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2017 Supreme(Gau) 984
IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
RUMI KUMARI PHUKAN, J.
Sri Kamakhya Roy, S/o Sri Baikuntha Roy - Appellant
Vs.
The State of Assam - Respondent
Criminal Appeal No. 24(J) of 2016
Decided On : 18-08-2017
Advocate Appeared:
For the Appellant : Mr. A. Chamua, Amicus Curiae
For the Respondent: Mr. B. Sarma, learned Addl. P.P.
The central legal point established in the judgment is the reliance on the victim's testimony in cases of sexual assault, emphasizing the importance of the victim's testimony and rejecting the need for corroboration in such cases.
Headnote:
POCSO Act - Conviction under IPC and POCSO Act - 448/376 IPC, Section 4 of POCSO Act - The judgment discusses the evidence and legal provisions related to the sexual assault of a minor, emphasizing the definition of penetrative sexual assault under Section 3 of the POCSO Act and the importance of the victim's testimony in cases of sexual assault.
Fact of the Case:
The case involves the conviction of the accused under Section 4 of the POCSO Act and IPC for sexual assault on a minor. The victim's mother and the victim herself provided testimony regarding the incident, which was supported by other witnesses and medical evidence.
Finding of the Court:
The court found the accused guilty based on the victim's testimony, supported by other witnesses and medical evidence. The court emphasized the importance of the victim's testimony in cases of sexual assault and rejected the defense's contention regarding the medical findings.
Issues: The key issues revolved around the credibility of the victim's testimony, the definition of penetrative sexual assault under the POCSO Act, and the reliance on the victim's testimony in cases of sexual assault.
Ratio Decidendi: The court relied on the victim's testimony, supported by other witnesses and medical evidence, to establish the guilt of the accused. The court emphasized the definition of penetrative sexual assault under the POCSO Act and the importance of the victim's testimony in cases of sexual assault.
Final Decision: The appeal was found devoid of merit and dismissed, affirming the conviction of the accused under Section 4 of the POCSO Act and IPC. The court also appreciated the assistance of the learned Amicus Curiae in conducting the appeal.
1. Present appeal is directed against the judgment and order of learned Special Judge, Bajali Patsal in Sessions Case No. 150/2015, u/s 248/354 of IPC read with section 4 of the POCSO Act 2012, dated 1.02.2015 whereby the accused appellant has been convicted U/S 448 IPC r/w Section 4 of the POCSO Act.
2. I have heard Mr. A. Camua, learned amicus curie for the appellant and also heard Mr. B. Sarma, learned Addl. P.P.
3. The prosecution case in nutshell is that on 15.03.2015 in the afternoon at about 5 pm, while victim (name withheld) was alone at her house, accused Kamakhya Roy @ Lele forcefully committed sexual inter-course with her. In the mean time, mother of the victim reached home and saw the aforesaid act of sexual inter-course with the victim and caught him and tried to tie him with rope. However, accused was able to escape by assaulting the mother of victim. An FIR was lodged by the mother of the victim with the I.C Pathsala police out post under Patacharkuchi P.S Case No. 101/2015 and investigation was started for offence u/s 448/376 of IPC.
4. During the course of investigation the I.O visited the place of occurrence, and sent the victim for Medical examination and got her statement recorded u/s 164 Cr.P.C. After completion of investigation, charge-sheet was submitted against the accused person u/s 448/376 IPC read with Section 4 of POCSO Act. The learned Magistrate committed the case to the Court of learned Sessions being the offence triable exclusively by the learned Special Judge.
5. The accused faced the trial from behind the bar and denied the charges u/s 448/376 read with Section 4 of POCSO Act, which was framed against him. Plea of defence is of total denial.
6. In support of the case prosecution examined seven (7) witnesses and defence examined none. Plea of defence is of total denial. Statement of the accused person recorded u/s 313 Cr.P.C. and at the conclusion of the trial the learned trial Court held the accused guilty u/s 4 of the POCSO Act and sentenced him R.I for seven (7) years and fine of Rs. 5,000/- in default another S.I. for three (3) months. Further, he is also convicted u/s 448 IPC and sentenced him R.I. for seven (7) months and fine of Rs. 500/- in default S.I. for 15 days, with a direction that the sentence will run concurrently and the period of detention shall be set of, it is directed that the fine if realised be given to the victim. Further the Court also directed for awarding the appropriate compensation to the victim under the provision of section 357(A) Cr.P.C.
7. Being aggrieved and dissatisfied with the aforesaid judgment the present appeal has been preferred.
8. Now, let us appreciate the evidence on record PW 1, mother of the victim in her evidence stated that her daughter was 13 years old at the time of occurrence. On the day of occurrence, at about 5 pm, she went out from her house to take goat from the grazing field, at that time her daughter Dipika was at home alone. While, she returned home and entered her bed room she saw that her daughter was in a fully naked condition and accused was having sexual inter-course with her. She also saw teeth bit marks on the cheek of her daughter. The accused while having sex with her daughter tied the hands and legs of her daughter with Gamocha, he also gagged the mouth of her daughter with cloth. She tried to tie the accused but he attacked her on the forehead and fled away. Accused came to their house with a bicycle and he fled away riding the bicycle. She chased him, at that time Kalmoni Roy was on the road and he saved her while the accused tried to assault her with a bamboo. She narrated the incident to Kalamoni Roy. Thereafter, she went to the house of Amani Roy and Sona Roy to inform the matter, but they were not at home. Thereafter, she returned home. In the mean time, she found Rekha Roy and her relative mahi at her house. Rekha Roy and Mahi washed the wearing cloth of her daughter and got her daughter bathed. Bed cover u
