Download Report

IN THE COURT OF SESSIONS JUDGE : KAMRUP (METRO)
:GUWAHATI
Present:-
Sri A. Borthakur,
Sessions Judge,
Kamrup (Metro), Guwahati.
Sessions case No. 252/2013.
(G.R. Case No. 542/13, u/s 376(f)/511 of the I.P.C., r/w Section 6 of
the Protection of Children from Sexual Offences Act, 2012)
STATE OF ASSAM
-VsSri Akshay Sarma,
S/O. Late Lankeshwar Sarmah,
R/O. Japorigog, Krishna Nagar,
P.S. Dispur, Dist.- Kamrup(M), Assam.
Permanent AddressVill- Morowa, P.S. Kamarkuchi,
Dist.- Nalbari, Assam.
…………. Accused.
Appearance:-
Mr. H.K. Deka……. Special Public Prosecutor for the State.
-ANDMr. D.P. Dutta……. Advocate for the accused.
2
Date of Evidence :
24.09.2013, 17.12.2013,
15.02.2014,28.05.2014
03.01.2015.
Argument heard on :
12.02.2015,
Judgment pronounced on :
16.03.2015.
&
(Reasons cited)
JUDGMENT
(1).
The families of the accused and the victim girl, who is of tender age,
are neighbours. At the relevant time, the victim went to the accused’s house
to play with his son, who is her classmate. The accused committed
penetrative sexual assault on her by inserting finger. The direct evidence of
the victim child is relied on.
PROSECUTION CASE:
(2)
One Mrs. ‘A’ lodged an F.I.R., dated 20.01.2013, before the Officer in-
charge of Dispur Police Station, alleging that on 19.01.2013 at about 7 p.m.,
her daughter Ms. ‘B’, aged about 5(five) years, reported to her that she could
not pass urine. Mrs. ‘A’ enquired from Ms. ‘B’, about the reason of her
difficulty, to which she replied that the accused Shri Akshay Sarmah
penetrated finger into her private part, for which she sustained injury and
attempted to commit sexual intercourse with her.
INVESTIGATION:
3
(3).
Based on the above F.I.R., Dispur P.S. Case No. 134/2013, dated
20.01.2013, u/s 376(f)/511 of the I.P.C., was registered. Inspector Biren
Chandra Deka, the Officer in-charge, Dispur P.S. endorsed the case to S.I.
Dimbeswar Thakuria for investigation.
(4).
In course of investigation, S.I. Dimbeswar Thakuria, the I.O., visited
the place of occurrence, drew up a sketch map thereof and recorded the
statements of the witnesses, including that of the victim girl. The victim girl
was, thereafter, sent for medical examination and her statement u/s 164 of
the Cr.P.C. was also recorded. On completion of the investigation, the I.O.
submitted the charge-sheet against the accused u/s 376(f)/511 of the I.P.C.
read with section 6 of the Protection of Children from Sexual Offences Act,
2012. (for short, “the POCSO Act”).
TRIAL:
(5).
Since the charge-sheeted offence u/s 376(f)/511 of the I.P.C. is
exclusively triable by the court of Sessions Judge and the offence u/s 6 of the
POCSO Act, 2012 is exclusively triable by the court of the Special Judge, the
learned Addl. Chief Judicial Magistrate, Kamrup(M), Guwahati, by order,
dated 02.07.2013, passed in G.R. Case No. 542/2013, after complying with
the necessary formalities u/s 209 of the Cr.P.C., committed the case to this
court of the Special Judge, Kamrup(M), Guwahati for trial,.
(6).
Thereafter, on hearing the learned counsels of both the sides and
consideration of the evidence, collected during investigation, a charge u/s 6
of the POCSO Act, 2012 was framed vide order, dated 29.07.2013. The
charge was read-over and explained to the accused to which he pleaded not
guilty and claimed to be tried.
(7).
In order to prove the above charge, the prosecution has examined
8(eight) witnesses including the doctor and the I.O., while the defence crossexamined 7(seven) witnesses, out of them. After closing the evidence of the
4
prosecution side, the statement of the accused was recorded u/s 313 of the
Cr.P.C., vide order, dated 30.06.2014. The accused pleaded innocent and
wished to examine witnesses in defence. In his statement u/s 313 of the
Cr.P.C., the accused has stated as follows“There was a liquor shop belonging to the victim’s family, which
the public demolished. Since then, they wanted to sell liquor
secretly at my shop, but I did not agree, for which they did not
like me and not on speaking terms. On 18.01.2013, the
maternal uncle of the victim had brought liquor to my shop and
consumed it mixing with water in a water bottle. At this, my wife
rebuked him and drove him out of the shop. Since then there is
no speaking terms between our family and the family of the
victim. Subsequently, on 20.01.2013, the police took me away.
