Paresh Kakoty S/o Late Atul Kakoty vs State of Assam

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Gau) 271

IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
ROBIN PHUKAN, J.
Paresh Kakoty S/o Late Atul Kakoty – Petitioner
Versus
The State of Assam and Another – Respondents
Crl. Appeal No. 141 of 2021
Decided On : 27-01-2023

Advocates:
Advocate Appeared:
For the Petitioner: J.I. Barbhuiya.

Headnote:
Criminal Procedure Code,1973 - Sections 164 and 374(2) - Indian Penal Code,1860 - Section 376(f) - Rigorous imprisonment - Default stipulation - Challenged Correctness - Appeal Against conviction - Arrested the accused and forwarded him - Appellant pleaded not guilty and claimed to be tried - eight witnesses - Succeeded in establishing case against - Evidence adduced - Whether evidence has a ring of truth is cogent credible and trust worthy - Reference in this context can be made to a decision - Held, In Hon’ble Supreme Court has observed that refusal to act on testimony of a victim of sexual assault in absence of corroboration as a rule is adding insult to injury - This Court deprecated viewing evidence of victim with the aid of spectacles fitted with lenses tinted with doubt disbelief or suspicion - Court have considered submission of counsel for appellant and court find no substance in same - Though it is contended that case has been filed on instigation of villagers with whom accused has enmity same could not be established by adducing any cogent evidence - It may be mentioned here that victim while withstanding rigors of cross-examination has clearly ruled out any false implication - Further it appears that from evidence of victim a clear case section 376 (f) appears to be made out - And as there is no substance in submission and therefore same stands repelled - Appeal Dismissed.

JUDGMENT :

ROBIN PHUKAN, J.

1. Heard Mr. J.I. Barbhuiya, learned counsel for the appellant. Also heard Mr. B.B. Gogoi, learned Addl. P.P. Assam, representing the State respondent.

2. In this appeal under Section 374(2) of the Cr.P.C. the appellant has challenged the correctness or otherwise of the judgment and order dated 22.10.2019, passed in Sessions Case No. 89(S-S)2011, arising out of G.R. Case No. 1110/2009, by the learned Addl. Sessions Judge, Sivasagar. It is to be noted here that vide the impugned judgment and order, the learned Court below has convicted the appellant, under Section 376(f) of the IPC, and sentenced him to suffer rigorous imprisonment for 10 years and also to pay a fine of Rs. 5,000/- with default stipulation.

3. The factual background, leading to filing of the present appeal, are briefly stated as under:

“On 21.09.2009, Smt. Purabi Sarma of Khemdoi Kakoty Gaon, under Amguri Police Station lodged on FIR with the Officer-in-Charge, Amguri P.S. to the effect that on 12.09.2009, in the evening, while she went to take bath, then one Paresh Kakoty of her locality engaged in indecent activities with her five years old daughter, Smt. ‘X’ (name withheld). Then, seeing the same, she raised hue and cry and then the accused fled away.”

4. Upon the said FIR, the Officer-in-Charge, Amguri P.S. registered the Amguri P.S. Case No. 82/2009, under Section 376(f) of the IPC and himself investigated the same. During investigation, he had visited the place of occurrence, examined the witnesses and got the victim examined by the Doctor and collected the report and also got her statement, under Section 164 Cr.P.C. recorded in the Court and arrested the accused and forwarded him to the Court and thereafter, on completion of investigation, he laid charge sheet against the accused to stand trial, in the Court under Section 376 of the IPC.

5. On commitment of the case to the Court of Sessions and having been transferred the same to the Court of learned Addl. Sessions Judge, Sivasagar, the learned Addl. Sessions Judge, had framed charge against the appellant, after hearing learned Advocates of both sides, to which the appellant pleaded not guilty and claimed to be tried. Thereafter, the learned Court below has examined as many as eight witnesses, including the M.O. and the I.O. and thereafter, found that the prosecution has succeeded in establishing the case against the appellant under Section 376 of the IPC and sentenced him, as aforesaid.

6. Being aggrieved, the appellant preferred this appeal on the ground that: the learned Court below has erred in law as well as on fact and as such the impugned order is bad in law, that the evidence on record does not warrant conviction and the learned Court below has failed to appreciate the evidence in its proper perspective and that the Court below has wrongly relied upon the evidence of PW-4 and her version under Section 164 of the Cr.P.C. as the same has contradicted the contention made in the FIR dated 21.09.2009 and the evidence of PWs. were not corroborated by the evidence of other witnesses and that the learned Court below has failed to rely upon the evidence of PW-1 and PW-6, though evidence were corroborated by other prosecution witnesses and that no materials ingredients of Section 376 of the IPC was available in the instant case, which are full of contradiction with the medical report as well as the statement of the victim, recorded under Section 164 of Cr.P.C. and the learned Court below has failed to apply its judicial mind into the legal proposition relating to the evidence adduced by the prosecution side, that the learned Court below has only relied upon the evidence of the victim girl and that the learned Court below has failed to appreciate the settled legal proposition, that the conviction can be recorded on the basis of the testimony of sole prosecution witness, provided that the same is reliable and is of starling quality and that the learned Court below has failed to appreciate