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GAHC010003512021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./19/2021
SURJYA BARMAN
S/O- LATE PHUKAN BARMAN,
VILL.- MURKUCHIA PARA,
P.S. BARAMA, DIST.- BAKSA,
ASSAM, PIN- 781333.
VERSUS
THE STATE OF ASSAM.
REP. BY PUBLIC PROSECUTOR,
ASSAM.
Advocate for the Petitioner : MR. N BARMAN
Advocate for the Respondent : PP, ASSAM
BEFORE HON'BLE MR. JUSTICE AJIT BORTHAKUR For the appellant : Mr. N. Barman, Advocate For the respondents : Mr. B.B. Gogoi, Addl. P.P., Assam Date of hearing : 05.09.2022 Date of Judgment/Order : 19.10.2022 Page No.# 2/10 JUDGMENT & ORDER Heard Mr. N. Barman, learned counsel for the appellant as well as Mr. B.B. Gogoi, learned Addl. P.P., Assam appearing for the State respondent.
2. This appeal under Section 374 (2) of the Code of Criminal Procedure ('Cr.P.C.' for short) is preferred against the Judgment and Order, dated 21.12.2020, passed by the learned Special Judge (POCSO Act), Baksa, in Special POCSO Case No. 33 of 2018, whereby the appellant has been convicted and sentenced to undergo rigorous imprisonment for 3 (three) years and to pay fine of Rs.10,000/- in default, to suffer simple imprisonment for 1 (one) month under Section 8 of the POCSO Act.
PROSECUTION STORY:
3. The prosecution story, in brief, is that on 14.02.2017, at around 6.30 am, while the minor daughter of the informant was returning home from the field after tethering cows, the accused/ appellant committed rape on her by gagging her mouth. It was also alleged that one co-villager, namely, Dipali Rajbongshi witnessed the occurrence and the appellant, after witnessing the said woman, fled away from the scene. It was further alleged that the informant's mother, knowing the occurrence, convened a 'bichar' (village meeting), but as no result yielded, she lodged the FIR.
INVESTIGATION & TRIAL:
4. On receipt of the FIR, the then Inspector of Barama Police Station registered the case being Barama P.S. Case No. 29/2017 under Section 4 of the POCSO Act. After completion of investigation, the Investigating Officer laid a charge-sheet against the accused/appellant under Section 4 of the POCSO Act. Thereafter, on appearance of the accused/appellant, the learned Trial Court Page No.# 3/10 framed charges against him under Sections 4/8 of the POCSO Act. The accused/appellant pleaded not guilty and claimed to be tried.
5. In order to bring home the charges brought against the accused/appellant, the prosecution examined as many as eight witnesses. After closing the evidence of the prosecution side, the statement of the accused/appellant under Section 313 Cr.P.C. was recorded. The accused/appellant pleaded innocence and claimed to be tried. After completion of trial, the learned Special Judge (POCSO Act), Baksa convicted and sentenced the accused/appellant under Sections 4/8 of the POCSO Act as stated above.
EVIDENCE:
Now, let us look to the evidence on record in short:
6. P.W. 1, who was the informant in the instant case, in her evidence stated that on the fateful day, her victim daughter, aged about 12 years at the time of occurrence, went to the field with their cows and the appellant, after taking her towards a tree, committed sexual assault on her by gagging her mouth, which was witnessed by one Dipali Rajbongshi (P.W.4). P.W.1 further stated that in this connection, a mel (village meeting) was held, but as no solution had emerged, she filed the ejahar. P.W.1 also stated that the medical examination was done on her daughter. P.W.1 identified the ejahar as Ext. 1, her signature as Ext. 1(1).
7. P.W.2, the victim, in her statement stated that on the fateful day at about 6.30 AM, she took her cow to the grazing field and after leaving the cow, she attended nature's call and at that time, the appellant arrived and pulled her towards a tree. Thereafter, the appellant, tearing off her wearing clothes, committed rape by gagging her mouth and that on arrival of Dipali Rajbongshi (P.W.4), the appellant left the place of occurrence. The victim in her statement Page No.# 4/10 also stated that she told the appellant that she would report about his misdeeds to her mother, but the appellant forbade her to do so. P.W.2 returned home with said Dipali Rajbongshi (P.W.4) and reported the incident to her mother (P.W.1). She also stated that police caused her medical examination.
8. P.W.3, the father of the victim girl, in his evidence, stated that on the fateful morning at about 6.30 AM, his daughter went to graze their cow in the field and that while his daughter was attending nature's call, the appellant pulled her towards the jungle and committed rape by gagging her mouth, which was seen by Dipali Rajbongshi (P.W.4). P.W.3 further stated that at the relevant time, he was at Guwahati and after knowing the incident, he returned home and called a bichar, but as no result yielded, his wife lodged the FIR.