I do not know anything more.”
(8).
The accused examined one witness in defence (D.W.1), while the
prosecution cross-examined her.
(9).
I have heard the argument, advanced by Sri H.K. Deka, the learned
Special Public Prosecutor and Sri D.P. Dutta, the learned defence counsel. I
have gone through the entire evidence, proffered by both the sides and the
statement of the accused, recorded u/s 313 of the Cr.P.C.
POINT FOR DETERMINATION:
(10). Whether the accused, on 19.01.2013 at about 7 p.m., at Japorigog,
Krishna Nagar, under Dispur P.S., committed aggravated penetrative sexual
assault on Ms. ‘B’, aged about 6/7 years, the daughter of the informant Mrs.
‘A’?
5
THE DECISION AND THE REASONS THEREFOR:
Legal Position
(11). It may be mentioned that Section 5 defines the offence of ‘aggravated
penetrative sexual assault’ and the punishment for the offence is provided in
Section 6 of the POCSO Act, 2012. Section 3 of the said Act defines what is
‘penetrative sexual assault’, which includes an act, interalia, insertion, to any
extent, any object or a part of the body, not being the penis, into the vagina,
the urethra or anus of child etc. The definition of ‘aggravated penetrative
sexual assault’ given in section 5 of the Act provides, interalia, that a person
is said to commit the offence, if he commits penetrative sexual assault
causing grievous hurt or causing injury to the sexual organ of the child or on
a child below twelve years.
EVIDENCE:
(12). Now, in the backdrop of the facts alleged and in the light of the
requirements of law, stated above, let us see the evidence, on record(13). P.W.-1, Mrs ‘A’ is the victim’s mother. Her evidence is that on
19.01.2013 at around 7p.m., her five year old daughter Ms ‘B’ reported to her
that she was finding difficult to pass urine. When she questioned her as to
the reason of her discomfort, she replied that the accused Akshay Sarmah,
who is one of their neighbours had inserted his finger into her vagina. Ms. ‘B’
further reported that the said incident took place, on that day at around 4
p.m., when she went to the residence of her classmate, the son of the
accused. She recognized Ext.1, the F.I.R. which she submitted at Dispur
P.S., regarding the incident and Ext.2, the printed form of the F.I.R., whereon
Ext.2(1) is her signature. Thereafter, the victim was sent for medical
examination and her statement was recorded by a Judicial Magistrate.
6
(14). In cross-examination, she has, interalia, deposed that she did not
witness the incident. She denied the defence suggestion that the allegation
against the accused has been falsely raised by them to force him to vacate
his paan shop, because, in that locality, they are also running a similar paan
shop and due to the paan shop run by the accused, their shop was running
at a loss.
(15). P.W.2, Mrs. ‘C’ is the mother of P.W.-1 Mrs. ’A’. According to her, she
came to know about the incident, on its following day, from her daughter
P.W.1. She also asked her (P.W.1) grand-daughter Ms. ‘B’, about the
incident. The victim (P.W.5) reported to her that on the date of incident,
When she went to the residence of the accused to play with her classmate,
the son of the accused called her inside a room of his house and then
inserted his finger into her private part. The victim (P.W.5) also told her that
when she shouted in pain, the wife of the accused opened the door of the
room and rescued her. The victim (P.W.5) further reported to her that she
sustained injury on her vagina and was feeling difficulty in passing urine. In
cross-examination, she has, interalia, deposed that she did not witness the
incident. She denied the defence suggestion that the allegation against the
accused has been falsely raised to force him to vacate the paan shop run by
him in their locality, because, they also have a similar paan shop at that
place and due to the paan shop of the accused, their shop was running at a
loss.
(16). P.W.-3 Mrs ‘D’ is the mother-in-law of Mrs. ‘A’, the informant and both
of them live together at the same house. Her evidence is that, on the day of
occurrence, Mrs. ‘A’ reported to her that her minor daughter Ms. ‘B’ was
feeling pain, while passing urine. When Mrs. ‘A’ asked Ms ‘B’ as to why she
was facing difficulty in passing urine, Ms ‘B’ replied that the accused had
inserted his finger into her vagina, when she went to his residence to play
with her friend, the son of the accused. She also interrogated Ms. ‘B’ about
the incident. She too reported to her that when she was alone in a room of
the accused’s residence, the accused inserted his finger into her vagina and
7
further, that when she shouted in pain, the accused’s wife came there and
rescued her. In cross-examination, she has deposed that she did not witness
the incident. She denied the defence suggestion that the allegation has been
falsely raised against the accused to force him to close down his paan shop,
because, in that locality, they have a similar paan shop and due to the paan
shop run by the accused, their paan shop was running at a loss.
