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2020 DIGILAW 82 (GAU)

Gajendra Borhagohain Morigaon v. State Of Assam

2020-01-27

MIR ALFAZ ALI

body2020
JUDGMENT Mir Alfaz Ali, J. - Heard Mr. AK Gupta, learned Amicus Curiae appearing for the appellant and Mr. MP Goswami, learned Addl. Public Prosecutor, Assam. 2. This appeal is directed against the judgment and order dated 18.05.2018 passed by the learned Sessions Judge, Morigaon in Sessions (Spl) Case No.27/2016,whereby the appellant was convicted under sections 366-A/376(2) IPC read with section 4 of the POCSO Act and sentenced him to imprisonment for 7 years and fine of Rs.10,000/- with default stipulation under section 366-A and RI for 7 years and fine of Rs.10,000/- with default stipulation under section 376(2) IPC. The appellant was further sentenced to imprisonment for 7 years with fine of Rs.10,000/- under section 4 of the POCSO Act 3. As per the prosecution case, on 13.05.2016 at about 9.00 am in the morning, while the daughter of the informant, Pw-1, was going to tutorial class, the accused/appellant kidnapped her form the road and thereafter informed the paternal aunt of the alleged victim by sending an SMS from the mobile phone of the victim, that she was with the appellant. The father of the victim lodged an FIR. On the basis of the said FIR, police registered a case, recorded the statement of the victim and other witnesses and got the victim examined by the doctor and on conclusion of the investigation, laid charge-sheet against the appellant under section 366-A IPC. The offence being triable by the Court of Sessions, learned Magistrate committed the case to the Court of Sessions and the learned Sessions Judge framed charges under sections 364/366-A/376 IPC read with section 4 of the POCSO Act, to which the appellant pleaded not guilty. 4. In course of the trial the prosecution examined 5 (five) witnesses in order to being home the charges. On appreciation of evidence, learned Sessions Judge convicted the appellant under section 366-A/376(2) IPC read with section 4 of the POCSO Act and awarded sentence as indicated above. 5. Aggrieved, the appellant preferred the present jail appeal. 6. Learned Amicus Curiae contends that the victim being a grown up girl went with the appellant on her own volition and also had sexual relationship with him on her consent and therefore, no offence was made out. 5. Aggrieved, the appellant preferred the present jail appeal. 6. Learned Amicus Curiae contends that the victim being a grown up girl went with the appellant on her own volition and also had sexual relationship with him on her consent and therefore, no offence was made out. Though, the doctor opined that the age of the victim was within 16-18 years, no further evidence with regard to her age was brought on record and the error of at least two years, if taken into consideration, the victim could not be held to be a minor, submits Mr. Gupta. 7. Learned Addl. PP supporting the judgment contends, that the prosecution has proved the guilt of the accused beyond reasonable doubt and as such, there is no reason to interfere with the conviction and sentence of the appellant. 8. I have considered the submissions of the learned counsel and also scrutinised the evidence and materials brought on record. 9. The victim was examined as Pw-2 who testified that the accused was known to him and was a regular visitor to their house. On the day of occurrence, when she was coming back from tutorial class, she met the appellant on the way, who requested her for a bicycle ride and accordingly, she boarded the bicycle of the appellant. The appellant took her to Domalgaon and kept her for the night in the house of one of his friends. On that night he committed rape on her against her will and on the following day he took the victim to village Nabheti, where also the accused kept her for one night and on the second night also the appellant committed rape on her. When she was staying with the appellant, the brother of the appellant brought her back to her house. During cross-examination she stated that the brother of the appellant Bidyut Buragohain was her tuition mate. She further stated that she did not make any hue and cry when she was taken on the bicycle. She admitted during her cross-examination that she did not disclose to the inmates of the house, where she was kept for the first night regarding her kidnap. She also stated that it was a single house, where four members of the family being the husband and wife and two children were residing. She admitted during her cross-examination that she did not disclose to the inmates of the house, where she was kept for the first night regarding her kidnap. She also stated that it was a single house, where four members of the family being the husband and wife and two children were residing. She also did not make any complaint to the inmates of the house, where she was kept for the second night. The statement of this witness was recorded under section 164 Cr.P.C., which has been proved as Exhibit-2. During her statement under section 164 Cr.P.C., she stated that on the proposal of the appellant to go for a short ride, on his bicycle, she went with the accused who took her to Domalgaon on bicycle and from there he took her to Nabheti and kept her in a friend's house. On 15.05.2016 the younger brother of the accused left her on the embankment wherefrom her brother took her to his residence. In her statement recorded under section 164 Cr.P.C., she did not state that accused had sex with her without her consent. 