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2020 DIGILAW 302 (GAU)

Pinku Ray Bongaigaon v. State Of Assam

2020-02-27

MANISH CHOUDHURY

body2020
JUDGMENT Manish Choudhury, J. - Heard Ms. Reetuja Dutta, learned Amicus Curiae for the accused-appellant and Mr. P. S. Lahkar, learned Additional Public Prosecutor for the State of Assam. 2. This appeal from jail is directed against the judgment and order dated 20.06.2018 passed by the learned Sessions Judge, Bongaigaon in Special (B) Case No. 18(BGN)/2017. By the said judgment and order dated 20.06.2018, the accused-appellant has been convicted under Section 4, Protection of Children from Sexual Offences Act, 2012 (the POCSO Act, for short) and he has been sentenced to undergo rigorous imprisonment for 10 (ten) years and to pay a fine of Rs. 2,000/-, in default of payment of fine, to undergo rigorous imprisonment for another 2 (two) months. The period that has already been undergone by the accusedappellant is to be set off against the terms of imprisonment. 3. The First Information Report (FIR) in the instant case was lodged by the father of the victim, P.W.-2 on 07.08.2017 before the Officer In-Charge, North Bongaigaon Police Out Post stating, inter-alia, that on 07.08.2017, at about 02-00 p.m., when there was nobody in his house the accused coming into the house had forcibly raped his minor daughter, aged about 15 years, by gagging her mouth. 4. On receipt of the FIR, the In-Charge, North Bogaigaon Police Out Post registered a general diary entry being G.D. Entry No. 165 dated 07.08.2017 (Ext.-10) and forwarded the same to the Officer In-Charge, Bongaigaon Police Station for registering the same. On receipt of the said FIR, the Officer In-Charge Bongaigaon Police Station registered the same as Bongaigaon Police Station Case No. 586/2017 on 07.08.2017 under Section 4, POCSO Act and the In-Charge of North Bongaigaon Police Out Post, P.W.-9 had been entrusted with the investigation of the case. On being so entrusted, the Investigating Officer (I.O.) had visited the place of occurrence and prepared a sketch map (Ext.-8) of the place of occurrence. The statement of the informant, the victim and other witnesses were recorded by the I.O. The birth certificates of the victim were seized vide Ext.-2, seizure list. Thereafter, on 08.08.2017, the victim was sent to Bongaigaon Civil Hospital for her medical examination and the I.O. in due course collected the medical examination report (Ext.-3). In the meantime, the I.O. arrested the accused on 09.08.2017. The statement of the victim was also recorded under Section 164, CrPC (Ext.-5). Thereafter, on 08.08.2017, the victim was sent to Bongaigaon Civil Hospital for her medical examination and the I.O. in due course collected the medical examination report (Ext.-3). In the meantime, the I.O. arrested the accused on 09.08.2017. The statement of the victim was also recorded under Section 164, CrPC (Ext.-5). After completion of the investigation, the I.O. submitted the charge sheet being Charge Sheet No. 204/2017 dated 31.08.2017 (Ext.-9) finding a case well established for the offence under Section 4 of the POCSO Act against the accused on the basis of the materials collected during the course of investigation. 5. On submission of the charge sheet, the case stood committed to the Court of learned Sessions Judge, Bongaigaon as an offence under Section 4 of the POCSO Act is to be tried by the learned Sessions Judge as Special Judge. After securing production of the accused from the jail hazot, the copies were furnished to the accused in compliance of the procedure prescribed under Section 207, CrPC. After hearing the learned Public Prosecutor and the defence counsel and upon perusal of the materials on record, the learned Sessions Judge framed a charge under Section 4 of the POCSO Act on 14.11.2017. The charge on being read over, interpreted and explained, the accused pleaded not guilty and claimed to be tried. 6. During the course of trial, the prosecution examined 9 (nine) nos. of witnesses including the doctor and the I.O. After closure of evidence of the prosecution side, the accused was examined under Section 313, CrPC by putting of all the incriminating materials found against him. On being asked, the accused declined to adduce any evidence. Thereafter, upon examination and appreciation of evidence on record, the learned Special Judge by the impugned judgment and order has convicted and sentenced the accused-appellant, as has been mentioned above. 7. The victim was examined as P.W.-1. In her testimony, she deposed to the effect that on the date of the incident, she was called from the house of her maternal uncle by the accused to her house on the pretext of giving Rs. 100/- which he stated to have owed to her father. At that time, there was no one else in her house and the accused by calling her in that way, had inserted his penis in her vagina. 100/- which he stated to have owed to her father. At that time, there was no one else in her house and the accused by calling her in that way, had inserted his penis in her vagina. The accused had torn her wearing apparels and after committing sexual assault, the accused left the place. As in the meantime her younger sister (P.W.-5) had reached the house, the victim disclosed about the incident to her. The younger sister, P.W.