THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH) CRIMINAL APPEAL (J) NO. 85 OF 2016.

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1 THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH) CRIMINAL APPEAL (J) NO. 85 OF 2016 Lakhindra Gogoi Appellant -Versus- The State of Assam Respondent BEFORE HON BLE MR. JUSTICE KALYAN RAI SURANA For the appellant : Mrs. P. Baruah Bordoloi, Amicus Curiae. For the respondent : Ms. S.H. Bora, Addl. P.P. Date of hearing : Date of judgment : JUDGMENT AND ORDER (ORAL) Heard Mrs. P. Baruah Bordoloi, the learned Amicus Curiae appearing for the appellant as well as Ms. SH Bora, the learned Additional Public Prosecutor, Assam for the State. 2) This appeal from jail is filed by the appellant-accused, who is convicted for an offence under Section 4 of the Protection of Children from Sexual Offences Act, 2012 (for short POSCO Act ) vide judgment and sentence dated passed by the learned Special Judge, Tinsukia in POSCO Case No.40(CH)/2015 by which the appellant was sentence to undergo rigorous imprisonment (RI for short) for 10 years and also to pay fine of Rs.1,000/-, in default, to CRL. Appeal (J) No. 85/2016 Page 1 of 14

2 undergo further rigorous imprisonment for 6 months. In this judgment, the relevant names are not given for the purpose of withholding the identity of the minor victim girl as per the requirement of law. 3) In brief, the prosecution case is that the informant A (name is withheld) lodged an FIR with the Officer-in-Charge, Na-Sadiya Police Outpost on , stating that the appellant-accused had lured his daughter X (name is withheld) at about 1:30 PM on (Wednesday) into his house and committed bad act on her. Her daughter had informed him and other family members on that day and he lodged the ejahar with Athmile Police Outpost and requested for necessary action. On receipt of the said ejahar, it was numbered as Sadiya PS Case No. 82/2015 under Section 363/366(A)/376(2)(i) read with Section 6 of the POCSO Act. 4) On registration of the FIR, the case was endorsed to the Officer-in-Charge, Na-Sadiya Outpost for investigation. The case was registered as G.R. No. 118/2015. Upon investigation, charge-sheet was submitted under Section 4 of the POCSO Act against the appellantaccused. On charges being explained, the appellant-accused pleaded not guilty and claimed to be tried. During trial before the Court of the learned Special Judge, the prosecution examined as many as 9 witnesses. The learned trial court framed the point of determination Whether the accused person on at about 1:30 PM at Bhabalabil Gaon under Sadiya P.S. committed penetrative sexual assault towards the victim, aged about 8 years and thereby committed an offence u/s 4 of POSCO Act? 5) The Medical Officer, who was examined as PW.1, had deposed to the effect that during physical examination of the victim on CRL. Appeal (J) No. 85/2016 Page 2 of 14

3 , he found that (i) No blood stains, seminal stains and other discharge seen on the victim s clothing; (ii) few scratches and area of redness seen on her genital region (labia majora and minora). The PW.1 had opined that the age of victim was between 6 to 8 years and as per his report, positive sign of penetration was found. He exhibited his medical report as Ext.1 and Ext.2(1) was his signature. His evidence could not be demolished during the cross examination. 6) A, the father of the victim, who had lodged the ejahar was examined as PW.2. He had stated that the accused was a distant relative whose house 240/250 feet away from his house. He stated that the then age of his daughter was 7½ years and she was studying in Class-III at the Village school (name is withheld). He deposed to the effect that about 6 months back, at about 1:30-2:00 pm, while he was doing some domestic works in the backside of his house, at that time his daughter was lured away by the accused to his house by giving her chocolate and Rs.3/-. However, he came to know about the incident at night when his daughter complained of pain while urinating, when she told that she was taken by the accused to his house when nobody was there and the accused put off his pant and also put off the pant of the victim and gave his penis to be touched by the victim and also put his penis to the private part of the victim. The PW.2 had stated that thereafter he went to the house of the accused and scolded him and lodged the ejahar in the police station which was scribed by one of brother in relation further stating that the ejahar was scribed as per the version of his victim daughter. He proved the ejahar as Ext.2 and Ext.2(1) was his signature. Thereafter, police came and took his daughter for medical examination and she was also produced before the Magistrate at Chapakhowa for recording her statement. In his cross examination, PW.2 had stated that there is no mention of touching of CRL. Appeal (J) No. 85/2016 Page 3 of 14

