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2019 DIGILAW 939 (GAU)

Khogen Chetri v. State of Assam

2019-08-27

RUMI KUMARI PHUKAN

body2019
JUDGMENT : Rumi Kumari Phukan, J. Heard Mr. A. Dasputa, learned counsel appearing for the appellant/accused as well as Mr. D. Das, learned Addl. P.P., Assam appearing on and behalf of the State respondent. 2. This appeal is preferred against the judgment and order, dated 03.10.2015 passed by the learned Sessions Judge, Dibrugarh in PCSO Case No. 5/2013 arising out of G.R. Case No.1417/2013, whereby the appellant/accused has been convicted u/s. 6 of the POCSO Act and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.5,000/-, in default, simple imprisonment for another 6 weeks. 3. The prosecution case, in a nutshell, is that on 02.05.2013 at about 3:00 PM, the accused person lured the victim, who was a student of Class-II studying at Milanpur Jatiya Vidalaya, wherein the accused was working as Chowkidar in the school, and asked the victim to stay for a while after the school is over and thereafter, accused made penetrative sexual assault upon the victim by laying her down on a bench. The victim stayed with her grand-mother and there is no other male member in the family. She reported the matter to her grand-mother after the occurrence but only after arrival of the elder son of grand-mother i.e. uncle of the victim, an FIR was lodged on 14.05.2013 against the accused person. On the basis of the FIR, a case was registered and victim was examined medically and her statement was also recorded u/s 164 CrPC, her wearing clothes were also examined and sent for forensic examination. After completion of the investigation, police submitted charge-sheet against the accused under Section 6 of the POCSO Act. 4. The accused person faced the trial and denied the charge framed against him and claimed to be tried. Prosecution examined as many as 10 witnesses in support of the prosecution case but the defence examined none. Plea of defence was of total denial. 5. On conclusion of trial, learned trial court found the accused guilty u/s 6 of the POCSO Act and sentenced him, as indicated above, with further direction that fine amount should be provided to the victim. Assailing the said order of conviction, the present appeal has been preferred. 6. The learned counsel for the appellant has urged before this Court that the case is bad for violation of certain provisions of POCSO Act viz. Assailing the said order of conviction, the present appeal has been preferred. 6. The learned counsel for the appellant has urged before this Court that the case is bad for violation of certain provisions of POCSO Act viz. Section 33, 35 and 36 of the Act as the learned trial court has not recorded the statement of the victim as mandated u/s 33 of the Act nor her statement was recorded in terms of Section 35 of the Act i.e. within a period of 30 days from taking cognizance of the offence. It has further pointed out that the charge-sheet was submitted on 20.03.2013 and the cognizance of offence has been taken on 18.11.2013 and the victim was examined on 01.05.2014, which is against the mandate of Section 35 of the POCSO Act. It has also been contended that there is also violation of Section 36 of the Act as the record does not reflect that the court has followed such procedure at the time of recording the evidence of the victim. On the next, it has been contended that there is delay in filing the FIR, after the incident and conduct of the victim is also not proper as she did not report the matter to other attending staff of the school as well as the nearby peoples of the school, situated near the school. On the other hand, medical evidence is also assailed on the ground that it bears no such specific evidence about the penetrative sexual assault upon the victim nor there was any such serious injury on her private parts. Learned counsel for the appellant has led this Court through the evidence recorded in course of investigation and submitted that for the delay in filing FIR, coupled with the fact that nobody was reported by the victim immediately after the incident, the statement of victim cannot be relied upon and the accused is entitled to get the benefit of doubt. 7. Per contra, learned Additional Public Prosecutor, Mr. 7. Per contra, learned Additional Public Prosecutor, Mr. D. Das has, however, vehemently opposed the contention of the learned counsel for the appellant and submitted that such provisions u/s 33, 35 & 36 have been incorporated to mandate that the interest of the victim should be ensured while recording evidence so that she should not face any trauma in giving her evidence in an unknown atmosphere before in the court and hence the same cannot be raised as a ground to challenge the prosecution case and defence cannot avail any benefit for violation of such provisions, if so occurred. It has further been contended that the victim has given a constant statement before the Investigating Officer and in the court recorded u/s 164 Code of the Criminal Procedure and in course of trial and there is no occasion to disbelieve her (victim) statement, who is a minor girl of 8 years, a student of Class-II. She has no occasion/intention for falsely implicating the accused person, who is no other than a person working as Chowkidar of her school, neither the informant and family had any such animosity for such false implication of the accused. It is contended that even after 12 days delay of medical examination, the Doctor found injury on the private parts of the victim, which is enough to suggest the commission of offence, as alleged. Reading the evidence as a whole, he contends that prosecution has successfully proved the offence u/s 6 of the POCSO Act, which calls for no interference. 