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2019 DIGILAW 941 (GAU)

Md. Mohiruddin Ali v. State of Assam

2019-08-27

RUMI KUMARI PHUKAN

body2019
JUDGMENT : Rumi Kumari Phukan, J. Heard Mr. M.A. Sheikh, learned counsel appearing for the appellant/accused as well as Mr. B.B. Gogoi, learned Addl. P.P., Assam appearing for the State respondent. 2. This appeal is preferred against the judgment and order dated 03.11.2018, passed by the learned Special Judge, Rangia in Spl. Sessions Case No.7/2016, whereby the appellant/accused has been convicted u/s. 4 of the POCSO Act and sentenced him to undergo rigorous imprisonment for 7 years and to pay a fine of Rs.10,000/-, in default, simple imprisonment for another one year. 3. The prosecution case in brief is that: on 09.07.2015, informant Rubul Ali, the father of the victim lodged an FIR before the Officer-in-charge of Changsari Police Station, stating inter alia that on the same day at about 11:30 a.m., the accused taking advantage of his absence, took his minor son to the backyard of the informant s house and thereafter committed penetrative sexual assault causing injury to the victim. Resultantly, the Changsari P.S. Case No.141/2015, u/s.377 IPC, read with Section 4 of the POCSO Act was registered. After completion of the investigation, charge sheet was submitted against the accused and the case was committed to the learned Court of Sessions Judge, Amingaon for trial. 4. On appearance of the accused and hearing the parties the trial Court framed charge against the accused person u/s.4 of the POCSO Act and the same was read over and explained to which the accused person pleaded not guilty and claimed to be tried. 5. During the course of trial, the prosecution examined as many as six witnesses in support of their case whereas the accused person examined himself as DW.1. After completion of evidence, statement of the accused u/s.313 CrPC was recorded and after perusal of the materials available and considering the statement of witnesses, the learned trial court convicted the accused as stated above. 6. Being aggrieved by the aforesaid order of conviction and sentence, the present appeal is preferred on the ground inter alia that the trial Court erred in law and facts, while passing the impugned judgment and order. 7. I have heard the arguments advanced by the learned counsel for the parties and perused the materials available on records. 8. Pw.1, the victim stated in his evidence that the occurrence took place in the daytime. The accused person used to work in their house as cowherd. 7. I have heard the arguments advanced by the learned counsel for the parties and perused the materials available on records. 8. Pw.1, the victim stated in his evidence that the occurrence took place in the daytime. The accused person used to work in their house as cowherd. On the day of occurrence, the accused took him under the bamboo grove and after opening the wearing of the victim and the accused, penetrated his penis into the anus of the victim. As a result, blood oozed from his anus. The victim further alleged that the accused used to do such sexual penetration with him since many times. Hearing screaming of the victim, his mother came and took him away. On her query, the victim told about the incident to her. Thereafter the victim was taken to the hospital and was given medical treatment. The statement of the victim was recorded u/s.164 CrPC, which is Ext.1 and Ext.1(1) and Ext.1(2) are his signatures. The victim stated that he was a school going student and at the time of occurrence it was summer vacation. 9. Pw.2, Rubul Ali, the informant as well as the father of the victim stated in his evidence that he had employed the accused as a cowherd to look-after his cattle. At the time of occurrence, he was at Guwahati and after returning back in the evening, he came to know about the incident from his wife, who told him that blood came out from the anus of the victim. He lodged the FIR, Ex.2 and Ext.2(1) is his signature. 10. Mrs. Hasina Hussain, mother of the victim who was examined as PW.3 stated in her evidence that the victim is her son. She stated that the occurrence took place in the year 2015 and she was working in the kitchen. She stated that the victim was playing with the accused but suddenly both of them disappeared. Thereafter she called her son by his name and she got the reply of her son coming from the backyard of their house. Thereafter her son came near her crying and informed her that the accused has penetrated his penis into his anus and on scrutiny, she saw blood coming out from the anus of the boy. On return of her husband, she informed him about the incident and accordingly he filed the ejahar. 11. Thereafter her son came near her crying and informed her that the accused has penetrated his penis into his anus and on scrutiny, she saw blood coming out from the anus of the boy. On return of her husband, she informed him about the incident and accordingly he filed the ejahar. 