Research › Search › Judgment

Gauhati High Court · body

2018 DIGILAW 983 (GAU)

Ajay Tamuly S/o Khagen Tamuly v. State of Assam

2018-06-25

RUMI KUMARI PHUKAN

body2018
JUDGMENT AND ORDER : 1. Heard Mr. S.K. Agarwal, learned Amicus Curiae appearing for the appellant and also heard Ms. S. Jahan, learned Addl. Public Prosecutor appearing on behalf of the State of Assam. 2. The informant Duleswar Phukan lodged an ejahar/FIR before the I/c, Borholla P.S. alleging inter-alia that on 05.08.2013 at about 9.00 A.M. he left his daughter in the school. At that time there was none present inside the school when the accused Ajay Tamuly taking advantage of absence of students and other people in the school grabbed his daughter, threatened her that she would be killed if she shouts for help and thereafter the accused committed rape upon his minor daughter. After the incident his daughter ran to home crying and informed the incident to her mother. 3. On receipt of the aforesaid FIR by the In-charge, Panikheti O.P. under Borholla P.S. the same was entered as vide G.D. Entry No. 64 dated 05.08.2013 and it was forwarded to the Officer-in-Charge, Borholla P.S which was registered as Borholla P.S. Case No. 39/2013 under Section 376 of IPC read with Section 6 of the Protection of Children From Sexual Offences Act, 2012 (in short ‘POCSO Act’). 4. During the course of investigation, the victim girl was medically examined by the doctor. The statement of the victim girl was recorded under Section 164 of CrPC by the learned Magistrate. The police on completion of investigation filed charge-sheet against the accused Ajay Tamuly under Section 376 of IPC r/w Section 6 of the POCSO Act, 2012 and two more accused persons Khagen Tamuli and Gethuwa Gogoi under Section 212 of IPC. 5. The learned Sub-Divisional Judicial Magistrate, Titabar Sub-Division, Jorhat, committed the case to the learned Court of the Special Judge, Jorhat for trial. 6. The learned Court below considered the records and the documents therewith. Accordingly, the charges were framed against the accused Ajay Tamuly under Section 376(1)/511 of IPC r/w Section 6 of the POCSO Act which were read over and explained to the accused to which the accused pleaded not guilty and claimed to be tried. However, co-accused Khagen Tamuli and Gethuwa Gogoi were discharged. 7. Accordingly, the charges were framed against the accused Ajay Tamuly under Section 376(1)/511 of IPC r/w Section 6 of the POCSO Act which were read over and explained to the accused to which the accused pleaded not guilty and claimed to be tried. However, co-accused Khagen Tamuli and Gethuwa Gogoi were discharged. 7. In course of the trial, prosecution examined as many as 13(thirteen) witnesses including the victim, father of victim/informant of the case, the Medical Officer and the I.O. On completion of prosecution evidence, statement of the accused was recorded u/s. 313 of CrPC. The accused stated that he has been falsely implicated in the case and pleaded innocence. No witness was adduced by the accused in defence. 8. At the conclusion of the trial, the learned Court found and held the accused guilty u/s 4 of the POCSO Act and convicted the accused person Ajay Tamuly under 4 of the POCSO Act and sentenced him to rigorous imprisonment for 10(ten) years and also to pay a fine of Rs. 20,000/- (Rupees Twenty thousand) in-default of payment of fine, to suffer further R/I for 6(six) months. 9. That apart, the learned Court directed to award compensation to the victim girl to be paid by the Secretary District Legal Service Authority, Jorhat. The said amount shall be used by the mother of the victim for her welfare and rehabilitation. 10. As against the aforesaid order of conviction, present appeal has been preferred by the accused from the jail. 11. Learned Amicus Curiae submitted that the testimony of the victim cannot be wholly relied to rest the conviction as no independent eye witness has been examined despite that it was a school opening day and several students were attending the school. Moreover, there is no conclusive evidence as regards the age of the victim girl and as such, benefit of all these should go in favour of the appellant. 12. On the other hand, according to the learned Addl. P.P. there is no infirmity in the aforesaid order and conviction and there is no reason to disbelieve the evidence of victim. No any interference in the impugned judgment and order and is called for. Let us examine the evidence on records which is as follows: 13. According to the victim/PW-1(name withheld) on the date of incident she was studying in Class-VI. No any interference in the impugned judgment and order and is called for. Let us examine the evidence on records which is as follows: 13. According to the victim/PW-1(name withheld) on the date of incident she was studying in Class-VI. She went to the school along with her father who is also a High School teacher. Her father dropped her in her school at around 9.00 A.M. At that time none was present inside the school campus and the accused was found standing in the school campus. It is further stated that at that time it was raining. While she was standing outside the classroom, the accused proceeded near her and asked her to show her copies stating that his younger sister is also studying in her school. But she did not give any copies to the accused. Then, accused dragged and took her into the classroom and forcibly undressed her, kissed her lips, spitted on her vagina and thereafter entered his penis by opening the zip of his pant. She further stated that at that time one student arrived in the classroom and when the accused saw the student, he immediately fled away. The victim girl then came running towards her house and narrated about the incident to her mother. She was recorded before the learned Magistrate u/s. 164 CrPC vide Ext.1. In cross-examination, she denied the defence suggestion that on the date of incident the accused was not present inside the school and that the accused did not commit rape on her. The defence side could not elicit anything from cross-examination at length. 