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Crl.A./99/2016 on 27 March, 2019

Page No.# 1/13

GAHC010014982016

THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : Crl.A. 99/2016

Sri Mothong Chutia alias Nageswar
Son of late Ghekut Chutia,
Na-Motapung village,
P.S. Barekuri,
Tinsukia district(Assam).
Appellant.

-Versus-

(1) State of Assam.

(2) Smt. Bina Chetia,
Wife of Sri Pabitra Chetia,
Na-Motapung village,
P.S. Barekuri,
P.O. Borgaon
Tinsukia district(Assam).

(3) Smt. Sonali Dowarah,
Wife of Sri Padmeswar Dowarah,
Na-Motapung village,
P.S. Barekuri,
P.O. Borgaon
Tinsukia district(Assam).

Respondents.

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Advocate appeared

For appellant : Mr. P Sarmah.

For respondent : Mr. D Das, Addl.PP.

Date hearing : 5.3.2019.

Date of judgment : 27.3.2019

PRESENT
HON’BLE MRS. JUSTICE RUMI KUMARI PHUKAN

JUDGMENT AND ORDER (CAV).

Heard Mr P Sarmah, learned counsel for appellant. Also heard Mr D Das,

learned additional public prosecutor for the state.

(2) Present appeal is directed against the order of the learned Sessions Judge,

Tinsukia dated 21.3.2016 in Sessions Case 11(T)/2014 whereby the appellant is

convicted u/s 4 of the POCSO Act and sentenced to r/i for seven years with a fine of

Rs 2,000 and in default to r/i for six months.

(3) The case of the prosecution briefly stated is that ones Bina Chetia and Sonali

Dowara lodged an FIR on 15.9.2013 alleging inter alia that on 8.9.2013 at about 11

AM while their minor daughters(X and Y) aged about 12 and 8 years respectively

went to the house of accused appellant, the accused committed rape upon them

confining them in his house. Based on this FIR, Barekuri PS case 25/2013 u/s

376(2)(1) of the IPC read with Section 4 of the POCSO Act was registered and the

victim was examined by medical officer, statement was recorded u/s 161 and 164 of
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the CrPC and at the conclusion of trial charge sheet was submitted under the said

Sections of law.

(4) The case being triable by the Special Court, it was committed to the said

court. Accused entered appearance before the court and denied the charge under

the said Sections of law.

(5) Prosecution examined fifteen witnesses in support of its case and the defence

did not examine anyone. The plea of defence is of total denial. Statement of the

accused was recorded u/s 313 of the CrPC. The accused was held guilty and

convicted as aforesaid at the conclusion of trial. Hence this appeal.

(6) Heard submissions of learned counsel for appellant and learned counsel for

the State.

(7) Learned counsel for appellant Mr Sarma has strenuously argued that the

prosecution case is doubtful in view of the delay in filing the FIR and the conduct of

the victim girl who did not report the matter immediately after the occurrence

coupled with the inconsistencies in their evidence about the reference of Jimpi at

the time of occurrence and contended that evidence of the informant and the victims

is not convincing so as to accept authenticity of the case.

(8) Mr Sarmah led this court through evidence of the victim girls to show that the

victim girls without reporting the matter of such serious incident were playing after

the incident and their statements u/s 161 and 164 of the CrPC are virtually

different regarding the reference of Jimpi. As regards the conduct of the informants,

it is stated that they have stated about amicable settlement for which there was

delay in filing the FIR but according to him there cannot be any amicable settlement
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of such serious matter. Further it is urged before this court that no confession of the

accused was recorded to prove that he made such confessional statement before the

witnesses as stated by them. That apart there are discrepancies between the

informants regarding the time of information to the police. Accordingly it is

submitted that the accused being an aged person of about 67 years having wife,

children and grandsons is no way associated with the alleged offence and is liable to

be acquitted of the charge.

(9) Learned Addl. PP, however, refuted the contention of learned counsel for

appellant saying that the evidence of the victims remained unrebutted and the

accused has failed to rebut the presumption u/s 29 of the POCSO Act. The court

cannot lose sight of the fact that the victims are of very tender age and there may be

some omission and contradiction in their evidence but their evidence is otherwise

supported by medical evidence where injuries were found in their private parts by

the doctor. For simple contradiction and omission of testimonies of such minor

victims the case cannot be discarded as no minor child will be projected to launch a

criminal case on the part of their parents unless it is shown that the victim and

informant were gravely motivated by any ulterior motive. It is also forcefully argued

that in the context of the Indian society parents of victims think thousands of time

prior to filing FIR for fear of being scorned by the society and the delay in filing the

FIR cannot be doubted in such cases.

