Research › Search › Judgment

Gauhati High Court · body

2018 DIGILAW 827 (GAU)

LILA DUWARAH @ UMA v. STATE OF ASSAM

2018-05-18

HITESH KUMAR SARMA

body2018
JUDGMENT AND ORDER : 1. This is an appeal, preferred from jail, by the accused-appellant, against the judgment and order, dated 10.8.2017, passed by the learned Special Judge, Jorhat, in Special Case No. 7/2015, convicting and sentencing the accused-appellant, under Section 376 of the IPC, to rigorous imprisonment for 10 years and to pay a fine of Rs. 10,000/- and, in default of payment of fine, to suffer rigorous imprisonment for 6 months. 2. The case arose out of an FIR, dated 7.4.2017, marked Ext. 1, lodged by the PW2, Ajit Nayak, alleging therein that the accused-appellant committed rape on her daughter causing pregnancy to her. There was a "village meeting" where the accused-appellant was present and was asked to take the victim with him which he did not do. On being advised by the villagers, the FIR was lodged by the informant, aforesaid. The accused-appellant was apprehended by the villagers and handed over to the police. 3. On receipt of the FIR, Teok Police Station registered a case, being No. 80/2013, under Section 376 of the IPC read with Section 8 of the Protection of Children from Sexual Offences Act (hereinafter referred to as POCSO Act). 4. The investigating police officer carried out the investigation, collected evidence, got the statement of the victim recorded under Section 164 of the Cr.PC, and also got her examined by a doctor, and after completion of the investigation, laid the charge-sheet under Section 376 of the IPC read with Section 8 of the POCSO Act. 5. On receipt of the case by the learned Sessions Judge, on being committed, in due course, and on appearance of the accused-appellant, a formal charge against the accused-appellant was framed under Section 376/511 of the IPC as well as under Section 8 of the POCSO Act. 6. In this case, the prosecution examined as many as 6 (six) witnesses including the Investigating Police Officer and the Medical Officer. 7. After completion of trial, the judgment appealed against, was pronounced, convicting and sentencing the accused-appellant, as indicated above. 8. I have heard Mr. B. Prasad, learned Amicus-curiae for the accused-appellant as well as Mr. B.J. Dutta, learned Additional Public Prosecutor for the state respondent. 9. I have also perused the record of the learned trial court including the evidence available therein. 10. 8. I have heard Mr. B. Prasad, learned Amicus-curiae for the accused-appellant as well as Mr. B.J. Dutta, learned Additional Public Prosecutor for the state respondent. 9. I have also perused the record of the learned trial court including the evidence available therein. 10. Before this court proceeds to take up the case on merit, on the basis of the evidence on record, let us look into the provisions of Penal law, which would be applicable in the instant case. 11. The charge, in this case was framed under Section 8 of the POCSO Act also. The learned trial court of Special Judge, Jorhat, in paragraph-16 of the judgment, held the victim to be a minor on the basis of the evidence of the Medical Officer. I have perused the evidence of the Medical Officer. It is evident from the record that to establish the age of the victim, there is no evidence led by the prosecution except that of the Medical Officer, examined as PW5. The learned trial court also indicated in the aforesaid paragraph that neither any birth-certificate nor any school certificate has been available to ascertain the age of the victim and that the prosecution also relied upon the Ext.2, which is the medical examination report of the victim. In the medical report, Ext.2, the victim is stated to be above 16 years and below 18 years of age. It is a settled proposition of law that the age determined by ossification test or radiological test, can be 2 years plus minus. In the instant case, Ext.2 makes it clearly appear, that the victim was, at the relevant point of time, aged between 16 to 18 years, and if, 2 years added with 18 years, then it can be unhesitatingly held that the victim was a major at the relevant time of occurrence, and therefore, provisions of POCSO Act is not applicable in the instant case. 12. Therefore, the court is to look into the evidence to find out whether any offence under Section 376 of the IPC has been committed or not, and to arrive at a decision on this point let us look into the evidence of the victim first, who is evidently an intellectually disabled person. 13. 12. Therefore, the court is to look into the evidence to find out whether any offence under Section 376 of the IPC has been committed or not, and to arrive at a decision on this point let us look into the evidence of the victim first, who is evidently an intellectually disabled person. 