g) of the IPC, to which the accused-appellant pleaded innocence. 8. In this case, to bring home the accusation against the accused-appellant, the prosecution examined as many as 8 witnesses including the Medical Officer and the Investigating Police Officer, who were subjected to cross-examination by the defence. The defence examined 3 witnesses. After closure of the prosecution evidence, statement of the accused-appellant was recorded under Section 313 Cr.P.C. In his statement, the accused- appellant is heard denying the allegations levelled against him. 9. On completion of the trial, the accused-appellant was convicted and sentenced by the learned Special Judge-cum-Sessions Judge, Darrang, Mangaldai, as indicated above. 10. On perusal of the entire evidence on record, it is more than clear that there was no eye witness to the occurrence. Therefore, this Court needs to start with the evidence of the victim. 11. The victim, examined as PW2, has stated that she is aged about 10 years. She is heard saying in her evidence that her parents were out at Karnataka for livelihood and she was staying in her house with her uncle. The accused-appellant called her to his house where she stayed for 3/4 days and on 18-01-2014, while she was sleeping, the accused-appellant put off her panty and assaulted her sexually. From her evidence, it also appears that the accused- appellant discharged semen, which fall on her person. At this point of time, she got awakened and then the accused-appellant left the bed. In the next morning, the accused-appellant gave an amount of Rs. 20/- to the victim and sent her to her house. The victim was thoroughly cross-examined by the defence, but failed the discredit any of her statement made in the examination-in-chief; rather, in her cross-examination, she has exposed the devil mind of the accused-appellant while she stated that the accused-appellant took her to his house on the pretext that she would also be sent to Karnataka to her parents. Such assertion made by the victim, in her cross-examination, make it appear that the accused-appellant intended to commit the aforesaid offence; otherwise, he would not have brought her to his house on false pretext. Such assertion made by the victim, in her cross-examination, make it appear that the accused-appellant intended to commit the aforesaid offence; otherwise, he would not have brought her to his house on false pretext. But this Court believes the evidence of the victim, in her examination-in-chief, which remains unassailed during cross-examination. 12. The evidence of PW1, who is the informant in the case, is that he is the uncle of the victim (PW2) . He deposed that as the accused-appellant Hanif Ali assured that he would take the victim to Karnataka to her parents, the victim was sent to the house of the accused- appellant. But it appears from his evidence that his such faith was betrayed by the accused- appellant by committing sexual assault on her person while staying in his house. 13. The evidence of PW1 and PW2, read together, makes it appear that the accused- appellant was alone in his house on the date of occurrence with the victim. 14. As stated above, there was no eye witness to the occurrence. The victim has adduced implicating evidence against the accused-appellant and the circumstances leading to her stay in the house of the accused-appellant, which has also been narrated by the PW1/informant in his evidence, remains unassailed. 15. PW3 has no knowledge about the occurrence. Therefore, her evidence is not relevant for the purpose of decision of this case. 16. The evidence of PW4 is that he only heard about the occurrence as well as the fact that for the purpose of settlement of the matter, the victims family demanded an amount of Rs. 60,000/- from the accused-appellant to which the accused-appellant expressed his inability. 17. PW5 is the doctor, who examined the victim on 20-01-2014 at Mangaldai Civil Hospital. No injury was found in the private parts of the victim. On such examination, no comment could be given on the alleged sexual intercourse by this witness. 18. PW6 is the Investigating Police Officer, who conducted a part of investigation only, and finally, submitted charge-sheet. His evidence is of routine nature. 19. PW7 is another Investigating Police Officer, who investigated the case. He visited the place of occurrence, prepared sketch map, got the statement of the victim recorded by learned Judicial Magistrate at Mangaldai under Section 164 of the Cr.P.C. and also got the victim examined by doctor. He also arrested the accused-appellant during investigation of the case. 19. PW7 is another Investigating Police Officer, who investigated the case. He visited the place of occurrence, prepared sketch map, got the statement of the victim recorded by learned Judicial Magistrate at Mangaldai under Section 164 of the Cr.P.C. and also got the victim examined by doctor. He also arrested the accused-appellant during investigation of the case. The charge-sheet was laid by PW6 in this case after completion of investigation. 20. PW8 is learned Additional Chief Judicial Magistrate, who recorded the statement of the victim under Section 164 of the Cr.P.C. She has certified in her evidence, that the victim could understand the test questions put by her; therefore, she recorded the statement under Section 164 of the Cr.P.C. marked as Ext. 4. She has not been cross-examined on material part of the implicating evidence. 