(10) Having heard rival submissions let us now appreciate the evidence on record.

(11) PW2(referred as X) and PW3(referred as Y) are the victims, aged about 12

and 8 years respectively. They stated that on the day of occurrence(8.9.2013) they
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went to the house of their friend Jimpi who is the daughter of the accused and

asked about Jimpi then accused told him that she was inside the house. As soon as

they went inside the house the accused closed the door of the room and committed

bad act upon PW3(the words told by her) putting off her panty and thereafter

offering Rs 10/- asked her not to tell anybody and then the accused committed

sexual intercourse with her. The accused also offered the second victim Rs 20/- and

asked her not to disclose the matter to anybody. Thereafter they went to their

houses and reported the matter to their mothers who reported the matter to villagers

and also went to the house of the accused to ask about the incident.

(12) PW2 in cross-examination stated that after the incident she went to the house

of Ankita Dowara and played there for half an hour. They also stated about the

statements before a Magistrate vide exhibit 2 and 3. They have denied the

suggestion of the defence that they have given evidence as tutored by their mothers

and denied other suggestions.

(13) Bina Chutia(PW1) and Sonali Dowara(PW4) are the mothers of PW2 and PW3

respectively. They stated that after the said incident was reported to them by their

daughters they informed the matter to villagers and along with them went to the

house of accused and when asked the accused confessed before them the

commission of the offence and then fled away. They stated that the FIR was lodged

on 10.9.2013 as there was a village meeting to settle the matter amicably. Apart

from giving suggestion of denial nothing is elicited from their evidence to suggest

false implication of the accused.

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(14) The other witnesses are Rituraj Dowara(PW6), Chitrajit Chetia(PW7). They

stated that the mothers of the victims met them and told that on 8.9.2013 the

accused committed rape upon their daughters and then both the witnesses went

along with the PW1 and PW4 to the house of accused but the accused fled away.

Then they asked the family members of the accused to produce the accused before

them for settlement but the accused did not turn up and so they advised the

informants to lodge FIR.

(15) Smt. Rangiti Dowara(PW8), Smt. Rima Dowara(PW9), Smt. Binita

Dowara(PW10) gave similar statement that about 7 months back at about 3 PM,

PW4 came to their house and stated that the accused committed rape upon both the

victims and all three of them went to the house of the accused along with Sonali

Dowara(PW4) and on being asked the accused confessed to have committed rape

and also threatened them to do whatever they can do.

(16) Smt. S. Hazarika Chutia(PW11) denied having any knowledge of the

occurrence. She was declared hostile by the prosecution. The evidence of PW12 is

similar to that of PW11. PW13 is the friend of the victim PW2. According to her she

was reported by the victim about the incident after three days of the occurrence. She

is a student of Class VII.

(17) The medical officer(PW14) who examined the X on 16.9.2013 found the

following:

“General configuration and development – average.
Mental status – tense. Weight 20 kg. Height 128 cm.
Dentition – 24(permanent 5 and temporary 19).
Abdomen – No abnormality detected. Breasts, areola and nipples not developed.

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Scalp hair normal. Pubic hair and auxiliary hair absent.

Menstruation history – puberty not attained. Genitals not developed.
Vulva injury – abrasion and bruise under healing present over the vaginal area.
Labia minora and labia majora not developed. Hymen torn. Posteriorly and edges
congested and swollen. Vaginal admits one finger. Uterus not palpable. Vaginal
discharge absent. Fourchette normal. Fossa navicularis disappeared.

Examination was painful.

Injuries on the body other than genitals absent. Radiological opinion of age and as
per the report, epiphysis not fused and her age is below 14 years. X-Ray report
no.R/14 dated 16.9.2013. Laboratory report of vaginal smear – no spermatozoa was
found on the vaginal smear supplied.

Opinion :- 1. Sign of forceful sexual assault present.

2. Sign of injury mark under healing present over private parts.

3. From physical, dental and radiological examination, the age of the
girl is about 8 to 9 years.”

(18) The medical officer(PW14) who examined the Y on the same day found the

following:

“General configuration and development average. Mental state depressed and
tense. Weight 40 kg. Height 149 cm. Dentition 28(permanent 20 and temporary 8).
Abdomen – NAD. Breasts, areola and nipples not developed. Scalp hair normal. Pubic
and auxiliary hair absent. Puberty not attained. Vulva injury – abrasion and bruise
under healing present. Labia minora and labia majora – pubertal. Hymen torn
posteriorly, edges congested and swollen. Vagina admits one finger. Uterus not
palpable. Vaginal discharge absent. Fourchette normal.

