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Lakhinder Gogoi vs The State Of Assam on 10 October, 2018

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 : 10.10.2017.
Date of judgment : 10.10.2017.

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 12.08.2016 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
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 27.11.2015, stating that the appellant-accused had
lured his daughter ‘X’ (name is withheld) at about 1:30 PM on
25.11.2015 (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 appellant-
accused. 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 25.11.2015 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
27.11.2015, 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
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
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
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 cross-
examination, 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 26.11.2015 at about 10:00 PM, the accused was
handed over to the police outpost by the villagers and he arrested the
accused on 27.11.2015 at about 5:00 PM and forwarded the accused
to the court on 28.11.2015 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 cross-
examination 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

11) The learned trial court thereafter, recorded the
statement of the accused under Section 313 Cr.P.C. on 13.03.2016.
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
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
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 appellant-
accused 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

“On 25.11.2015 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
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
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 Will-
power 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 appellant-
accused 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
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 05.08.2016, 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 12.08.2016,
passed by the learned Special Judge, Tinsukia in POSCO Case

CRL. Appeal (J) No. 85/2016 Page 13 of 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

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