THE GAUHATI HIGH COURT

Transcription

1 1 THE GAUHATI HIGH COURT (for reporting) (THE HIGH COURT OF ASSAM: NAGALAND: MIZORAM AND ARUNACHAL PRADESH) Crl. A (J) 74/2015 Sri Manik Medhi - Appellant -Versus-, The State of Assam and Another - Respondents Advocates present: BEFORE HON BLE MR. JUSTICE A. K. GOSWAMI For the appellant : Mr. J. C. Barman, Advocate, as amicus curiae For respondents : Ms. B. Bhuyan, Additional Public Prosecutor, Assam. Dates of hearing : and Date of judgement : JUDGEMENT AND ORDER (ORAL) Heard Mr. J. C. Barman, learned Amicus curiae, appearing for the appellant. Also heard Ms. B. Bhuyan, learned Additional Public Prosecutor, Assam. 2. This appeal from jail is directed against the judgment and order dated , passed by the learned Additional Sessions Judge, Bajali, at Pathsala, in Sessions Case No. 298/2014, arising out of G.R. Case No. 388/2014, corresponding to Simla Police Station Case No. 27/2014, under Section 376(2)(i) of the IPC read with the Protection of Child From Sexual Offences Act, 2012 (for short, POCSO Act ), whereby the accused-appellant was convicted under Section 4 of the POCSO Act to undergo rigorous imprisonment for 7 years and to pay fine of Rs. 5,000/- and, in default of payment of fine, to undergo simple imprisonment for 3 months. The fine amount, if realized, was directed to be given to the victim as compensation under Section 357 CrPC. Direction was also issued under Section 357A CrPC to the Secretary, District Legal Services Authority, Barpeta, to make an inquiry regarding the quantum of compensation to be awarded under the Victim Compensation

2 2 Scheme and to fix the quantum of compensation to be paid to the victim as it was considered that the compensation awarded under Section 357 IPC was not adequate. 3. An Ejahar was lodged on by the father of the victim, who shall be hereinafter referred to as X, stating that Manik Medhi, one of his neighbours, who was aged about 65 years, enticed his daughter, who was aged about 14 years and was a student of Class IX, and had sexual intercourse with her as a result of which she was carrying pregnancy of 5 months and that his daughter had disclosed this fact. The said Ejahar was lodged before the Officer-in-charge, Jalah Police Outpost and, based on the same, initially Jalah Police Patrolling GD Entry No. 114, dated , was registered and, subsequently, Simla Police Station Case No. 27/2014 was registered. After completion of investigation, finding enough materials, Charge-sheet was submitted against the accusedappellant under Section 376 (2)(i) IPC read with Section 4 of the POCSO Act. The case being exclusively triable by a Court of Sessions, the Sub-Divisional Judicial Magistrate, Bajali, committed the case to the Court of Sessions Judge, Barpeta, and, thereafter, the case was assigned to the learned Additional Sessions Judge, Bajali, at Pathsala, for disposal. 4. During trial, prosecution examined 8 witnesses while the defence adduced no evidence. The witnesses examined on behalf of the prosecution are: PW1 - X, PW2 - father of X and the informant, PW3 village headman, PW4 Medical officer, PW5 covillager of the informant, PW6 cousin of the informant, PW7 co-villager, PW8 the Investigating Officer. One Court-witness, who is Headmaster of Jalah Girls High School where X had studied, was also examined and he produced and exhibited a School Admission Register as Ext.-7. Ext.-8 is the counterfoil of the school certificate. 5. Statement of the accused was also recorded under Section 313 CrPC. The appellant being convicted by the impugned judgement, the appellant is before this Court. 6. Mr. Barman has submitted that the Ejahar was lodged by PW2 almost five months after the alleged occurrence and that the appellant is falsely implicated. It is submitted by him that in the facts and circumstances of the case, the conviction, on the basis of the testimony of PW1, is wholly not warranted as PW1 is not a reliable witness. It is further submitted by him that there are inherent contradictions in the deposition of PW5, PW6 and PW7 and as such it will be unsafe to convict the accused-appellant on the basis of such testimony. 7. Ms. Bhuyan, learned Additional Public Prosecutor has submitted that the fact that at the time of the occurrence X was below 16 years of age and a child is clearly established from the materials on record. She submits that the evidence against the appellant stood firm and inspires confidence and, therefore, on the basis of such clear, cogent and reliable