(17). PW 4 Mr. ‘E’ is a neighbour and landlord of the accused. His evidence
is that he heard from somebody that the accused, on the date of incident,
inserted his finger into the vagina of Ms. ‘B’, when she went to play with the
son of the accused, who is her classmate. He did not enquire from Ms. ‘B’
about the incident. He has no idea about the truth of the allegation against
the accused.
(18). PW 5 Ms. ‘B’ is the victim girl. According to her, the accused is their
neighbour. The son of the accused is her classmate.
On the day of
occurrence, she went to the residence of the accused to play with his son. At
that time, the accused was present at his home. When she went inside their
house, the accused called her near him and thereafter, he took up her on his
lap. Then the accused removed her panty and after that, he inserted his
finger into her vagina. When she started shouting, the mother of Raj Pratim
opened the door of the room in which the accused was doing the aforesaid
act on her. Seeing his wife, the accused put her down. Thereafter, she
returned home. Out of fear, she did not report the incident to any member of
her family. However, during night, when she found difficulty to pass urine, on
being asked by her mother (P.W.1), she reported the incident to her. She
narrated the whole incident before the Magistrate, when she was produced
before her. In cross-examination, she has, interalia, stated that she went to
the residence of the accused, during evening hours. At that time, the
accused’s son was sleeping on his bed. She was tutored by her mother as to
what was to be stated in the Court.
8
(19). PW 6, S.I. Dimbeswar Thakuria is the investigating officer. His
evidence is that on 20.01.2013, the Officer-in-charge of Dispur P.S. received
the FIR, Ext-1, from Mrs. ‘A’ and after registering Dispur P.S. Case No.
134/2013 U/s 376(f)/511 of the IPC, endorsed the case to him for
investigation. In course of investigation, he visited the place of occurrence,
recorded the statements of the witnesses including the victim girl. Thereafter,
he sent the victim girl for medical examination and caused her statement
recorded U/s 164 of the Cr.P.C. by a Judicial Magistrate. He made a prayer
before the learned Chief Judicial Magistrate, Kamrup, Guwahati for adding
Section 6 of the POCSO Act and on being satisfied, his prayer was allowed.
He prepared a sketch map of the place of occurrence, Ext-3. He caused
recording of the statement of the victim girl, U/S 164 of the Cr.P.C. vide Ext.4. On completion of investigation, he submitted the charge-sheet, Ext-5,
against the accused. The cross-examination of the witness was
dispensed with as per provision of Section 309(2)(C) of the Cr.P.C.
(20). PW 7, Smti Ipsita Barthakur is the learned Judicial Magistrate, who
recorded the statement of the victim girl. Her evidence is that on 21.01.2013,
as per order of the learned Chief Judicial Magistrate, Kamrup, Guwahati, vide
Ext-6(1) passed in G.R. Case No. 542 of 2013 vide Ext-6, she recorded the
statement of the victim girl Ms. ‘B’ vide Ext-4. She recognised Ext-4(2), the
signature of the victim girl Ms. ‘B’ on the said Ext-4. The cross-examination
of this witness was dispensed with as per provision of Section 309(2)
(C) of the Cr.P.C.
(21). PW 8 Dr. Tribeni Athparia is the Medical Officer, in the Department of
Forensic Medicine, GMCH, Guwahati. According to the doctor, on
20.01.2013, she examined the victim Ms. ‘B’, in connection with Dispur PS
M.R. No. 2. During examination, the victim was accompanied by her mother
Mrs. ‘A’ and female attendant Mrs Uttara Das. On examination, the doctor
found as follows :“Physical examination :-
9
(22). On the basis of the above physical examination, radiological and
laboratory investigation, were done on the victim. The doctor has given the
opinion that (i) there is no evidence of recent sexual intercourse and (ii) her
age is above 6 years and below 7 years. The doctor has recognised Ext-7,
the medical report consisting of three sheets. The defence declined to
cross-examine the doctor.