-5 thereafter, had informed their parents and others about the incident. She mentioned about recording of her statement before Court and by police. In her crossexamination, she stated that she was asked to sleep on a bench. She denied that she did not tell before the police that the accused had torn her wearing apparels. She admitted that when accused had committed sexual assault on her she did not shout as her mouth was kept gagged. When her younger sister entered the house calling "mother, mother", then the accused left the place. Though the police had seen the torn wearing apparels, the same were not seized. She denied the suggestion that she was not called from the house of her maternal uncle by the accused on the pretext of giving Rs. 100/- which he owed to her father. She further denied the suggestions that no rape was committed upon her and that for getting her married with the accused, her father had lodged the case falsely. It is seen that one part of the previous statement of the victim had been confirmed by the defence by putting the same to the I.O. that the victim did not tell before him that her wearing apparels were torn by the accused and that she was asked by the accused to sleep on the bench. 8. The father and the mother of the victim were examined as P.W.-2 and P.W.-3 respectively. They both deposed that no other person was present in the house at the time of the incident. P.W.-2 had deposed that on the date of the incident he had gone out of his house for work and at about 2-30 p.m., he was returning from his work. At that time, his younger daughter, P.W.-5 came out of the house looking for him and she met him on the road. P.W.-2 had deposed that on the date of the incident he had gone out of his house for work and at about 2-30 p.m., he was returning from his work. At that time, his younger daughter, P.W.-5 came out of the house looking for him and she met him on the road. He was brought back immediately to his house and after reaching home, his younger daughter, P.W.-5 had told him about seeing the accused committing sexual assault on her elder sister and about running away of the accused from the place. P.W.-2 had disclosed that at the time of the incident, the age of the victim was about 15 years. He further stated that at the time of occurrence, his wife (P.W.-3) was not at house as she was attending a meeting in the school. He had called his wife back home and they both looked for the accused by going to his house. When the accused was not found, he went to the police station to lodge the FIR. He exhibited the FIR as Ext.-1. He had deposed that police had seized one birth certificate (Material Ext.-1) and one school certificate (Materials Ext.-2) from him and after retaining the copies, returned the original copies thereafter. He had brought the original copies to the Court. He denied that he did not tell before the police that P.W.-5 did not tell him about witnessing the accused committing rape on the victim and about his running away from the place. But this part of his testimony has been confirmed through the I.O. that P.W.-2 did not tell so previously before him. Thus, this part of the testimony of P.W.-2 cannot be taken into consideration. P.W.-3 had corroborated P.W.-2 with regard to the fact of attending a meeting in the school on the date of the incident. P.W.-3 had further deposed that when she was at the meeting, she was informed that an untoward incident had occurred in her house. She was told by the victim as to what had happened. 9. P.W.-4 is a neighbour of P.W.-1 and at the time of the incident, he was attending a meeting at the school. It was after the meeting she had heard about the incident of rape from others. P.W.-8 is also a co-villager who had deposed that he had only heard about the Page No. 5/9 incident from others. 9. P.W.-4 is a neighbour of P.W.-1 and at the time of the incident, he was attending a meeting at the school. It was after the meeting she had heard about the incident of rape from others. P.W.-8 is also a co-villager who had deposed that he had only heard about the Page No. 5/9 incident from others. Thus, the testimony of P.W.-3 and P.W.-4 are not of much assistance to the case of the prosecution. 10. P.W.-5 is the younger sister of the victim. She deposed that on 7.08.2017, at about 2- 00 p.m., she had returned to the house and on entering the premises, she called for her mother. But her mother was not in the house. When she entered into the house she found that in the verandah, her elder sister was lying on a bench and the accused was found her person. Having seen her, the accused fled away from the place. When she asked her elder sister, she was told by the victim that when she was at the house of their maternal uncle the accused called her back to her house on the pretext of giving of Rs. 100/- which he owed to his father. In her cross-examination, she stated that she did not see any weapon with the accused and her elder sister had not raised any voice. She denied the suggestion that the accused did not commit any sexual assault on her elder sister and denied that nothing had happened on the date of the incident. 11. P.W.