Gauhati High Court
Benguwa Panika @ Topiwala vs The State Of Assam on 28 June, 2017
Author: Prasanta Kumar Deka
Bench: Prasanta Kumar Deka
Page No.1
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Crl.Appeal(J) 126 of 2014
BENGUWA PANIKA @ TOPIWALA
- Appellant
Versus-
THE STATE OF ASSAM
- Respondent
BEFORE
HON'BLE MR. JUSTICE PRASANTA KUMAR DEKA
Advocate for the appellant Ms. P. Baruah Bordoloi
Advocate for the respondent Mr. B B Gogoi,
learned Additional Public Prosecutor, Assam
Date of hearing & Judgment 28th June, 2017
JUDGMENT AND ORDER
(ORAL)
Heard Ms. P. Baruah Bordoloi, the learned counsel Amicus Curiae appearing on behalf of the appellant. Also heard Mr. B B Gogoi, learned Additional Public Prosecutor, Assam.
2. The present appellant was convicted under Section 6 of the Protection of Children from Sexual Offence Act, 2012 and sentenced him to undergo rigorous imprisonment of 10(ten) years with a fine of Rs.5,000/-(Rupees five thousand) only and in default of payment of fine, he shall undergo with rigorous imprisonment of one year in Sessions Case No. 223/2013 under Section 6 of the POCSO Act by the learned Court of Sessions Judge at Golaghat. Being aggrieved by the said judgment and order dated 11.09.2014 the accused/appellant has preferred this appeal from jail.
Crl.App(J) 126 of 2014 Page No.2
3. The case of the prosecution is that the Officer in-charge of Sarupathar PS on receipt of a ejahar from the informant, Arjen Bhumij of Latajuri village under Barpather PS on 10.09.2013 wherein he stated that on 01.09.201 child "P.B." (name not disclosed) aged 7 years while staying alone in the house, the accused appellant Benguwa Panika @ Topiwala of the same village lifted the said child from the house to the nearby jungle and committed rape on her. On hearing the cry of the said child, the neighbors rushed there and the accused person fled away from there. There was a delay in lodging the FIR on the ground that the informant intended to hold a 'bichar' after apprehending the accused person and due to illness of his wife. On receipt of the ejahar, the O/C Sarupathar police station made the GD entry No. 173 dated 10.09.2013 and forwarded the same to the O/C Borpathar PS as the place of occurrence falls under the jurisdiction of Borpathar PS. After registering Borpathar PS Case No.176/2013 under Section 376(2)(f) of IPC, investigated the case and on completion, submitted the charge-sheet under Section 376(2)(f) of IPC read with Section 4 of the Protection of Children from Sexual Offence Act, 2012 (hereinafter referred to as POCSO Act, 2012) against the accused/appellant. During the trial, charge was framed under Section 6 of the POCSO Act, 2012 and the contents of the charge was read over and explained to him to which the appellant pleaded not guilty and claimed to be tried.
4. The learned trial court examined the deposition of the victim, PW-3. She deposed that the occurrence took place on a day time which was Sunday. The accused/appellant took her to the jungle and undressed her and thereafter the accused/appellant undressed himself and mounted on the victim. She raised hue and cry and then the accused/appellant fled away from there. It is also deposed that the accused/appellant offered the PW-3, Rs.10 and she kept the said money in the heap of straw. She sustained pain on her urinal organ. It is also deposed by PW-3 that the accused/appellant threatened her to kill if such act was informed to her parents and for the said reason Rs.10 was given to her by the Crl.App(J) 126 of 2014 Page No.3 accused/appellant. The said victim informed to her mother about sustaining injury and her mother got medically treated her.
5. PW-4, Smt. Numali Bhumij, deposed that when she along with Urmila Guwala went to the said jungle to collect food for her livestock she heard crying of a minor girl in the jungle and she proceed ahead wherefrom the sound of crying was coming out. Further, it was deposed that the accused/appellant fled away after seeing her. On her inquiry, the victim, PW-3 narrated the incident and the PW-4 informed the said incident to the mother of the victim and after some days accused was apprehended and handed him over to the police. In her cross-examination, PW-4 deposed that she saw the accused/appellant coming carrying the child(PW-3) from the jungle but she did not question him. The accused/appellant fled away leaving behind the said child. It is also deposed by the PW-4 that the accused/appellant was apprehended by the public when he was working in a bamboo grove belonging to the other persons.
