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2018 DIGILAW 372 (GAU)

Aktar Mohammed v. State of Assam

2018-02-28

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 10-10-2017, passed by the learned Sessions Judge-cum-Special Judge, Dibrugarh, in Sessions Case No. 51 of 2016, convicting the accused-appellant, under Section 12 of the Protection of Children from Sexual Offence Act, (in short, POCSO Act) and sentencing him to undergo rigorous imprisonment for 1 year and to pay a fine of Rs.500/-, in default, rigorous imprisonment for 2 months. The accused-appellant was also sentenced to suffer rigorous imprisonment for 1 year and to pay a fine of Rs.500/-, in default, rigorous imprisonment for 2 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. 3. I have heard Mr. S Chauhan, learned counsel, appearing on behalf of accused-appellant and Mr. BJ Dutta, learned Additional Public Prosecutor, Assam. 4. The prosecution case, in brief, is that on 14-07-2016, at about 12.00 noon, the victim X, who was about 8 years of age on the date of occurrence, went to scrap yard belonging to one Pharid to sell one empty tin can, which earlier contained mustard oil. At that time, the accused-appellant, Aktar Mahammed, pulled the victim towards the room in the scrap yard with malafide intention and drove away the minor friends of the victim, who accompanied her to the scrap yard at that time. The victim X returned home and informed her mother that the accused removed her panty and attempted to commit rape on her, but when he failed in his attempt, he urinated on her. 5. The victims mother immediately informed her neighbhours about the incident and they advised her to inform the police. On their advice, she lodged an FIR with the police at Borbari Outpost and the FIR was forwarded to the Dibrugarh Police station, which registered a call, being Dibrugarh Police Station Case No. 543/16, under Section 354-A of the IPC, read with Section 8 of the POCSO Act. 6. After completion of investigation, the police laid charge sheet against the accused-appellant under Section 354 of the IPC, read with Section 8 of the POCSO Act. 7. 6. After completion of investigation, the police laid charge sheet against the accused-appellant under Section 354 of the IPC, read with Section 8 of the POCSO Act. 7. After exhausting all the required legal formalities, the learned trial Court of Special Judge, under the POCSO Act, Dibrugarh framed a formal charge against the accused-appellant, under Section 8 of the POCSO Act as well as under Section 354 of the IPC, to which the accused-appellant pleaded innocence. Therefore, the trial commenced. 8. In this case, to bring home the accusation against the accused-appellant, the prosecution examined as many as 9 witnesses. The defence examined none. 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 conclusion of the trial, the accused-appellant was convicted and sentenced by the learned Special Judge-cum-Sessions Judge, Dibrugarh, 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, the evidence of the victim appears to be most important and this Court decided to start with the evidence of the victim. 11. The victim, examined as PW1, deposed that she, along with 5 other girls, went to the nearby place to sell the scrap materials from their house and the person, who was staying in the place, chased away the other girls accompanying her stating that he will hurl mud upon them, and so saying, he took the victim inside a room and made her lie atop a gunny bag filled with bottles. He removed her panty and urinated on her. Then the victim began to cry and she stated that she will inform about the incident to her father and then the accused let her go. She returned to her house and informed her Bor Baba (elder brother of her father) about the incident. After a while, her mother returned to her house and she informed her mother about the incident. On the same day, her mother took her to the police station and she narrated the incident to the police. She was also taken to Assam Medical College & Hospital, Dibrugarh for medical examination. She was forwarded to the Magistrate for recording her statement. Ext. 1 is her statement, under Section 164 of the Cr.P.C. and Ext. On the same day, her mother took her to the police station and she narrated the incident to the police. She was also taken to Assam Medical College & Hospital, Dibrugarh for medical examination. She was forwarded to the Magistrate for recording her statement. Ext. 1 is her statement, under Section 164 of the Cr.P.C. and Ext. 1 (1) to Ext. 1 (3) are her signatures. 12. In her cross-examination, she stated that the other girls who accompanied her were Jesmin, Khushi, Shehnaz and Jeshi. She admitted that the accused lodged a case against her parents regarding theft of scrap materials. She denied the suggestion of the defence regarding her omission to mention before the police and the Magistrate that the accused pulled down her panty and urinated upon her. She denied the suggestion that her mother foisted this case against the accused, because the accused lodged a case against her parents. The remaining part of her cross-examination is denial of suggestions by the defence. 