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2018 Supreme(Gau) 450
IN THE HIGH COURT OF GAUHATI
HITESH KUMAR SARMA, J.
HANIF ALI - Appellant
Versus
STATE OF ASSAM AND ANOTHER - Respondent
Criminal Appeal No. 330 of 2016
Decided on : 31-01-2018
For the Appellant :Mr. P. Hatigayari, Mr. W. Rahman, Mr. MH Rajbarbhuiyan, Advocates.
For the Respondent: Mr. B. Sarma, Additional Public Prosecutor.
The testimony of a victim in cases of sexual offences is vital and can be relied upon without corroboration. The provisions of Section 42 and 42A of the POCSO Act provide for alternate punishment and have overriding effect over other laws.
Headnote:
POCSO Act - Sexual Offence - Section 8, Section 42, Section 42A - The judgment discusses the conviction of the accused-appellant under Section 8 of the Protection of Women from Sexual Offence Act (POCSO Act) and sentencing him under the same. It also highlights the provisions of Section 42 and 42A of the POCSO Act, which provide for alternate punishment and the overriding effect of the Act over other laws.
Fact of the Case:
The victim, a 10-year-old girl, was sexually assaulted by the accused-appellant in his house. The accused-appellant denied the allegations, but the victim's evidence remained unassailed during cross-examination.
Finding of the Court:
The court found the evidence of the victim to be creditworthy and the defence's evidence failed to discredit her testimony. The court referred to the legal position that the testimony of a victim in cases of sexual offences is vital and can be relied upon without corroboration.
Issues: The key issue was the credibility of the victim's testimony and whether the accused-appellant could be convicted under Section 8 of the POCSO Act.
Ratio Decidendi: The court relied on the victim's unassailed evidence and the legal position that the victim's testimony in sexual offence cases can be relied upon without corroboration. It also discussed the provisions of Section 42 and 42A of the POCSO Act.
Final Decision: The court partly allowed the appeal, setting aside the conviction under Section 354 of the IPC and modifying the sentence imposed under Section 8 of the POCSO Act.
1. This appeal, under Section 374 (2) of the Cr.P.C., is preferred against the judgment and order, dated 17-09-2016, passed by learned Special Judge-cum-Sessions Judge, Darrang, Mangaldai, in Sessions Case No. 81 (DM) of 2014, convicting the accused-appellant, under Section 8 of the Protection of Women from Sexual Offence Act, (in short, POCSO Act) and sentencing him to rigorous imprisonment for 4 years and to pay a fine of Rs.15000/-, in default, rigorous imprisonment for 3 months. The accused-appellant was also sentenced to suffer rigorous imprisonment for 2 years and to pay a fine of Rs. 10,000/-, in default, rigorous imprisonment for 3 months, for the offence under Section 354 of the IPC. The sentences were directed to run concurrently.
2. I have perused the appeal memo, the impugned judgment and order as well as the record of the learned trial Court including the evidence of the witnesses for both sides.
3. I have heard Mr. W Rahman, learned counsel appearing on behalf of accused-appellant and Mr. B Sarma, learned Additional Public Prosecutor, Assam.
4. The prosecution case, in brief, is that the victim was sexually assaulted by the accused- appellant in his house and to that effect, an FIR, marked as Ext.1, was lodged by Sarafat Ali, paternal uncle of the victim with the Daipam Police Outpost under Dalgaon Police Station.
5. On receipt of the FIR, Daipam Police Outpost forwarded the same to Dalgaon Police Station for registration of a case. Accordingly, Dalgaon Police Station registered a case, being No. 23/2014, under Sections 366 (A)/354 (A) of the IPC, investigated into it, collected evidence, arrested the accused and, finally, submitted the charge-sheet against the accused- appellant for commission of offences, under Section 376 (2) (g) of the IPC and under Sections 6/7 of the POCSO Act.
6. During the course of investigation, police got the statement of the victim recorded under Section 164 Cr.P.C. and also she was examined by a doctor in the hospital.
7. After exhausting all the required formalities, the learned trial Court of Special Judge, under the POCSO Act, Darrang, Mangaldoi framed a formal charge against the accused- appellant, under Section 7 of the POCSO Act as well as under Section 376 (2) (g) of the IPC, to which the accused-appellant pleaded innocence.
8. In this case, to bring home the accusation against the accused-appellant, the prosecution examined as many as 8 witnesses including the Medical Officer and the Investigating Police Officer, who were subjected to cross-examination by the defence. The defence examined 3 witnesses. After closure of the prosecution evidence, statement of the accused-appellant was recorded under Section 313 Cr.P.C. In his statement, the accused- appellant is heard denying the allegations levelled against him.
9. On completion of the trial, the accused-appellant was convicted and sentenced by the learned Special Judge-cum-Sessions Judge, Darrang, Mangaldai, as indicated above.
10. On perusal of the entire evidence on record, it is more than clear that there was no eye witness to the occurrence. Therefore, this Court needs to start with the evidence of the victim.
11. The victim, examined as PW2, has stated that she is aged about 10 years. She is heard saying in her evidence that her parents were out at Karnataka for livelihood and she was staying in her house with her uncle. The accused-appellant called her to his house where she stayed for 3/4 days and on 18-01-2014, while she was sleeping, the accused-appellant put off her panty and assaulted her sexually. From her evidence, it also appears that the accused- appellant discharged semen, which fall on her person. At this point of time, she got awakened and then the accused-appellant left the bed. In the next morning, the accused-appellant gave an amount of Rs. 20/- to the victim and sent her to her house. The victim was thoroughly cross-examined by the defence, but failed the discredit any of her statement made in the
