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2019 DIGILAW 937 (GAU)

Tiyeswar Chetia v. State of Assam

2019-08-27

RUMI KUMARI PHUKAN

body2019
JUDGMENT : Rumi Kumari Phukan, J. Heard Mr. K. Goswami, learned Amicus Curiae for the Appellant. Also heard Mr. D. Das, learned Additional Public Prosecutor for the State respondent. 2. This appeal has been preferred against the judgment and order dated 22.02.2017 passed by the Additional Sessions Judge, Charaideo in Sessions Case No.217(S-C)/2010, whereby the appellant is convicted under Section 376 (2) (f) of the IPC and sentenced him to undergo rigorous imprisonment for 10 years with fine of Rs.50,000/- and in default, rigorous imprisonment for 6 months. 3. The prosecution case in brief is that on 18.09.2010, at about 9.00 AM, when the victim girl, aged about 8 years was not found in the house at the time when she was supposed to go to school, her mother searched for her and then it was found that she returned from the nearby tea garden and upon asking, she reported her mother that the accused took her to his nearby tea garden by inducing her to take honey comb and thereafter he committed rape upon her. The matter was immediately informed to the concerned Gaonbura and thereafter filed the FIR before the O/C concerned and accordingly the case was registered as Borhat P.S. Case No.58/2010, under Section 376 (2) (f) IPC against the accused person. The victim was medically examined and her statement under Section 164 Cr.P.C. was also recorded. After completion of the investigation, charge sheet was laid against the accused person under Section 376 (2)(f) IPC for trial. 4. The accused faced the trial and denied the charge framed in the said Section of law and claimed to be tried. Prosecution examined 8 witnesses in support of the case. No defence evidence was adduced on the part of the accused person. Statement of the accused person was also recorded under Section 313 Cr.P.C. wherein he has denied all the allegations. At the conclusion of the trial, the learned trial court found and hold the accused guilty under the aforesaid Section of law and convicted and sentenced him as aforesaid. Hence the appeal. 5. Statement of the accused person was also recorded under Section 313 Cr.P.C. wherein he has denied all the allegations. At the conclusion of the trial, the learned trial court found and hold the accused guilty under the aforesaid Section of law and convicted and sentenced him as aforesaid. Hence the appeal. 5. The learned Amicus Curiae appearing on behalf of the appellant has submitted that the evidence of the victim is doubtful inasmuch as she did not raise any protest at the time of occurrence whereas the place of occurrence is near to her house and the medical evidence is also not supportive of sexual intercourse as has been alleged by the victim girl. Another limb of argument is that there is no other eye witness to the occurrence even though place of occurrence was adjacent to the house of the victim and all other witnesses are hearsay witnesses. That being so, the accused deserves the benefit of doubt. On the other hand, Mr. D. Das, the learned counsel for the State respondent vehemently submitted that prosecution has sufficiently proved the charge against the accused person and the evidence of the victim who is a minor girl aged about 8 years at the time of occurrence cannot be discarded only because that she made no hue and cry at the time of occurrence and for non-finding of any injury in her private parts. It has been submitted that the medical report itself indicates that there is mark of injury on her breasts although there is no other injury on her private parts. But the evidence of the victim is specific about the occurrence. Her verbal testimony remains consistent all throughout the trial corroborated by the other evidence on record. 6. The evidence on record has been pressed into by the learned counsel for both the parties in support of their contentions raised before this Court and I have also gone through the evidence carefully. It must be born in mind that the victim here is a minor aged about 8 ears, a student of class-II at the time of occurrence. By the time she gave evidence, she was 10 years. Another notable aspect of the case is that the accused is a close relative of the informant/the victim girl (brother-in-law of the informant) and his house is also adjacent to the house of the informant as well. By the time she gave evidence, she was 10 years. Another notable aspect of the case is that the accused is a close relative of the informant/the victim girl (brother-in-law of the informant) and his house is also adjacent to the house of the informant as well. There also appears no any good reason for raising false allegation either on the part of the victim or on the part of the informant and other witnesses. 7. In her evidence PW2, the victim girl has testified that on the day of occurrence the accused asked her to accompany him to obtain honey comb from the nearby tea garden and accordingly on being lured by the accused, she went with him. While getting inside the tea garden the accused laid her on the ground and thereafter pulled out her panty and inserted his private part into her vagina and bite her breasts. The accused gagged her mouth with a piece of cloth while committing the crime and as and when the accused heard the hue and cry of the mother of the victim he left the place. Then she rushed to her house and reported the incident to her parents immediately. 8. The evidence of the victim virtually remains unshaked in lengthy cross-examination whereby it can be seen that her evidence is cogent and convincing without being any ground for disbelieving her evidence. 