-6 working as a Medical & Health Officer at Bongaigaon Civil Hosital on 08.08.2017 and on that day, he examined the victim and found the following :- Findings : Conscious and oriented. Vital normal. Per abdomen - Soft, uterus not 7 7 palpable. Dentition -7 7 Secondary sex character developing. Menstrual cycle Normal.Local examination Introitus Noredness, swelling ortenderness. No semen stainon vulva,vagina, thighs ofbody.Hymen torn 5 O clockposition. Per Vagina admits one finger. Investigation Urine for HCG negative. X-ray forage determinationof thevictim shows the age above 14 years and below 16 years. Vaginal smears No spermatozoa seen Opinion :From the history, clinical examination and investigation it could not be ascertained if the victim was raped or not. 12. When during his examination under Section 313, CrPC all the above incriminating circumstances were put to the accused he denied them as false and claimed innocence. Vaginal smears No spermatozoa seen Opinion :From the history, clinical examination and investigation it could not be ascertained if the victim was raped or not. 12. When during his examination under Section 313, CrPC all the above incriminating circumstances were put to the accused he denied them as false and claimed innocence. He denied to have committed rape on the victim. But he had admitted that on the date of the incident, he had gone to the house of the victim. Apart from that, he also admitted that that he owed Rs. 100/- to P.W.1. i.e. the father of the victim. He had, however, sought to project that it was the victim who meeting him on the road on that day, called him to her house saying that her father had called him asking for the amount. When he had gone to the victim''s house as per her call he was seen by the younger sister of the victim (P.W.5) when he was coming out of the house after failing to meet their father. He stated that P.W.5 had reached the house when he was coming out of the house. He claimed that it was only on suspicion a false case had been lodged against him. 13. From the birth certificate (Mat Ext.-1) and the school certificate (Mat Ext.-2), it has emerged that the date of birth of the victim has been recorded therein as 16.09.2002. The birth certificate (Mat Ext.-1) was issued on 21.09.2002 by the Directorate of Health Services, Government of Assam. The school certificate (Mat Ext.-2) was issued by the Headmaster, Ujjala Primary School, District - Bongaigaon on 31.12.2014. Thus, there is no discrepancy in respect of the date of birth of the victim recorded in the aforementioned 2 (two) certificates. P.W.6, the doctor had stated on the basis of x-ray for age determination that the age of the victim was above 14 years and below 16 years on the date of the examination, 08.08.2017. On the basis of the above 2 (two) certificates and the determination of age by the doctor, it can safely be held that at the time of the incident on 07.08.2017, the victim was a minor aged less than 18 years. 14. The victim in unequivocal words had stated that the accused after calling her to her house, had inserted his penis in her vagina. 14. The victim in unequivocal words had stated that the accused after calling her to her house, had inserted his penis in her vagina. Her said statement has not been confronted by the defence in any manner. In her statement recorded under Section 164, CrPC (Ext.-5), she had stated that she was raped by the accused. In her statement recorded under Section 164, CrPC as Ext.-5 and also in her testimony as P.W.1 before the Court, the victim had stated that the accused had come to her house in respect of the amount of Rs. 100/- which he owed to her father and the accused himself had admitted that he had gone to the house of the victim in connection with the said Rs. 100/-. When the versions of the two - the victim and the accused - as regards who had called whom to the house of the victim, are put together against each other it is difficult to comprehend and believe that the victim had called the accused on the pretext that her father had called the accused in connection with the said amount of Rs. 100/- which the accused owed to her father (P.W.1) and, therefore, that part of the explanation of the accused that he was called by the victim to her house stating him that her father had called him for Rs. 100/- is found not believable. The younger sister of the victim (P.W.5) after her entry into the house, had seen the accused in a climbing position over her elder sister i.e. the victim. The accused himself had admitted to the extent that he was seen by P.W.5 when he was coming out of their house. Thus, it is established that the accused on the date of the incident, had gone to the house of the victim and at that point of time, there was nobody in the house except the victim. As per the definition of rape as given in Section 375, IPC and the definition of penetrative sexual assault as given in Section 3 of the POCSO Act, any penetration, however slight, is sufficient to constitute the offence of rape and penetrative sexual assault. In the instant case, the hymen of the victim was found torn at 5 o''clock position. As per the definition of rape as given in Section 375, IPC and the definition of penetrative sexual assault as given in Section 3 of the POCSO Act, any penetration, however slight, is sufficient to constitute the offence of rape and penetrative sexual assault. In the instant case, the hymen of the victim was found torn at 5 o''clock position. It has been observed by the Hon''ble Supreme Court in Ranjit Hazarika vs. State of Assam, (1998) 8 SCC 635 that the mere fact that no injury was found on the private parts of the prosecutrix or her hymen was found to be intact does not belie the statement of the prosecutrix as she nowhere stated that she bled her vagina as a result of the penetration in her vagina. In