13. The evidence of the victim, examined as PW1, shows that while her parents were not present in the house and she was alone the accused-appellant went to their house at about 12 noon and committed rape on her in spite of resistance by her. She disclosed such fact to her parents only when her menstrual cycle stopped and she carried pregnancy. During her evidence, before the court, on oath, she identified the accused-appellant in the dock. In her cross-examination, defence could not dislodge her evidence to the effect that it was the accused-appellant who had committed rape on her person. The defence had put some suggestions to the victim/PW1 including one that she was pregnant through some other person and not through the accused-appellant. In the face of the assertive evidence of PW1 and in the absence of any evidence to indicate such assertion, only on the basis of suggestions made by the defence, version of the PW1 cannot be said to be untrue. 14. PW2 is the father of the victim as well as the informant of the case. He lodged the FIR, as indicated above. The FIR was lodged after about 4/5 months of the alleged date of occurrence. It has come out from the evidence of PW1/victim that she had given birth to a child, who subsequently died. PW2 also subscribed to her evidence to the effect that the child born out of her womb subsequently died. The evidence of PW2 also makes it appear that there was a village meeting held in respect of the occurrence wherein the accused-appellant was brought and who was asked as to whether he had committed the offence of rape on the person of the victim, to which he kept mum keeping his head down. The villagers handed over the accused-appellant to the police. 15. The villagers handed over the accused-appellant to the police. 15. The PW3 is the Secretary of the Village Defence Party who deposed that he was present in the meeting and has subscribed to the evidence of PW2, particularly in respect of the village meeting where he was present as well as in respect of handing over the accused-appellant to the police. 16. PW4 is the village headman who is heard saying in his evidence that he heard about holding of the village meeting although he was not present there. 17. PW5 is the doctor who examined the victim. Ext.2 is her report. According to the report/Ext.2, (i) The age of the victim was above 16 years and below18 years. (ii) No evidence of violence was detected on the body of the victim at the time of medical examination. (iii) She is pregnant of about 18 weeks. (iv) No evidence of recent sexual intercourse detected on her body as per pathology report. (v) Clinically her hymen was found ruptured. 18. In respect of the findings recorded by the doctor/PW5, there is no cross-examination except as to the fact of the age which was stated to be approximate. 19. PW/6 is the investigating police officer of the case, who deposed that along with the FIR the accused-appellant was handed over to him. There is no such contradiction brought out in his evidence by the defence to negate the prosecution version as brought in by the victim/PW1. In respect of the statements of the witnesses he recorded, no contradiction with the previous statements could be elicited. So, it appears from the above evidence that, admittedly, there is no eyewitness. PW2 is the father of the victim and he spoke about the causing of pregnancy of the victim by the accused-appellant as well as regarding lodging of the FIR by him, etc. The evidence of PW1 and PW2, so far carrying pregnancy by the PW1 and giving birth of a child, who subsequently died, are very much consistent. PW2 is the father of the victim and he spoke about the causing of pregnancy of the victim by the accused-appellant as well as regarding lodging of the FIR by him, etc. The evidence of PW1 and PW2, so far carrying pregnancy by the PW1 and giving birth of a child, who subsequently died, are very much consistent. That the accused-appellant was taken to the meeting, he was asked as to whether he committed rape on the victim or not, are all facts which has not been proved in view of the fact that the village headman did not attend the meeting, PW3 who attended the meeting did not see the victim there and no other statement is made by him to implicate the accused-appellant. Same is the evidence of PW2 in respect of the village meeting. So, the alleged village meeting, even if it had taken place, it does not appear to have any bearing on the facts of the case. That apart, whatever was asked or stated in the meeting, are all extra-judicial statements, and without strong corroboration, the same cannot be relied upon by this court. 