Examination – painful.

Injuries on the body other than genitals absent. Radiological opinion on age – Elbow –
epiphysis fused, age would be above 14 years. Wrist joint – Epiphysis not fused and
age would be below 18 years. Hip joint not fused and age would be 21 years.
Laboratory examination of spermatozoa – no spermatozoa seen.

Opinion – 1. Sign of forceful sexual assault present.

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2. Sign of injury mark under healing present over private parts.

3. From physical, dental and radiological examination, the age of the
girl is about 12 to 14 years.

Exhibit 5 is the medical report and exhibit 5(1) is my signature.”

(19) Investigating officer Sri Uttam Adhikary(PW15), Sub-inspector of Police,

deposed that on 15.9.2013 one Bina Chutia lodged an ejahar stating that on

8.9.2013 Sunday at about 11 AM the victim girls aged about 8 years and 12 years

went to the house of the accused who called them inside and raped them showing

money and based on the statement of the victims went to the house of the accused

along with the informant and others an when asked, the accused confessed that he

had committed the crime threatening them to do whatever they can do. After

registering the cases he examined the informants at the police station and recorded

statements of the victims and then went to the house of the accused at Na-

motapung Gaon, inspected the spot, drew a sketch map and recorded statement of

the witnesses at the spot. He did not find the accused at that time. At night at about

11 PM, accused surrendered on 16.9.2013 and he arrested the accused and later

forwarded to the court. He forwarded the victims to the hospital to medically

examine them and later forwarded to the court to record their statement u/s 164 of

the CrPC and collecting copy of the statements and completing the investigation filed

charge-sheet against the accused u/s 376(i) of the IPC read with Section 4 of the

POCSO Act. During investigation, he recorded statement of witness Smt. Swarnalata

Hazarika Chetia who said that on 15.9.2013 she was informed by Smt. Sonali

Dowara and Bina Chetia that their daughters were subjected to rape by the accused

on 8.9.2013 and after hearing this when they went to the house of the accused, he
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scolded them saying that he had committed rape on the victims and threatened that

they can do whatever they wanted to.

(20) The IO, in cross-examination, could not say how many rooms are there in the

house of the accused, and said that there is an outhouse where the crime was

allegedly committed by the accused and he has not seized the wearing apparels,

undergarments etc of the victims or any bed sheet where the occurrence allegedly

took place. The victims stated before him that the accused committed bad act(beya

kaam) with them. PW1 did not state before him that on the day of occurrence when

her daughters asked the accused about Jimpi, the accused told them to come inside

and whenever they went inside he closed the door and sexually harassed them one

by one putting them on his bed. PW2 did not state before him that the accused had

committed sexual intercourse with the victims. PW5 did not state before him that

mothers of the victims told him that the accused committed rape upon their

daughters.

(21) On due scrutiny of the evidence on record it is found that evidence of both

victims are constant as regards the occurrence and having regard to their tendered

age nothing can be expected. Some minor discrepancy is bound to appear in their

evidence because of tendered age, understanding and lack of perception of sex etc.

(22) In the context of general village people they used the words ‘bad works’ to

indicate sexual acts for which one of the minors stated about ‘bad works’ while

stating that the ‘misdeed’ conducted by the accused and they do not know the words

“sexual intercourse” for which they only say the said words. Such an attempt by the

defence side that there is no such rape as the victims did not say about ‘intercourse’
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is absolutely improper approach and deserves no consideration. Appreciation of

evidence is of paramount importance. One should be aware that evidence of minor

person cannot be at par with the major one. The evidence of minor witnesses

sometimes suffers from exaggeration, omission because of lack of maturity, but their

evidence can be accepted if there appears ring of truth. In the present case the

victims are aged about 8 years and 12 years have corroborated each other about the

entire incident which is again supported by witnesses of the locality and medical

evidence. The extent of injury found in the private parts of the victims is clear

indication of penetration/sexual assault upon the victims. Regarding the challenge

that the mothers of the victims failed to say about the exact date of filing of the FIR

and stated some other date about filing of the FIR it may be for failure of memory as

their evidence in court was recorded much after the incident. For the said reasons

the entire prosecution case which is otherwise established cannot be thrown away.

