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2021 DIGILAW 138 (GAU)

Naruj Kr Doley v. State Of Arunachal Pradesh

2021-02-17

PARTHIVJYOTI SAIKIA

body2021
JUDGMENT Parthivjyoti Saikia, J. - Heard the learned counsel, Mr. S.K. Deori appearing for the appellant. Also heard Mr. K. Dabi, learned counsel appearing for the victim and Mr. U. Bori, learned Additional Public Prosecutor for the State of Arunachal Pradesh. 2. This is an application under Section 374 (2) of the Code of Criminal Procedure, 1973 challenging the judgment and order dated 23.05.2016 passed by the Sessions Judge, Yupia in Session Case POCSO No. 30/YPAL/2014. By the impugned judgment, the trial convicted the appellant under Section 8 of the POCSO Act, 2012 and sentenced him to undergo rigorous imprisonment for 3 years and to pay a fine of Rs.5,000/-. 3. On 22.02.2014, 27 years old informant lady had lodged an FIR before the police alleging that, on that day at about 5.30 pm, the appellant came to her house in her absence and possibly took away the 15 years old victim, who was serving as a maid servant at her house to the nearby jungle and committed rape upon her. 4. Police registered the case under Sections 447/366 (A)/376 (2) (I) of the Indian Penal Code, read with Section 4 of the POCSO Act of 2012. 5. On conclusion of investigation, the police filed the charge-sheet against the appellant under aforesaid sections of the Indian Penal Code and POCSO Act of 2012 6. On appearance, the trial Court formally framed the charge under Sections 447/366 (A)/376 (c) of the Indian Penal Code and a separate charge under Section 4 of the POCSO Act formally framed against the appellant. 7. During the trial of the case, the prosecution side examined as many as 7 witnesses including the Medical Officer and the police Investigating Officer. The witnesses examined by the prosecution are given below- I. The victim II. The informant III. Dr. Posting Beyong IV. Constable S.P. Gupta V. Kipa Sopin VI. Dr. Divakar Phinya VII. N. Angu, I.O of the case. 8. The accused was examined under Section 313 of the Cr.P.C. After hearing the argument thereafter, the trial Court passed the impugned judgment. 9. I have carefully gone through the judgment passed by the trial Court. Before going into the merits of the case, it must be mentioned here that the trial Court had committed procedural irregularity while conducting the trial of the case. 10. 9. I have carefully gone through the judgment passed by the trial Court. Before going into the merits of the case, it must be mentioned here that the trial Court had committed procedural irregularity while conducting the trial of the case. 10. The order dated 08.12.2015, pertains to examination of the appellant under Section 313 of the Cr.P.C and it is quoted as under: "Accused Nuruj Doley is present along with his l'd defence counsel Mr. S. Patir. The accused was examined under 313 Cr.P.C and his statement recorded in a separate sheet. Next date of the case is fixed on 08.02.2016 for final argument." 11. The procedure of trial of Sessions case is different from the trial held by a Magistrate under the Code of Criminal Procedure. It is noticed that after putting the incriminating circumstances to the appellant, the trial Court asked the appellant whether he intends to adduce defence evidence. As the appellant declined to adduce defence evidence, the Court posted the case for argument. So far as Sessions cases are concerned, there is no provision in the Cr.P.C for asking an accused under Section 313 as to whether he intends to adduce defence evidence. For this reason, Sections 232 and 233 of the Cr.P.C may be visited. Sections 232 and 233 of the Cr.P.C reads as under:- "232. Acquittal.-If, after taking the evidence for the prosecution, examining the accused and hearing the prosecution and the defence on the point, the Judge considers that there is no evidence that the accused committed the offence, the Judge shall record an order of acquittal. 233. Entering upon defence.-(1) Where the accused is not acquitted under section 232 he shall be called upon to enter on his defence and adduce any evidence he may have in support thereof. (2) If the accused puts in any written statement, the Judge shall file it with the record. (3) If the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reason to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice." 12. Section 232 of the Cr.P.C is applicable when there is no evidence to convict the accused person and in that case, Court shall generally examine him under section 313 Cr.P.C and pass a judgment of acquittal. But, when there is evidence for future conviction of the accused, then it is the duty of the trial Court to direct the accused person to enter defence. Section 233 of the Code uses the word "shall". When there is evidence against the accused for conviction, the Court must give at least an opportunity to the accused to adduce defence evidence. In the case in hand, the trial Court asked the appellant whether he intends to adduce defence evidence and as the appellant declined to adduce defence evidence, the trial Court straightaway posted the case for hearing argument. Therefore, the procedure adopted by the trial Court is erroneous. 