4 penis by the victim and insertion of penis in the private part in his ejahar. However, he denied the suggestion that no such incident had taken place. 7) The mother of the victim was examined as PW.3. She had stated that the then age of the victim was 7 years. She also stated that her daughter had told her that she was taken by the accused to his house by giving her lollipop and after closing the door of his house, the accused had inserted his penis in the private part of her daughter. At that time the victim told the accused that she sustained pain due to his acts and accused assured her that she will get relief. Thereafter, she reported the incident to her husband and other neighbouring people. On being asked by the villagers, the accused denied the allegation. Thereafter, her husband had lodged the ejahar and the police came took her daughter for medical examination and she was produced before the Magistrate for recording her statement. Her evidence could not be demolished during cross examination. 8) The victim X was examined as PW.4. Before recording her statement, the learned trial court had tested the minor victim with few questions and on being satisfied that the victim could give rational answers, her statement was recorded without administering oath. PW.4 deposed that she was 7 year old and the accused was her uncle in relation. She had deposed that about 5 months back, on the date of incident it was noon time. Her father was ploughing and her mother was working and she was playing outside at that time. The accused came and after giving her Rs.3/- and morton, he took her to his house and after closing the door he penetrated her private part (she pointed to her vagina). When she complained of pain, the accused told her not to worry and that she will like it as he was also feeling pleasure. After CRL. Appeal (J) No. 85/2016 Page 4 of 14

5 coming home, she told about the incident to her mother and father. She stated that her father had lodged a case and police took her for medical examination and she was produced before the Magistrate in the court at Sadiya. She proved her statement recorded by the Magistrate as Ext.3 and her signature was proved as Ext.3(1). She gave the description of the clothes which she was wearing on the date of incident during her cross-examination and stated that police did not take away those wearing apparels and she denied the suggestion that nothing had happened on the date of incident. 9) The PW.5, PW.6, PW.7 & PW.8 (names are withheld) were all villagers residing in the vicinity of the house of the victim. They stated that they had all heard about the incident. The PW.6, PW.7 & PW.8 stated that they had met the victim, who told them that the accused had confined her in a room and caused penetrative assault on her. In their cross- examination, they had stated that they did not have any personal knowledge about the incident. 10) The investigating officer was examined as PW.9. He had stated that on receipt of FIR, the case was registered and he was entrusted with the investigation of the case. He proved the ejahar (Ext.2) and Ext.2(2) was the signature of Trilok Ram Verma, the then O/C., Sadiya PS. PW-9 had stated that the he had recorded the statement of the informant and the victim and he had sent the victim to hospital for her medical examination. He further stated that the villagers had apprehended and handed over the accused to the police outpost and that the accused was medically examined and interrogated and he was arrested on the next day and forwarded to the court. He stated that he had produced the victim before the Magistrate for recording her statement. He stated that he had visited the place of CRL. Appeal (J) No. 85/2016 Page 5 of 14

