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2019 DIGILAW 973 (GAU)

Pranjal Doley v. State of Assam

2019-08-30

RUMI KUMARI PHUKAN

body2019
JUDGMENT : Rumi Kumari Phukan, J. 1. Heard Mr. R. Dev, learned Amicus Curiae for the accused/appellant. Also heard Mr. B.B. Gogoi, learned Addl. P.P. Assam representing the State respondent. 2. The present appeal has been preferred by the appellant from inside the jail who has been convicted by the learned Sessions Judge, Dhemaji on 02.11.2017, in Sessions Case No. 65(DH)/2015, u/s. 366(A)/376 of the IPC, read with Section 4 of the Protection of Children From Sexual Offences Act, 2012 (in short ‘the POCSO Act’) whereby the accused/ appellant has been convicted u/s. 366/376(1) of the IPC to undergo R.I. for five years and to pay a fine of Rs. 1000/- in default R.I. for another two months u/s. 366 IPC and R.I. for seven years and to pay a fine of Rs. 1000/- in default R.I. for another two months u/s. 376(1) IPC and the sentences will run concurrently. 3. The prosecution case as unfolded at the trial is that on 12.03.2015, Smt. Saraswati Pawe of village Kapahtoli under Dhemaji P.S. lodged an ejahar with the Dhemaji police station alleging inter alia that on 06.03.2015, at about 12 O'clock noon, her minor daughter named Riya Pawe (victim girl) (real name concealed), aged about 12 years along with her friends Smti Monika Narah and Smti Sulu Narah had gone to Sisiborgaon Centre to drop a friend of theirs at the examination venue and were returning home on bicycle with her friend Monika. It is alleged that, on the way accused persons namely Pranjal Doley and Johor Doley, coming on a motor bike forcibly dragged her down from the bicycle and got her seated on the motor bike and took her away. Accused Pranjal Doley took her to his maternal uncle's house and kept her confined for about six days and committed rape on her. The complainant was searching for his daughter and with the help of VDP could trace out her daughter and recovered both the accused and the victim and handed them over to the Police Station. 4. The police on receipt of the ejahar, registered a case vide Dhemaji P.S. Case No. 112/2015, u/s 366 A/376 of the IPC read with Section 4 of POCSO Act, 2012 and started investigation. 4. The police on receipt of the ejahar, registered a case vide Dhemaji P.S. Case No. 112/2015, u/s 366 A/376 of the IPC read with Section 4 of POCSO Act, 2012 and started investigation. On completion of investigation, the police submitted charge sheet against accused Pranjal Doley to stand the trial u/s 366 A/376 IPC read with Section 4 of POCSO Act, 2012. So far as accused Johor Doley is concerned, the police submitted charge sheet against him u/s 366 IPC and forwarded him to Juvenile Justice Board, as he was minor. 5. On appearance of the accused, necessary copies under Section 207 of the Cr.P.C. were furnished to him and the case was committed to the Court of learned Sessions Judge for trial and the learned trial Court, on appearance of the accused considered the materials on record and upon hearing both sides, framed the charge u/s 366/376(1) of the IPC. The charge was read over and explained to the accused to which he pleaded not guilty and claimed to be tried. 6. The prosecution, in order to bring home the charge against the accused examined nine witnesses in all. On conclusion of prosecution evidence, the statement of the accused was recorded and necessary question were put to him u/s. 313 Cr.P.C. The accused totally denied the prosecution allegation. However the defence adduced no evidence whatsoever. 7. The learned trial Court, at the conclusion of the trial, convicted the accused person as aforesaid. Hence the present appeal. 8. Be it mentioned that the present appeal has been preferred by the accused from inside the jail and hence Mr. R. Dev was appointed as Amicus Curiae to conduct the appeal for and on behalf of the accused/appellant. 9. Considered the submission of learned Amicus Curiae that the prosecution case suffered from various infirmities for which it can be held that the prosecution has not been able to prove the charge against the accused/appellant beyond all reasonable doubt. R. Dev was appointed as Amicus Curiae to conduct the appeal for and on behalf of the accused/appellant. 9. Considered the submission of learned Amicus Curiae that the prosecution case suffered from various infirmities for which it can be held that the prosecution has not been able to prove the charge against the accused/appellant beyond all reasonable doubt. It is contended that the age of the victim girl is not proved conclusively that she was minor at the time of occurrence; that her conduct is itself doubtful who choose to remain with the accused for several days without any protest to fled away which indicates that she was a consenting party to the affair and as and when the victim found to be a major one, the consent played a vital role to negate any offence as alleged. Furthermore, it has been contended that despite the fact that the victim was taken from a public place, there is no eye witness to the occurrence and the two witnesses/girls who were present with the victim at the time of occurrence and according to the allegation the victim was forcibly kidnapped in their presence but the said two witnesses totally denied such allegation and did not support the testimony of the victim. Further it has been contended that the other witnesses being relatives of the victim and otherwise not eye witnesses to the occurrence is of no help to the prosecution, as they failed to support the prime allegation that the girl was forcefully taken by the accused and committed rape against her will. 10. Further contention of the appellant side is that evidence of the Medical Officer also negate the allegation of such sexual assault and she is stated to be aged above 15 years and below 17 years and if another two years are added to such age, she was major at the time of occurrence. 11. On the other hand, no proper evidence regarding the age of the victim girl like school certificate and birth certificate has been produced even though the victim was a school going student. 12. 11. On the other hand, no proper evidence regarding the age of the victim girl like school certificate and birth certificate has been produced even though the victim was a school going student. 12. Also heard the learned counsel for the State respondent, who has however submitted that as per the medical report, the victim is a minor and hence consent of the minor is irrelevant and she has fully implicated the accused person with the offence charged, coupled with the evidence of her mother and other witnesses reveals that the victim was recovered from the house of a relative of the accused person. According to the learned Addl. P.P. Assam, the prosecution has been able to prove the charge beyond all reasonable doubt. 