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2019 DIGILAW 86 (GAU)

Abhijit Dutta v. State of Assam

2019-01-23

RUMI KUMARI PHUKAN

body2019
JUDGMENT : RUMI KUMARI PHUKAN, J. 1. Heard Mr. B.K. Mahajan learned counsel for the appellant and Mr. B.J. Dutta, learned Additional Public Prosecutor. None appears for respondent No. 2. 2. This appeal is directed against the order of the learned Sessions Judge, Cachar dated 21.2.2017 in Special POCSO case 14/2016 whereby the appellant is convicted under Section 4 of the POCSO Act, 2012 and sentenced to r/i for 7 years and fine of Rs. 5,000 and on default to r/i for 2 months. 3. Prosecution case in brief is that the informant along with her minor daughter (victim) resided in the rented premises of the mother-in-law of the accused where the appellant stayed as gharjuwai and the husband of the informant was working in the Assam Rifles in Manipur. While staying as a tenant in the premises the informant noticing some illness of the victim, on 6.10.2015 she was taken to Dr. Bidyut Nath who on her examination reported that the victim was once raped by someone. Then the victim disclosed to the said doctor as well as her mother that about 15-20 days back while she was playing in the varandah the accused/appellant took her to the roof of the building and committed intercourse with her by threatening not to disclose the same to anybody otherwise he will kill all of them and out of fear she did not disclose it to anybody. As the victim was suffering from different types of sickness she was again taken to the said doctor on 27.10.2015 and the doctor prescribed medicine. After fully knowing the alleged incident the informant informed her husband who asked her to wait till he arrives and accordingly after arrival of her husband the FIR was filed by the informant, the mother of the victim. 4. The said FIR was registered Silchar PS case 2940/2015 u/s. 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO). During the course of investigation the victim was medically examined and she was found to be aged above 9 years and below 11 years. Her statement was also recorded u/s. 164 of the Cr.P.C. by the Magistrate. After completion of the investigation the charge-sheet was submitted u/s. 6 of the POCSO Act. The case being triable by the Special Court, was forwarded to the Sessions Court who is also the Special Judge. Her statement was also recorded u/s. 164 of the Cr.P.C. by the Magistrate. After completion of the investigation the charge-sheet was submitted u/s. 6 of the POCSO Act. The case being triable by the Special Court, was forwarded to the Sessions Court who is also the Special Judge. The learned trial court after complying with the provision of Section 207 of the Cr.P.C. and after hearing learned counsel for both parties framed charge u/s. 4 of the POCSO Act and it was explained to the accused to which he pleaded not guilty. 5. The prosecution examined as many as 7 witnesses to substantiate the charge. P.W. 1 Smt. Dipali Das is the mother/informant, PW 2 is the victim (name with held), PW3 is Mrs. Sorbani Bhattacjarjee, JMFC, who recorded the statement of the victim u/s. 164 of the Cr.P.C., P.W. 4 Dr. Orina Raha (examined the victim after filing of FIR), PW5 Mrs. Suma Dutta (wife of the accused), PW6 Dr. Bidyut Nath (examined the victim prior to filing of FIR), P.W. 7 Nirupam Nath (investigating officer), CW1 Anik Dutta is the son of the accused. After closure of the prosecution evidence, statement of the accused was recorded u/s. 313 of the Cr.P.C. in which he denied the occurrence and pleaded false accusation. However, no evidence was adduced in defence. 6. The learned trial court after perusing the evidence on record and hearing the counsel for the accused, convicted the appellant as aforesaid and hence this appeal. 7. Learned counsel for the appellant submitted that the prosecution case suffers from various infirmities like major contradictions of the witnesses, delay in filing the FIR, unsupported medical evidence, non-examination of supporting witnesses, and that the findings of the learned trial court is based on inadmissible evidence, which is bad in law. 8. Per contra, learned Addl. P.P. Mr. Dutta submitted that the findings recorded by the learned trial court is based on the evidence of the victim and her mother which is corroborative in nature supported by medical evidence and their evidence is enough to arrive at the guilt of the accused. He further contended that apart from delay in filing the FIR, there is nothing to discredit the evidence of the victim and the delay in filing the FIR can be inferred from the facts and circumstances of the case. He further contended that apart from delay in filing the FIR, there is nothing to discredit the evidence of the victim and the delay in filing the FIR can be inferred from the facts and circumstances of the case. Accordingly it is submitted that the appeal is liable to be dismissed. 