In his cross-examination, P.W.3 denied the defence suggestion that on account of his failure to provide maintenance to his wife, she borrowed Rs. 5,000/- from the appellant and when he asked her to return the money, she lodged a false case against him. He also denied the defence suggestion that there was enmity between himself and the appellant since long.
9. P.W.4, Dipali Rajbongshi, in her evidence, deposed that on the fateful morning, she went to the field to graze her cow and when she saw the appellant and the victim at first, suddenly both of them disappeared and suspecting some foul play, she followed them and saw both of them engaged in physical relation and that she rebuked the appellant for committing sexual act on the victim girl. P.W.4, in her evidence, also stated that she saw that the clothes of the victim girl were torn off and that the appellant requested her not to disclose the incident to anyone, for which reason she remained silent and after the appellant left the place, she returned home with the victim girl. P.W.4 further stated that the victim girl reported the matter to her mother and in that Page No.# 5/10 connection, a local bichar was also held, but as the same did not yield any result, the mother of the victim filed the case. P.W.4 testified that the victim was 11 years of age at the time of occurrence.
In her cross-examination, P.W.4 denied the defence suggestion that she omitted to state before the police that she had seen the appellant and the victim girl getting involved in physical relation. She also denied having deposed falsely against the appellant due to her enmity with him.
10. P.W.5, Rabi Rajbongshi, husband of P.W.4, deposed that he was reported by his wife (P.W.4) that the appellant had committed sexual assault on the victim girl and that she, having witnessed the occurrence, rebuked the appellant for committing such sinful act.
11. P.W. 6, Apurba Rajbongshi, in his evidence, deposed that he heard that the appellant had committed rape on the victim girl in the grazing field in the morning.
12. P.W.7, Dr. Urmi Das, who examined the victim on 18.02.2017 at SMK Civil Hospital, Nalbari, found no external injuries on her person and P/V examination could not be done as Hymen was intact. Further as per her opinion, the victim was aged about 11 years and her pelvic organs were found normal.
13. P.W.8, Naren Ch. Rabha, who was the Investigating Officer of the case, in his evidence, deposed that after receipt of the ejahar by the then O/C of Barama P.S. and consequent to the entrustment of the responsibility of investigation of the case on him, he visited the place of occurrence, drew a sketch map of the place of occurrence and recorded the statement of the witnesses. He further stated that he caused the victim's medical examination, seized the wearing apparels and collected the victim's medical report.
Page No.# 6/10 Thereafter, on completion of investigation, he submitted the charge-sheet against the appellant. P.W.8 identified the ejahar as Ext. 1.
In his cross-examination, P.W.8 stated that he failed to send the seized frock of the victim girl to the FSL for examination. P.W.8 confirmed the fact that P.W.1 had stated before him that the victim girl had reported the incident to her. P.W.8 also stated that the victim did not state before him that the appellant put off her wearing apparels and that Dipali Rajbongshi had brought her back to her home. P.W.8 confirmed the fact that Dipali Rajbongshi (P.W.4) did not state before him that she had seen the appellant and the victim indulging in sexual act. He also stated that P.W.4 had stated before him that she suspected that the appellant and the victim were committing sexual act at the relevant time.
ARGUMENTS:
14. Mr. N. Barman, learned counsel appearing for the accused appellant, submitted that the appellant has been languishing in jail for 649 days due to wrong appreciation of evidence and resultant conviction and sentence passed on him. Mr. Barman further submitted that the learned Trial Court relied on the evidence of PWs 1, 2 (victim) and 4 overlooking their intrinsic vital contradictions and interestedness. Mr. Barman vehemently submitted that the appellant has been made victim of a false and concocted case filed due to enmity between the two families over non-repayment of the borrowed money by the alleged victim's mother (PW1) to the appellant.
15. Per contra, Mr. B. B. Gogoi, learned Addl. Public Prosecutor, submitted that the independent eye witness PW4 has corroborated the testimony of the victim girl (PW2), who is undisputedly a child at the time of the alleged occurrence and, as such, no interference in the impugned well reasoned judgement of the Page No.# 7/10 learned Trial Court is warranted.
ANALYSIS OF EVIDENCE:
16. Now, let us analyse the above evidence on record.
17. PW2, the victim girl, in her evidence, inter-alia, stated that on the day of occurrence at about 6.30 AM, while she was returning home after releasing cow in the grazing field, on the way back, she set for attending nature's call. At that time, the appellant came and pulled her under a tree. The appellant gagged her mouth. The appellant tore off her wearing cloths and then raped her.
18. According to her, at that time, P.W.4, a neighbour, arrived at the place and thereupon the appellant left the place. She, thereafter, returned home with P.W.4. She reported the incident to her mother. Her mother (P.W.1) filed a case.