13. Section 233 of the Cr.P.C is based on principle of fair play. It means, when there are some incriminating circumstances which shall lead to conviction of an accused, the Court must give the accused one opportunity to defend his case. This is the distinct difference between the trial of Sessions case and the trial held before the Judicial Magistrate. 14. Now I shall take up the prosecution evidences. 15. The victim girl has stated in her evidence that no such incident as alleged in the FIR actually took place. The victim clearly stated before the trial Court that the appellant did nothing to her. She has alleged that her master, the informant lady, forced her to give a false allegation against the appellant. According to the victim girl, she initially refused to give false allegation against the appellant but subsequently succumbed to the pressure of her master. 16. The victim has resiled from her earlier statement made before the police under section 161 of the Code and therefore, she was declared a hostile witness. She was cross-examined by the Public Prosecutor. She admitted before the Public Prosecutor that on the day of occurrence, the appellant came to her house where she and the appellant together had milk beverage called Amul Cool and cake. The victim further admitted that on that day, after having Amul Cool (a milk beverage) and cake, she went out with the appellant into the nearby jungle. The victim admitted that when they reached inside the jungle, the appellant kissed her. 17. The victim further admitted that on that day, after having Amul Cool (a milk beverage) and cake, she went out with the appellant into the nearby jungle. The victim admitted that when they reached inside the jungle, the appellant kissed her. 17. The victim stated before the Public Prosecutor that when she and the appellant were having intimate moments together inside the jungle, the witness, Shri Kipa Sopin saw them. The victim girl disclosed that Shri Kipa Sopin questioned them as to what they were doing. She denied making any statement before the police or to the Magistrate stating that Shri Kipa Sopin had seen her putting on her cloths. 18. The victim had stated before the prosecution counsel that she tried to speak the truth to the police but she was forced by the complainant to speak against the appellant. 19. The second prosecution witness is the informant/complainant. She is a business woman and she has a shop near the check gate at Banderdewa. On the day of occurrence at about 5.30 pm she was in her shop. She has stated in her evidence that it was Shri Kipa Sopin who informed her about the occurrence. Shri Kipa Sopin reportedly told her that the appellant had undressed her maid servant and committed rape upon her. 20. In her Cross-examination, the informant lady stated before the defence counsel that the FIR in this case was written in English and she cannot read English language. The witness stated that the FIR was written by somebody else. 21. The third witness is Dr. Posting Beyong, who examined the victim girl at the time of investigation of the case and his report is quoted as under:- "The vital parameter of the patient were found normal. Respiratory system cardio vascular system were normal. Breast examination- scratch mark in right breast superior aspect. Para abdomen was soft no abnormality detected. On local examination- Hymen was not intact. She was menstruating at the time of examination. No tear was found in the vagina. I took specimen vaginal swab and handed over to the concerned sister. And thereafter I advised for Urine Pregnancy Test/VDRL etc. From the finding of above examination, in my opinion, there was a sexual intercourse on the victim but it is difficult to say when it exactly took place." 22. Dr. Posting Beyong spoke in support of his report. In his cross-examination, Dr. And thereafter I advised for Urine Pregnancy Test/VDRL etc. From the finding of above examination, in my opinion, there was a sexual intercourse on the victim but it is difficult to say when it exactly took place." 22. Dr. Posting Beyong spoke in support of his report. In his cross-examination, Dr. Posting Beyong stated to the defence counsel that the victim girl may be more than 16 years of age. 23. The fourth prosecution witness is Constable S.P. Gupta. It may be stated that the Investigating Officer of the case had seized one empty pack of Amul Cool Kesar drink and the present witness was the witness to the seizure of the said object. In his cross-examination, Constable S.P. Gupta told the defence counsel that he saw that object in the police station only as because he never went to the place of occurrence. 