13. PW6, Jesmin Khatoon, who accompanied the victim to the place of occurrence, corroborates such evidence of the PW1, Victim to the effect that she also went to the place of occurrence along with the victim, wherefrom they came back being chased away by the accused-appellant. It has also come out from her evidence that she also went to the scrap yard to sell the tin again. This witness also deposed that she, along with the victim, Jesmin (PW6) and Khushi were accosted by the accused-appellant to go away stating that he would send some money through X. The accused-appellant, then, told X to fetch something from inside and then the accused-appellant took her inside and PW6 and Khushi went to the nearby shop. After some time, while they were in the nearby shop, X informed them that the accused urinated on her frock. X informed the PW6 that when she asked the accused-appellant to release her, he urinated on her frock. The accused did not allow X to come out, but he allowed her to come out when she stated before him that her father will assault her. 14. Khushi Gowalla, examined as PW7, is named by PW2 in her evidence to be with her at the time of occurrence. The accused did not allow X to come out, but he allowed her to come out when she stated before him that her father will assault her. 14. Khushi Gowalla, examined as PW7, is named by PW2 in her evidence to be with her at the time of occurrence. PW7 also corroborated the evidence of PW1 and PW6 on the core issue that the victim was taken inside the room by the accused-appellant after chasing them away. 15. PW1, PW6 and PW7 are the child witnesses, below 10 years of age; therefore, their evidence was recorded without administering oath. The evidence of PW1, PW2 and PW6 could not be contradicted during cross-examination by the defence on facts. The evidence of the victim/PW1, PW6 and PW7 make it clearly appear, beyond doubt, that the accused-appellant had sexually harassed her, as disclosed in her evidence, and which remained unassailed even during cross-examination. 16. Sexual harassment has been defined under Section 11 (ii) of the POCSO Act as a person is said to commit sexual harassment upon a child when such person with sexual intent makes a child exhibit his body or any part of his body so as it is seen by such person or any other parson. 17. In the instant case, the panty of the victim was removed thereby making her private parts exhibited; therefore, the offence, in the instant case, is covered by the definition of Section 11 (ii) of the POCSO Act, punishable under Section 12 thereof. The punishment prescribed under Section 12 of the said Act is of either description for a term which may extend to three years and shall also be liable to fine. 18. Now, Section 354 of the IPC provides that whoever assaults and uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years and shall also be liable to fine. 19. The offence alleged to have been committed by the accused-appellant is also covered by the provision of Section 354 IPC. That being so, this Court needs to decide under which of the statutes, the accused-appellant is to be punished. 20. 19. The offence alleged to have been committed by the accused-appellant is also covered by the provision of Section 354 IPC. That being so, this Court needs to decide under which of the statutes, the accused-appellant is to be punished. 20. 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." 21. Section 42 of the POCSO Act provides for alternate punishment where an act or omission constitutes an offence punishable under this Act as well as under the Indian Penal Code, particularly, under the provisions of the IPC mentioned in the said section. 22. The learned trial Court convicted the accused-appellant under both the statutes, i.e., under Section 12 of the POCSO Act and under Section 354 of the IPC, but, in view of the provisions of Section 42 of the POCSO Act, punishment under one of the statutes is only permissible. 23. The provisions of Section 42 of the POCSO being as above, the learned trial Court could have punished the accused-appellant under one of the statutes under which the punishment is greater. 24. 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. 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. 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 here-in-above." 25. There is nothing in the record that the evidence of victim/PW1 is unworthy of reliance; rather, her evidence coupled with the evidence of PW6 and PW7 is inspiring confidence of this Court, and thus, the decision referred to above is applicable in the instant case. Therefore, the order recording conviction by the learned trial Court requires no interference under the provisions of one of the statutes. Therefore, the order recording conviction by the learned trial Court requires no interference under the provisions of one of the statutes. However, so far as the sentence is concerned, this Court is of the view that the offence, under which the accused-appellant is held guilty, is covered by Section 11 of the POCSO Act, punishment of which is prescribed under Section 12 of the said Act. 26. The learned trial Court has convicted the accused-appellant to undergo rigorous imprisonment for 1 year and to pay a fine of Rs.500/-, in default, rigorous imprisonment for 2 months. The accused-appellant was also sentenced to suffer rigorous imprisonment for 1 year and to pay a fine of Rs.500/-, in default, rigorous imprisonment for 2 months, for the offence under Section 354 of the IPC. Therefore, in view of the provisions of Section 42 of the POCSO Act, the order recording conviction and sentencing the accused-appellant under Section 354 of the IPC is set aside retaining the punishment imposed upon the accused-appellant, under Section 12 of the POCSO Act. It deserves a mention here that Section 354 of the IPC is not mentioned in Section 42 of the POCSO Act. 27. Considering the manner in which the offence was committed by the accused-appellant, in the considered view of this Court, he does not deserve any leniency; therefore, no interference in respect of the conviction and the sentence, under Section 12 of the POCSO Act, is called for. 28. Accordingly, the judgment of the learned trial Court is upheld in respect of punishment imposed upon the accused-appellant under Section 12 of the POCSO Act is concerned while setting aside the order of conviction recorded under Section 354 of the IPC. 29. Accordingly, the appeal is dismissed. 30. The accused-appellant is directed to surrender before the learned trial Court to serve out the sentence, within one month from today. 31. Send down the LCR along with a copy of this judgment and order.