6. The learned trial court further took note of the PW-6, Dr. Manjula Hazarika, who examined the PW-3 medically on 11.09.2013. It is pertinent to mention here that the incident took place on 01.09.2013. The medical report and findings of the PW-6 are as follows:
"PW 6, Dr. Manjula Hazarika on 11.09.2013, medically examined 'PB' (PW-3) at Kushal Konwar Civil Hospital, Golaghat in reference to Borpathar PS Case No.176/2013 on being escorted and indentified by Home Guard Dibyajyoti Gogoi and found the following:
Identification mark:- One small black mole on the left cheek. Built:- average.
Height:-113 cm.
Weight:-17kg.
Teeth:-12/10.
Brests:- not yet developed, no injury seen. Axillary andpublic hairs:- not yet developed. External Genitalia:-Fully developed and no injury was seen. Introitus:-hardly accommodated one little finger. Hymen:-intact.
X-Ray of left wrist and elbow joint vide Sk. No.4128 was done. Vaginal smear for presence of spermatozoa vide Laboratory No.160 was done, but spermatozoa not seen.
Crl.App(J) 126 of 2014 Page No.4 After examination, the Doctor (PW-6) has opined that the girl is below 16 years. The sign of receipt sexual intercourse was not seen and injury on the private parts or body of the child (PW-3) was not seen. Ext.2 is the medical examination report, upon which Ext-2(1) is her signature. The Doctor (PW-6) has not been cross-examined by the defence"
7. After going through the said medical report, the learned court below came to the conclusion that the PW-6 may not have found anything on the child as she was examined after expiry of 10 days from the date of occurrence. It is also noted by the learned trial court that the hymen of the victim found intact. The evidence of PW-1, the informant is almost similar to that of PW-4. The said PW-1 is not the eye witness and it is only from his wife he could come to know about the occurrence. The learned trial court accepted the delay so caused in lodging the said FIR. PW-2, mother of the victim supported the deposition of PW-4 that she informed about the incident to the PW-2 i.e. the mother of the victim. The said PW- 2 informed the matter to the mistress of the school. The said mistress instructed her to lodge the case before the police station but owing to her illness she could not lodge the same in time.
8. Learned court below after considering the materials on record came to the conclusion that the victim was enticed by the accused/appellant on the pretext of giving gram(chanachur) and after undressing the victim, the accused/appellant mounted upon her body and finally came to the conclusion that an offence was committed within the said POCSO Act, 2012. Finally, the learned trial court convicted the accused/appellant under Section 6 of the POCSO Act, 2012 and sentenced him to undergo rigorous imprisonment of 10 years and with fine of Rs.5000/- and in default he shall undergo rigorous imprisonment of one year. Being aggrieved the present appeal has been preferred by the appellant from jail.
9. Ms. Bordoloi submits that it is apparent that the Hymen of the victim remained intact and there does not arise any question of sexual assault of the victim by the accused/appellant. Finally, closing the argument, Ms. Bordoloi submits that the Crl.App(J) 126 of 2014 Page No.5 accused/appellant is the only bread earner of the family and since 27.12.2013, the appellant has been languishing in the jail. And if at all the accused/appellant is to be convicted he has undergone requisite prescribed period as stipulated under Section 8 of the POCSO Act, 2012. So the appeal is to be allowed considering the materials on record.
10. Mr. Gogoi, the learned Additional Public Prosecutor submits that the learned court below wrongly sentenced the accused/appellant by invoking Section 6 of the POCSO Act, 2012 inasmuch as the punishment so prescribed under Section 6 is related with aggravated sexual assault and defined under Section 5 inasmuch as the wrong doer under the said provision of Section 5 must be a person categorised therein. Mr. Gogoi submits that the Act of the appellant, if considered from the materials on record falls within Section 3 sub Section
(c) and (d) of the POCSO Act, 2012 and the prescribed punishment for such offence will fall under Section 4 of the POCSO Act which shall not be less than 7 years but which may be extended to imprisonment for life and shall also be liable to fine. So, Mr. Gogoi submits that the appellant may be convicted to the period of 7 years considering the age which as per the submission of the learned counsel appearing on behalf of the appellant is around 56 years.
11. Considered the submissions of both the learned counsels. With regard to the submission of the learned counsel for the appellant, that the hymen of the victim remain intact cannot be considered under the offence stipulated in the POCSO Act and to that effect the learned court below has rightly given the explanation as observed in the judgment reproduced herein below.
"22. Accordingly to the Section 3(a) of the POCSO Act, Penetration of the penis to any extent into the vagina, is sufficient to constitute the penetrative sexual assault. The hymen may be intact in such cases. Therefore, with due respect, I find that the above citation of the case law by the defence is not applicable in this case.