(23). DW 1 Mrs ‘X’ is a neighbour of the accused. Her evidence is that the
accused resides in a rented house situated near her house. She does not
know anything about the occurrence. Mother of the victim was selling country
liquor. Village people dismantled their liquor shop. Accused Akshay Sarmah
has a betel-nut shop. He also sells tea. Mother of the victim requested the
accused to sell liquor at his shop, but the accused declined. In crossexamination, she has, interalia, stated that the victim very often visited the
house of the accused to play with his son. She does not know anything
about the occurrence, as she was not present on that day.
ARGUMENT ;
(24). Mr. H.K. Deka, the learned Special Public Prosecutor has submitted
that there was no eye witness to the occurrence and therefore, there is no
direct corroborative testimony in support of the evidence of the victim minor
girl. The entire case of the prosecution rests on the evidence of the victim
girl, her statement recorded U/s 164 of the Cr.P.C. and the doctor’s
evidence. Mr. Deka, the learned Special Public Prosecutor has submitted
that the defence case is not consistent on the plea of business rivalry
between the two families of the victim and the accused and further, no
evidence has been led on this count to establish beyond doubt that false
allegation has been brought against the accused. Even from the evidence of
DW 1, Mr. Deka submits, the victim very often visited the house of the
accused to play with his son and that on the day of occurrence, she was not
present, for which reason, she does not know anything about the occurrence.
10
The accused, in his statement, recorded u/s 313 of the Cr.P.C. has
specifically admitted that the victim girl went to his house, on the day of
occurrence, to study with his son, instead of playing with him. Hence, Mr.
Deka, the learned Special Public Prosecutor has submitted that the
prosecution case is established beyond all reasonable doubt.
(25). Controverting the above argument advanced by the prosecution side,
Mr. D.P. Dutta, the learned defence counsel has submitted that the accused
is the victim of business rivalry with the family of the alleged victim, who are
residents of the same locality. Mr. Dutta has submitted that the victim girl has
tendered false evidence in Court, being tutored by her mother, the informant,
which fact she has admitted in the cross-examination. Hence, it is submitted
to honourably acquit the accused of the charge.
ANALYSIS OF EVIDENCE :
(A) PLACE OF OCCURRENCE :
[ACCUSED’S HOUSE]
(26). The FIR, Ext-1 does not disclose the place of occurrence. However,
from the evidence of PW 5, Ms. ‘B’, the victim girl and her statement,
recorded u/s 164 of the Cr.P.C., vide Ext-4, it appears that on the day of
occurrence, during evening hours, she went to the house of the accused,
who is their neighbour and the alleged incident took place inside his house.
This fact has been corroborated by PW 1, Mrs. ‘A’, the mother of the victim,
minor girl, PW 2. Mrs. ‘C’, the mother of PW 1 and PW 3, Mrs. ‘D’, the
mother-in-law of PW -1 Mrs. ‘A’, as reported to them by PW-5, Ms. ‘B’, the
11
victim. PW-6, S.I. Dimbeswar Thakuria, the I.O., who visited the scene,
during investigation, has drawn up a sketch map of the place of occurrence
vide Ext-3, wherein the place of occurrence is indicated as inside the house
of the accused, situated near the houses of the victim’s family and PW 4, Mrs
‘E’ under whom at the relevant time, the accused had resided as tenant. The
defence appears to have not elicited any fact contradicting the evidence of
PWs, afore-mentioned, by way of cross-examining them. Therefore, this
Court finds that the place of alleged occurrence was inside the rented house
of the accused.
B)
INMATES OF ACCUSED’S HOUSE :
[Accused, his wife and their son only]
From the evidence of PW 5, the victim, it transpires that on the
day of occurrence, during evening hours, there were the accused, his
wife, and their son, who is her classmate, were present. At the relevant
time, the accused was in a room, while his son was sleeping on his
bed and his mother, that is, the accused’s wife was somewhere at
home outside the accused’s room. There was no eye witness to the
alleged occurrence and based on what PW 5, the victim child reported,
PW 3, Mrs. ‘D’, the mother-in-law of the informant PW 1, has testified
to the presence of the accused and his wife, at their home at the
relevant time. The defence has not disputed this piece of material
evidence either by cross-examining the PWs or by leading some
evidence including through the evidence of DW-1 Mrs ‘X’, the
neighbour of both the families. Hence, this court finds that at the
relevant time of the alleged occurrence, there was no outsider, except
12
the accused, his wife and their minor son, at their rented house beyond
doubt.