the case in hand, the doctor, P.W.6 after investigation, had opined that it could not be ascertained as to whether the victim was raped or not. The doctor had neither admitted nor denied about the commission of rape on the victim. It is also settled that the opinion of a doctor that there was no evidence of any sexual intercourse or rape, cannot be held to be sufficient to disbelieve the allegation of rape by the victim. Such an opinion cannot throw out the evidence of a victim if the same is otherwise found to be cogent and trustworthy. The defence has not been able to show as to why the victim in the instant case should not be believed or why she would falsely implicate the accused. It has been observed time and again that the prosecutrix of a sexual offence is a victim of a crime and there is no prescription of law which requires that her testimony cannot be accepted unless corroborated. There is no rule that her testimony cannot be acted upon without corroboration in material particulars. It is only in a situation where the Court finds it difficult to accept the version of the prosecutrix on its face value, it may have to look for other direct evidence or circumstantial evidence which lends corroboration to her testimony. Absence of injuries on the private parts of the victim cannot be construed as evidence of consent. In the instant case, the victim has been found to be below 18 years. Absence of injuries on the private parts of the victim cannot be construed as evidence of consent. In the instant case, the victim has been found to be below 18 years. In fact, from the documentary evidence as well as medical evidence, she is found below 15 years on the date of the incident. In the case of a victim of such an age, the question of consent does not arise. Under the POCSO Act, consensual sexual intercourse between a children and an adult is not recognized. Any sexual act with a person under the age of 18 years is an offence. 15. Section 29 of the POCSO Act has provided for presumption as to certain offences under the Act. Where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3, 5, 7 and 9 of the Act and where the victim is a child it has to be presumed that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved. The prosecution is, however, required to establish the facts forming the foundation to get the presumption under Section 29 of the POCSO Act activated. In the present case, the prosecution, in the considered view of this Court, has been able to establish all the requisite foundational facts by leading legally admissible evidence to get the presumption activated. In such situation, it had become incumbent on the accused to establish from the evidence on record the he did not commit the offence which he has to achieve either by discrediting the prosecution witnesses through cross-examination or by bringing out any absurdities or infirmities on material points. Having gone through the entire evidence on record, this Court does not find anything from which it can be said that the accused has been able to discharge the onus shifted on him because of the statutory presumption. In view of the discussions made above by revisiting the evidence on record, this Court is of the considered view that the learned trial Court after appreciation of the same, has rightly come to the conclusion of guilt against the accused-appellant and there is no good and sufficient reason to hold any different opinion than that. In view of the discussions made above by revisiting the evidence on record, this Court is of the considered view that the learned trial Court after appreciation of the same, has rightly come to the conclusion of guilt against the accused-appellant and there is no good and sufficient reason to hold any different opinion than that. In view of the same, there is no reason to interfere with the impugned judgment and order dated 20.06.2018 and, thus, the same stands affirmed. 16. The incident had occurred on 07.08.2017. Having due regard to the nature and gravity of the offence; the date of occurrence of the incident i.e. 07.08.2017; the age of the accusedappellant which he stated as 20 years on the date of his examination under Section 313, CrPC on 07.04.2018; and for the fact that there is no record of his conviction in connection with any offence earlier, the sentence of rigorous imprisonment for 10 (ten) years appears to be on a higher side. A sentence of rigorous imprisonment for 7 (seven) years appears to be justified and would meet the ends of justice taking the entire fact situation obtaining in the present case. Therefore, the sentence of rigorous imprisonment of 10 (ten) years is reduced to a period of rigorous imprisonment of 7 (seven) years. The sentence as regards payment of fine of Rs. 2,000/-, in default of payment of fine, to undergo rigorous imprisonment for another 2 (two) months has, however, been maintained. The period already undergone by the accused-appellant shall be set-off against the terms of imprisonment as per the provisions of the CrPC. This appeal, therefore, stands partly allowed to the extent indicated above. 17. Appreciating the assistance rendered by Ms. Reetuja Dutta, learned Amicus Curiae, we hereby provide that she will be entitled to professional fee of Rs.7500/. Upon production of a copy of this judgment, Guwahati High Court legal Services Committee shall pay the fee to Ms. Dutta. Send down the LCR along with a copy of this judgment.