21. It appears from the evidence of victim, supported by the evidence of PW4, to the effect that for settlement of the issue between the accused-appellant and the victims family, an amount of Rs. 60,000/- was demanded, which the accused-appellant refused to pay, meaning thereby, that the occurrence took place is admitted and the fact that it was not settled for demand of higher amount of money. 22. The learned counsel for the accused-appellant submitted that there is political enmity between the parties as the father of the victim is a Congressman and the accused-appellant belongs to a political party under the name and style of All India United Democratic Front (AIUDF) and he has also referred to the evidence of DW3, the accused-appellant himself. 23. On perusal of the evidence of DW3, it appears that he had raised this issue of enmity and cause thereof is said to be that as some of the Congressman joined the AIUDF on a particular day, the father of the victim threatened him that he would see him. But, such evidence of DW3/appellant himself is negated by his own witness. DW1 and DW2, taken together, leaves this Court with no doubt that the accused-appellant wanted to settle the matter with the family of the victim although it could not be materialised due to demand of higher amount of money from the accused-appellant by the family of the victim which speaks volumes of the fact that there took place the occurrence, as alleged, which was sought to be settled on payment of some money. Therefore, the evidence of victim, examined as PW2, implicating the accused person very specifically with the commission of offence of sexual assault on her person is credit worthy. The evidence of defence failed to discredit her evidence. The evidence of the defence witnesses being crippled by DW1 and DW2, the defence is found to have raised so brittle a story that it failed to withstand not only the test of credibility but also failed to impress upon this Court to disbelieve the evidence of the prosecution, particularly, the evidence of victim (PW2) . The Honble 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: "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." 24. The victim, a 10 years old girl, very succinctly disclosed the facts leading to the occurrence and the conduct of the accused-appellant in sexually assaulting her by putting off her panty thereby attracting an offence as defined under Section 7 of the POCSO Act, punishable under Section 8 thereof. Therefore, the conviction recorded by the learned trial Court for commission of offence punishable under Section 8 of the POCSO Act needs no interference. The accused-appellant is also convicted under Section 354 of the IPC. 25. I have visited the provision of Section 42 of the POCSO Act, which provides as follows: Alternate punishment. "42. Where an act or omission constitutes an offence punishable under this Act and also under sections 166A, 354A, 354B, 354C, 3540, 370, 370A, 375, 376, 376A, 376C, 3760, 376E or section 509 of the Indian Penal Code, 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 or under the Indian Penal Code as provides for punishment which is greater in degree. ACI not in derogation of any other law. 42A. The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force and, in case of any inconsistency, the provisions of this Act shall have overriding effect on the provisions of any such law to the extent of the inconsistency.". 26. The provisions of Section 42 of the POCSO being as above, the learned trial Court could have punish the accused-appellant under one of the provisions only in which the punishment is greater than the other. 27. 26. The provisions of Section 42 of the POCSO being as above, the learned trial Court could have punish the accused-appellant under one of the provisions only in which the punishment is greater than the other. 27. In the instant case, the punishment for an offence under Section 8 of the POCSO is greater than the one under Section 354 of the IPC; therefore, the accused-appellant could not have been punished under Section 354 of the IPC. 28. Accordingly, the conviction under Section 354 of the IPC is set aside and the conviction under Section 8 of the POCSO Act remains uninterferred with. 29. So far as the punishment under Section 8 of the POCSO Act is concerned, the said provisions provides for punishment, which shall not be less than 3 years, and may extend to 8 years and also fine. 30. The learned trial Court sentenced the accused-appellant to undergo rigorous imprisonment for 4 years and to pay a fine of Rs. 15,000/- and in default to undergo rigorous imprisonment for further period of 3 months. Considering the facts and circumstances of the case, in the considered view of this Court, the substantive punishment of imprisonment for 3 years instead of 4 years and fine of Rs. 10,000/- instead of Rs. 15,000/- and in default, rigorous imprisonment for another period of 2 months would have been sufficient to meet the ends of justice. Accordingly, the sentence imposed upon the accused-appellant under Section 8 of the POCSO Act is modified to the aforesaid extent and he is sentenced to rigorous imprisonment for 3 years and pay fine of Rs. 10,000/-, in default, rigorous imprisonment for further period of 2 months. 31. Accordingly, the appeal is partly allowed. 32. Send down the LCR along with a copy of this judgment and order.