6 occurrence, recorded the statement of the witnesses and prepared a sketch map of the place of occurrence. Ext.4 was the sketch- map prepared by him and Ext.4(1) was his signature. He collected the medical report and submitted charge-sheet against the accused u/s 363/376 (2)(i) IPC read with section 6 of POCSO Act. He exhibited the charge-sheet as Ext.5 and Ext.5(1) was his signature. In his crossexamination, PW.9 had stated that he did not mention the GD Entry No. in the FIR form. He stated that he did not show the number of rooms of house in the sketch map, and did not mention the number of inmates of the accused in the house, and that he did not examine any of the inmates of the house of the accused. He had stated that although houses of five persons are located near the place of occurrence, but he did not record the statements of those persons. He also stated that on at about 10:00 PM, the accused was handed over to the police outpost by the villagers and he arrested the accused on at about 5:00 PM and forwarded the accused to the court on and further stated the accused was kept for more than 24 hours in the outpost. He had stated that PW.3 (mother of victim) did not state before him that the accused took her daughter to his house by giving Rs.3/- and lollipop and after taking her to his house, the accused closed the door of the house and inserted his penis in the private part of the victim. He further stated that the PW.6, PW.7 & PW.8 had not stated that before him that the accused had caused penetrative injury to the victim. He also stated in his crossexamination that in POCSO case, wearing apparel of the victim and accused was required to be seized, which was not done by him. He also stated that he recorded the statement of the victim at the police outpost. He denied that he was not entrusted with the investigation or that he did not conduct the investigation as per procedural law and submitted the charge-sheet. CRL. Appeal (J) No. 85/2016 Page 6 of 14

7 11) The learned trial court thereafter, recorded the statement of the accused under Section 313 Cr.P.C. on The learned trial court by relying on the evidence of the witnesses including PW.4 (victim) and PW.1 (Doctor), arrived at a finding that the Doctor had found positive sign of penetration on the victim. Relying on the cases of Dattu Ramrao Sakhare Vs. State of Maharashtra, (1997) 5 SCC 341 and Pancchi Vs. State of U.P., AIR 1998 SC 2726, it was held that in the present case evidence of the minor victim was found reliable i.e. trustworthy. The learned trial court found the evidence to be consistent with material particulars with regard to the incident of penetrative sexual assault. The learned trial court had relied on provision of Section 29 of the POCSO Act, wherein it is provided for presumption that the accused had committed, abated to commit the offence of penetrative sexual assault unless the contrary is proved and it was further held that the accused had not rebutted the presumption in any manner and also drawn presumption as to the culpable mental state of the accused person as provided under Section 29 of the POCSO Act. The learned trial court had held that the prosecution had been able to prove the case against the accused under Section 4 of the POCSO Act and further opined that this was not a case where leniency could be shown to the accused person and accordingly, upon convicting the accused, the accused was heard on sentence and sentenced the accused to suffer 10 years rigorous imprisonment and also sentence him to pay a fine of Rs.1,000/-, in default, to suffer further rigorous imprisonment for 6 months. However, it was directed that the period of detention during the investigation and trial would be set- off from the period of imprisonment. Relying on the cases of Bodhisattwa Gautam Vs. Subhra Chakraborty, AIR 1996 SC 922 and Laxmi Kant Pandey Vs. Union of India, (1984) 2 SCC 244, the learned CRL. Appeal (J) No. 85/2016 Page 7 of 14

8 trial court directed the Secretary, District Legal Services Authority ( DLSA for short), Tinsukia to grant a compensation of Rs.1.00 Lakh for the use of welfare and rehabilitation of the victim under the guidance of DLSA, Tinsukia. 12) The learned Amicus Curiae, appearing for the appellant, has submitted that the appellant-accused was victimized in a false case and that there was no investigation at all because the police has failed to record the statements of immediate neighbours of the accused person. She disbelieved the evidence of PW.4 on the ground she did not raise hue and cry after the alleged assault and according to her, it was unnatural that the minor would not inform her parents immediately after the incident after coming home. It is further submitted that as per the medical examination report, there was no evidence of any seminal stain or other discharge on clothing of the victim, as such, there was no evidence of penetrative sexual assault by the accused. It is further stated that PW.5, PW.6, PW.7 and PW.8 were all hearsay witnesses and there was no reason to believe their evidence. She has submitted that the PW.2, PW.3 and PW.4 were all interested witnesses and their evidence ought not to have been considered by the learned trial court. It is submitted that as the incident could not be proved beyond all reasonable doubt, the medical evidence was also required to be discarded in the absence of any blood or seminal stain on the person and clothes of the accused and the victim. 13) Per contra, the learned Addl. Public Prosecutor has submitted that in the present case in hand, the minor victim had duly proved the penetrative sexual assault on her by the appellant-accused. It is submitted that the medical evidence was also consistent with the CRL. Appeal (J) No. 85/2016 Page 8 of 14