9. Pw1, the informant/father of the victim and the PW3, mother of the victim have also stated that on the day of occurrence while PW3 searched for her daughter/PW2 for getting her ready for the school then she was not found. After some time, she returned and narrated the incident that was happened to her implicating the accused person as aforesaid. The victim also showed them the mark of injury on her breasts and they also saw that her vagina was swollen. They made hue and cry after seeing the condition of the victim and also the matter was informed to the Gaonbura/PW4. 10. Supporting the evidence of the parents of the victim as well as the victim herself, the concerned Gaonbura appearing as PW4 has also stated that he was informed by the parents of the victim all about the incident narrated by the victim and upon asking the victim also reported him the same incident. 10. Supporting the evidence of the parents of the victim as well as the victim herself, the concerned Gaonbura appearing as PW4 has also stated that he was informed by the parents of the victim all about the incident narrated by the victim and upon asking the victim also reported him the same incident. It is stated by PW4 that injuries of the victim was shown to the female members of the crowd already gathered in the house of the informant. 11. Supporting the entire facts and circumstances, PW5 and PW6 (neighbours) also narrated that on the day of occurrence after hearing commotion in the house of the informant they rushed to their house and found that the parents of the victim were making hue and cry and upon asking as to the matter they were also reported by the informant and the victim all about the incident that had taken place to the victim girl. They also saw mark of injury on the person of the victim girl. 12. Pw4, PW5 and PW6 have also stated that a village meeting was called for to decide about the matter and they remained present in the meeting but the accused did not turn up. 13. So far as the evidence of the Medical Officer/PW7 is concerned he has stated that on examination of the victim he found mild scratch mark on the left breast of the victim. That apart, there was no other injury mark on her private parts and no spermatozoa was seen, neither there was evidence of sexual intercourse. 14. Lastly, the evidence of the I/O testifies all about his investigation including the examination of the victim, preparation of the sketch map and recording of the statement of the victim through court under Section 164 Cr.P.C. and about filing of the charge sheet. 15. It is to be noted here that the learned trial court has appreciated entire evidence in all aspects of the matter while arriving at the findings. 16. The assessment of the conduct of the victim who is a minor one is to be made in a proper approach and her evidence may not be the same as adult women. 15. It is to be noted here that the learned trial court has appreciated entire evidence in all aspects of the matter while arriving at the findings. 16. The assessment of the conduct of the victim who is a minor one is to be made in a proper approach and her evidence may not be the same as adult women. In the instant case, the victim was a close relative of the accused person and she was unaware about the intention of the accused person while she was taken to the tea garden in the pretext of collecting honeycomb as she has no perception of sex and the intention of the accused at the time while she was taken to the tea garden. However, she has given a clear description of the occurrence that the accused has made a sexual assault upon her for which a mark of injury was found by the Medical Officer. Mark of injury on the breast and private parts was also observed by all the witnesses including PW1 to PW6 except PW4 (Gaonbura). Thus, there appears no any infirmity on the findings. Immediately after the occurrence the victim reported the matter to her parents and in turn, the matter was also informed to the concerned people who arrived after the occurrence. There appears no any reason to disbelieve or discard the evidence of the victim. 17. The non-findings of the mark of sexual intercourse by the Medical Officer cannot be a ground to negate the offence of rape because in the parlance of law even the slightest penetration amounts a rape under Section 375 IPC punishable under Section 376 IPC. In view of the findings of the Medical Officer it can be inferred that there may not the full penetration upon the victim for which there was no serious injury on her private part but her evidence is clear enough that certain sexual assault was inflicted upon her, which was witnessed by her parents and other witnesses including the findings of the Medical Officer. 18. The evidence of the victim girl is to be accepted at per as in an injured witness and from what has been discussed above it is discernible that testimony of the victim as well as other evidence on record, suffers no such infirmity nor any omission or contradiction was proved to be disbelieve evidence on record. 18. The evidence of the victim girl is to be accepted at per as in an injured witness and from what has been discussed above it is discernible that testimony of the victim as well as other evidence on record, suffers no such infirmity nor any omission or contradiction was proved to be disbelieve evidence on record. Nothing appears that the victim was tutored one or there was any scope for false implication of the accused person. Taking note of all above I find and hold that there is no illegality or infirmity in the decision so arrived by the trial court to interfere into. The victim being a minor one the offence under Section 376 (2)(f) IPC is attracted and the learned trial court has rightly convicted the accused person. 19. The appeal stands dismissed accordingly. 20. This Court appreciates the assistance rendered by Mr. K. Goswani, learned Amicus Curiae while conducting the case and the Assam Legal Services Authority is hereby directed to provide him a sum of Rs.7,000/- (Rupees seven thousands) only, as remuneration. 21. Return back the LCR along with a copy of judgment.