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IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
AJIT BORTHAKUR, J.
Surjya Barman, S/o. Late Phukan Barman - Petitioner
Versus
The State of Assam, Rep. By Public Prosecutor, Assam - Respondent
Crl. A. No. 19 of 2021
Decided On : 19-10-2022
Code of Criminal Procedure, 1973 - Section 374 (2), 313, 164, 161 – Protection of Children from Sexual Offence, 2012 - Section 4, 7, 8 - Evidence Act, 1872 - Sections 157 and 145 - Rape – Appeal Against Conviction - Prosecution story, in brief, is that minor daughter of informant was returning home from field after tethering cows, accused/ appellant committed rape on her by gagging her mouth - It was also alleged that one co-villager, witnessed occurrence and appellant, after witnessing said woman, fled away from scene - It was further alleged that informant’s mother, knowing occurrence, convened a ‘bichar’(village meeting), but as no result yielded, she lodged FIR. Para 21
Finding of the Court :
In cross-examination, it is noticed that defence has not elicited any material fact that may be considered to be material contradiction with her previous statement under Section 161 Cr.P.C - Her husband PW3, who did not witness alleged occurrence, corroborated testimony of PWs 1, 2 and 4 as reported to him about incident by his wife (P.W.1), who stated to have allegedly borrowed Rs. 5,000/-from appellant and when appellant asked for aforesaid borrowed money, she (P.W.1) filed instant false case - PW6, a co-villager, did not see alleged occurrence and his evidence appears to be hearsay and as such carries no evidentiary significance - Turning to evidence of P.W.7, doctor, who examined victim girl, did not find any sign of mark of violence on her body and private part - Doctor recognized Ext. 3, medical report - In aforesaid report, doctor stated that as per X-ray, her age was above 11 years and below 13 years - As seen from above, evidence of P.W.8, investigating officer, appears to be formal in nature - On close scrutiny of evidence of the prosecution witnesses more particularly that of P.W.2, victim girl and PW4, eye witness, as a whole, it is revealed that they withstood tests of cross-examination firmly and on consideration of their (P.Ws. 2 and 4) evidence along with evidence of remaining PWs, it is crystal clear that appellant, in fact, committed ‘sexual assault’ on victim girl, who, at time of occurrence, was undisputedly a ‘child’ as per definition of ‘sexual assault’ given in Section 7, which is punishable under Section 8 of POCSO Act - For above stated reasons, this court is of opinion, in absence of any credible evidence to contrary, that no interference in impugned well reasoned judgment and order is warranted.
Result: Appeal dismissed.
JUDGMENT :
Heard Mr. N. Barman, learned counsel for the appellant as well as Mr. B.B. Gogoi, learned Addl. P.P., Assam appearing for the State respondent.
2. This appeal under Section 374 (2) of the Code of Criminal Procedure (‘Cr.P.C.’ for short) is preferred against the Judgment and Order, dated 21.12.2020, passed by the learned Special Judge (POCSO Act), Baksa, in Special POCSO Case No. 33 of 2018, whereby the appellant has been convicted and sentenced to undergo rigorous imprisonment for 3 (three) years and to pay fine of Rs.10,000/- in default, to suffer simple imprisonment for 1 (one) month under Section 8 of the POCSO Act.
PROSECUTION STORY:
3. The prosecution story, in brief, is that on 14.02.2017, at around 6.30 am, while the minor daughter of the informant was returning home from the field after tethering cows, the accused/ appellant committed rape on her by gagging her mouth. It was also alleged that one co-villager, namely, Dipali Rajbongshi witnessed the occurrence and the appellant, after witnessing the said woman, fled away from the scene. It was further alleged that the informant’s mother, knowing the occurrence, convened a ‘bichar’(village meeting), but as no result yielded, she lodged the FIR.
INVESTIGATION & TRIAL:
4. On receipt of the FIR, the then Inspector of Barama Police Station registered the case being Barama P.S. Case No. 29/2017 under Section 4 of the POCSO Act. After completion of investigation, the Investigating Officer laid a charge-sheet against the accused/appellant under Section 4 of the POCSO Act. Thereafter, on appearance of the accused/appellant, the learned Trial Court framed charges against him under Sections 4/8 of the POCSO Act. The accused/appellant pleaded not guilty and claimed to be tried.
5. In order to bring home the charges brought against the accused/appellant, the prosecution examined as many as eight witnesses. After closing the evidence of the prosecution side, the statement of the accused/appellant under Section 313 Cr.P.C. was recorded. The accused/appellant pleaded innocence and claimed to be tried. After completion of trial, the learned Special Judge (POCSO Act), Baksa convicted and sentenced the accused/appellant under Sections 4/8 of the POCSO Act as stated above.
EVIDENCE:
Now, let us look to the evidence on record in short:
6. P.W. 1, who was the informant in the instant case, in her evidence stated that on the fateful day, her victim daughter, aged about 12 years at the time of occurrence, went to the field with their cows and the appellant, after taking her towards a tree, committed sexual assault on her by gagging her mouth, which was witnessed by one Dipali Rajbongshi (P.W.4). P.W.1 further stated that in this connection, a mel(village meeting) was held, but as no solution had emerged, she filed the ejahar. P.W.1 also stated that the medical examination was done on her daughter. P.W.1 identified the ejaharas Ext. 1, her signature as Ext. 1(1).
7. P.W.2, the victim, in her statement stated that on the fateful day at about 6.30 AM, she took her cow to the grazing field and after leaving the cow, she attended nature’s call and at that time, the appellant arrived and pulled her towards a tree. Thereafter, the appellant, tearing off her wearing clothes, committed rape by gagging her mouth and that on arrival of Dipali Rajbongshi (P.W.4), the appellant left the place of occurrence. The victim in her statement also stated that she told the appellant that she would report about his misdeeds to her mother, but the appellant forbade her to do so. P.W.2 returned home with said Dipali Rajbongshi (P.W.4) and reported the incident to her mother (P.W.1). She also stated that police caused her medical examination.
8. P.W.3, the father of the victim girl, in his evidence, stated that on the fateful morning at about 6.30 AM, his daughter went to graze their cow in the field and that while his daughter was attending nature’s call, the appellant pulled her towards the jungle and committed rape b
A statement recorded under Section 164 Cr.P.C. can be used for corroboration or contradiction made in the Court in the manner provided under Sections 157 and 145 of the Evidence Act.
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