13. Due consideration has been given to the submission of learned counsel for both the parties and the evidence on record. 14. On a careful scrutiny of the evidence on record, it is to be noted that the victim was kidnapped on the fateful day while she was going with her friends i.e. PW-7 Smt. Sonu Narah and PW-8 Smt. Monika Narah. According to the victim/PW-2, while all of them were returning from the school after meeting the elder sister of the victim girl, the accused suddenly appeared before them and took away the victim on a motor cycle and was taken to the house of one Achinta Pegu of villate Boalbori and kept her in the house of the Achinta Pegu. According to the PW-2, her companion i.e. PW-7 and PW-8 immediately informed the matter to her mother and her mother recovered her with the help of VDP. She also given similar statement before the Magistrate after such recovery. But to utter dismay, it is to be noted that the aforesaid friends of the victim while appearing as PW-7 and PW-8, have fully nullified the entire incident that they have no knowledge about such occurrence and both of them turn hostile. So their evidence is of no help to the prosecution. 15. The evidence of the mother of the victim i.e. PW-1 Sumeswari Pawe that she was informed by PW-7 and PW-8, lost its credibility, as according to the said witnesses, they never informed such matter to anybody. So their evidence is of no help to the prosecution. 15. The evidence of the mother of the victim i.e. PW-1 Sumeswari Pawe that she was informed by PW-7 and PW-8, lost its credibility, as according to the said witnesses, they never informed such matter to anybody. Further the evidence of the PW-1 also remained inconsistent with the evidence of PW-2/the victim, while she stated that she recovered the PW-2 immediately after getting the information with the help of the VDP, whereas the facts reveals otherwise. Admittedly the victim was alleged to be taken away on 06.03.2015, she was recovered on 12.03.2015 and the FIR was filed thereafter, which indicates that the PW-1 did not adhere to file the FIR immediately after missing of the girl but the FIR was filed only after recovery of the girl. That being so, exaggeration and suppression of facts cannot be denied. Moreover, no mother of a minor girl will remain silent after getting such information about forceful kidnapping of a minor daughter and will wait for her return. 16. In the circumstances, there is scope to hold that victim being the major, eloped of her own and stayed with the accused person for several days without making any effort to fled away from the clutches of the accused, which she admitted in her cross-examination. The victim also admitted that she made no hue and cry at the time of kidnapping by the accused person, whereas there was scope to resist such forceful kidnapping as there was public on the road which may have notice such forceful kidnapping. Rather the picture reveals that she went on a motor cycle with the accused, without making any hue and cry. 17. So far as regard the age of the victim girl, I find force in the submission of the learned Amicus Curiae that despite the victim being a school going children, no any documentary evidence like school certificate/birth certificate has been produced in support of her actual age. Mere submission of the mother in such cases is not enough, whereas there was scope to prove the age of the victim girl in proper manner. 18. The Medical Officer (PW-5) also does not support about any such sexual assault upon the victim and it also does not indicate that the girl is of 12/13 years, as claimed by her mother/informant. 18. The Medical Officer (PW-5) also does not support about any such sexual assault upon the victim and it also does not indicate that the girl is of 12/13 years, as claimed by her mother/informant. Moreover, if a minor girl is subjected to forceful sexual assault, there might be mark of injury and other sign of sexual assault which is also not reflected from the medical evidence. On that score also, the evidence of the victim as regard the allegation of rape is negated. 19. The evidence of other witnesses as has been discussed above is not corroborating as regards the kidnapping of the victim girl and about the offence of rape and they are not eye witness to the occurrence. What they have stated is based on the reporting from the mother of the victim/PW-1 and as has been discussed above, the evidence of PW-1 also not found convincing. 20. In case of rape case, conviction can rests upon the sole testimony of the victim if it inspires confidence and can be accepted as a true version of the prosecutrix, without any corroboration. But in the given case, no any explicit reliance can be placed upon the testimony of the victim as well as the informant, as their evidence are contradictory and inconsistent and not supported by other evidence on record, apart from un-explicit delay in lodging the FIR. 21. The learned trial Court has however placed reliance upon the testimony of the victim treating the same as a gospel of truth which in fact is not at all proper appreciation of facts as well as law. The learned trial Court overlooked the serious infirmities in the prosecution case that the testimony of the victim is not at all being corroborated by her own friends who were along with her at the time of occurrence; that the victim raised no any obstruction while she was kidnapped by the accused/person; that the victim remain with the accused for several days, etc. etc. as has been discussed earlier, which renders the findings of the learned trial Court unsustainable. 22. Taking note all above, it can be found and hold that the prosecution has not been able to prove the charge against the accused person beyond all reasonable doubt and hence the accused person is hereby acquitted from the charge and set at liberty forthwith. 23. 22. Taking note all above, it can be found and hold that the prosecution has not been able to prove the charge against the accused person beyond all reasonable doubt and hence the accused person is hereby acquitted from the charge and set at liberty forthwith. 23. This Court appreciate the assistance rendered by Mr. R. Dev, learned Amicus Curiae while conducting the case and the Assam State Legal Services Authority is hereby directed to provide him a sum of Rs. 7,000/- (Rupees seven thousands) only as remuneration. 24. Return back the LCR along with a copy of this judgment.