Tarun Adhikary vs The State Of Assam
2022 Latest Caselaw 3331 Gua

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GAHC010277922019




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

                               Case No. : CRL.A(J)/87/2019

            TARUN ADHIKARY
            CHIRANG, KAJALGAON, ASSAM.



            VERSUS

            THE STATE OF ASSAM
            REP. BY PP, ASSAM.



Advocate for the Petitioner   : MS. B SARMA, AMICUS CURIAE

Advocate for the Respondent : PP, ASSAM




                                  BEFORE
               HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND

                                        JUDGMENT

Date : 05-09-2022

Heard Ms. B. Sharma, learned Amicus Curiae appearing on behalf of the appellant. Also heard Mr. B. Sharma, learned Addl. P.P. for the State of Assam.

2. This appeal is directed against the Judgment & Order dated 15.12.2018 passed by the Sessions Judge, Chirang in Sessions Case No. 83(Basu)/2016 convicting the accused- appellant Tarun Adhikary (hereinafter referred to as the accused) under Section 376(2)(f) of Page No.# 2/10

the Indian Penal Code (IPC for short) and sentencing him to undergo Rigorous Imprisonment for 10 years and pay a fine of Rs. 3,000/- with default stipulation.

3. An excerpt of the prosecution case is that on 17.02.2007 at about 3 PM, the victim 'X' was playing near the accused-person's house. At that time he was alone at home and he invited some children to his house and offered them curd. After having curd, the children came out but, the accused latched the entrance door and confined the victim in his house. Thereafter he gagged her and threatened her and committed rape on the minor victim 'X'. Sensing trouble some of the victim's friends called her stating that her mother was calling her and thus saved her life. It is also alleged that the accused offered Rs. 5 to the victim 'X' and asked her not to divulge about the incident. 'X' then came out of the accused-person's house and narrated the entire incident to her mother - say 'Y'.

4. An FIR regarding this incident was lodged by 'Y' which was registered as Basugaon P.S. Case No. 16/2007, corresponding G.R. Case No. 266/2016, under Section 376 IPC and Investigating Officer (I/O in short) embarked upon the investigation. After completion of investigation charge-sheet was laid against the accused under Section 376(2)(f) IPC.

5. At the commencement of trial, a formal charge under Section 376(2)(f) of IPC was framed and read over and explained to the accused who adjured his guilt and claimed innocence.

6. To substantiate its stance, the prosecution adduced the evidence of 10 witnesses. Minati Ray was examined as CW-1. Some witnesses were cross-examined by the defence. Various documents were exhibited by the prosecution. On the incriminating circumstances arising against him, the answers of the accused to the questions under Section 313 of the Code of Criminal Procedure (Cr.P.C. for short) depicts a plea of total denial.

7. The learned counsel for the accused, Smt. B. Sarma (Amicus Curiae) laid stress in her argument that this case is fraught with contradictions. The incident allegedly occurred on 17.02.2007 and the FIR was lodged on 25.02.2007. It is submitted that the reasons for delay of lodgment of FIR has been mentioned that a village mel (village meeting) was held which led to the delay. It is argued that there is no evidence that any village meeting was held that led to the delay in lodgment of FIR. It is also submitted that the victim was examined by the Page No.# 3/10

Medical Officer after 15 days and it is apparent from the medical report that the redness detected upon examination of the victim was not the result of any sexual assault and this has been explained by the Medical Officer that redness due to sexual intercourse may be present only within 72 hours after the incident. The remaining part of her argument will be discussed at the appropriate stage.

8. The learned Additional P.P., Mr. B. Sharma laid his stress in his argument that the decision of the Trial Court was correct. No contradictions could be elicited through the cross- examination of the witnesses. The victim's statement under Section 164 Cr.P.C. is consistent to her testimony in the Court. He has relied on the decision of the Hon'ble Supreme Court in Phool Singh vs. State of Madhya Pradesh , reported in (2022) 2 SCC 74 and State of Punjab vs. Gurmit Singh and Others, reported in (1996) 2 SCC 384.

9. To decide this appeal in its proper perspective, it is necessary to advert to the evidence. 'Y' has testified as PW-1 that the incident occurred at about 11 years ago at about 3 P.M. in the accused-person's house. At that time she went to the weaving centre at Basugaon and she returned at 5 P.M. She heard from her neighbours that her daughter was seen in the accused-person's house and she was crying. When she asked her daughter, her daughter ('X') informed her that at the time of the incident she was playing on the road. Then the accused came and offered her curd and then the accused latched the door and committed sexual intercourse upon her ('X') and he told the victim ('X') not to divulge the matter to anybody. Her daughter ('X') however informed her neighbour Minati Ray about the incident. She ('Y') then informed the villagers about the incident and the villagers advised her to lodge a case against the accused. After a week, she lodged an FIR with the police at Basugaon P.S. The police then sent her daughter for medical examination. Her daughter was 10 years old at the time of the incident and she was a student of Class-IV.

