Bipul Khan @ Khaund vs The State Of Assam
2021 Latest Caselaw 484 Gua

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GAHC010085072019




                              THE GAUHATI HIGH COURT
     (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                               Case No. : CRL.A(J)/20/2019

            BIPUL KHAN @ KHAUND
            NALBARI

            VERSUS

            THE STATE OF ASSAM
            REP. BY PP, ASSAM.

Advocate for the Petitioner   : MS. M BARMAN, AMICUS CURIAE
Advocate for the Respondent : PP, ASSAM

                                    BEFORE
                     HONOURABLE MR. JUSTICE MIR ALFAZ ALI
                   HONOURABLE MR. JUSTICE MANISH CHOUDHURY

                                        JUDGMENT

Date : 11-02-2021 (Mir Alfaz Ali, J)

Heard Ms. M. Barman, learned Amicus Curiae for the accused-appellant. Also heard Ms. D. Bhuyan, learned Additional Public Prosecutor, Assam as well as Ms. R. Dutta, learned Amicus Curiae for the informant/respondent no. 2.

2. This jail appeal is directed against the judgment and order dated 30.11.2018 rendered by the learned Sessions Judge - cum - Special Judge, Nalbari in Sessions Special Case no. 38/2017, whereby the accused-appellant was convicted under Section 4 of the Protection of Children from Sexual Offences (POCSO) Act, 2012 read with Section 376, Indian Penal Code (IPC) and sentenced to rigorous imprisonment for life and also to pay a fine of Rs. 5,000/- in default, simple imprisonment for 6 (six) months on each count.

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3. As per the prosecution case on 24.04.2017, the victim, who was mentally retarded, went to school as usual, however, she did not return in time. When the victim did not return after the school, the parents of the victim made a search and found the victim in a jungle near Polytechnic Institute, where the accused-appellant was trying to kill the victim. Immediately, the accused-appellant was caught hold by the people and handed over to the police. The father of the victim lodged an FIR (Exhibit-1), on the basis of which, the police registered a case being Nalbari Police Station Case no. 265/2017 under Sections 376/307, IPC read with Section 4 of the POCSO Act and eventually on completion of investigation, submitted charge sheet against the accused-appellant.

4. During trial, learned Sessions Judge framed charges against the accused-appellant under Sections 376/307, IPC read with Section 4 of the POCSO Act, which were abjured by the appellant. The prosecution examined 10 (ten) witnesses to substantiate the charges framed against the accused-appellant. On conclusion of the prosecution evidence, the accused-appellant was also examined under Section 313, CrPC, wherein he had taken a plea of innocence. On appreciation of evidence, the learned Sessions Judge convicted the accused- appellant and awarded sentences indicated above.

5. The victim was examined as PW-3. During her evidence, the PW-3 deposed that while she was coming home at around 3 p.m. from school, the accused-appellant lifted her from the road and took to a nearby jungle, where he undressed her and subjected her to sexual intercourse forcefully. She further stated that the accused-appellant also bite on her chest and touched on various parts of her body. While she was being subjected to sexual assault, the villagers accompanying with her mother arrived at the place of occurrence and she was taken to the hospital for treatment. During cross-examination, nothing material capable of creating any dent in her testimony could be elicited, except putting certain suggestions, which were denied by her and as such the oral testimony of the prosecutrix remained unshaken.

6. PW-4, 5 & 6 who also arrived at the place of occurrence immediately after the occurrence, deposed that on reaching the place of occurrence they found the victim lying unconscious and the accused-appellant was standing nearby her, they caught hold of the accused-appellant and the village headman informed the police, who arrested him. The Page No.# 3/5

evidence of PW-4, 5 & 6 that immediately after the occurrence, they arrived at the place of occurrence and found the victim along with the accused-appellant remained totally unshaken in as much as there was no cross-examination to challenge the testimony of these 3 (three) witnesses.

7. The mother of the victim, examined as PW-2, also stated to have arrived at the place of occurrence with the villagers. Though, she also claimed to have seen the occurrence, from her cross-examination it appears that she did not have the opportunity to see the actual occurrence. However, her testimony with regard to her arrival at the place of occurrence along with the co-villagers remained unshaken. The Investigating Officer (I.O.) has also stated that immediately after the occurrence he got a telephone call from the village headman and arrived at the place of occurrence and arrested the accused-appellant.

