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2020 DIGILAW 149 (GAU)

Padum Barik @ Papu v. State Of Assam

2020-02-06

MIR ALFAZ ALI

body2020
JUDGMENT Mir Alfaz Ali, J. - Heard learned Amicus Curiae Ms. Bijita Sarma, for the appellant and Mr. M.P. Goswami, learned Addl. P.P., Assam for the respondents. 2. This appeal is directed against the judgment and order dated 19.05.2017 passed by the learned Special Judge, Jorhat in Sessions Case No. 59/2016. By the said judgment, the learned Sessions Judge convicted the appellant under Section 4 of the POCSO Act R/W Section 376/323 IPC and sentenced him to rigorous imprisonment for seven years and fine of Rs. 10,000/- with default stipulation under Section 376 IPC R/W Section 4 of the POCSO Act. The appellant was further sentenced to simple imprisonment for one year and fine of Rs. 1000/- with default stipulation under Section 323 IPC. 3. As per prosecution case, the appellant sexually abused his own daughter, who was reading at Class-IX at the relevant time. After two months when again the appellant attempted to sexually abuse the victim, her mother raised objection and consequently she was mercilessly beaten by the appellant. The mother of the victim, Moni Barik lodged the FIR (Ext.2), on the basis of which, police registered Teok P.S. Case No. 376/2016 under Section 376/354/325 IPC R/W Section 4 of the POCSO Act and on completion of the investigation laid charge sheet against the present appellant under Section 4 of the POCSO Act. 4. In course of trial, learned Special Judge-cum-Sessions Judge framed charge against the appellant under Section 376/323 IPC R/W Section 4 of the POCSO Act, to which, he pleaded not guilty. Prosecution examined 14 witnesses in order to bring home the charges and on appreciation of the evidence, learned trial court convicted the appellant under Section 376 IPC R/W Section 4 of the POCSO Act as well as under Section 323 IPC and awarded the sentence as indicated above. 5. Aggrieved, the appellant preferred the instant appeal. 6. I have considered the submissions of the learned amicus curiae and the learned Addl. P.P., Assam and also scrutinized the evidence brought on record. 7. The victim was examined as PW-1. She deposed that her father had two wives and on the date of occurrence, none of them were present. The appellant assaulted the younger sister of the victim and asked her to stay outside the house by holding her ear and took her inside the room. 7. The victim was examined as PW-1. She deposed that her father had two wives and on the date of occurrence, none of them were present. The appellant assaulted the younger sister of the victim and asked her to stay outside the house by holding her ear and took her inside the room. Thereafter the appellant bolted the door from inside and committed rape on her. She further deposed that the appellant also threatened her with dire consequence. She reported the incidence to her step mother (PW-4), who in turn informed her mother (PW-2), who lodged the FIR. She further stated that after the incident, she went to the house of her grandmother. She also stated that prior to the occurrence, the appellant never committed rape on her. It was elicited during cross examination that at the time of occurrence, three persons besides the victim were present in the house. She also stated to have forgotten the date of incident. 8. Pw-2, the mother of the victim deposed that on the day of occurrence, when she came back home from her work place, her co-wife (PW-4) informed her about the occurrence. Though she asked the victim about the occurrence, she did not state anything, instead, started crying. She also stated that after the incident, the appellant assaulted her and thereafter she lodged the FIR. During cross examination, it was further elicited that she lodged the FIR on the basis of the information received from PW-4 as the victim did not tell her anything. 9. Pw-4, the step mother of the victim stated that she came to know about the incident from the victim. She also stated that the accused had two wives and they were living separately. According to her, after lodging of the FIR by PW-2 she came to know about the incident from the victim and before lodging the FIR the victim did not state anything to her. It is pertinent to mention that the FIR was lodged after two months of the occurrence. 10. Pw-3 was the Dr. Dhruba Jyoti Borah, who examined the victim on 05.09.2016 and found sub conjunctival hemorrhage of right eye lower part. According to him, the injury was simple in nature and caused by blunt force impact. The PW-6, Dr. Amrita Nath, who examined the victim again on 06.09.2016 found as follows. wxyz "1. 