24. The fifth prosecution witness Shri Kipa Sopin stated in his evidence that on the day of occurrence at about 5.30 pm while he was going to the market from his house he heard some human voices inside the jungle and out of curiosity he followed the human voices into the jungle. Shri Kipa Sopin stated that he saw that the appellant was having sexual intercourse with the victim girl. According to Shri Kipa Sopin, he immediately informed the complainant. 25. The witness Shri Kipa Sopin admitted before the defence counsel that he demanded Rs.3000/- from the appellant on the ground that he was having sexual intercourse with the victim in his locality. Shri Kipa Sopin further admitted that instead of giving Rs.3000/-, the appellant paid him only Rs.200/-. 26. The sixth prosecution witness is Dr. Divakar Phinya. He was one of the member of the medical board that was constituted for determining the age of the victim girl. Dr. Divakar Phinya stated that the age of the victim girl was found to be within 16-17 years range. During the cross-examination, Dr. Divakar Phinya stated to the defence counsel that the victim never exceeded 17 years of age. 27. The last witness before examination is the police Investigating Officer. He spoke about the investigation. 28. I have carefully gone through the prosecution evidences. There is no doubt that the victim failed to support the prosecution case. During the cross-examination, Dr. Divakar Phinya stated to the defence counsel that the victim never exceeded 17 years of age. 27. The last witness before examination is the police Investigating Officer. He spoke about the investigation. 28. I have carefully gone through the prosecution evidences. There is no doubt that the victim failed to support the prosecution case. It is a settled position of law that the medical evidence, per se, is not sufficient to prove an offence against an accused. Such expert opinion cannot take place of substantive evidence. Medical evidence or expert opinion is used for corroborating substantive evidences of witnesses. Such an evidence is an expert opinion. It cannot take the place of ocular evidence. 29. The victim girl herself has stated in evidence that she was never raped by the appellant and in that case the evidence of Shri Kipa Sopin also cannot be relied upon to hold the appellant guilty. For the sake of argument, even if the evidence of Sri Kipa Sopin is accepted in its face value, even then, having sexual intercourse with a woman is not rape as defined in section 375 of the Indian Penal Code. Sexual intercourse without consent constitutes the offence of rape. Shri Kipa Sopin admitted before the defence counsel that he demanded Rs.3000/- from the appellant as fee for having sexual intercourse with the victim in his locality. Shri Kipa Sopin further admitted that instead of giving Rs.3000/-, the appellant paid him only Rs.200/-. So the credibility of this witness is absolutely doubtful. 30. In the case in hand, the appellant was formally charged under Section 4 of the POCSO Act but he was finally convicted under Section 8 of the POCSO Act. 31. Section 4 of the POCSO Act prescribes punishment for the accused who commits penetrative sexual assault upon a child. On the other hand, Section 8 of the POCSO Act prescribes punishment for the accused who commits sexual assault upon a child. Section 3 of the POCSO Act of 2012 has defined the word "penetrative sexual assault". 31. Section 4 of the POCSO Act prescribes punishment for the accused who commits penetrative sexual assault upon a child. On the other hand, Section 8 of the POCSO Act prescribes punishment for the accused who commits sexual assault upon a child. Section 3 of the POCSO Act of 2012 has defined the word "penetrative sexual assault". Section 3 of the POCSO Act of 2012 reads as under:- "3.Penetrative Sexual assault.-A person is said to commit "penetrative sexual assault" if- (a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or (b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or (c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or (d) he applies his mouth of the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person." 32. Section 7 of the POCSO Act of 2012 defines the word "sexual assault". Section 7 of the POCSO Act of 2012 is quoted as under. "7. Sexual Assault.-Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault." 33. In Rafiq Ahmed @ Rafi vs State Of U.P, (2011) AIR SC 3114 ---- regarding the kind of offences may fall in the same category, the Hon,ble Supreme Court held as under --- "Having stated the above, let us now examine what kind of offences may fall in the same category except to the extent of 'grave or less grave'. We have already noticed that a person charged with a heinous or grave offence can be punished for a less grave offence of cognate nature whose essentials are satisfied with the evidence on record. We have already noticed that a person charged with a heinous or grave offence can be punished for a less grave offence of cognate nature whose essentials are satisfied with the evidence on record. Examples of this kind have already been noticed by us like a charge being framed under Section 302 IPC and the accused being punished under Section 304, Part I or II, as the circumstances and facts of the case may demand. Furthermore, a person who is charged with an offence under Section 326 IPC can be finally convicted for an offence of lesser gravity under Section 325 or 323 IPC, if the facts of the case so establish. Alike or similar offences can be termed as 'cognate offences'. The word 'cognate' is a term primarily used in civil jurisprudence particularly with reference to the provisions of the Hindu Succession Act, 1956 where Section 3(c) has used this expression in relation to the descendants of a class of heirs and normally the term is used with reference to blood relations. Section 3(c) of the Hindu Succession Act defines "cognate" as follows: "one person is said to be a cognate of another if the two are related by blood or adoption but not wholly through males." 34. In Rafiq Ahmed @ Rafi (supra), the Apex Court has further held --- "This expression has also been recognized and applied to the criminal jurisprudence as well not only in the Indian system but even in other parts of the world. Such offences indicate the similarity, common essential features between the offences and they primarily being based on differences of degree have been understood to be 'cognate offences'. Black's Law Dictionary (Eighth Edition) defines the expression 'cognate offences' as follows: "cognate offences. A lesser offence that is related to the greater offense because it shares several of the elements of the greater offense and is of the same class or category. For example, shoplifting is a cognate offence of larceny because both crimes require the element of taking property with the intent to deprive the rightful owner of that property." 35. Therefore, where the offences are cognate offences with commonality in their features, duly supported by evidence on record, the Court can always exercise its power to punish the accused for one or the other provided the accused does not suffer any prejudice as afore-indicated. 36. Therefore, where the offences are cognate offences with commonality in their features, duly supported by evidence on record, the Court can always exercise its power to punish the accused for one or the other provided the accused does not suffer any prejudice as afore-indicated. 36. Here in this case, the victim simply admitted that she went into the jungle with the appellant and there he kissed her only. In her evidence, the ingredients of Sections 3 and 7 of the POCSO Act of 2012 are missing. The medical evidence available in the record discloses that on the day of occurrence the victim girl was menstruating. 37. Under the aforesaid circumstances, it is clear that the evidences of the prosecutrix and that of Sri Kipa Sopin failed to inspire confidence. In a criminal trial, the offence against the accused must be proved beyond all reasonable doubt. Conjecture and surmises have no place in a criminal trial. In order to convict an accused in a criminal case, there must be strong, compelling and reliable evidence. The evidences of the prosecutrix and that of Sri Kipa Sopin are not at all reliable to hold the appellant guilty. This Court is of the opinion that the trial Court erroneously appreciated the prosecution evidence and thereby arrived at a wrong conclusion. The offense against the appellant has not been proved beyond all reasonable doubt. 38. A plain reading of the trial Court's judgment shows that the trial Court did not hold that the offence under Section 8 of the POCSO Act was proved beyond all reasonable doubt against the appellant. In a criminal trial simply proving the case is not sufficient. The offences against an accused must be proved beyond all reasonable doubt and the trial court must hold such an opinion. This Court is constrained to hold that the impugned judgment is purely based on conjectures and surmises only. Judicial judgments must be based on moral values. Judgments are to be based on evidence. Such a judicial judgment is not sustainable at all. 39. Accordingly, under the said premised reasons the Criminal Appeal is allowed. The impugned judgment and order dated 23.05.2016 passed by the Sessions Judge, Yupia in Session Case POCSO No. 30/YPAL/2014 is set aside. The appellant, namely, Shri Nuruj Kr. Doley is acquitted from the case. 40. Send back the LCR. The Criminal Appeal stands disposed of accordingly.