9. Due consideration is given to the rival submissions and perused the impugned judgment and the evidence on record. 10. On appreciation of the evidence of the informant it is found that as she noticed some illness of her daughter, she took her to the doctor (P.W. 6) on 6.10.2015 and the doctor reported her that the victim was once raped by someone and then the victim (P.W. 2) disclosed that it was the accused person who took her to the roof of the building and did sexual intercourse with her with threatening not to disclose the matter to anybody otherwise he would kill her family members. Thus, according to P.W. 1 the victim disclosed all these things before the doctor in her presence on the very first day of her medical examination on 6.10.2015, but no explanation put forward by P.W. 1 as to why she did not file the FIR as soon as she came to know about the matter. Then again the victim was taken to the same doctor on 27.10.2015 for stomach trouble and the doctor examined her but till then no FIR was filed and the FIR was filed only on 31.10.2015 and that too without any explanation for the delay in filing the ejahar. The informant being an educated lady and a graduate cannot be expected to tolerate such sexual assaults on her minor daughter without informing the matter to the police immediately. On the other hand the husband of the informant was also not examined by the prosecution in support of the fact that only after arrival of her husband she filed the FIR. 11. On examination of the evidence of the doctor (P.W. 6) it reveals that he has not supported the version of the P.W. 1 that the victim disclosed all about the incident to him in presence of her mother. The very basis of the evidence of P.W. 1 that the victim first disclosed the incident before the doctor (P.W. 6) is not at all substantiated. The very basis of the evidence of P.W. 1 that the victim first disclosed the incident before the doctor (P.W. 6) is not at all substantiated. Further, her evidence that she informed her husband and on his arrival she filed the FIR is also not proved as her husband was also not examined. The P.W. 6 in his evidence stated that on his examination on 6.10.2015, the P.W. 2 (victim) complained of white discharge from her vagina and he suspected that she may have sexually transmitted disease and asked her mother to know as to whether there has been any sexual assault on the child and to get examined the child by a gynaecologist. The doctor prescribed some medicine with advice for re-examination. On her second revisit on 27.10.2015 he found P.W. 2 suffering from anemia and warm infection. 12. Let us examine the evidence of the victim (P.W. 2) who is stated to be aged about 8 years reading in Class IV in Kendriya Vidyalaya, Silchar. After testing her ability to give rational answer, she was examined by the trial court. In her evidence she stated that while they were residing in the tenanted premises of the in-laws of the accused on many occasions and at different times such as 12 PM and 5 PM the accused used to take her to the roof of the house by pressing her mouth had sexual intercourse with her with threatening that he will kill her family by keeping a knife nearby. So she did not disclose the matter to her parents. When she fell ill her mother took her to P.W. 6 Dr. Bidyut Nath and then she disclosed the entire matter to the doctor and her mother. Thereafter also she was medically examined by another doctor at SMCH after filing of the FIR. It is stated that after the incident she was mentally disturbed for which she could not attend the school. The court made a note of observation regarding the conduct of the victim that she is very shy of disclosing the matter and she used to loiter here and there during the course of examination was a very fickle minded girl. She admitted about the statement before the Magistrate u/s. 164 of the Cr.P.C. vide exhibit 3. 13. The court made a note of observation regarding the conduct of the victim that she is very shy of disclosing the matter and she used to loiter here and there during the course of examination was a very fickle minded girl. She admitted about the statement before the Magistrate u/s. 164 of the Cr.P.C. vide exhibit 3. 13. As discussed above, we find that the testimony of P.W. 2 also is not supported by P.W. 6 that she disclosed all the incident before him and as such, such serious aspect remained uncorroborated. Admittedly, there is no disclosure of the actual date of occurrence and the fact remains under the cloud as to whom the victim first reported the matter. Learned counsel for the appellant also vehemently opposed the submission of learned counsel for the state that how such an uncorroborated testimony of the victim and informant can be relied on to base the conviction. Attention is also drawn to the discrepancy of the testimony of the victim herself who stated different versions during the course of trial from the statement u/s. 164 of the Cr.P.C., which, according to learned counsel Mr. Mahajan, is fatal to the prosecution. The cross-examination of the victim also referred wherein the victim stated about the earlier quarrel between her mother and the landlady on several occasions and accordingly it is submitted that false implication of the accused on the part of the informant cannot be denuded as the informant was directed to vacate the tenanted premises from earlier. 