9 ocular evidence of such sexual assault because the Doctor had found scratches and area of redness over the genital region of the minor victim girl and there was a definite medical opinion that the victim girl was aged between 6 to 8 years and positive sign of penetration was found as per medical report (Ext.1). It is also submitted that in the present case penetrative sexual assault was caused by the appellantaccused on the minor victim girl after luring her into his house and therefore, the offence was committed within the four walls of the house and, as such, there will be no eye-witness to the occurrence and the prosecution as well as the court only has to rely on the statement of the victim. It is also submitted that the accused did not give any rebuttal evidence to show that there existed any previous animosity between the accused and the family of the victim and therefore, there was no reason for the victim to implicate the accused, who happened to be uncle by relation, falsely for the offence. In view of close relationship between the accused and the victim, there was no reason for the minor not to go with her uncle when called, which also accounted for not raising of any hue and cry while the minor girl was being lured by her uncle. The conduct of the accused did not give rise to any suspicion by any one as the victim and the accused were related. Relying on the various provisions of the POCSO Act including Section 3, 5, 6, 7, 29 & 30, it is submitted that the prosecution has proved its case beyond all reasonable doubt and the appeal deserve to be dismissed. 14) Having heard both sides, this Court has perused the materials on record. It is found that in the statement of the victim, which was recorded under Section 164 Cr.P.C., the victim had stated before the learned SDJM(S), Sadiya, as follows:- CRL. Appeal (J) No. 85/2016 Page 9 of 14

10 On I was playing outside my house with my brother, then Lakhindra Gogoi who resides nearby came and took me to his house and closed the door and opened his pant and with his susu touched my private part and put it inside and he gave me Rs.3/- and a chocolate and told me not to tell anybody. I came back home, in the evening I felt pain while urinating and told it to my mother. Now I want to go with my mother. 15) With the aforesaid background, this Court finds that the evidence given by the victim (PW.4) in course of her oral examination during trial appears to be consistent with her statement recorded under Section 164 Cr.P.C. The evidence of the minor victim could not be shaken during her cross examination. The evidence of the minor prosecutrix in the present case in hand is found to be reliable. In the case of Nivrutti Pandurang Kokate & Ors. Vs. State of Maharashtra, *2008) 12 SCC 565, which was relied upon in the case of Himmat Sukhadeo Wahurwagh and others Vs. State of Maharashtra, (2009) 6 SCC 712 (FB), the Hon ble Supreme Court of India had held as below: Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and molded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness. 16) As per Section 118 of the Evidence Act, 1872, all persons shall be competent persons to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions. In this case, the CRL. Appeal (J) No. 85/2016 Page 10 of 14

11 version of rape given by prosecutrix herself also stands corroborated by the ejahar (Ext.2). It has been reiterated by the Hon ble Supreme Court of India in the case of State of Himachal Pradesh v. Asha Ram, (2005) 13 SCC 766: 2005 AIR SCW 6009 that the testimony of the prosecutrix alone can form the basis of conviction if it inspires confidence and is found to be reliable. 17) The Supreme Court in the case of State of H.P v. Shree Kant Shekari, (2004) 8 SCC 153: AIR 2004 SC 4404, has held as follows:- 3. Sexual violence apart from being a dehumanising act is an unlawful intrusion on the right of privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity - it degrades and humiliates the victim and where the victim is a helpless innocent child or a minor, it leaves behind a traumatic experience. A rapist not only causes physical injuries but more indelibly leaves a scar on the most cherished possession of a woman it i.e. her dignity, honour, reputation and not the least her chastity. Rape is not only a crime against the person of a woman, it is a crime against the entire society. It destroys the entire psychology of a woman and pushes her into deep emotional crisis. It is a crime against basic human rights, and is also violative of the victim s most cherished of the fundamental rights, namely, the right to life contained in Article 21. The courts are, therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely. A socially sensitised Judge is a better statutory armour in cases of crime against women than long clauses of penal provisions, containing complex exceptions and provisos. In the present case, the accused who was a teacher gratified his animated passions and sexual pleasures by having carnal knowledge of his CRL. Appeal (J) No. 85/2016 Page 11 of 14