8. Pursuant to the submissions of learned counsel for both the parties, this Court has also gone through the evidence on record. Obviously, it is a case of sexual assault upon a minor and testimony of victim being crucial, so we should examine her evidence with due care and caution. 9. The victim has been examined as PW.1 and in the course of recording her statement, she was tested by the court to test her capacity to depose before court. The court asked certain questions to the victim, one of the question was- "Whether you can say about the occurrence" to which she answered- "Yes, I can say." Then only, the court made a note that as she understood the questions and answered properly, her statement could be recorded. The court, thereafter, recorded her statement in the language, she stated. The court asked certain questions to the victim, one of the question was- "Whether you can say about the occurrence" to which she answered- "Yes, I can say." Then only, the court made a note that as she understood the questions and answered properly, her statement could be recorded. The court, thereafter, recorded her statement in the language, she stated. The girl (victim) was tested in cross-examination also wherein she has stated that there are 20 numbers of teachers in her school and at the time of occurrence, there was nobody in the school as it was 2:30 PM. It is to be noted that the victim has never suggested that no such occurrence was taken place and except some few questions, no effective cross-examination was made to discard the statement of the victim, recorded in-chief. 10. From the detail testimony given by the victim (after fully understating the matter), it appears nothing that she has given tutored/ wrong version or has given false evidence against the accused person, there being no any other ground for false implication of the accused. Her testimony given in course of trial is also same as the statement recorded u/s 164 CrPC, which was recorded immediately after registration of the case, wherein her evidence was recorded after 2 years of the occurrence. Still yet, it was corroborative one. 11. In her evidence, PW.1 has stated that on 02.05.2013, she went to school and when the school was over, other students were not there and then the accused told her to stay saying that he will take her to her house after sometime. The accused came and took her to the office room, made her lie down on a big bench and touched her breast, opened his pant and opening her panty inserted his penis into her urinal passage. She cried, but the accused gagged her mouth and threatened her not to tell anybody, otherwise he will cut her into pieces. She further stated that when she rushed to her house crying, her grand-mother asked her and she told her nothing out of fear, but while going to the toilet, she found bleeding from her private part and also felt pain. She further stated that when she rushed to her house crying, her grand-mother asked her and she told her nothing out of fear, but while going to the toilet, she found bleeding from her private part and also felt pain. She further stated that on the next day, she was afraid of going to school and on being asked by her grand-mother, she told her all about the incident and her grand-mother informed her uncle, who was then in Bihar, over telephone. PW.1 further stated that her uncle came from Bihar on 13.05.2013 and informed police. 11. Evidence of other witnesses of PW.2, PW.3, PW.5 and PW.8 are relevant as they are the relative of the victim. 12. Evidence of PW.3 is crucial, who is grand-mother of the victim and the incident was first reported to her. In her testimony, PW.3 has stated that at the time of occurrence on 02.05.2013, when the victim did not return from school even after 3:30 PM, she went out in search of her and on the way, she found the victim and on being asked she told nothing but was weeping and on arriving at home, she told nothing and slept without taking any meal. PW.3 saw bleeding in her pant. But she did not disturb her. The matter known to the PW.3 on the next day, when the victim refused to go to school and upon asking, victim told everything that the accused has committed rape upon her. PW.3, thereafter, immediately informed the matter to her elder son/PW.2 who was at Bihar at that time and knowing the incident, PW.2 immediately returned and came to know the incident from PW.1 and PW.3. PW.8 is the wife of PW.2, who has also given similar statement as that of PW.2 that they all came to know about the matter from the victim after their return from Bihar. The victim narrated all about the incident to both the witnesses as such. 13. So far as the evidence of PW.5 is concerned, he stated that victim is his niece. He stated that he came to know the incident from his mother about the sexual assault upon the victim by the accused person. His evidence is similar to the evidence of PW.2 and PW.8. 14. 13. So far as the evidence of PW.5 is concerned, he stated that victim is his niece. He stated that he came to know the incident from his mother about the sexual assault upon the victim by the accused person. His evidence is similar to the evidence of PW.2 and PW.8. 14. The Medical Officer/PW.4, who examined the victim after few days of incident i.e. after filing of the FIR on 14.05.2013, has specified that victim was above 7 years and below 9 years age and at the time of examination, she put some questions to ascertain her intelligence and understanding. He found, upon examination of the victim that vagina of the victim inflamed and the vaginal orifice was tender and admitted one thumb and genital findings are suggestive of vaginal penetration and the hymen was ruptured which was old one. 15. Learned trial court has discussed that such evidence of the Medical Officer that it is supporting the allegation about sexual assault upon the private parts of the victim but there may not be sign of other injury and spermatozoa on her private part, on such medical examination after such a considerable period. 