14. PW-2 Duleswar Phukan informant of the case as well as father of the victim, has stated that on the date of incident i.e. on 05.08.2013 he accompanied his daughter to her school who was studying in Class-VI. He noticed 3-4 students playing in the field and also the accused standing inside the school campus in between two rooms in a corridor. He further stated that at time it was about 9.00 AM and it was raining. After he left his daughter in school, he went towards his own school where he is a teacher. After sometime he was informed about the incident by his wife over telephone, and then he lodged an ejahar/FIR before the police vide Ext.2. He further stated that at time it was about 9.00 AM and it was raining. After he left his daughter in school, he went towards his own school where he is a teacher. After sometime he was informed about the incident by his wife over telephone, and then he lodged an ejahar/FIR before the police vide Ext.2. He disclosed that the age of his daughter to be 11 years 03 months at the time of incident. 15. PW-3 Padma Gogoi, who is a school teacher in which the victim girl studied, witnessed that many people gathered in the school and the victim along with her parents. She came to know about the incident from the father of victim. She then accompanied the victim’s father to the Police Station. 16. PW-4 Monalisa Robidas another school teacher has given evidence that on the date of incident she witnessed the accused coming out from the school of victim, riding on a bicycle. She also noticed the victim girl running towards her house from the school. After she entered into the school she met one student named Jyotipal Gogoi and then she asked why the victim was running towards her home, aforesaid student replied that the victim had left some article in her house. Later on, from some persons she came to know that victim was physically molested by the accused in the school. She along with people went to the house of victim and met her parent. Her statement was recorded u/s. 164 CrPC by the learned Magistrate vide Ext.3. The fact that she witnessed the accused coming out of the school riding his bicycle remained unshaken in cross-examination. She confirmed the presence of accused at the time of incident, in the said school premises. 17. PW-5 Jyotipal Gogoi aged 14 years who was a student and neighbour stated that on the day of incident, he attended school at about 8.30/9.00 A.M. He witnessed victim going towards her house running in crying condition. He did not ask the victim why she was crying. His statement was recorded by the learned Magistrate vide Ext.4. 18. One of the neighbour of accused, PW-6 Sushil Gogoi stated that on the day of incident it was raining and the accused person was present with his uncle near the pond situated in the compound of his house. He did not ask the victim why she was crying. His statement was recorded by the learned Magistrate vide Ext.4. 18. One of the neighbour of accused, PW-6 Sushil Gogoi stated that on the day of incident it was raining and the accused person was present with his uncle near the pond situated in the compound of his house. He further stated that the accused was catching fish at that time. Prosecution declared him hostile and during the cross-examination, he admitted that he stated before the police that on the day of incident in the morning hours the accused took his bicycle and went towards the gym for exercise. At that time it was raining. When rain stopped the accused arrived at his house and thereafter took meal in his house and left the place thereafter. After sometime police arrived at his house and thereafter he came to know that accused had committed rape upon the victim. 19. Other two neighbours, PW-7 Joon Gogoi and PW-8 Satyajit Gogoi have given similar sort of statement that on the day of incident the accused was found in the hill area and thereafter he was apprehended by the public and given in custody to police. However, they have no personal knowledge of the occurrence. 20. PW-9 Gopal Borah another neighbour stated that the accused absconded and he went with the police in search of the accused and he was found hiding in the hill area and he was arrested by police. In the cross-examination, PW-9 stated that he came know about the incident from the people. 21. The mother of the victim PW-10 Indira Saikia has stated that on the day of incident her daughter retuned back to house from school in running condition and disclosed that inside the school the accused committed rape upon her. Thereafter, she informed her husband about the incident and then he lodged an ejahar/FIR. In cross-examination, she denied the defence suggestion that she with the help of her daughter/victim had lodged false case against the accused. 