Research › Search › Judgment

Gauhati High Court · body

2019 DIGILAW 182 (GAU)

Raj Kumar Pradhan v. State of Assam

2019-02-07

RUMI KUMARI PHUKAN

body2019
JUDGMENT : RUMI KUMARI PHUKAN, J. 1. Heard Mr. B. Baruah, learned counsel appearing for and on behalf of the appellant as well as Mr. P.S. Lahkar, learned Addl. P.P., Assam representing the State respondent. 2. This appeal is directed against the judgment and order dated 20.11.2014, passed by the learned Sessions Judge, Golaghat in Special (POCSO) Case No. 15/2014, convicting the appellant under Section 4 of the Protection of Children from Sexual Offences Act, 2012 (in short 'the POCSO Act'), sentencing the accused/appellant to undergo rigorous imprisonment for 10 (ten) years and also to pay a fine of Rs. 10,000/- (Rupees ten thousands), in default of payment of the fine, the accused shall undergo further rigorous imprisonment for one year. 3. The case of the prosecution in brief is that, on 18.06.2014, the appellant, resident of Singimari village of Golaghat District committed sexual assault upon a child, aged about 15 years of the same village finding her alone in the house. On the same very day, an FIR was lodged by the mother of the victim and on the basis of such FIR, the Borpathar P.S. Case No. 86/2014, under Section 448/376 of the IPC, read with Section 8 of the POCSO Act was registered and investigated into. 4. During the course of investigation, the victim was examined medically and her statement was also recorded. At the conclusion of the investigation, the police submitted charge sheet under Section 448/376 of the IPC, read with Section 8 of the POCSO Act against the appellant herein. The case was committed for trial to the Special Court. 5. The accused was arrested and produced before the Court and stood the trial behind the bar. After furnishing him the necessary copy and after hearing the learned counsel for both the parties, the charge under Section 4 of the POCSO Act was framed and explained to the accused person to which he pleaded not guilty. In support of their case, the prosecution examined six witnesses and defence examined none. The plea of the defence is of total denial. On the conclusion of the trial, the statement of the accused was recorded under Section 313 of the Cr.P.C. and after hearing the learned counsel for both the parties, the learned Court found and hold the accused guilty under Section 4 of the POCSO Act and convicted and sentenced as aforesaid. The plea of the defence is of total denial. On the conclusion of the trial, the statement of the accused was recorded under Section 313 of the Cr.P.C. and after hearing the learned counsel for both the parties, the learned Court found and hold the accused guilty under Section 4 of the POCSO Act and convicted and sentenced as aforesaid. The Court also passed direction for awarding compensation of Rs. 20,000/- (rupees twenty thousands) for adequate rehabilitation of the child under the Assam Victim Compensation Scheme, 2012, framed by the Govt. of Assam under Section 357-A of the Cr.P.C., to be awarded to the child/victim by the District Legal Services Authority, Golaghat. 6. Challenging the aforesaid order of conviction, the present appeal has been preferred. 7. I have heard the submission of learned counsel for both the parties and also gone through the impugned judgment and order as well as the evidence on record. 8. During the pendency of the appeal, the appellant accused raised the plea of juvenility before this Court. Hence this Court directed the trial Court to hold an inquiry to assess the age of the accused/appellant as to whether the appellant was minor at the time of occurrence. The learned trial Court accordingly conducted an enquiry and furnished an enquiry report after examining the relevant School Admission Register and examining the school Headmaster and other related witnesses to the effect that the accused was not minor at the date of occurrence. The inquiry officer has given an elaborate finding relying on all the relevant documents that have been produced by the school authority. 9. As in the instant case the accused/appellant submitted certain documents to show that his date of birth is 03.04.1997 and his father has also sworn an affidavit that the accused/appellant was born on 03.04.1997 and also produced a school certificate which shows that the accused was a student of Adarsha Hindi ME School, Borpathar which was issued by the Headmaster of the said school showing the date of his birth as 10.01.1995. The learned trial Court examined the Headmaster of the said School as well as the father of the appellant. 10. The learned trial Court examined the Headmaster of the said School as well as the father of the appellant. 10. Further the evidence of the Headmaster of the Sukali Pathar L.P. School and the transfer certificate and the school admission register, it was found that the date of birth of the accused/appellant was incorporated in the school admission register as 10.01.1995, as per the information furnished by the parents/guardians of the appellant. In all the subsequent school register also the date of birth of the accused/appellant was shown as 10.01.1995. That being so, it was conclusively proved that the date of birth of the accused/appellant is 10.01.1995. The evidence of father of the appellant was not at all inspiring who could not even spell about the date of birth of his own son. Thus having regard to the entire oral and documentary evidence and after due enquiry it has been held by the enquiry officer that as on the date of commission of the offence i.e. on 18.06.2014, the accused/appellant was aged 19 years 5 months 8 days. While arriving at the said finding, the learned Trial Court has followed the due procedure and has also appreciated the relevant decisions of the Hon'ble Apex Court in this regard. 