Rambabu Mahato vs The State Of Assam
2021 Latest Caselaw 277 Gua

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GAHC010127992017




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

                               Case No. : CRL.A(J)/36/2017

            RAMBABU MAHATO




            VERSUS

            THE STATE OF ASSAM


            2:SMTI. JESHMINA GHASHI

             W/O-RAMBABU MAHATO
             VILL-RAJGARH NEWARGAON
             P.S.-NORTH LAKHIMPUR
             DIST.-LAKHIMPUR
             ASSAM

Advocate for the Petitioner   : MR.B BARUAH

Advocate for the Respondent : PP, ASSAM

BEFORE HONOURABLE MR. JUSTICE MIR ALFAZ ALI

Date : 29-01-2021

JUDGMENT & ORDER

1. Heard Mr. B. Baruah, learned Amicus Curiae appearing for the Appellant. Also heard Mr. B.B. Gogoi, learned Addl. P.P., Assam, for the State respondent.

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2. This appeal is directed against the judgment and order passed by the learned Special Judge, Lakhimpur, North Lakhimpur in Special Case No. 1/2015d whereby the appellant was convicted under Section 376 IPC read with Section 4 of the POCSO Act and sentenced to undergo R.I. for 10 years and fine of Rs. 5,000/-in default to undergo R.I. for another 5 (five) months on each count.

3. The prosecution case as unfolded during trial was that the informant Jeshmina Ghashi married the appellant after she was deserted by her former husband. The victim aged about 14 years was the daughter of the informant from her former husband. She was also living with the informant in the house of the appellant. The appellant used to sexually assault her for long time and consequently she became pregnant and also gave birth to a male child. Even thereafter the appellant continued to sexually assault the victim and therefore, the informant lodged the FIR Ext. 7, on the basis of which police registered North Lakhimpur P.S. Case No. 1087/2014 under Sections 376/511 IPC read with Section 8 of the POCSO Act. After completion of the investigation police submitted charge-sheet against the appellant under Section 376/313 IPC.

4. During trial charge under Section 376/313 IPC and Section 4 of the POCSO Act were framed which were abjured before the appellant. In order to substantiate the charges the prosecution examined as many as 10 witnesses, and on appreciation of evidence the learned Special Judge convicted the appellant and awarded sentence as indicated above.

5. The victim was examined as PW 1 who testified that she was staying with her mother in the house of the appellant being her step father. According to her during day time her mother used to go to work in the morning at about 7-30 and taking advantage of absence of her mother, the appellant committed rape on her on several occasions and consequently she became pregnant and gave birth to male child. When the matter was known to the villagers, they were ex-communicated and driven out from the village. During cross-examination it was elicited that the mother of the victim used to return from the work in the evening. She further stated during cross that when her mother raised objection the appellant assaulted her and also threatened her.

6. The informant has been examined as PW-9 who stated that the victim was her Page No.# 3/4

daughter from her former husband. She used to stay with her in the house of her second husband. She also stated that the accused appellant committed rape on her daughter and as a result she became pregnant. When the matter was known to the villagers because of the pregnancy of the victim she lodged the FIR.

7. The Doctor who attended the victim was examined as PW-2, who found as follows :-

"One black mole over the abdomen in the upper prt; Height-47"; Weight-35 kg; average health' teeth-28 nos. Breast-Developing, nipple discharge of milk positive; axilary & pubic hair- Scanty; Vulv- healthy, no injury mark; Vagina-menstrual bleeding positive, admits two fingers; Uterus-bulky; No spermatozoa seen; age of the victim girl was above 15 years and below 17 years; External injury-No apparent external injury mark. The M.O. also deposed that the victim girl was admitted in Female Ward of North Lakhimpur Civil Hospital and referred to the Gynaecologist on call for expert examination and opinion and further treatment."

8. Thus, the medical evidence as deposed by PW 2 has also reaffirmed the factum of the victim becoming pregnant. PW-4 also stated that the victim gave birth to a male child who died later on. He also stated that the accused committed sexual intercourse with his step daughter. During cross-examination he stated that he came to know about the occurrence having seen the victim's pregnancy. PW-5 and PW-6 stated to have known about the occurrence later on. PW-7 is the Judicial Magistrate who recorded the statement of the victim under Section 164 of the Cr.P.C. which has been proved as ext. 5. In her statement recorded under Section 164 Cr.P.C. also the victim has stated that her mother married to the appellant while she was aged about 12 years and the appellant continued to have sex with her for several times and consequently she became pregnant. The appellant got her pregnancy terminated by administering some medicine. The evidence of the PW-1, the victim appears to be consistent through out the proceeding. On the basis of above evidence the learned Magistrate recorded conviction and awarded sentence to the appellant under Section 376 read with Section 4 of the POCSO Act.

9. Having carefully scrutinised the evidence of the victim, which remained unshaken and the evidence of the doctor as well as the other witness I find that the learned trial court Page No.# 4/4

rightly convicted the appellant. The learned Amicus Curiae has also not seriously contested the finding of the learned trial Court holding the appellant guilty. However, the contention of the, learned Amicus Curiae is that the appellant ought not to have been punished under both the sections. It is also submitted by the learned Amicus Curiae that punishment was on higher side and prays for showing little compassion and to reduce the quantum of sentence.

10. The learned Additional P.P. has not objected to the prayer made by the learned Amicus Curiae. Thus, having considered the submission made by the learned Amicus Curiae and the facts and circumstance of the case, this court is of the view that some leniency could have been shown to the appellant so far the sentence is concerned. Accordingly, the sentence of the accused appellant under Section 4 of the POCSO Act is reduced to rigorous imprisonment for 7 years. In view of the provision of Section 71 of the IPC sentence can not be awarded under both the sections, though the act of the accused constituted offence both under Sections 376 IPC as well as Section 4 of the POCSO Act, and as such, sentence awarded by the trial Court under Section 376 is hereby set aside. The appellant shall undergo R.I. for 7 years only under Section 4 of the POCSO Act.

11. With the above modification in the sentence, the appeal is partly allowed.

JUDGE

Comparing Assistant