12 student, a girl of tender age. Such offenders are a menace to civilized society. 18) The Supreme Court in the case of Bodhisattwa Gautam v. Subhra Chakraborty, (1996) 1 SCC 490: (1995) 4 Crimes (SC) 722, has held as follows:- 10. Rape is thus not only a crime against the person of a woman (victim), it is a crime against the entire society. It destroys the entire psychology of a woman and pushes her into deep emotional crisis. It is only by her sheer Willpower that she rehabilitates herself in the society which, on coming to know of the rape, looks down upon her in derision and contempt. Rape is, therefore, the most hated crime. It is a crime against basic human rights and is also violative of the victim s most cherished of the Fundamental Rights, namely, the Right to Life contained in Article 21. To many feminists and psychiatrists, rape is less a sexual offence then an act of aggression aimed at degrading and humiliating women. The rape laws do not, unfortunately, take care of the social aspect of the matter and are inept in many respects. 19) The accused in this case, being related to the victim, the victim had unsuspectingly gone with the accused and she had no reason to fear a related uncle. Moreover, it is found that the appellantaccused being uncle of the victim, is covered by the provisions of Section 5(n) of the POCSO Act, as such, the penetrative sexual assault on the child by the appellant- accused, who is related to the minor victim, comes within the meaning of aggravated penetrative sexual assault, for which, Section 6 of the POCSO Act provides for imprisonment for a term which shall not be less than 10 years, but it may extend to imprisonment for life and shall also be liable to fine. In the present case in hand, the minor victim appears to be so innocent that she does not even know that she was sexually assaulted by her CRL. Appeal (J) No. 85/2016 Page 12 of 14

13 uncle. Therefore, this explains why there was no hue and cry. It is only when she suffers pain during urinating, she had informed her mother, which does not make the case unbelievable. In the opinion of this Court, the evidence of the Doctor (PW.1), the medical report (Ext.1) and the statement of the minor victim (PW.4) is sufficient evidence by which it can be held that appellant-accused had committed aggravated penetrative sexual assault on the minor girl, who was aged between 6 to 8 years at the time when the heinous offence was committed by the appellant-accused. 20) According to this Court, the offence committed by the appellant-accused deserves severe punishment under Section 6 of the POSCO Act, which prescribes a minimum term of imprisonment for 10 years. However, in the present case in hand, as the learned trial court has sentenced the appellant-accused to suffer rigorous imprisonment for 10 years and to pay a fine of Rs.1,000/- in default, to suffer further rigorous imprisonment for further 6 months, this Court is not inclined to interfere with the sentence awarded to the accused as minimum sentence as prescribed under Section 6 of POCSO Act is found to be awarded. The aggravated penetrative sexual assault on a minor girl amounts to taking away the entire childhood of the minor and it is bound to have a permanent affect on her. Moreover, from the examination of the accused on , it is seen that that the appellant-accused is a married person and is a father of two sons. While one son is studying in Class IX, other son is studying in Class V, which reflects that the appellant-accused has assaulted a minor girl, who is younger than his own sons, as such, the appellant deserves no leniency. Accordingly, the judgment and sentence dated , passed by the learned Special Judge, Tinsukia in POSCO Case CRL. Appeal (J) No. 85/2016 Page 13 of 14

14 No.40(CH)/2015 is upheld. The appellant- accused shall serve out the sentence. 21) Consequently, the appeal stands dismissed. 22) Send back the LCR. 23) This Court puts on record the appreciation of the assistance rendered by the learned Amicus Curiae as well as the learned A.P.P., and considering that the learned Amicus Curie has taken pains to conduct the hearing before this Vacation Bench, the learned Amicus Curiae is entitled to her remuneration, which is quantified as Rs.7,000/- to be paid by the State Legal Services Authority. JUDGE MKS. CRL. Appeal (J) No. 85/2016 Page 14 of 14