C)
AGE OF THE VICTIM :
[6/7 YEARS]
(27). In the F.I.R., Ext-1, PW 1, Mrs. ‘A’, the informant, has disclosed
that on the date of occurrence, that is, on 19.01.2013, the age of her
victim daughter (Ms’B’) was 5 (five) years. The prosecution has not
produced the birth certificate of the victim child, obviously for nonseizure, during investigation. However, based on the medical report, on
examining her all the physical features, radiological test and other
laboratory investigations done, by PW-8 Dr. Tribeni Athparia, the
doctor, in conjunction with other oral testimony of PWs, and further, in
absence of any evidence to the contrary produced by the defence, this
Court finds and holds that on the day of occurrence, that is, on
19.01.2013, the victim girl (PW 5) was aged between
6(six) and
7(seven years, beyond reasonable doubt.
THE OCCURRENCE :
I)
VICTIM’S VERSION :
(28). On perusal of the evidence of PW 5, Ms. ‘B’, the victim girl and
the order, dated 17.12.2013, it appears that she being a child witness,
one of my learned predecessors put to her several general questions
to determine her level of understanding and also to exclude the
13
possibility of her being tutored to give false evidence. After considering
the answers of the questions put to her, one of my learned
predecessors was satisfied that she was fit to give evidence and
accordingly, her evidence was recorded in camera as per requirement
of Section 37 of the POCSO Act, and considering her tender age, she
was not administered oath.
(29). The evidence of PW 5, Ms.’B’, the victim girl, reveals that on the
day of occurrence, during evening hours, she went to the house of the
accused, situated nearby, to play with his son, who is her classmate. At
that time, the accused who was present at his home, called her near to
him. The accused took up her on his lap, then he removed her panty
and after that, he inserted his finger into her vagina. When she started
shouting, the accused’s wife opened the door of the room, in which the
accused committed the aforesaid act. Seeing his wife, the accused put
her down from the lap, and thereafter, she returned home. It further
appears that out of fear, she did not report the incident to her family
members immediately. However, during night, when she felt difficulty to
pass urine and on being enquired by her mother (P.W.1), she narrated
the whole incident. Thereafter, her mother (PW 1) reported the incident
to PW 2 Mrs. ‘C’ and PW 3 Mrs. ‘D’ It further appears that she narrated
the whole incident before the learned Judicial Magistrate, at Guwahati
(PW 7), who recorded her statement, U/s 164 of the Cr. P.C.
(30). From the cross-examination, it appears that PW 5, Ms. ‘B’, the
victim, re-asserted that on the day of occurrence, she went to the
residence of her classmate, that is, the son of the accused, during
evening hours. However, it further appears that her mother PW 1
Mrs.’A’ tutored her as to what was to be stated in the court, in her
evidence during trial.
14
(31). On close scrutiny of the evidence of PW 5, the victim girl, it
transpires that though she is of tender age, she could understand the
questions and could give rational answers and further, the duty of
speaking the truth. The prosecution has not examined the wife of the
accused, who happened to witness the occurrence that took place
inside their house. PW 5, the victim, before tendering her evidence, on
17.12.2013, during trial of the case, PW 7 Smti Ispita Barthakur, the
learned Judicial Magistrate at Guwahati recorded her (PW.5)
statement, U/s 164 of the Cr.P.C. vide Ext-4, as per procedure, where
Ext-4(2) is recognized to be the signature of the victim. P.W.5, the
victim has also deposed that she gave a statement, in connection with
the incident before the Magistrate. The defence declined to crossexamine PW 7, vide her evidence and the relevant order, dated
15.02.2014 and therefore, the evidence of PW 7, the learned Judicial
Magistrate has remained undisputed by the defence. On scrutiny of the
evidence of PW 5, Ms. ‘B’, dated 17.12.2013, and her statement
recorded U/s 164 of the Cr.P.C., dated 21.01.2013, i.e. after one day of
the occurrence, whatever material facts, she stated before the court,
during trial, were stated in her statement U/s 164 of the Cr.P.C. vide
Ext-4. Thus, the victim girl (PW-5) clearly corroborated the material
facts stated in her statement, Ext-4. Hence, the defence elicitation in
her cross-examination that she was tutored by her mother (PW 1) as to
what was to be stated in the court, on 17.12.2013, long after her
statement u/s 164 of the Cr.P.C., vide Ext-4, was recorded on
21.01.2013 certainly does not affect the credibility of her (P.W.5)
evidence, when the defence has refrained from challenging and
confronting with her previous statement, aforementioned, given before
the learned Judicial Magistrate (PW.7). This presumption has been
further reinforced by the corroborative circumstantial testimony of the
15
remaining PWs, discussed below and when the accused himself, in his
statement, recorded u/s 313 of the Cr.P.C. admitted that on the day of
occurrence, the victim minor girl went to his house, to play with his son.