14. On perusal of the statement of the victim given u/s. 164 of the Cr.P.C. which was recorded immediately after filing of the FIR, it would reveal that the victim stated about only one incident that one and half month back at about at about 3 PM one day while she was alone in her house along with her mother and her father was in his office and she was playing with her friends Diya and Esha suddenly the accused caught hold of her month with a cloth and took her to the terrace and showing a knife he touched her different parts of her body and then slept on her body spitting in her vagina and thereafter some white substance came out of her vagina. Due to the threat she kept mum for few days but after 4/5 days she told her mother and then her father went to the police. Evidently, in her statement u/s. 164 she stated about one incident but no indication of sexual intercourse as stated in course of trial. She developed her case in course of trial when she stated that she was subjected to sexual intercourse for several days, which is totally inconsistent with her earlier statement. Here is the difficulty to accept the testimony of the victim. Because according to her she informed the matter to her mother (P.W. 2) after 4/5 days of the occurrence, but the evidence of her mother does not reveal so as is discussed above. Such inconsistency in the evidence cannot be ignored as a minor discrepancy. More so when the medical report does not support such sexual intercourse on the part of the victim. Because the P.W. 6 who examined the victim did not indicate any mark of sexual assault on the victim and similarly the P.W. 4 who examined the victim after filing of the FIR did not find no sort of injury on the private part of the victim and he opined that there was no evidence of recent sexual intercourse and no evidence of recent injury in the genital part, apart from old tears at hymen. Such a medical opinion also belied the factum of sexual assault on the victim. Even if we assume that the victim being a minor was easily overpowered by the accused being an able-bodied person, the things remain that if such minor girl is molested by an adult person on repeated occasions then there must be some vital injury on the private part of such minor victim, but the same is not found in the present case. Both the medical officers did not lend support to such sexual assault on the victim. The victim also did not complain of any sort of injury in her private part despite the alleged forceful sexual assault by an adult person. Under the circumstances the medical evidence gains significance, for the examining doctor categorically deposed that there is no injury in the private parts. 15. It is also noted that despite the informant family residing in a thickly populated area along with adjacent tenants, no such witnesses from the locality have been examined in support of the case. Under the circumstances the medical evidence gains significance, for the examining doctor categorically deposed that there is no injury in the private parts. 15. It is also noted that despite the informant family residing in a thickly populated area along with adjacent tenants, no such witnesses from the locality have been examined in support of the case. Thus the delay in filing the FIR, non-examination of neighbouring witnesses, inconsistent testimony of the victim associated with the circumstances and the medical evidence raise a serious doubt about the authenticity of the testimony of the victim and the informant to inspire confidence. It can be found that the evidence of the victim is not of such quality so as to be explicitly relied on. Of course, law permits that the testimony of a prosecutrix can be accepted without any corroboration for which she has to be placed on a higher pedestal than an injured witness, but the scrutiny of the evidence of the victim must reveal that such evidence is unimpeachable and worthy of credence. 16. In the case at hand, the learned trial court persuaded itself on the principle that the testimony of a victim is to be accepted without corroboration but without appreciating the acceptability and reliability of the testimony of the witness. It would not be inappropriate to say that whatever may be the analysis in the impugned judgment, it would indicate only an impropriety of approach. 