19. P.W.2 showed the place of occurrence to the police and police sent her for medical examination. The doctor of Barama Hospital examined her. She recognized Ext. 3, the medical report and Ext. 4, her statement recorded u/s 164 Cr.P.C. In cross examination, she denied the defence suggestion that her mother (PW1) filed a false case in order to avoid repayment of borrowed money to the appellant.
20. A perusal of her (PW2) statement under Section 164 Cr.P.C., dated 18.02.2017, vide Ext.4, it is revealed that the appellant, who is a married man having two daughters and one son, the eldest daughter married and a neighbour, had committed similar misdeeds thrice before while she and the appellant went for tethering cows, but the two previous similar incidents were not reported to anybody as the appellant prevented her. However, on the third occasion, when the appellant lifted her away to a place under tree and put off her wearing frock and panty and just attempted to rape her, PW4 witnessed it.
Page No.# 8/10 Witnessing the incident, P.W.4 rebuked the appellant. The appellant asked her (P.W.4) not to divulge the incident to anybody. However, PW2 reported the incident to her mother (P.W.1). Her mother called a village 'bichar', but the appellant did not attend and denied the allegation of rape and her father (P.W.3) gave a slap to him. Therefore, her mother (P.W.1) filed the case.
21. It may pertinently be mentioned that a statement recorded under Section 164 Cr.P.C. can be used for corroboration or contradiction made in the Court in the manner provided under Sections 157 and 145 of the Evidence Act. However, it is seen that the defence omitted to contradict her (P.W.2) with her previous statement recorded under Section 164 Cr.P.C. vide Ext. 4.
22. Turning to the evidence of the sole eye witness, PW4, it appears that while she was going with cow to the grazing field at the relevant time of the incident at about 6.30 AM, she saw the appellant and the victim girl and then their abrupt disappearing. On suspicion, she followed them and saw both of them committing physical relation. She rebuked the appellant for committing sexual act against the minor girl. She also saw that the wearing panty and the frock of the victim girl were torn. The appellant requested her not to disclose the incident to the villagers and, as such, she did not disclose it to anybody. Thereafter, the appellant left for his house while the victim returned home along with the victim girl. The victim reported the incident to her mother (PW1). Accordingly, a local 'bichar' was held, but the appellant did not attend and, as such, the case was filed. According to her, at the time of the occurrence, the victim girl was aged about 11 years and her wearing cloths and birth certificate were seized by police vide Ext. 2, the seizure memo, where Ext. 2(2) is her signature. In cross-examination, she denied all the defence suggestions.
23. Her (P.W.4) husband P.W.5, who did not witness the alleged occurrence, Page No.# 9/10 corroborated her (P.W.4) testimony as she (PW4) reported to him immediately after the aforesaid incident.
24. P.W.1, the mother of the victim girl (P.W.2) corroborated the testimony of PWs 2 and 4 as she was reported and recognized Ext.2, the seizure memo, whereby the police seized the victim's birth certificate and the medical report of her victim daughter vide Ext. 3. In cross-examination, it is noticed that the defence has not elicited any material fact that may be considered to be material contradiction with her previous statement under Section 161 Cr.P.C. Her husband PW3, who did not witness the alleged occurrence, corroborated the testimony of PWs 1, 2 and 4 as reported to him about the incident by his wife (P.W.1), who stated to have allegedly borrowed Rs. 5,000/- from the appellant and when the appellant asked for the aforesaid borrowed money, she (P.W.1) filed the instant false case. PW6, a co-villager, did not see the alleged occurrence and his evidence appears to be hearsay and as such carries no evidentiary significance.
25. Turning to the evidence of P.W.7, the doctor, who examined the victim girl, on 18.02.2017, did not find any sign of mark of violence on her body and private part. The doctor recognized Ext. 3, the medical report. In the aforesaid report, the doctor stated that as per X-ray, her age was above 11 years and below 13 years.
26. As seen from above, the evidence of P.W.8, the investigating officer, appears to be formal in nature.
CONCLUSION:
27. On close scrutiny of the evidence of the prosecution witnesses more particularly that of P.W.2, the victim girl and PW4, the eye witness, as a whole, Page No.# 10/10 it is revealed that they withstood the tests of cross-examination firmly and on consideration of their (P.Ws. 2 and 4) evidence along with the evidence of the remaining PWs, it is crystal clear that the appellant, in fact, committed 'sexual assault' on the victim girl, who, at the time of occurrence, was undisputedly a 'child' as per definition of 'sexual assault' given in Section 7, which is punishable under Section 8 of the POCSO Act.
28. For the above stated reasons, this court is of the opinion, in the absence of any credible evidence to the contrary, that no interference in the impugned well reasoned judgment and order is warranted.
29. Accordingly, the appeal stands dismissed.
Send back the LCR.
The criminal appeal stands disposed of.
JUDGE Comparing Assistant