10. Pw-3 was the Dr. Dhruba Jyoti Borah, who examined the victim on 05.09.2016 and found sub conjunctival hemorrhage of right eye lower part. According to him, the injury was simple in nature and caused by blunt force impact. The PW-6, Dr. Amrita Nath, who examined the victim again on 06.09.2016 found as follows. wxyz "1. Her age is above 14 years and below 16 years. zyxw wxyz 2. Evidence of recent sexual intercourse is not detected on her person. zyxw wxyz 3. There is no injury detected on her person at the time of examination." zyxw 11. According to PW-5, one Dipa Saikia, who happened to be the President of an NGO, the wife of the appellant told her that she was subjected to torture by her husband. She further stated that the wife of the appellant came to her accompanied with her daughter who also had injuries on her face and ears and she advised the PW-2 to lodge the FIR. She further stated that the victim told her about the incident of rape before two months as well as assault on the previous date. 12. Pw-7 was an witness to the seizure list (Ext.4), whereby a school certificate was seized. The PW8, who happens to be the grandmother of the victim stated that the accused used to assault his wife some times. However, she pleaded ignorance about the incident. According to her, the appellant assaulted his wife after consuming liquor. She further stated that the victim did not tell her anything about any incident nor she was told the reasons of filing the case. 13. A dispassionate scrutiny of the oral testimony would show that although the PW-1, the victim stated in her evidence that her father committed rape on her, in her previous statement recorded under Section 164 CrPC and proved as Ext.1, she did not state about commission of rape. It was also in her evidence that before the incident leading to filing of the case, her father did not commit rape on her. Admittedly, PW-2 did not have personal knowledge about the occurrence nor the victim told her. According to her, it was the PW-4, who told her about the occurrence and on the basis of the information received from PW-4, she lodged the FIR. Admittedly, PW-2 did not have personal knowledge about the occurrence nor the victim told her. According to her, it was the PW-4, who told her about the occurrence and on the basis of the information received from PW-4, she lodged the FIR. Whereas, PW-4 stated categorically that she had no knowledge about the occurrence till filing of the FIR and she was told about the occurrence by the victim after lodging of the FIR. Evidently, PW-2 stated in her evidence that the appellant sexually harassed the victim two months before the occurrence and on the previous day of lodging the FIR, the accused again tried to sexually abuse the victim and thereafter she lodged the FIR. It was also stated that as she resisted the appellant, the appellant assaulted her causing injuries. 14. What is therefore evident from the oral testimony of PW-2 as well as the allegation made in the FIR, the alleged offence of rape had taken place two months before lodging the FIR. However, at that time, no FIR was lodged. After two months the accused again attempted to sexually abuse the victim. When PW-2 resisted the appellant, she was assaulted by the accused and therefore the PW-2 lodged the FIR. If the evidence of PW-2 is accepted that immediately before filing of the FIR, the accused attempted to sexually abuse the victim and the evidence of PW-1 (victim), that prior to the occurrence, immediately before lodging of the FIR, no incident of rape had taken place and the previous statement of the victim, where also she did not mention about commission of rape, the allegation of rape two months before lodging the FIR appears to be hardly worthy of inspiring confidence. The oral testimony of PW-4 also does not support the PW-2, inasmuch as, though according to PW-2, she lodged the FIR after having come to know about the incident from PW-4, such evidence of PW-2 was belied by PW-4. Though, the victim stated in her evidence that after the occurrence, she went to the house of her grandmother (PW-8), but from the evidence of PW-8, it appears that she was not aware of any incident nor the victim reported her about any incidence of rape. The medical evidence also does not reflect any incriminating material to substantiate any charge of rape. 15. The medical evidence also does not reflect any incriminating material to substantiate any charge of rape. 15. What therefore crystalises from the above evidence is that prosecution evidence was grossly inadequate to establish the charge of rape or sexual assault on the victim and as such, the conviction and sentence of the appellant under Section 376 IPC or Section 4 of the POCSO Act is not sustainable. However, the evidence of PW-1 & PW-2 as well as the doctor (PW-3) coupled with the evidence of PW-5 established that the accused/appellant assaulted the victim and the informant causing simple hurt by blunt object, which certainly established the charge under Section 323 IPC beyond reasonable doubt. Accordingly, the conviction and sentence of the appellant under Section 376 IPC R/W Section 4 of the POCSO Act is hereby set aside. However, the conviction recorded and sentence awarded by the learned trial court under Section 323 IPC is upheld. The appeal accordingly stand partly allowed to the extent as indicated above. Since the appellant has already undergone the sentence under Section 323 IPC, he shall be released forthwith, if not required in any other case. 16. Appreciating the assistance rendered by Ms. Bijita Sarma, learned Amicus Curiae, I hereby provide that she will be entitled to Rs. 7000/- as professional fee, which shall be paid to her by the Gauhati High Court Legal Services Committee upon production of a copy of this judgment. 17. Send down the LCR.