10. PW-1 further testified that her daughter did not repeat any year in any class. Her daughter 'X' was 3 years old when she adopted her and the incident occurred about 7 years after the adoption.

11. It is argued that the age of the victim is not correctly given by the witnesses. The victim has testified as PW-12 that she was 19 years at the time when she deposed in the Page No.# 4/10

Court on 12 July, 2018 whereas her mother (PW-1) has mentioned in the FIR that she was only 8 years old at the time of the incident. The incident allegedly occurred in the year 2007. It is submitted that if the age given by PW-1 and PW-2 is taken into consideration then the victim's age was not 8 years but she would have been around 12 years old at the time of the incident. I have scrutinized the evidence of PW-1 and PW-2. An approximate age of 8 years surfaces after scrutinizing the evidence of PW-1 and PW-2. It is thereby held that the victim was around 8/9 years old at the time of the incident. The evidence of the other witnesses also depicts that age of the victim was around 8/9 years at the time of the incident. A slight dissimilarity does not cause a dent in the evidence, which is otherwise found to be consistent.

12. The PW-1 has further testified that she lodged the FIR and she has proved her signature on the FIR as Exhibit-1(1). A careful scrutiny of the FIR and the testimony of PW-1 depicts that the evidence of PW-1 substantiates the FIR lodged by her. In her cross- examination PW-1 has testified that on the day of the incident she noticed that the panties worn by her daughter at the time of the incident was dirty but she could not detect any injuries on the private parts of her daughter ('X').

13. The contradiction that could be elicited from the cross-examination of PW-1 is that she did not mention under Section 161 Cr.P.C. that her daughter has informed her that the accused had committed sexual intercourse with her. This has been affirmed by the cross- examination of Shri Narayan Ch. Biswas, I/O (PW-10).

14. The learned counsel for the accused has laid stress in her argument that this is a major contradiction and this casts a shadow of doubt over the veracity of the evidence of PW-1 because the victim has not stated before her that the accused is complicit. This argument however holds no water because an FIR has been lodged by PW-1. The evidence of PW-1 that the accused committed rape on the minor victim 'X' substantiates the FIR marked as Ext.-1. The evidence of the minor victim clearly depicts that the accused committed sexual assault on her.

15. The minor victim 'X' has testified as PW-2 that the incident took place at around 3 P.M., one day in the month of February, in the year 2007. At that time she was a student of Class- IV and about 9 years old. She was playing when the accused-person invited her and offered Page No.# 5/10

her curd. Her friends were not invited. She was playing with Sabita and Pranati who are also related to the accused. Her friends went away and she went to the accused-person's house. His wife and children were not at home and he was alone at home. She ate the curd. The door was open and the accused was attired in a 'gamocha' and she was wearing a frock and panties. The accused removed his gamocha and latched the door from inside. He removed her clothes and pinned her to the bed made of bamboo and committed sexual intercourse. He gagged her by her mouth and he assaulted her for an hour. She experienced pain and she cried and then the accused unlatched the door. He told her not to divulge about the incident. When the accused opened the door, she (PW-2) went out of his house and informed Minati about the incident as her mother was not at home. Minati Ray is the wife of the elder brother of the accused person's brother-in-law. As Minati Ray coaxed her to inform her mother about the incident, she narrated the incident to her mother. When her mother heard about the incident, she lodged the case. She was examined by the Doctor and then she was taken to the Magistrate to record her statement. This witness proved her statement before the Magistrate as Exhibit-2 and proved her signatures as Exhibit-2(1) and 2(2).

16. The testimony of PW-2 is consistent to her statement under Section 164 Cr.P.C. No contradictions could be elicited through the cross-examination of PW-2, as per Section 145 of the Indian Evidence Act, 1872 qua Section 162 Cr.P.C. It has been argued on behalf of the accused that the victim was examined as a witness when she was 19 years of age, and due to the long span of time between the occurrence of the incident and her testimony in the Court embellishments cannot ruled out. It is also submitted that the victim's statement under Section 164 Cr.P.C. was recorded after 13 days after the incident and she may be swayed on being tutored by her parents and elders and may have given false statement against the accused who is innocent.

