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2021 DIGILAW 154 (GAU)

Chutu Munda v. State Of Assam

2021-02-19

MIR ALFAZ ALI

body2021
JUDGMENT Mir Alfaz Ali, J. - Heard learned Amicus Curiae Mr. M. Dutta for the appellant and the learned Additional Public Prosecutor Mr. B. J. Dutta for the State respondent. 2. This jail appeal is directed against the judgment and order dated 05.09.2017 passed by the learned Special Judge (POCSO), Sivasagar in Special (P) Case No. 43/2016, whereby the appellant was convicted under Section 10 of the POCSO Act and sentenced to rigorous imprisonment for 5 (five) years and fine of Rs. 1,000/- in default to simple imprisonment for 1 (one) month. 3. The prosecution case in brief is that the victim used to live with the accused, being her father, as the mother of the victim died long before. It was further alleged that the appellant sexually assaulted the victim on various occasions and she was threatened not to disclose the misdeeds of the appellant to anyone. However, the victim informed about the occurrence to her aunt, who lodged the FIR with the police on the basis of which the police registered Sonari P.S. Case No. 171/2016 under Section 376 of the IPC read with Section 6 of the POCSO Act and upon conclusion of the investigation submitted the charge sheet against the appellant. 4. During trial, charge was framed against the appellant under Section 6 of the POCSO Act to which he pleaded not guilty 5. Prosecution examined 5 witnesses in support of this case. The Court also examined one Ms. Sonmani Munda as CW1. 6. The victim was examined as PW2, who deposed that after the death of her mother, she used to reside with her father (the appellant) along with her sister. Though, she used to sleep with her elder sister, her father (the appellant) used to come to her bed at night on regular basis and subjected her to sexual assault. She also stated that the appellant has sexually assaulted her for 5 to 6 times and also attempted to commit rape on her. She informed the matter to PW4 and PW1. The statement of this witness recorded under Section 164 Cr.PC, which was proved as Ext. 2, also shows that she had made a consistent statement as to the sexual assault on her. 7. Pw4, Nikita Munda, deposed that six months back when she came back from work, the victim told her that she was subjected to sexual assault by the appellant. 2, also shows that she had made a consistent statement as to the sexual assault on her. 7. Pw4, Nikita Munda, deposed that six months back when she came back from work, the victim told her that she was subjected to sexual assault by the appellant. According to PW1, she was informed by PW4 regarding the victim being subjected to sexual assault by the appellant. 8. Pw3 was the Doctor, who examined the victim. The doctor opined that the age of the victim was in between 15 to 18 years. The doctor, however, did not find any sign of injury on her private part. Evidently, the victim was medically examined long after the date of occurrence. 9. Pw5 did not have any personal knowledge about the occurrence. PW6 was the Investigating Officer. 10. Cw1, Ms. Sonmani Munda, stated that she was staying with her father along with the victim being her sister. This witness also stated that sometimes the appellant used to come to their bed and keeping her aside, the appellant used to sleep with the victim and used to assault her sexually. 11. The evidence of these witnesses more or less corroborated the testimony of the victim and upon appreciation of the above evidence, the learned Sessions Judge convicted the appellant under Section 6 of the POCSO Act as indicated above. 12. On scrutiny of the evidence on record, I do not found anything to defer with the finding of the learned Trial Court holding the appellant guilty under Section 10 of the POCSO Act. 13. Learned counsel for the appellant submits that the appellant has almost undergone the period of substantive sentence and sought for showing some leniency to him as to the quantum of sentence. Apparently, the learned Sessions Judge has awarded the minimum sentence provided for the offence under Section 10 of the POCSO Act. Therefore, there is no question of interfering with the quantum of substantive sentence of imprisonment. However, having regard to the submission made by the learned counsel for the appellant, the sentence of imprisonment in default of payment of fine is reduced to 7 days. 14. With the above modification and reduction in the period of imprisonment in default of payment of fine, the appeal stands partly allowed. 15. Appreciating the assistance rendered by Mr. M. Dutta, learned Amicus Curiae, I hereby provide that he will be entitled to Rs. 14. With the above modification and reduction in the period of imprisonment in default of payment of fine, the appeal stands partly allowed. 15. Appreciating the assistance rendered by Mr. M. Dutta, learned Amicus Curiae, I hereby provide that he will be entitled to Rs. 7000/- as professional fee, which shall be paid to him by the Gauhati High Court Legal Services Committee upon production of a copy of this judgment. 16. Send down the LCR.