11. Pw.4 Mustafa Hussain is uncle of the victim and he supported the prosecution case in the tune of PW.2 and PW.3. He has stated that on the day of occurrence when he was on the way to his working place, he saw the accused person playing with the victim and the accused was employed as cowherd in the house of the informant. In the evening, he came to know that the accused committed sexual assault upon the victim and upon asking the victim has reported the same thing that was reported to the informant and other witnesses. Save and except giving certain suggestions, nothing can be elicited from his mouth to discredit his evidence. 12. Pw.5 is the I.O., who investigated the case and stated that after receiving the ejahar, the officer-in-charge registered a case and endorsed him with the investigation of the case. Accordingly he took the victim as well as the accused for medical examination, visited the place of occurrence and prepared the sketch map Ex.2 and Ext.2(1) is his signature, recorded the statement of witnesses, collected the medical report and after completion of the investigation, WSI Jonmani Kalita submitted the charge sheet (Ext.3) against the accused u/s.377 IPC, read with Section 4 of the POCSO Act and Ext.3(1) is his signature. 13. Pw.6/ the Medical Officer who examined the victim has stated that the victim was brought to the Department of Forensic Medicines of the Gauhati Medical College and Hospital for medical examination and he found the following injury: Anus and Anul Canal: Linear abrasions extending from anal margin into anus is present at 10 O clock, 6 O clock, 7 O clock and 2 O clock positions of size 1cm x 0.5 cm, red in colour, tender in touch and oozing is present. The Medical Officer further stated that the age of the victim is below six years. Ext.4 is the medical report and Ext.4(1) to Ext.4(5) are the signatures of Dr. S. Haflangbar and Ext.4(6) is the signature of Dr. R. Chaliha. 14. The Medical Officer further stated that the age of the victim is below six years. Ext.4 is the medical report and Ext.4(1) to Ext.4(5) are the signatures of Dr. S. Haflangbar and Ext.4(6) is the signature of Dr. R. Chaliha. 14. All the prosecution witnesses were cross-examined by the defence in length. 15. The accused person examined himself as DW.1 and stated in his evidence that the informant has kept him as a labour in his house to look after his cattle and to do various other manual jobs on a monthly salary of Rs.6000/-. After completion of one month, the DW.1 informed the informant that he will not be able to do the said jog further more but the informant requested him to stay until his replacement is found and he obeyed his order. The informant had a 5/6 years old son who was very naughty and used to disturb him in day to day work. On the date of occurrence, after doing his work, the DW.1 went to the nearby fishery of the informant to wash his hands and feet and the son of the informant was disturbing him by pulling his wearing lungi. He got disturbed and gave him a slap and resultantly the boy fell down and started crying. Thereafter, the mother of the boy rushed to the spot and took the boy. Later on, the mother informed the matter to the informant and took the victim and the accused to the medical and lodged a case against him. 16. On careful examination of evidence on record, it would reveal that the victim is a minor aged 7 years, a student of Class-II and the accused is acquainted to him as he was working in his house as a cowherd. Mother of the victim /PW.3 was present in the house at the time of occurrence and she did not worry while her son was playing with the accused but as they were not found, after sometime so she called the child and he returned with a crying face and told the incident to his mother/PW.3. When the matter was asked to the accused he admitted his wrong and thereafter the matter was informed to the police and she also informed the incident to the father of the child/ PW.2. When the matter was asked to the accused he admitted his wrong and thereafter the matter was informed to the police and she also informed the incident to the father of the child/ PW.2. Both the witnesses were reported by the victim /PW.1 about the incident and they also noticed injury on the anus of PW.1 with pain and the same aspect has also been supported by the medical evidence given by PW.6. From the evidence of medical officer it is also apparent that there was abrasion at the anus with red colour, tenderness with oozing and age of the victim was below 6 years at the time of examination on 10.07.2015. It may be noted here that the victim was examined by the court after about 2 years of the incident and by that time he was 7 years old. 17. There appears nothing to disbelieve the evidence of such minor witness as well as his parents for false implication of the accused. Save and except giving some suggestions about the incident, their evidence remained unrebutted in the cross-examination. PW.4, who is a relative to the accused also saw the victim was playing with