17. It is true that the victim's statement recorded under Section 164 Cr.P.C. was recorded after a span of 13 days from the date of the incident, but these chinks in the investigation has to be considered along with the evidence, direct or indirect available against the accused.

18. The I/O, PW-10 has admitted that the statement of the victim was not recorded under Section 161 Cr.P.C. Again attention was drawn towards the examination of the victim by the M.O. It was submitted on behalf of the accused that the victim was examined after 15 days.

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The incident allegedly occurred on 17.02.2007 and the victim was examined on 01.03.2007. I have carefully assessed the evidence. The M.O. Dr. Joynal Abedin has testified as PW-8 that on 07.08.2007 while working as Medical Officer at RNB Civil Hospital, he examined 'X' aged about 8 years in connection with Basugaon P.S. Case No. 16/2007 U/S 376 IPC and found the following :-

"Weight - 20 Kg. Height - 4 ft. Gait is normal. Pubic and auxiliary hair - not grown. Breast is childish type. Vagina, vulva are not adult type. Hymen is partially teared (Old). There is congestion (redness) around the vaginal orifice. No sign of violence is seen in her private parts. Vagina is tight. Total number of teeth 5/5, 5/5 = 20.

X-ray was advised but report was pending.

Vaginal swab for spermatozoa shows - No spermatozoa.

(Sl. No.-84, dated 1.3.07, R.N.B. Civil Hospital, Kokrajhar)."

19. According to his opinion, the girl had torn hymen but he did not mention whether the tear of the hymen was due to sexual intercourse or not because tear of hymen may be due to other reasons also. He has stated that there were no marks of violence on her body and clinical examination shows that her age was below 14 years. He has proved the medical report as Exhibit-3 and his signature as Exhibit-3(1). In his cross-examination he has admitted that the redness of sexual intercourse may remain for 42 to 72 hours.

20. It is clear from the evidence of the Medical Officer, PW-8 that the victim girl was below 14 years of age and her hymen was torn. Victim has categorically stated that the accused- person committed sexual assault on her. Medical evidence reveals tear of her hymen. The statement of other witnesses also depicts that the victim was around 7 to 8 years of age and she was a student of Class-IV at the time of the incident. The PW-8 could not give the accurate age of 'X', because her ossification test report was not forwarded to him, when he gave the medico legal report Ext.-3. It has already been held in my foregoing discussions that the victim was around 8/9 years of age at the time of the incident. It is not discernible that such a young girl would give false statement before a Magistrate. I would like to emphasise that X's evidence as PW-2 is consistent to her statement under Section 164 Cr.P.C.

21. Sri Lecharu Ray, PW-3 has testified that the victim was adopted by the informant and Page No.# 7/10

at the time of the incident she was only 8/9 years old. Shri Godhoru Ray has testified as PW- 4 that the victim was only 10 to 11 years old at the time of the incident. Shri Sesharu Roy, PW-5 has stated that the victim 'X' was around 6/7 years old at the time of the incident. The victim herself has testified that she was a student of Class-IV and she was around 8/9 years old at the time of the incident. Her evidence depicts that after her mother lodged the FIR she was taken for medical examination. It has been held by the Hon'ble Supreme Court in Phool Singh vs. State of Madhya Pradesh, reported in (2022) 2 SCC 74 that :-

"7. At the outset, it is required to be noted that in the present case, the prosecutrix has fully supported the case of the prosecution. She has been consistent right from the very beginning. Nothing has been specifically pointed out why the sole testimony of the prosecutrix should not be believed. Even after thorough cross-examination , she has stood by what she has stated and has fully supported the case of the prosecution. We see no reason to doubt the credibility and/or trustworthiness of the prosecutrix. The submission on behalf of the accused that no other independent witnesses have been examined and/or supported the case of the prosecution and the conviction on the basis of the sole testimony of the prosecutrix cannot be sustained is concerned, the aforesaid has no substance."

22. Reverting back to the instant case, it is held that the victim was only 8/9 years old at the time of the alleged incident. It is not discernible that such a young girl will lie about being sexually assaulted by a man who was aged around 27 years at the time of the incident. Her testimony was found to be consistent to her previous statement and her evidence is corroborated and substantiated by the evidence of the informant as well as the evidence of Minati Roy who was called in as a court witness. In this case, the evidence of the victim is bolstered by the evidence of other witnesses as well.