11. In view of the detail inquiry report, the challenge that the accused was a juvenile at the day of occurrence is not found to be true. The learned counsel for the appellant has however has contended that in the Admission Register, there was an overwriting of the name of appellant as well as his father in Sl. No. 3 of the Admission Register. So the same being doubtful cannot be relied as an exclusive evidence. 12. On due verification of the matter it would go to show that the said Admission Register was maintained from the year 1994 and the appellant carried forward the said entry in the school in all through subsequent stages while admitting in another school also and his father himself could not disclose the exact date of birth of the appellant and as such there cannot be any debate over the date of birth at this belated stage. 13. Now we have to appreciate the evidence on record examined by the prosecution. 14. The victim/PW. 13. Now we have to appreciate the evidence on record examined by the prosecution. 14. The victim/PW. 3 in her evidence has stated that on the day of occurrence at about 2 P.M. while she was drawing water from the tube-well for bathing, at that time her parents were not at home and the accused/appellant who is a friend of her elder brother and used to visit their house being familiar, came to their house and drag her inside her bed room by gagging her mouth and committed rape upon her forcefully after removing her clothes. Although she tried to made hue and cry but the accused gagged her mouth. In the meantime, hearing the sound of her mother/PW. 2, the accused/appellant fled away immediately and she remains inside the room frightened with half naked condition. After her mother arrived, she disclosed the entire affair to her mother. At the time of incident, she was a Class-VII student of Ulukhowa Balika ME School. 15. Supporting her evidence, her mother/PW. 2 and her father/PW. 6 have stated that on the day of occurrence, both of them was returning home, while the PW. 2 was carrying grass and the PW. 6 followed her. By the time they entered into the house, they found the accused went away and they did not raise any doubt because the accused is a friend of their elder son. However while the PW. 2 entered into the room of the victim girl, she found herself in a half naked condition with her lower portion's clothe removed and she was trembling. On being asked she reported the entire incident that the accused has committed rape upon her by dragging her inside the room forcefully. Knowing the matter, the PW. 2 immediately took the victim girl to the house of the VDP personnel and on the way, the PW. 4 met them. The PW. 4 also stated that hearing the hue and cry in the house of PW. 2, she came up to see the matter and found the PW. 2 and PW. 6 along with the child/PW. 3, while proceeding to the house of the VDP personnel. She also accompanied them to the house of the VDP personnel, while the PW. 2 stated the same thing that the accused has committed rape upon her daughter. 2, she came up to see the matter and found the PW. 2 and PW. 6 along with the child/PW. 3, while proceeding to the house of the VDP personnel. She also accompanied them to the house of the VDP personnel, while the PW. 2 stated the same thing that the accused has committed rape upon her daughter. Then on the advice of the VDP personnel, they filed the FIR immediately before the police. 16. Admittedly in the given case there was no eye witness to the occurrence but the evidence of PW. 2 and PW. 6 is suffice to suggest the complicity of the present accused/appellant with the offence. As because immediately at the time of their arrival in the house, they saw the accused went away from their house and thereafter the victim was found wiping in the house in a bad condition and she complained of forceful rape by the accused person. The evidence of the victim coupled with the statement of PW. 2, PW. 4 and PW. 6, which has corroborated each other, completing the chain of events which have established only the hypothesis of guilt of accused none others. That apart, the evidence of the victim cannot be discarded at all who has no any sort of animosity and hostility with the present accused/appellant. Rather they are having very good family relation due to the friendship with her elder brother and even than the accused exploited the victim girl sexually taking advantage of her loneliness. 17. On the next, the PW. 1, the Medical Officer who examined the victim on 19.06.2014 has opined that the age of the victim girl is below 18 years but there is no sign of recent sexual intercourse or injury on her private parts and her hymen was ruptured. The victim was examined on the next day of the occurrence but there was no sign of sexual intercourse. But however for having no sign of such sexual assault that does not itself negate the version of the victim who is specifically spell out regarding the sexual assault upon her and in the given circumstances as the parents of the victim arrived at the place of occurrence, it can also be inferred that there may not be full penetration and the same could not be explained by the victim because of the immaturity. 