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2022 Supreme(Gau) 679
IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
AJIT BORTHAKUR, J.
Ujjal Jyoti Borah @ Babu, S/o. Sri Motiram Borah - Petitioner
Versus
The State of Assam, Through The Public Prosecutor, Assam - Respondent
Crl. A. No. 210 of 2021
Decided On : 19-10-2022
For the Petitioner: Mr. R. Goswami.
For the Respondent: PP, Assam.
Point of Law: Section 3 of the POCSO Act defines what is ‘penetrative sexual assault’.
Headnote:
Criminal Procedure Code, 1973 - Section 378, 313, 164 - Protection of Children from Sexual Offences Act, 2012 - Section 4, 2(1)(d), 3 – Indian Penal Code, 1860 - Section 323, 363/366 - Sexual Assault – Appeal Against Conviction - Whether appellant committed penetrative sexual assault on victim woman, who was a child - Whether appellant voluntarily caused hurt on person of victim woman during period of her stay with appellant. Para 11
Finding of the Court :
On perusal of evidence of PWs. 1, 2, 3, 4, 5 and 7, it is revealed that appellant and victim minor woman, lived together representing to be husband and wife for about 1 1/2 years continuously beyond doubt - Defence has not denied their stay together for aforesaid long period - Therefore, victim minor woman’s statement to effect that appellant committed sexual intercourse on her during their period of stay together is quite convincing and as such, can be relied on without any shadow of doubt - Judicial precedents are well settled that solitary evidence of victim of sexual assault, if inspires confidence of court is enough to hold accused guilty of offence - Therefore, evidence of PW-3, victim minor woman, so far it relates to appellant’s commission of penetrative sexual assault on her appears to be absolutely trustworthy - In instant case, PW-3, victim woman, in her evidence and statement under Section 164 Cr.P.C. alleged of physical torture on her by appellant during her period of stay with him in his house - However, there was no eye witness to such physical torture on her - Even PW-6, doctor, stated that she refused for physical examination - Perusal of evidence of PWs 4, 5 and 7 reveals that there was domestic quarrel between victim woman and family members of appellant without any allegation of physical assault on her, for which reason appellant took her on motorcycle and left her dropping at her parental home - Therefore, in absence of any credible and convincing evidence beyond reasonable doubt, this Court is of considered opinion that appellant cannot be held guilty of offence under Section 323 of IPC and accordingly acquitted - Conviction and sentence of appellant under Section 4 of POCSO Act stands affirmed and conviction and sentence under Section 323 of IPC is hereby set aside.
Result: Appeal partly allowed.
JUDGMENT :
Heard Mr. R. Goswami, learned counsel for the petitioner. Also heard Mr. P.S. Lahkar, learned Additional Public Prosecutor, Assam.
2. This appeal under Section 378 Cr.P.C. is preferred against the judgment and order, dated 03.05.2021, passed by the learned Special Judge (POCSO Act), Karbi Anglong at Diphu in POCSO Case No. 14/2019 arising out of G.R. Case No. 310/2019 convicting the appellant under Section 4 of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’ for short) and sentencing him to undergo rigorous imprisonment for 7 years and to pay fine of Rs.10,000/-, in default, to suffer simple imprisonment for 90 days as well as simple imprisonment for 3 months under Section 323 of the IPC.
3. The appellant’s case precisely is that on 10.04.2019, an F.I.R. was lodged before the officer-in-charge of Dokmoka PS alleging that on 16.12.2017 at about 8 p.m., the appellant took away the informant’s minor daughter, put vermillion on her forehead without performing any social ritual and kept her in their house as his wife. Thereafter, the appellant started torturing her, physically and mentally and finally, on 11.03.2019 at about 6.30 p.m., the appellant deserted the minor victim at her parental home without informing her parents.
4. Based on the above F.I.R., Dokmoka PS Case No. 25/2019, dated 10.04.2019 under Section 366 A of the IPC was registered and after completion of investigation laid a charge-sheet under Sections 363/366 of the IPC read with Section 4 of the POCSO Act against the appellant. Thereafter, the learned Special Judge (POCSO Act), Karbi Anglong at Diphu, on perusal of the case diary and hearing of both sides, having found prima facie material framed charges under Sections 363/323 of the IPC and Section 4 of the POCSO Act against the appellant on 29.06.2019 and after examining 8 prosecution witnesses as well as recording statement under Section 313 Cr.P.C., convicted and sentenced the appellant as stated above.
5. Mr. R. Goswami, learned counsel appearing for the appellant, submitted, inter-alia, that the learned trial court relied on the evidence of the prosecution witnesses who are either close relatives or neighbors and there was no evidence of any eye witness to appellant’s alleged assault on the victim woman. Mr. Goswami further submitted that the F.I.R. in the case had come to be lodged after several years of commission of the alleged offences without any sufficient explanation for such inordinate delay. It has also been submitted that the victim, so called wife of the appellant, may have had heated argument over trifle domestic differences and then out of anger, left his companion voluntarily and filed the case. Summarizing the argument, Mr. R. Goswami, learned counsel for the appellant, submitted that the appellant has been made victim of a false and cooked up story.
6. Per contra, Mr. P.S. Lahkar, learned Additional Public Prosecutor appearing for the state respondent, submitted that the evidence on record is quite convincing unerringly pointing to the guilt of the appellant and as such, no interference is warranted in the impugned well reasoned judgment and order.
7. I have given due consideration to the arguments advanced by the learned counsel of both sides and perused record including the impugned judgment and order.
8. A perusal of the impugned judgment and order, it is noticed that the learned trial court on appreciation of the evidence led by the prosecution having found that the age of the victim was below 18 years at the time of the alleged occurrence and having found sufficient incriminating evidence beyond reasonable doubt found the appellant guilty of the charges under Section 323 of the IPC and Section 4 of the POCSO Act. However, the appellant was acquitted of the charge under Section 363 of the IPC giving the benefit of doubt.
9. The F.I.R., dated 10.04.2019, filed by the victim’s mother (PW-2) vide Ext.1 basically revealed the allegations that pursuant to love relations