16. The evidence of other witnesses, PW.2 and PW.5 also reflect that matter was immediately informed to the VDP Secretary as well as school authority but VDP authority did not file any FIR and the school authority held a meeting in the school, where accused was also present, but nothing was finalized in the meeting held by the school authority. 17. Evidence of PW.6, an Aaya of the school in question, who happened to be present at the time, when the members of the Managing Committee of the school held the meeting, in presence of the victim girl and the accused. PW.6 has stated that victim girl and her uncle and grand-mother were complaining that accused has committed the mischief to the victim and the Managing Committee asked the accused as to why he committed such mischief and also asked her (PW.6) to examine the victim to ascertain the truth and to see whether any sign of physical violence on the person of the victim girl. Thereafter, victim was taken to a separate room and after examination, PW.6 found certain injuries on her private part and she reported the matter to the Managing Committee. Thereafter, victim was taken to a separate room and after examination, PW.6 found certain injuries on her private part and she reported the matter to the Managing Committee. Such evidence of PW.6 is also supportive to the fact that there was mark of injury on the private part of the victim. 18. Pw.8 has fortified that after the incident, when she came back from Bihar and had examined the private part of the victim, she found bleeding was continued and victim was such traumatized that she refused to go to school and she reported that the accused threatened her to cut and throw her in 'nala', if she revealed the occurrence to anybody. The evidence of PW.9 is not major as she is a reported witness. 19. Lastly, Investigating Officer has narrated all about the investigation as has been carried out in connection with the case. 20. On careful examination of the entire matter, it is found that victim, who was a minor girl, aged about 8 years at the time of occurrence, her conduct cannot be assessed at par with adult women. Only because she did not reported the matter immediately to her grand-mother with whom she is residing, cannot be a ground of attack the authenticity of the evidence of the victim, as nobody can overcome from mental agony resulted from such sexual assault. Victim is aged about only 8 years. She has no sense of sex and the occurrence had very much traumatized her for which she did not report the matter even to her grand-mother. She was even hesitant to go to school out of fear after the incident as the accused has threatened her with dire consequences. 21. Testimony of the minor witness has, however, been sufficiently corroborated by other witnesses as has been discussed above, the medical evidence also supportive of the injury sustained by the victim on her private part, which is also suggestive of sexual assault. The evidence of Doctor/ Medical Officer is an opinion but is not substantive evidence has, however, supported the factum of injury on private part of the victim. The evidence of Doctor/ Medical Officer is an opinion but is not substantive evidence has, however, supported the factum of injury on private part of the victim. Learned trial court has appreciated each and every aspect of the evidence, in detail, and has rightly appreciated that the evidence of PW.3 and other witnesses have fully supported and substantiated the allegation raised by the victim and finally come to a finding about the guilt of the accused person. The accused was working at the capacity of Chowkidar in the school and he can be regarded as staff of the school and the case will come under purview of Section 5 of the POCSO Act for sexual penetrative assault and punishable under Section 6 of the POCSO Act. 22. Now, the learned counsel for the appellant stated about the violation of the provisions of Section 33, 35 & 36 of the POCSO Act, which has been provided only to ensure proper recording of evidence of the victim in a congenial atmosphere in expedite manner so that the victim of assault should not be subjected to prolong trial, which has no bearing over the case of the defence side. So far as the accused person is concerned, it is to be noted that he has an obligation u/s 29 & 30 of the POCSO Act to rebut the prosecution case in due manner or otherwise the court is under the authority to raise statutory presumption against the accused for not challenging the case of the prosecution. 23. Section 29 & 30 of the POCSO Act reads as follows: "29. Presumption as to certain offences.- Where a person is prosecuted for committing or abetting or attenuating to commit any offence under sections 3,5,7 and section 9 of 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. 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. 2. For the purposes 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." 24. In the instant case, save and except some denial, no any specific plea was taken by the accused during the course of trial and he has totally failed to rebut the statutory presumption u/s 29 & 30 of the Act. Only in course of examination u/s 313 CrPC, the accused has raised the plea of enmity between the parties for such false implication but, however, no such plea was taken in course of trial. He has failed to rebut the prosecution case in his defence either by effective cross-examination or by adducing any sort of evidence. 25. Considering the entirety of the matter, it is concluded that there is no illegality or perversity in the decision arrived at by the learned trial court, which calls for interference by this Court. 26. Consequently, the appeal is devoid of merit and accordingly dismissed. 27. Return back the LCR.