18. 18. All the witnesses including the medical opinion reveals that the victim was a minor at the relevant point of time and their evidence in totality suffers from no sort of omission or contradiction so as to discredit their evidence. Rather the evidence of the victim is found inspiring and convincing so as to accept the authenticity of the occurrence. The defence could not scatter the evidence of the prosecution side in any manner save and except giving certain suggestions. 19. Law is settled that the testimony of a victim of sexual assault is at par with the testimony of an injured unless certain convincing reasons, the evidence of such victim/child witness cannot be discarded. 20. The learned counsel for the appellant has pointed out that there are certain omissions on the part of the witnesses as regards their arrival at the place of occurrence and also about the finding of no injury by the Medical Officer upon the victim girl. The same aspect has been dealt with by the Trial Court in para. 17 of the judgment that the PW. 2 and PW. 6 found the victim trembling in the bed in a half naked condition, wearing only a top on the upper part of the body and that the victim narrated before them in details about his sexual conduct etc. and the learned Trial Court has rightly held that minor omission or commission which does not go to the root of the case is not destructive of the prosecution case and such omission that has been referred above is not at all enough to shake the authenticity of the case. 21. In (1996) 2 SCC 384 (State of Punjab vs. Gurmit Singh and others), the Hon'ble Apex Court held that the testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost at par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. 22. In the case of (2013) 11 SCC 688 , reported in Radhakrishna Nagesh vs. State of Andhra Pradesh, the Hon'ble Apex Court opined that penetration itself proves offence of rape, but contrary is not true i.e. even if there is no penetration, it does not necessarily mean that there is no rape -Penetration may not always result in tearing of hymen and same will always depend upon facts and circumstances of a given case - Court must examine evidence of prosecution in its entirety and then see its cumulative effect to determine whether offence of rape was committed or it is a case of criminal sexual assault or criminal assault outraging modesty of a girl - Herein, there was limited penetration due to which probably hymen of victim girl was not ruptured - As regards facts and circumstances, presence of element of mens rea on part of appellant cannot be denied. The Apex Court further held that absence of injuries in context of present case would not justify drawing of any adverse inference against prosecution, but on the contrary would support case of prosecution -Hence, it does not leave any doubt that appellant committed the offence of rape PW 2. 23. In the case of Krishan vs. State of Haryana, reported in (2014) 13 SCC 574 , the Hon'ble Supreme Court held that absence of injury on rape victim - appellant contending that if a forcible assault is committed on a girl, one would expect some sort of injury on any part of her body, but in spite of alleged forcible rape, victim did not sustain any injury - Held, it is not expected that every rape victim should have injuries on her body to prove her case - Findings of medical experts clearly established that there was a rape committed against the victim. 24. In the instant case, the victim was found in half naked condition while her parents arrived in her room and she reported molestation caused by the accused. None finding the injury in the given circumstances is inconsequential. The Medical Report reveals rapture of hymen of the victim which is enough to hold sexual assault upon the victim. 25. Taking into account all matters on record and the documents annexed, it can be held that the prosecution has been able to prove the charge against the accused/appellant beyond all reasonable doubt and there is no illegality or irregularity in the findings of the learned Trial Court. 26. At this stage, the learned counsel for the appellant has also drawn the attention of the Court that the accused is also a boy of tender age and was neighbor of the victim and has no earlier criminal antecedent but the imprisonment is on higher side. In his statement under Section 313 Cr.P.C., the age of the accused is stated to be 21 years and the victim was stated to be 15 years at the time of occurrence. Having regard to all the matters on record, while maintaining the conviction, the sentence is hereby reduced to a period of seven (7) years and the compensation that has been granted by the learned Trial Court is also maintained. The period of detention already undergone by the accused will be set off. 27. The appeal stands disposed of accordingly. 28. Having regard to all the matters on record, while maintaining the conviction, the sentence is hereby reduced to a period of seven (7) years and the compensation that has been granted by the learned Trial Court is also maintained. The period of detention already undergone by the accused will be set off. 27. The appeal stands disposed of accordingly. 28. Return the LCR along with a copy of this judgment immediately.