3 3 testimony of PW1, conviction can certainly be sustained against the appellant. She emphatically argues that the core of the prosecution case is not impeached in any manner and, therefore, no interference is called for with regard to the impugned judgement. 8. I have considered the submissions of the learned counsel for the parties and have perused the materials on record. 9. In her evidence, PW1 had stated that at the time of the occurrence of the incident in the year 2014 she was aged about 14 years and a student of Class-IX. She had deposed to the effect that one day, at around O clock at noon, while she was alone at their house, the accused, who is a neighbour, came to their house and, on coming to know that her parents were not at home, he asked her to go inside the house and the moment she entered into the room from the verandah, where she was sitting, the appellant gagged her mouth with a piece of cloth and forcefully committed sexual intercourse with her. She was unable to shout as she was gagged and, after having sexual intercourse with her forcefully, the appellant asked her not to disclose the event to anybody, otherwise, threatened her of dire consequences. Out of fear, she did not disclose the matter to anybody and, after about a month, her menstruation cycle stopped and as the said symptom was noticed by her mother after about 5 months, she was taken to Jalah Government Hospital by her elder sister, Dipali Nath, for medical check-up and after medical check-up she was told that she was carrying pregnancy of 5 months. Confronted with such revelation at the hospital, PW1 disclosed to her elder sister, the doctor and her parents as to what had befallen her. After the Ejahar had been lodged, she was also examined in the Fakharuddin Ali Ahmed Medical College and Hospital, at Barpeta, wherein also she was found to be pregnant. She also disclosed that subsequently her pregnancy was terminated and she took her statement under Section 164 CrPC. 10. PW2 deposed that as PW1, who was a student of Class-VIII, was not physically well, he was advised to send her for medical examination and, accordingly, his elder daughter had taken PW1 for medical examination and it was revealed that she was carrying 5 months pregnancy. He also deposed that his daughter (PW1) had narrated as to how the accused had come to their house and forcefully committed sexual intercourse with her. 11. PW3 is a village headman and he deposed that one day PW2 came to his house for a discussion with regard to a particular matter. PW2 had also called Karuna, Chakrapani Nath and others, numbering about 8 persons, who were his co-villagers, and, in such gathering, PW2 had divulged the fact of his daughter (PW1) getting pregnant through the appellant and in what manner.

4 4 12. PW4, who had examined PW1 on , deposed that according to the X-ray report the age of PW1 was about 14 years and below 16 years and she was pregnant for 24 weeks and 1 day. 13. PW5 deposed that he was also present in the meeting in the house of PW2 along with the gaonbura and that PW3 asked the victim about the occurrence and PW1 disclosed the fact that she became pregnant through the appellant. 14. PW6 stated that he was also present in the gathering along with PW3 and others and in the said gathering the informant had disclosed that his daughter, who was a student of Class-VIII, became pregnant through the accused. PW6 also stated that PW3 had also enquired from the victim about the occurrence and she, in their presence, told that it was the accused who had caused her pregnancy. 15. PW7 also stated more or less the same thing as PW PW8 deposed regarding the investigation of the case. 17. The Court-witness, i.e., the Headmaster of Jalah Girls High School, deposed from the School Admission Register that the date of birth of PW1 is He also proved the School Admission Register and the counterfoil of the School Certificate filed as Ext.-7 and Ext.-8, respectively. In his cross-examination, he denied that the date of birth of PW1 was wrongly recorded by him and he also stated that PW1 did not appear in the annual examination of Class-IX. 18. It is to be noticed that there was no cross-examination of PW4 with regard to the age of the victim who was stated to be 14 years at the relevant point of time, when the incident had taken place. The date of birth, as per the Admission Register and as deposed by CW1, was and, therefore, on the date of filing the Ejahar on , her age was 14 years 7 months and 9 days and, therefore, at the time of the occurrence, she was about 14 years old. The evidence of PW4, which has remained un-assailed, goes to show that PW1 was 14 years and below 16 years on and, therefore, the evidence on record duly establishes that PW1 was below 16 years of age at the time of the occurrence. 19. Section 2(d) of the POCSO Act defines a child to mean any person below the age of 18 years and, therefore, there cannot be any two opinions that the victim was a child within the meaning of Section 2(d) of the POCSO Act. The factum of pregnancy is also established. The very fact of pregnancy, bearing in mind that PW1 was a child, would ipso facto establish that there was penetrative sexual assault within the meaning of Section 3 of the POSCO Act. The question, now, is who had committed penetrative sexual assault upon PW1?

5 5 20. The evidence of PW1 had remained unshaken during the course of her crossexamination. Her evidence is clear and categorical that it was the appellant who had had sexual intercourse with her. The fact that the aforesaid incident was not disclosed by PW1 immediately after the occurrence, or, that the Ejahar came to be lodged only after the pregnancy was detected after 5 months or so, in a case of the present nature, would not vitiate the prosecution case. PW1 had deposed in effect that she was intimidated by the appellant after the sexual assault though such statement was not made before the Investigating Officer as is apparent from the evidence of PW8. The mere fact that it was not told to the Investigating Officer cannot discard the testimony of PW1. One must be alive to the traumatic experience and consequential mental state that one goes through when one is subjected to sexual assault, that too, when the victim is a child. It is also appearing in the evidence on record that the appellant was a neighbor of the victim and well known to her and, therefore, she had no hesitation to go inside the room on being asked by the appellant. If there had not been any pregnancy, the entire episode would not have been brought to light. But when pregnancy had occurred, PW1 had no choice but to disclose about the sexual assault committed upon her by the appellant. There is no material on record to suggest any other possibility. The discrepancy that is sought to be highlighted by Mr. Barman about the disclosure made by PW1 is not of any consequence. The fact that some villagers had assembled in the house of PW2 to discuss the issue has remained intact and un-impeached. Whether it was told by the father of PW1 about the occurrence or by PW2 does not make any difference. There was a discussion in the house of PW2in the wake of the pregnancy caused to PW1 by the appellant is established. The minor discrepancies in the evidence of PW5, PW6 and PW7 cannot, in any view of the matter, alter the substratum of the persecution case. 21. Considering the evidence on record, I am of the considered opinion that the prosecution had established the case against the accused-appellant beyond reasonable doubt and the impugned conviction and sentence does not required any interference. Accordingly, the appeal is dismissed. 22. Before parting with the records of this case, this Court records appreciation to the assistance rendered by Mr. Barman in his role as Amicus curiae. Mr. Barman has graciously declined to take any remuneration for the service rendered and, therefore, honouring the sentiment of Mr. Barman, no order is passed for payment of remuneration. RK JUDGE