Even DW 1 Mrs ‘X’ who is a neighbour to both the families of the
accused and the victim, in her cross-examination deposed that the
victim very often visited the house of the accused to play with his son.
(32). Therefore, this court is of the considered opinion that the
evidence of the victim girl (PW 5) can be relied on, beyond doubt,
being established in view of clear corroboration between her evidence
and her statement u/s 164 of the Cr.P.C., and admission of the
accused in his statement u/s 313 of the Cr.P.C. so far her visit to his
house is concerned at the relevant time and further, when she (PW 5)
herself received injury at the very time and place of the occurrence. To
speak it differently, the victim’s (PW 5) evidence is found to be truthful
and unpolluted from any external influence for the reasons,
aforementioned.
OTHER EVIDENCE :
(33). As stated above, PW 1 Mrs. ‘A’ is the mother of the victim (PW
5), PW 2 Mrs. ‘C’ is the mother of PW 1, PW 3, Mrs. ‘D’ is the motherin-law of PW 1, PW 4, Mrs. ‘E’ is the related sister of PW 1, who belong
to the same village/locality of PW 1, that is, the family of the victim girl,
as a whole have supported the prosecution case, based on what they
learnt from PW 5, the victim minor girl, after the incident came to light,
during the evening hours of the day of occurrence, when PW 5, the
victim could not pass urine due to injury in her vagina sustained as a
result of finger insertion by the accused.
16
(34).
The defence has suggested in the cross-examination of PW 1,
Mrs. ‘A’, PW 2 Mrs. ‘C’ and PW 3 Mrs. ‘D’ that the allegation against
the accused has been falsely raised to force him to vacate his paan
shop, because, in that locality, they are also running a similar paan
shop and due to the paan shop run by the accused, their shop was
running at a loss, which they vehemently denied. However, the
defence has not led any evidence to prove the aforesaid suggestion by
direct evidence or reasonable probability. Such suggestion which is
denied by the PWs, without legal evidence in its support, has no force
in law and therefore the plea of animosity on the part of the victim’s
family and in consequence thereof filing of a false case against the
accused can not be held established beyond doubt.
(35). Therefore, in the considered opinion of this Court, when the
defence has failed to establish animous relation, the mere fact that the
afore-mentioned PWs are close relatives of the victim girl (PW 5) can
not be treated as a sufficient reason to discard their consistent
testimony, in absence of any independent witness, and more so, when
the source of their information, that is, the victim girl’s (PW 5) testimony
appears to be reliable, beyond reasonable doubt.
DOCTOR’S EVIDENCE :
(36). PW 8 Dr. Tribeni Athparia, the Medical Officer, Department of
Forensic Medicine, Gauhati Medical College and Hospital, Guwahati,
though did not find any evidence of recent sexual intercourse on PW 5
Ms. ‘B’, the victim girl, on her examination, however, in respect of her
‘hymen’, which was intact, found redness and tenderness over the area
around the orifice, vide Ext-7, the medical report. Neither the
prosecution nor the defence has explained the probable reason for
17
developing redness and tenderness over the area around the orifice of
the victim. Surprisingly, the defence has refrained from crossexamining the doctor, on the doctor’s various findings and thereby
accepted the doctor’s evidence in its entirety. Considered thus, even in
absence of doctor’s specific opinion in regard to whether such redness
and tenderness over the area around the orifice might have been
possible due to penetrative sexual assault on the victim child, can not
throw out the otherwise cogent and trustworthy evidence of the victim
child, whose evidence stands at par with the evidence of an injured
witness and when her above mentioned relatives, namely, PWs 1, 2, 3
and 4 lend circumstantial assurance to her testimony in regard to
sexual assault inside the accused’s house. It is well settled that
corroboration as a condition for judicial reliance on the testimony of the
victim is not a requirement of law, but a guidance of prudence, under
the given circumstances. Hence, in the facts and circumstances
appearing in this case, this court finds and holds that the medical
evidence of PW 8, Dr.Tribeni Athparia does corroborate the evidence
of the victim child (PW 5) to the extent required in law.