8. PW-8, Dr. Urmi Devi Choudhury who examined the victim found the following on the body of the victim :

"External gentalia was found healthy. Labaia mjora, labia minora, vulva and perineum were healthy. A tear was seen at the posterior part fourchette (surrounded area of vaginal opening) of 5 cm X 5 cm size. Vagina and cervix were found healthy. Her LMP was day 20. Vagina admits 2 figures with difficulty Vaginal Swab was sent for microscopic examination for sperm determination to SMK Civil Hospital, Nalbari and FSL Kahilipara. Report from SMK Civil Hospital, Nalbari showed negative result. Report of FSL Kahilipara was not received till time of submission of my medical report. One brown colour panty, one black colour "semis" which were wearing by the victim and 2 nos. of glass slides containing vaginal swab along with 3 nos. of sample containing dried vaginal swab of the victim were handed over to police for onward transmission to FSL Kahilipara for forensic test. USG of lower abdomen was advised; normal study was found form the report. Adv - normal study was found."

The doctor has clearly opined that the victim was found consisted with recent sexual assault or forceful vaginal penetration. It is also stated by the doctor that vaginal swab was sent for Forensic Examination.

9. PW-10, the Scientific Officer deposed that vaginal swab which was examined by him, Page No.# 4/5

gave positive test for human semen. Thus, the evidence of the doctor (PW-8) that there was injury on the private part of the victim suggesting forceful vaginal penetration and the evidence of PW-10 that the examination of vaginal swab of the victim gave positive test for human semen re-inforced the oral testimony of the PW-3, the victim supported by PW-2, 4, 5 & 6. Though the PW-2, mother of the victim deposed that she did not know the actual age of the victim, from medical evidence of PW-8, it appears that the victim was a child below 18 years of age at the relevant time. Thus, the unshaken oral testimony of the victim corroborated by the medical evidence as well as the oral testimony of the PW-2, 4, 5 & 6, left no room for doubt that the victim was subjected to penetrative sexual assault by the accused- appellant.

10. In fact, the learned Amicus Curiae has also very fairly submitted that prosecution evidence with regard to establishing the prosecution case of the PW-3 being subjected to penetrative sexual assault by the accused-appellant could not be shaken in course of trial by way of cross-examination or otherwise. In the above facts and circumstances, when the oral evidence including the evidence of the victim supported by the medical evidence clearly established the offence of penetration sexual assault, we found no reason to differ with the findings arrived at by the learned trial court for recording conviction of the accused-appellant under Section 376, IPC as well as Section 4 of the POCSO Act.

11. What we notice is that the learned trial court awarded punishment under both the Sections, which does not appear to be in consonance with the provision of Section 42 of the POCSO Act as well as Section 71 of the IPC. Since the act of the accused-appellant constituted offence punishable both under Section 4 of the POCSO Act as well as Section 376 of the Indian Penal Code, in view of Section 71, IPC read with Section 42 of the POCSO Act, accused-appellant shall be liable to punishment under any one of the Penal Provision i.e. either Section 376 of the IPC or Section 4 of the POCSO Act, whichever provides higher decree of punishment. In view of the above, we are of the view that the punishment in the facts and circumstances of the case could be awarded only under Section 376 (2) of the IPC. We therefore, set aside the sentence awarded under Section 4 of the POCSO Act. Having taken note of the facts and circumstances of the case in its entirety, we find that the Page No.# 5/5

sentences awarded by the learned trial court was harsher and in our considered opinion, rigorous imprisonment for 10 (ten) years would commensurate with the gravity of offence. Therefore, we reduce the sentence from life imprisonment to rigorous imprisonment for 10 (ten) years. The sentence of fine and default sentence therefor, calls for no interference. The appeal accordingly stands partly allowed.

12. Appreciating the assistance rendered by Ms. M. Barman and Ms. R. Dutta, learned Amicus Curiae, we hereby provide that they will be entitled to Rs. 7,500/- as professional fee, which shall be paid to them by the Gauhati High Court Legal Services Committee upon production of a copy of this judgment.

13. Send down the LCR.

                                         JUDGE                      JUDGE




Comparing Assistant