the accused person on the day of occurrence and in the evening he came to know from PW.3 that the accused has committed the mischief. Upon asking, the victim also reported the same. It is to be noted that the accused has given suggestion that the victim sustained the injury by falling and he provided treatment to which the witnesses denied. Another defence that was taken by the accused that in order to avoid payment to the accused as labourer, such a false allegation has been made against him to which the witnesses denied. The accused examined himself as DW.1 and has stated that he used to do manual work in the house of the informant and on the day of incident, the victim who was a naughty boy, disturbed him by pulling his wearing lungi for which he slapped him and he fell down thereby sustained injury. But his evidence is devoid of merit which is not supported by any other witness and no such specific suggestion was given to the witnesses that victim sustained injury by falling for giving slap by him. But his evidence is devoid of merit which is not supported by any other witness and no such specific suggestion was given to the witnesses that victim sustained injury by falling for giving slap by him. Obviously, the accused has admitted the injury sustained by the victim but his story that for giving slap the victim sustained such injury on private parts, is not at all matched hence, liable to be discarded. Although by adducing evidence, he tried to rebut the prosecution case, but same is not reliable nor worthy of credit. 18. The learned counsel for the appellant has tried to hammer the prosecution case on the ground that the victim has given an inconsistent version as regards the identity of the accused, as in his statement under Section 164 CrPC, he has stated the accused as chacha (uncle) but in his evidence, he has stated the accused as nana . But such a challenge is unsustainable because the victim in his evidence has specifically stated that accused was working in their house as cowherd and has implicated the accused only and there may be nana in his family of same name. 19. Another challenge that has been made regarding the discrepancies in the statement of the victim and his mother, that the victim has stated that he was crying at the time of occurrence while his mother took him up, whereas the mother stated that on her call, victim stated that he was in the backside of the house and she brought him from backside. Such a minor discrepancy in the evidence is not at all vital to discard the prosecution case. In absence of any other vital discrepancy, contradiction etc. the evidence of the victim as well as his parents and relatives cannot be discredited. There appears nothing to show the victim was tutored nor they have any enmity with the accused for false accusation. The challenge made by the appellant side is not sustainable. The way and manner in which the incident has happened has a serious implication, whereas the victim is very tender age (minor one), who has been subjected to such sexual assault. 20. In State of Rajasthan vs. Om Prakash,2002 5 SCC 201, Hon’ble Apex Court has held that child rape cases are cases of perverse lust for sex where even innocent child is not speared in pursuit of sexual pleasure. 20. In State of Rajasthan vs. Om Prakash,2002 5 SCC 201, Hon’ble Apex Court has held that child rape cases are cases of perverse lust for sex where even innocent child is not speared in pursuit of sexual pleasure. There cannot be obscene than this. It is a crime against humanity. Many such cases are not brought into light because of social stigma attached therewith. 21. The salient features of the Protection of Children From Sexual Offences Act, 2012 is that the burden of proof is on the accused. What makes the POCSO Act special is that it asks us to trust our children. Rather it placed the onus squarely on the accused to prove that he is innocent. Section 29 of the Act provides that where a person is prosecuted for the committing or abetting or attempting to commit any offence u/s 3, 5, 7 & 9 of the Act, the court shall presume that such person has committed, abetted or attempted the commit the offence unless the contrary is proved. Law ensures that the pressure in not on the child to prove that the crime took place. The court is to presume culpable mental state of the accused as per Section 30 (1) of the Act. The court cannot exercise their discretionary power in POSCO cases to reduce the term of imprisonment to a term not less than the minimum term stipulated under the Act. It is clear that consent of the victim is immaterial. 22. In the given case, a minor aged about 5 years, has raised an allegation, which attracts the ingredient of Section 3 of the POCSO Act, punishable under Section 4 of the POCSO Act and the charge is sufficiently proved by the prosecution. The learned trial court has rightly appreciated the entire matters on record, which calls for no interference. 23. Resultantly, the appeal stands dismissed. 24. Return the LCR.