17. Hon'ble Apex Court in State of Punjab Vs. Gurmit Singh & Ors., (1996) 2 SCC 384 , has held that the testimony of the victim of sexual assault is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty in acting on the testimony of a victim of sexual assault alone to convict and accused where her testimony inspires confidence and is found to be reliable. 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. Corroborative evidence is not an imperative component of judicial credence in every case of rape. 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. 18. In 2008 (10) SCC 69 , Lalli Ram Vs. State of M.P., it is held as follows: "It is true that injury is not a sine qua non for deciding whether rape has been committed. But it has to be decided on the factual matrix of each case. As observed by this court in Pratap Mishra and others vs. State of Orissa ( 1977 3 SCC 41 ), where the allegation of rape by many persons and several times but no injury is noticed that certainly is an important factor. If the prosecutrix version is credible, no corroboration is necessary. But if the prosecutrix version is not credible then there would be need for corroboration." 19. As discussed above, the evidence of the victim does not find support from the medical evidence and it is inconsistent on material aspects and hence unreliable. 20. Time and again it has been pronounced by the Hon'ble Apex Court that on the basis of a sole testimony of the prosecutrix the conviction can be based if it is found convincing and unimpeachable as well as worthy of credence. 21. In 2011 (4) SCC 324 , State of U.P. Vs. Naresh, it is laid down that in all criminal cases normal discrepancies are bound to occur in the deposition of the witnesses due to normal errors or observation, namely errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to contradictions creating a serious doubt about the truthfulness of witness and other witnesses also making material development while deposing in the court such evidence cannot be safe to rely upon. The court has to form its opinion about the credibility of the witness and record finding as to whether his deposition inspires confidence. Exaggeration per se does not render the evidence brittle. But it can be one of the factors to test the credibility of prosecution version when the entire evidence put is credible for being tested on the touchstone of credibility. Exaggeration per se does not render the evidence brittle. But it can be one of the factors to test the credibility of prosecution version when the entire evidence put is credible for being tested on the touchstone of credibility. Therefore the mere marginal variations in statement of witness cannot be dubbed as improvement as the same may be elaboration of the statement made by witness earlier. The omission which amounts to contradiction in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution case render the testimony of witness liable to be discredited. 22. The same position is reiterated in State of M.P. Vs. Ramesh, (2011) 4 SCC 786 and in Raj Kumar Vs. State of MP, (2014) 5 SCC 353 , wherein it is held that the evidence of a child witness must be evaluated more carefully and with greater circumspection because the child is susceptible to be swayed by what is told to him by others. The trial court must ascertain whether a child is able to understand between the wrong and the right, which may be ascertained by putting questions to him. Once there is evidence on record to show that the child has been tutored, the court can reject the statement partly or fully. However, the inference whether the child has been tutored or not is to be ascertained from the content of his deposition. 23. In the given set of evidence of P.W. 1 and P.W. 2 it would reflect that they have not only developed the case to a great extent and their omission and commission amounts to material contradiction when the P.W. 1 said that she came to know about the incident only when the victim (P.W. 2) disclosed the same before the doctor in her present, while the P.W. 2 said that immediately after 4/5 days of the occurrence she reported the matter to P.W. 1, which has discredited their testimonies and has gone to the root of the matter. 24. Although in this case the wife of the accused and the son have been examined as P.W. 5 and C.W. 1 respectively, their evidence is of no help to the prosecution as they simply denied the allegation. 24. Although in this case the wife of the accused and the son have been examined as P.W. 5 and C.W. 1 respectively, their evidence is of no help to the prosecution as they simply denied the allegation. P.W. 5, however, stated that due to the quarrel between P.W. 1 and P.W. 2, she asked the P.W. 1 to vacate their house, for which there was a dispute between them and her husband did not return home after such allegation of rape for several months. The learned trial court considering the said aspect of absconding of the accused after the incident, also treated the accused to be the perpetrator of the crime coupled with the fact that there was a behavioral change of the victim after the incident. The fact that the accused was absconding after the filing of the FIR is also stated by the IO (P.W. 7). 