10. Pw-1 father of the victim stated, that on the day of occurrence the victim went to tuition class but did not return. He searched her in many places including the house of the appellant as the victim used to visit the house of the appellant very often, but could not find her there. He met the brother of the appellant, who also could not provide any information. When he went to the police station for lodging the FIR, an SMS was received from the mobile phone of the victim, that she was with the appellant. After two days of the occurrence, the brother of the accused brought alleged victim back home. 11. Pw-3 the mother of the victim also deposed in the same line and stated that after going to tuition her daughter did not returned. Though, she tried to contact the appellant to know about the victim, but every time he disconnected the phone. While they went to the police station for lodging the FIR, they got an SMS from the mobile of the victim, that she was with the appellant. During her cross-examination it has been elicited that the house of the appellant was at a distance of half kilometres and he was a frequent visitor to their house. 12. While they went to the police station for lodging the FIR, they got an SMS from the mobile of the victim, that she was with the appellant. During her cross-examination it has been elicited that the house of the appellant was at a distance of half kilometres and he was a frequent visitor to their house. 12. Pw-4 the doctor who examined the victim found as follows: A black mole on the back of right thigh. Height was 4 ft 5 inch. Weight 30 kg. teeth upper 14 lower 15. Breast was normal. Pubic hair was also present but not mutted. Vaginal hymen was also ruptured. There was no external injury. On microscopic examination, no spermatozoa seen. X-Ray report further shows, that the age of the victim was between 16-18 years. During cross-examination the doctor stated that at the time of examination, the victim did not alleged the commission of rape. It was also elicited during examination of the doctor, that the lower and upper teeth may be 14/15 even after the age of 18 years. 13. A dispassionate scrutiny of the oral testimony of the above witnesses would show, that except Pw-2 the victim, there was no other direct witness to the occurrence. Evidently the appellant was a frequent visitor of the house of the victim and both of them were known to each other and in fact the brother of the appellant was the tuition mate of the victim. The victim also admittedly used to visit the house of the appellant. It is also evident from her testimony, that because of her acquaintance with the appellant, she went with the accused out of her own will without raising any objection. It is also in her evidence that though, on the pretext of going for a short ride on bicycle the appellant took her to the house of his friend to spend the night, she never raised any objection. According to her, initially she was taken to the house of a friend of the accused where she was kept for one night and from there she was taken to another house where also she was kept for another night. According to her, initially she was taken to the house of a friend of the accused where she was kept for one night and from there she was taken to another house where also she was kept for another night. The victim stated in her evidence, that both the nights she was subjected to rape against her will, however, in her statement recorded under section 164 Cr.P.C., she clearly stated that the accused kissed on her lips and others parts of the body and he also had sexual intercourse with her, however, she did not allow to continue the sexual activity for a long time. Therefore, in her statement under section 164 Cr.P.C., she has stated that the sexual activity was without her consent. She also admitted that although she was kept for two nights in two different houses, where various family members were there, she did not disclose to anyone, that the accused had taken her deceitfully or subjected her to sexual assault. It is also in her evidence that while she was staying with the appellant, the brother of the appellant went there and brought her to her residence. What therefore apparent from the oral testimony of the victim in Court as well as her statement recorded under section 164 Cr.P.C., is that the victim went with the appellant with her own consent. Though she deposed in Court that the accused forcibly subjected her to rape, from her statement recorded under section 164 Cr.P.C., it is apparent that sexual activity was also with her consent. 14. Learned trial Court recorded the conviction relying on the sole testimony of the victim and observed that there is no bar in recording conviction on the sole testimony of the victim in an offence of non consensual sexual assault. There is no quarrel with the above proposition, that the victim of sexual assault falls in the category of injured witness and there is no reason for discarding the oral testimony of the victim and conviction can be based on the sole oral testimony of the victim provided the oral testimony of the victim is fully reliable or the victim can be regarded as a starling witness. Admittedly, the accused and the victim were known to each other and they were in visiting terms. Admittedly, the accused and the victim were known to each other and they were in visiting terms. From her conduct in going with the accused/appellant on bicycle without raising any objection and staying two nights with him in different houses without making any whisper regarding the occurrences also suggests that she went with the accused out of her own will. Learned Sessions Judge, however, observed that either due to intimidation or for fear she kept her mouth closed by not raising any voice. Such observation of the learned trial Court appears ex-facie perverse inasmuch as, there is absolutely no evidence on record to show that the accused either coerced her or threatened her not to disclose about the occurrence, rather the entire conduct of the victim and her statement recorded under section 164 Cr.P.C., clearly demonstrated that she was a consenting party and went with the accused out of her own will and volition and had sexual activity with the appellant was also with her own consent. This being the position, the testimony of the victim for the first time in court that she was subjected to rape or non-consensual sexual activity hardly inspires any confidence. Therefore, neither the victim can be said to be a fully reliable witness in the facts and circumstances, nor there is any other evidence to support the charges against the appellant, that he committed rape on the victim. 