(23) In State of Punjab vs. Gurmit Singh and others (1996) 2 SCC 384, the

Hon’ble Apex Court held that the testimony of the victim in such cases is vital and

unless there are compelling reasons which necessitate looking for corroboration of

her statement, the courts should find no difficulty to act on the testimony of a victim

of sexual assault alone to convict an accused where her testimony inspires

confidence and is found to be reliable. Seeking corroboration of her statement before

relying upon the same, as a rule, in such cases amounts to adding insult to injury.

Why should the evidence of a girl or a woman who complains of rape or sexual

molestation, be viewed with doubt, disbelief or suspicion? The Court while

appreciating the evidence of a prosecutrix may look for some assurance of her

statement to satisfy its judicial conscience, since she is a witness who is interested
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in the outcome of the charge levelled by her, but there is no requirement of law to

insist upon corroboration of her statement to base conviction of an accused. The

evidence of a victim of sexual assault stands almost at par with the evidence of an

injured witness and to an extent is even more reliable. Just as a witness who has

sustained some injury in the occurrence, which is not found to be self inflicted, is

considered to be a good witness in the sense that he is least likely to shield the real

culprit, the evidence of a victim of a sexual offence is entitled to great weight,

absence of corroboration notwithstanding. Corroborative evidence is not an

imperative component of judicial credence in every case of rape. Corroboration as a

condition for judicial reliance on the testimony of the prosecutrix is not a

requirement of law but a guidance of prudence under given circumstances.

(24) In the instant case both the victims are too minor to perceive the conduct of

the accused and they were lured by the accused offering money for which they may

not immediately disclose the matter. Otherwise their evidence does not suffer from

any infirmity so as to disbelieve their version. There does not appear anything to

show that they are tutored. Further neither the victims nor the informants have any

sort of enmity with the accused for false implication. That being so minor omission

here and there cannot be a ground to discard their evidence.

(25) There is some delay in filing the FIR. The honourable Supreme Court, in

State of M.P. vs. Babulal (2008) 1 SCC 234 and State of Himachal Pradesh vs. Prem

Singh (2009) 1 SCC 420, on the matter of delay, has held that delay in a case of

sexual assault cannot be equated with the case involving other offences. There are

several factors which weigh in the mind of the prosecutrix and her family members
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before coming to the police station to lodge a complaint, and in a tradition-bound

society prevalent in India, more particularly rural areas, it would be quite unsafe to

throw out the prosecution case merely on the ground that there was some delay in

lodging the FIR.

(26) In view of the legal proposition and the factual matrix of this case as

discussed above, delay cannot be a ground to discard the evidence of two minor

victims. Moreover, the evidence of the victims is fully supported by the medical

evidence as discussed above and certain injuries are found in the private parts of

the victims and also there is sign of forceful sexual assault. Even they have not

attained puberty. There are abrasion and bruise in the vaginal area under healing

and hymen is torn. Such a serious finding of the medical officer has clearly

suggested sexual assault upon the victims.

(27) The accused has failed to rebut the presumption under Sections 29 and 30 of

the POCSO Act. The provisions of Section 29 and 30 read as follows:

“29. Presumption as to certain offences.-

Where a person is prosecuted for committing or abetting or attenuating to commit any offence under
sections 3,5,7 and section 9 of this Act, 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.

30. Presumption of culpable mental state.-

1. In any prosecution for any offence under this Act which requires a culpable mental state on the
part of the accused, the Special Court shall presume the existence of such mental state but it shall be a
defence for the accused to prove the fact that he had no such mental state with respect to the act
charged as an offence in that prosecution.

2. For the purposes of this section, a fact is said to be proved only when the Special Court believes it
to exist beyond reasonable doubt and not merely when its existence is established by a preponderance
of probability.”

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(28) In this case the appellant except giving certain suggestions has failed to shake

the credibility of the witnesses. He also made certain extrajudicial confession before

the witnesses, which cannot be discarded. There appears no illegality or perversity

in the impugned judgment and order and the learned trial court has properly

appreciated the entire material on record in arriving at the guilt of the appellant.

Nothing appears to be interfered with.

(29) Child rape cases are the cases of perverse lust for sex where even innocent

child is not spared in pursuit of sexual pleasure. There cannot be any obscene than

this. It is a crime against humanity. Many such cases are not even brought into light

because of social stigma attached thereto, held in State of Rajasthan vs. Om Prakash

(2002) 5 SCC 201.

(30) The appeal is devoid of merit and the same is dismissed. Send down the LCR

with copy of this judgment.

JUDGE

na/

Comparing Assistant

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