PRESUMPTION U/S 29 :
(37). Section 29 of the POCSO Act provides that where a person is
prosecuted for committing or abetting or attempting to commit any
offence u/s 3, 5, 7 and 9, the Special Court shall presume, that such
person has committed or abetted or attempted to commit the offence
as the case may be unless the contrary is proved.
(38). In the instant case, the defence has miserably failed to dislodge
the prosecution version of the case, either by cross-examining the
PWs, on the vital parts of their evidence-in-chief or through the
18
evidence of DW 1, who rather deposed in cross-examination that “I do
not know anything about the occurrence as I was not present on
that day.” Therefore, this court is of the opinion that in the absence of
any cogent and convincing evidence to the contrary, the evidence of
the PWs, more particularly the evidence of the victim girl (PW 5) can
not be disbelieved.
CONCLUSION :
(39).
For the reasons, set forth above, this Court is constrained to
hold that the accused is guilty of committing the offence of aggravated
penetrative sexual assault on the victim girl (P.W. 5), who is of tender
age, by inserting his finger into her vagina inside his house, beyond all
reasonable doubt and accordingly convicted.
SENTENCE :
(40). The convicted accused is heard on the quantum of punishment to
be imposed on him, as required u/s 235 of the Cr.P.C. vide Mark ‘X’.
(41) The convicted accused has stated that he being innocent, a
minimum punishment, as prescribed by law, may imposed on him. He
has further stated that he has a paan shop in the village. His aged
about 35 years. He has a son, aged about 6 years and his wife expired
in the month of September, 2013.
(42). It is pertinent to be mentioned that Section 6 of the POCSO Act,
2012 prescribes for a minimum punishment of rigorous imprisonment
for a term which shall not be less than ten years, but which may extend
to imprisonment for life and shall also be liable to fine.
19
(43). Bearing in mind the necessity of proportion between the offence
proved to have been committed by the accused, his social, economic
and personal circumstances and the objects and reasons behind
legislation of the POCSO Act, 2012 and further, the prescribed
punishment for the offence, under law, afore-mentioned, this Court is of
the considered opinion that to meet the ends of justice to both the
victim and the convicted accused, the minimum prescribed punishment
should be awarded to the accused.
(44). This court is of the opinion that in the facts and circumstances,
more particularly since it is proved that the accused had abused the
victim girl, who is of tender age, he does not deserve any
compassionate treatment and needs to be punished with equal degree
of punishment to that of Section 376(2)(i) of the I.P.C.
(45). Accordingly, the convicted accused Shri Akshay Kumar
Sarmah is sentenced to suffer rigorous imprisonment for 10(ten)
years and to pay fine of Rs. 10,000/- (Ten thousand) only in default
to suffer rigorous imprisonment for another period of 2(two)
months.
(46) The period of detention undergone by the accused to be set off
against the sentence of imprisonment U/S 428 of Cr.P.C.
(47) The fine amount if realized shall be paid to the victim child,
through her natural guardian, in due course of law, by way of
compensation.
(48) The convicted accused is informed that he has the right to
appeal to the Hon'ble High Court, against the judgment and order of
this court through the jail authority or independently on his own.
20
(49) The convicted accused is further informed that he is entitle to free
Legal Aid through the District Legal Services Authority/ Legal Aid
Clinic established in the Central jail, Guwahati.
(50) The Judgment and order, as above, delivered in the open court,
on this the 16th day of March, 2015, under the hand and seal of this
court.
Special Judge (POCSO)
-cum - Sessions Judge
Kamrup (Metro), Guwahati.
Dictated and corrected by me
Special Judge (POCSO)
-cum - Sessions Judge
Kamrup (Metro), Guwahati.
21
APPENDIX
Witnesses for the prosecution:
P.W.-1
-
Mrs. A, the informant and mother of the
victim child.
P.W.-2
-
Mrs. C, the mother of P.W.1.
P.W.-3
-
Mrs. D, the mother in law of P.W.1.
P.W.-4
-
Mr E, is the related brother of P.W.1.
P.W.-5
-
Ms. B, the victim child.
P.W.-6
-
S.I. Dimbeswar Thakuria, the I.O.
P.W.-7
-
Mrs. Ipsita Borthakur, SDJM(s), Kamrup,
Guwahati.
P.W.-8
-
Dr. Tribeni Athparia, the Medical Officer.
Witness for the defence :
D.W.1
-
Mrs. X, neighbour of both the parties.
Prosecution Exhibits :
Ext-1
-
F.I.R. dated, 20,01.2013.