15. As regards the age of the victim, no documentary evidence except the opinion of the doctor is available on record. Evidently, the victim was a student. Therefore, though, police could have seized the birth certificate or the school certificate or any other document from the School to establish the age, no such endeavour was made. The medical evidence shows that the age of the victim was in between 16-18 years which was based on the findings of the ossification test as well as the teeth of the victim. The upper and lower teeth 14/15 according to the doctor, may be even after the age of 18 years. 16. It is the settled position of law by now that the medical evidence as to the age should be taken with an error of 2 years. Learned counsel for the appellant placing reliance on a decision of this Court reported in Nasib Hussain Vs. 16. It is the settled position of law by now that the medical evidence as to the age should be taken with an error of 2 years. Learned counsel for the appellant placing reliance on a decision of this Court reported in Nasib Hussain Vs. State of Assam, & Ors, (2015) 3 GauLT 89 , submits that three years are required to be added to the age as opined by the doctor and if the error of 2/3 years is taken into consideration, the age of the victim would be above 18 years. This Court in Nasib Hussain (supra) case while dealing with the errors in the medical opinion with regard to the age observed in paragraph 16 & 17 as under: 16................ "While dealing with similarly situated matters regarding the dispute regarding the age of the victim, in a case reported in Smt. Kavita Vs. UP & Ors.,2012 SCR 2723 it has been held that the determination of age is on the realm of being the estimated age on account of scientific exercise. This is the reason, the Hon'ble Apex Court in a case of Jaya Mala Vs. Home Secretary, (1982) AIR SC 1297 , has observed that if the age has been determined by the Doctor, medically, then 3 years have to be added to such assessed age. The judgment has consistently been followed in cases of such nature to give weightage the age of victim as to appreciating the evidence of minority/majority of the victim in favour of the accused. In addition to that, it is trite that if the girl who is at the verge of majority walks out of her parents house to go with any man then it could not be a case of kidnapping as the same could not be said to be act of taking away or enticing away a woman below 18 years of age. It could be a mere case of elopement. The preposition was laid down by the Hon'ble Apex Court in the case of S. Varadarajan Vs. State of Madras,1965 AIR SC 962 Manu/SC/0081/1964 . 17. Now in the instant case, after scrutiny of the evidence, it is found that though the victim girl is stated to be a school going children but no school certificate has been produced to prove the authenticity of the age of the victim. State of Madras,1965 AIR SC 962 Manu/SC/0081/1964 . 17. Now in the instant case, after scrutiny of the evidence, it is found that though the victim girl is stated to be a school going children but no school certificate has been produced to prove the authenticity of the age of the victim. It is well settled that to prove the age of school going children, the school certificate is the best evidence and prosecution has not explained any reason for non-production of such best evidence. On the other hand, as has been pronounced in the above case law Smt. Kavita Vs. State of UP,2012 SCR 2723 we can add another three years to the age mentioned by the medical officer in the given case and in that case, the age of the victim girl will be 18 years and it is also seen that without any ossification test, etc, the medical opinion has been given by the MO and his mere opinion is subject to deviation. Even if we could hold that the victim is at the verge of majority, went-out with the accused voluntarily (as discussed above), it would not amount to inducement on the part of the accused nor same could not be said to be an act of taking away. 17. Therefore, in the instant case, if we take even the error of two years the age of the victim would be 18 years and she would be a major. As already indicated above, the victim was a consenting party and she went with the accused out of her own volition and also engaged in sexual activity on her own consent. When the victim being a grown up girl of 18 years or above had sexual activity with the appellant on her own will and volition, such activity does not constitute any offence. 18. In view of the above evidence, I have no hesitation in my mind, that the prosecution miserably failed to prove the guilt of the accused beyond reasonable doubt and such the conviction and sentence of the appellant cannot be sustained. Accordingly, the appeal is allowed and the conviction and sentence of the appellant is hereby set-aside. The appellant be released forthwith if not required in any other case. 19. Appreciating the assistance rendered by Mr. AK Gupta, learned Amicus Curiae, we hereby provide that he will be entitled to professional fees of Rs.7500/-. Accordingly, the appeal is allowed and the conviction and sentence of the appellant is hereby set-aside. The appellant be released forthwith if not required in any other case. 19. Appreciating the assistance rendered by Mr. AK Gupta, learned Amicus Curiae, we hereby provide that he will be entitled to professional fees of Rs.7500/-. Upon production of a copy of this judgment, Guwahati High Court Legal Services Committee shall pay the fee to Mr. Gupta. 20. Send down the LCR along with a copy of this judgment.