22. PW-11 the Medical Officer (Dr. Ritu Saikia) examined the victim girl on 05.08.2013 and she has opined that the victim girl was found to be above 12 years and below 16 years of age as per Radiological report. 22. PW-11 the Medical Officer (Dr. Ritu Saikia) examined the victim girl on 05.08.2013 and she has opined that the victim girl was found to be above 12 years and below 16 years of age as per Radiological report. She further stated that she found sign of injury on the private part of victim which was within 24 hours as the colour of the injury was red. 23. PW-12 Diganta Phukan, Sub-Inspector stated that after receipt of case diary from O/c, Borholla P.S. he perused the C.D and found that investigation was completed hence, he filled charge-sheet against the accused on 30.12.2013. 24. Evidence of Investigating Officer PW-13 Anjan Saikia, is all about the course of investigation that as entrusted about he carried the investigation and examined the informant as well as victim at the police station itself. Victim girl was sent to the doctor for medico legal check-up. He produced the informant and victim girl before the Magistrate. And their statements were recorded u/s 164 CrPC. It is also stated that he prepared the Sketch Map of place of occurrence vide Ext.6, wherein Ext.6(1) is his signature. This witness confirmed that witness PW-6 during examination under Section 161 CrPC stated that on the date of incident in the morning hours the accused took his bicycle and went towards the gym for exercise, at that time it was raining. When rain stopped the accused come back to the house; he did not noticed the actual time when the accused arrived at the house; after keeping his bicycle the accused took meal and thereafter went out of the house; that he did not know where the accused went; that after some police arrive at his house and thereafter he came to know that the accused had committed rape upon the victim. 25. The learned trial Court, on the basis of the above evidences hold that the victim girl was minor and the accused/appellant could not rebut the presumption laid under Section 29/30 of POCSO Act and convicted the accused as aforesaid. 26. I have considered the rival submissions both parties and also perused the evidence on record. 27. As usual, there is no eyewitness to the occurrence and the incident occurred inside the school room premises while other students did not arrive because of early morning. 26. I have considered the rival submissions both parties and also perused the evidence on record. 27. As usual, there is no eyewitness to the occurrence and the incident occurred inside the school room premises while other students did not arrive because of early morning. Two aspects are crucial in this case, one the victim is a minor girl/student of class VII, aged about 11 years and the accused is a matured man, aged about 23 years. On the day of occurrence, father of the victim/PW-2 left his daughter in the school at about 9.00 a.m. and left for his own school nearby as he was a teacher and it was raining. He saw the accused standing inside the school campus, so the presence of accused at the time of occurrence is confirmed. So far as the testimony of the victim, while she was standing outside the class room, accused on the pretext of asking her some school copies, took her inside the room and thereafter forcefully committed rape upon her. Immediately after the incident, the accused fled away and she ran to her house crying and reported the matter to her mother/PW-10, who in turn reported the matter to her father/PW-2 and immediately thereafter the FIR was filed. The fact that the victim girl was running towards her house in crying condition was witnessed by the PW-4, who was a teacher of the school and she had also witnessed that accused was coming out of the school on a bicycle, then she came to know from others that accused has molested the victim girl. Similarly, the PW-5, a student of the said school, supported the circumstances that he had seen the victim running towards her house in crying condition. Although the evidence of PW-6 is of no help to the prosecution, PW-7 to PW-9 highlighted the facts that the accused was found hiding himself in the hillside area and the police apprehended him from such absconding stage. 28. The evidence of PW-10 would go to show that the entire incident was reported to her by her daughter/victim of the case. So far as the statement of victim/PW-1, it reveals that she has given a vivid picture of the whole episode as to how the accused molested her. 28. The evidence of PW-10 would go to show that the entire incident was reported to her by her daughter/victim of the case. So far as the statement of victim/PW-1, it reveals that she has given a vivid picture of the whole episode as to how the accused molested her. Her testimony given during the course of trial tallied with her statement given under Section 164 Cr.P.C. The findings of the M.O. also supported the testimony of the victim on two vital aspect, i.e. the victim was a minor, aged about 12 years, and there was injury in her vagina. Such a corroborating evidence of the victim supported by other facts and circumstances has unerringly implicated the accused person with the offence charged. Immediately after the incident, the accused was found returning from the school on a bicycle and he was apprehended by public along with police while he was absconding behind the hill area. His conduct is another crucial factor. 