20. During the course of hearing, learned Amicus-curiae, has referred to the evidence of PW1/victim and submitted that, once the victim said that the occurrence took place in her house, and in the same breath she deposed that the occurrence took place in a nearby jungle. In the considered view of this court, this is a discrepancy and not a contradiction. Unless there is serious contradiction to raise doubt about the veracity of the prosecution version, it cannot be disbelieved on mere discrepancy. It has come out from the evidence that the victim is an intellectually disabled person, but the lower court record shows that she was tested before examination, on oath, and found to be competent to depose at the relevant point of time. On the other hand, there is no record, even to indicate distantly, as to what for the victim would lie to rope the accused-appellant for the commission of the alleged offence of rape on her person. It is a fact that there is delay of 4/5 months in lodging the FIR. The evidence of the victim/PW1 also shows that she had disclosed the fact of the commission of rape on her person, only when her menstrual cycle stopped. It is a fact that there is delay of 4/5 months in lodging the FIR. The evidence of the victim/PW1 also shows that she had disclosed the fact of the commission of rape on her person, only when her menstrual cycle stopped. The FIR was lodged by the father of the victim/PW2. He could lodge the FIR only when he comes to know about the occurrence. The evidence shows that he came to know about the occurrence only on the date of lodging of the FIR. Therefore, this court is of the view that, the delay aforesaid, cannot touch the root of the prosecution case. 21. The evidence of the victim/PW1, who is an intellectually disabled person, in view of her evidence recorded after testing her competence by the learned trial court, inspires confidence of this court even if there is no other direct evidence against the accused-appellant. The evidence of the victim, if inspires confidence, the court can rely and act on her solitary evidence is a legally settled position, as it appear from the decision of the Hon’ble Supreme Court in the case of State of Himachal Pradesh vs. Sanjay Kumar alias Sunny, reported in (2017) 2 SCC 51 . Paragraph 31 of this decision can be usefully referred to. Paragraph-31 of this judgment of the Hon’ble Supreme Court reads 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. 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." 22. In view of the above discussions, this court has come to the conclusion that the accused-appellant committed rape on the victim, who was major at the relevant time of the occurrence, and therefore, the accused-appellant deserves to be convicted under Section 376 of the IPC which has been done rightly by the learned trial court. 23. So far the sentence of the accused-appellant is concerned, this court has held above that the victim was not a minor, rather, a major and the provisions of POCSO Act is not applicable in the instant case, his conviction and sentence ought to have been under Section 376 (1) of the IPC. This court has not dealt with this case under Section 376 (2) (l) of the IPC for the reasons that the said provisions has been brought in only in the year 2013 by way of Criminal (Amendment) Act, 2013, which came into force on 3rd day of February, 2013, and the offence in the instant case is prior to the ascent in the said amendment. 24. 24. Accordingly, the substantive sentence of rigorous imprisonment for 10 years imposed upon the accused-appellant is reduced to rigorous imprisonment for 7 years, which accordingly to this court, will meet the ends of justice retaining the punishment of fine and the default clause as it is. 24. The learned trial court, in the judgment, held the accused-appellant to be guilty under Section 376 of the IPC, and while sentencing him, it was indicated that it was under Section 376/511 of the IPC which appears to be an inadvertent mistake. However, the charge framed under Section 376/511 of the IPC read with Section 8 of the POCSO Act also, is not correctly framed as there was an allegation of commission of rape, yet this court, on consideration of evidence on record, is of the view that the accused-appellant was not prejudiced since he has cross-examined the witnesses for an offence of rape. 25. Accordingly, the appeal is partly allowed. 26. Send down the LCR with a copy of this judgment. 27. A copy of the judgment shall also be furnished to the Superintendent, District Jail, Jorhat, for furnishing a copy thereof to the accused/appellant. 28. 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.