23. Minati Ray has testified as CW-1 that the accused is distantly related to her. The incident occurred 10/11 years ago. At the time of the incident, the victim was only 7/8 years old and was a student of Class-II. The incident occurred during the day time. At that time she was busy cooking. The victim came out from the accused-person's house and she was crying and she asked the victim about the reason, why she was crying. Then she learnt that the accused committed sexual assault on the victim. CW-1 has further testified that the victim's mother (PW-1) examined her daughter and assured that she was sexually assaulted. She has Page No.# 8/10

stated that she had no animosity with the accused.

24. In her cross-examination she has admitted that she asked the victim about the incident but the victim did not reply and she, heard about the incident from her mother.

25. The learned counsel for the accused projected the contradictions between the evidence of CW-1 and PW-1. It is submitted on behalf of the accused that PW-1 has testified that her daughter informed her neighbour Minati Ray about the incident whereas Minati Ray has testified that the victim was mum, when she asked the victim why she was crying. She came to know from PW-1 about the incident. Moreover it has been argued that PW-1 has testified that she did not detect any injuries on the victim's private parts and she stated that the victim's panties were dirty. On the contrary CW-1 has stated that the victim was examined by her mother (PW-1) to confirm if her daughter ('X') was sexually assaulted.

26. Regarding minor contradictions of this nature the Addl. P.P has submitted that, it has been observed by the Hon'ble Supreme Court in State of Punjab vs. Gurmit Singh and Others , reported in (1996) 2 SCC 384 that:-

"Rape is not merely a physical assault - it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of any accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with the cases involving sexual molestations."

27. Reverting back to this case, it is held that the aforementioned minor contradictions can Page No.# 9/10

be safely brushed aside. The evidence of the prosecutrix has to be relied upon. A careful scrutiny clearly depicts that the evidence of the victim is trustworthy. Her statement under Section 164 Cr.P.C. was given when she was a young girl of about 8 years. This statement is corroborated by her testimony in the Court. The evidence of the other witnesses which is also submitted to be hearsay evidence supports the evidence of PW-1 and PW-2. The so called hearsay evidence depicts the latter part of the incident. Shri Lecharu Ray, PW-3 has testified that after returning from work he heard from the villagers that the accused committed sexual intercourse on the victim. Shri Godhoru Ray, PW-4 has stated that he heard that the accused committed sexual intercourse upon the victim. Shri Sesharu Ray, PW-5 and Shri Sambaru Ray, PW-6 also heard that the accused committed sexual intercourse on the victim. Smt. Purnima Ray, PW-7 has testified that the accused called the victim to his house to have curd. She heard that the accused committed rape on the victim. Nothing much could be extracted during the cross-examination of the I/O. The I/O is a formal witness who conducted the investigation and finally laid charge-sheet (Exhibit-4) against the accused.

28. After evaluating the evidence it is held that we have clinching evidence against the accused. The evidence of the victim 'X' inspires confidence. Apart from a few minor contradictions, no major discrepancies or contradictions could be culled out. The delay in lodgment of the FIR has been explained by the informant through her evidence. She (PW-1) has also explained the delay in lodgment of the FIR in the FIR itself. The incident occurred on 17.02.2007 and the recording of evidence in court commenced from 12.07.2018. After a span of more than 8 years, witnesses are prone to forget some minute details of the incident. Despite the delay in recording the evidence, only a few minor contradictions could be culled out. I have given my anxious consideration on the submissions of both the sides. The victim's evidence is also fortified by the M.O.'s evidence. Tear on her hymen has been detected by M.O.(PW-8). It can be contemplated how a tear on the hymen can be detected on a 8 year old victim with a history of sexual assault. The evidence against the accused is robust and I record my concurrence to the findings of the learned Trial Court.

29. This appeal is devoid of merits and dismissed. The Judgment & Order dated 15.12.2018 passed by the Sessions Judge, Chirang in Sessions Case No. 83(Basu)/2016 convicting the accused-appellant Tarun Adhikary is upheld. A case under clause-f of sub-

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section 2 of Section 376 of the IPC, if proved against the accused, the Court shall presume that the victim did not consent to such an act as per section 114-A of the Evidence Act. The Judgment & Order dated 15.12.2018 passed by the Sessions Judge, Chirang is upheld and the period of detention of the accused during investigation and trial is however set off with his custodial sentence.

30. Ms. B. Sarma, learned Amicus Curiae, who has ably assisted this Court in conducting this appeal, may be paid the honorarium at the rate fixed as per rules.

JUDGE

Comparing Assistant