25. In the context of law, although absconding is one of the factors to be considered in an offence against the allegation but the same is to be considered along with other facts and circumstances of the case. We are aware that in a case of rape/sexual assault the court need not ponder over corroboration if the statement of the victim inspires confidence and accepted by the court as credible on proper appreciation of all the facts and circumstances of the case. But in the present case the evidence of the victim as well as the informant is found suffering from serious infirmities, inconsistencies with other material aspects and the victim has deliberately improved her statement on material part, creating doubt about the authenticity of the allegation. Although a victim of sexual assault, particularly when she is a minor, cannot be discarded because such minor child has no such hostility of her own towards an accused for false implication, but the same is equally true that such minor child also can be tutored by their guardian for their own purpose. In the given case where there is a background of quarrel between the informant and the landlady where the informant and the accused stayed and the informant was asked to vacate the tenanted premises, vested interest on the part of informant for false implication cannot be denied. In the given case where there is a background of quarrel between the informant and the landlady where the informant and the accused stayed and the informant was asked to vacate the tenanted premises, vested interest on the part of informant for false implication cannot be denied. The victim in her cross-examination stated that she was offered a mobile phone by her mother (informant) on the day of giving such evidence which indicates that the victim was tempted to give evidence. 26. In 2012 (8) SCC 73 , K. Venkatesh Waralu Vs. State of Andhra Pradesh, it is held that the evidence of a child witness has to be subjected to closer scrutiny and can be accepted only if the court comes to the conclusion that the child understands the question put to him and he is capable of giving rational answers (Section 118 of the Evidence Act). A child witness by reason of his tender age he is a pliable witness. He can be tutored easily either by threat, coercion of inducement. Therefore the court must be satisfied that the attendant circumstances do not show that the child was acting under the influence of someone or was under threat or coercion. The evidence of a child witness can be relied upon, if the court with its expertise and ability to evaluate the evidence comes to a conclusion that the child is not tutored and his evidence has a ring of truth. It is safe and prudent to look for corroboration for the evidence of child witness from the other evidence on record. Because while giving evidence a child may give scope to his imagination and exaggerate his version or may develop cold feet and not tell the truth or may repeat what he has not been asked to say not knowing the consequences of his deposition in the court. Careful evaluation of the evidence of a child witness in the background and the context of other evidence on record is a must before the court decides to rely upon it. 27. Coming back to the case at hand, we found that there was no corroboration of the evidence of P.W. 1 and P.W. 2 in particular and no supporting medical evidence in general. 27. Coming back to the case at hand, we found that there was no corroboration of the evidence of P.W. 1 and P.W. 2 in particular and no supporting medical evidence in general. The material witness i.e. father of the victim and the neighbouring witnesses were not examined and as it reflects that the learned trial court did not evaluate the evidence of the child witness/victim in the given background and by giving a prima facie value of the testimony of the victim before the court without appreciating the entire episode in the context of law and fact as discussed above, came to an erroneous finding which is not sustainable. Consequently, I hold that the prosecution has miserably failed to prove the charge against the accused appellant beyond all reasonable doubt and the accused is entitled to be acquitted on the benefit of doubt. 28. Accordingly the appeal is allowed. The impugned judgment of conviction and sentence is quashed and set aside and the accused is acquitted of the charges being given the benefit of doubt. The accused be released forthwith if not wanted in any other case. Send down the LCR.