Ext-2
-
Printed form of F.I.R., Ext.1.
Ext-3
-
Sketch Map of the place of occurrence.
Ext-4
-
Statement of the victim child u/s 164 Cr.P.C.
Ext-5
-
Charge sheet.
Ext-6
-
The record of G.R.Case No. 542 of 2013.
Ext-7
-
The Medico-Legal report of the victim child.
Material Exhibit :
Nil
Special Judge (POCSO)
-cum - Sessions Judge
Kamrup (Metro), Guwahati.
22
Sessions Case No. 252 of 2013
Mark- X
Hearing of convicted accused on sentence:
Sri Akshay Sarma,
S/O. Late Lankeshwar Sarmah,
R/O. Japorigog, Krishna Nagar,
P.S. Dispur, Dist.- Kamrup(M), Assam.
Permanent AddressVill- Morowa, P.S. Kamarkuchi,
Dist.- Nalbari, Assam.
…………. Accused.
( U/S 235 (2) Cr.P.C.)
Q. !. On scrutiny of the evidence adduced by both the sides, it is proved, beyond
all reasonable doubt, that in the evening of 19.01.2013, you committed
aggravated penetrative sexual assault on the informant’s minor daughter by
inserting your finger into her vagina and thereby committed the offence
punishable U/S 6 of the POCSO Act, 2012 for which it is prescribed that you may
be punished with rigorous imprisonment for a term which shall not be less than 10
years, but which may extend to imprisonment for life and shall also be liable to
fine. What is your say regarding the quantum of punishment to be imposed upon
you for the offence?
Ans: I am innocent. A minimum punishment as prescribed by law, may be
imposed on me.
23
Q. 2. What is your age, profession and family position?
Ans: I have a paan shop in the village. I am aged about 35 years. I have a
son, aged about 6(six) years. My wife expired in the month of September,
2013.
Special Judge (POCSO)
-cum - Sessions Judge
Kamrup (Metro),
Guwahati.
24
ORDER
16.03.2015
The accused Sri Akshay Sarma is present.
The judgment as in separate sheets is pronounced in the
open court.
The accused is held guilty of the charge, u/s 6 of the
POCSO Act, 2012 and convicted.
The convicted accused is heard on the quantum of
punishment to be imposed on him, as required u/s 235 of the Cr.P.C.
vide Mark ‘X’.
The convicted accused has stated that he being innocent,
a minimum punishment, as prescribed by law, may imposed on him.
He has further stated that he has a paan shop in the village. His age is
about 35 years. He has a son, aged about 6 years and his wife expired
in the month of September, 2013.
It is pertinent to be mentioned that Section 6 of the
POCSO Act, 2012 prescribes for a minimum punishment of rigorous
imprisonment for a term which shall not be less than ten years, but
which may extend to imprisonment for life and shall also be liable to
fine.
25
Bearing in mind the necessity of proportion between the
offence proved to have been committed by the accused, his social,
economic and personal circumstances and the objects and reasons
behind legislation of the POCSO Act, 2012 and further, the prescribed
punishment for the offence, under law, afore-mentioned, this Court is of
the considered opinion that to meet the ends of justice to both the
victim and the convicted accused, the minimum prescribed punishment
should be awarded to the accused.
This court is of the opinion that in the facts and
circumstances, more particularly since it is proved that the accused
had abused the victim girl, who is of tender age, he does not deserve
any compassionate treatment and needs to be punished with equal
degree of punishment to that of Section 376(2)(i) of the I.P.C.
Accordingly, the convicted accused Shri Akshay
Kumar Sarmah is sentenced to suffer rigorous imprisonment for
10(ten) years and to pay fine of Rs. 10,000/- (Ten thousand) only in
default to suffer rigorous imprisonment for another period of
2(two) months.
The period of detention undergone by the accused to be
set off against the sentence of imprisonment U/S 428 of Cr.P.C.
The fine amount if realized shall be paid to the victim child,
through her natural guardian, in due course of law, by way of
compensation.
The convicted accused is informed that he has the right
to appeal to the Hon'ble High Court, against the judgment and order of
this court through the jail authority or independently on his own.
26
The convicted accused is further informed that he is
entitle to free Legal Aid through the District Legal Services Authority/
Legal Aid Clinic established in the Central jail, Guwahati.
Let a copy of the judgment and order be furnished to the
convicted accused, free of cost today itself.
Accordingly, the case is disposed off.
Special Judge (POCSO)
-cum - Sessions Judge
Kamrup (Metro),
Guwahati.