29. The provisions of the Protection of Children from Sexual Offences, 2012 in its wisdom has embodied certain enactment in the Act which provides that the accused is to rebut the presumption under the law as below: Sec. 29 presumption as to certain offences “Where a person is prosecuted for committing or abetting or attempting to commit any offence u/s 3, 5, 7 and 9 of the 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.” 30. Further, Section 30 of the POCSO Act provide for culpable mental state of the accused which read 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 purpose 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.” 31. (2) For the purpose 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.” 31. In the instant case prosecution has been able to prove that the accused person taking advantage of loneliness took the victim inside the school room and forcefully committed sexual intercourse with her and so his culpable mental state can be presumed and the accused failed to rebut the said presumption. Record reveals no effective cross- examination was done to destroy the credibility of any of witnesses and there also appears no hostile relation between the parties towards such false implication of the accused. 32. Facts to be noted that the victim girl was at a very tender age reading in class VII and had no idea about the sex and there appears absolutely no reason whatsoever for false implication of the accused. The evidence of the parents as regards the age is also supported by the medical evidence that she was a minor at the relevant time. The evidence of the child witness is found convincing and inspiring and it does not suffer from any sort of exaggeration and manipulation and is supported by all the material facts and circumstances including the medical evidence regarding the injury on her private parts. 33. It is settled position of law that in a case of an offence of rape, conviction can be based upon the sole testimony of the victim if found reliable and convincing. The Hon’ble Apex Court in State of Punjab vs. Gurmeet Singh, 1996 (2) SCC 384 has categorically dealt with that the testimony of victim of sexual assault is vital and unless there are compelling reasons which necessitates looking for corroboration over statement, the court should not find difficulty in acting on the testimony of victim of sexual assault alone to convict an accused based on her testimony if it inspires confidence and found to be reliable. Seeking corroboration of such statement as a rule in such cases amounts to insult to the injury. 34. Seeking corroboration of such statement as a rule in such cases amounts to insult to the injury. 34. On the next, a child of tender age can be allowed to testify if he or she has intellectual capacity to understand the question and give rational answers and a child witness is also a competent to give evidence and the credibility thereof would depend upon the circumstances on each case as has been held in Virendra vs. State of U.P. 2008 (16) SCC 582 , Dattu Ram Rao Sakhare vs. State of Maharashtra, 1997 (5) SCC 341 , Ratansinh Dalsukbhahai Nayak vs. State of Gujarat, (2004) 1 SCC 64 . 35. In the touchstone of the above legal proposition when we consider the testimony of the victim it would reveal that she has given a clear and convincing evidence as to how she had been subjected to sexual conduct by the accused by persuading her to go to the room to give her books and thereafter committed the offence. Her conduct is also found to be natural as she immediately reported the matter to her mother and her parents reported the same incident to the other witnesses soon after the occurrence. The defence did not bring out any candid contradiction in her statement in order to disbelieve her deposition. The trial court has also elaborately dealt with her witnesses and has found that her version is fully supported by the other witnesses. Defence has failed to disprove the factum of minority of the victim as well. 36. In such circumstances this court is of the considered opinion that the trial court has rightly found and held the accused guilty of the offence charged with. 37. Learned amicus curiae, however, has drawn the attention of this to the aspect that the accused was a young boy of 19 years at the time of occurrence and so he should be accordingly dealt with. 38. Perusal of record reveals that the accused was 23 years old at the time of giving statement u/s 313 of the CrPC on 23.5.2017, whereas the occurrence is of 5.8.2013. 39. Taking note of all above when maintaining the conviction u/s 4 of the POCSO Act, the sentence is reduced to seven years and a fine amount of Rs. 10,000/- in default R/I for 2 months. 40. The appeal stands disposed of with the modification as indicated above. 39. Taking note of all above when maintaining the conviction u/s 4 of the POCSO Act, the sentence is reduced to seven years and a fine amount of Rs. 10,000/- in default R/I for 2 months. 40. The appeal stands disposed of with the modification as indicated above. Return the LCR. 41. For the assistance rendered by the learned amicus curiae, a sum of Rs. 7,500/- (Rupees seven thousand and five hundred) be paid to Mr. S.K. Agarwal, Amicus Curiae by the State Legal Services Authority.