23. PW-1, Sri Arjan Bhumij is the informant in this case. According to his evidence, about 6/7 months ago, one day, at around 3PM., the occurrence took place nearby the jungle. The accused person took 'PB' (PW-3) into the said jungle and committed rape on her. The accused tempted the victim on the pretext of giving gram and took her to the jungle and touched her vagina by his penis after removing her pant. The child (PW-3) raised hue and cry and thereafter, the accused person fled away from there. He (PW-1) did not see the incident. He came to know about Crl.App(J) 126 of 2014 Page No.6 the incident from his wife. He lodged the ejahar vide Ext-1, upon which Ext-1(1) is his signature. There was delay in lodging the ejahar. It is specifically mentioned in the ejahar the ground of delay in lodging the ejahar. Said ejahar has been exhibited as Ext-1. The defence did not challenge the said grounds of delay in lodging the ejahar. Therefore, I find that the informant has given reasonable explanation in the ejahar for delay in lodging the ejhar for delay in lodging the ejahar which is not challenged by the defence. The learned counsel on behalf of the accused person to this effect, has cited the case law rendered by the Hon'ble Gauhati High Court in the case of Lukba Rime and etc.-vs- State of Arunachal Pradesh, reported in 2009 Legal Eagle(Gau) 15 regarding delay in lodging the ejahar has no relevant in this case. The informant explained delay in lodging the ejahar in the instant case.
24. PW-2, Mrs. Khaistinia Bhumij is the wife of the informant. According to her evidence, she was informed about the incident by PW-4, Numali Bhumij. After having got the information about the incident from PW-4, she (PW-2) informed the matter to the Mistress of the school and other women. They instructed her to lodge the case before the police station. At that time, she was falling illness. Therefore, she could not lodge the ejahar before the police station in time. The police arrested the accused person led by one Minakshi Hazarika. PW-2 has been thoroughly cross examined by the defence, but nothing has been elicited from her which demolished her evidence.
25. PW-5, Sri Samra Bhumij is the husband of PW-4. He came to know about the incident from his wife (PW-4). But he did not state to the police that he was informed about the incident by his wife.
26. PW-7 Sri Dip Topna has deposed in evidence that he came to know about the incident when he went to the police station.
27. PW-8, SI of police Sri Sanjib Kr. Das has deposed in evidence that on 11.09.2013, while he was working as O/C of Borpathar police station, on that day, Arjan Bhumij (PW-1) lodged a written ejahar against the accused person and accordingly, he registered the case vide Borpathar PS Case No. 176/2013 u/s 376(2)(f) if IPC. PW-8 has further stated that the informant lodged the ejahar with the O/C of Sarupathar police station and the O/C of Sarupathar Police Station after making the GDE No.173/2013, dated 10.09.2013, forwarded the said ejahar to the O/C Borpathar police station. Ex-1 is the ejahar, upon which Ext-1(3) is his signature on the printed FIR from . Ext-1(4) is the signature of the informant. During investigation, he inspected the place of occurrence, drew up the sketch map of the peace of occurrence vide Ext-4, upon which Ext-4(1) is his signature. He sent the child (PW-3) to the hospital for medical examination. He also produced the child (PW-3) before the court for recording her statement u/s 164 Cr. P.C.. During investigation, he brought the accused person from Sarupathar police station. Ext-6 is the statement of Smti. Bharati Bhumij recorded u/s 164 Cr. P.C. But said Bharati Bhumij has not been examined by the prosecution as prosecution witness. After completion of investigation, he submitted the charge sheet against the accused person vide Ext-8, upon which Ext-8(1) is his signature.
In cross examination, PW-8 has stated that on 11.09.2013, he examined all the witnesses at the place of incident. But he did not seize the wearing cloth of the child. The place of incident is situated at a distance of about 50 meters from the house of the informant. During investigation, he was informed the cause of delay in lodging the ejahar is due to falling illness of the mother of the child. He (PW-8) brought the accused person from Sarupathar police station, nothing has been elicited from PW-8 during cross examination which demolished his evidence made in examination in chief.
Crl.App(J) 126 of 2014 Page No.7
28. From the aforesaid evidence on record, I find that the age of the child ('PB'-PW-
3) was 7 years old at the time of occurrence which is not disputed. At the time of occurrence, the child was alone in the house. The accused person on the pretext of giving gram, took the child to the nearby jungle and took off her panty and mounted upon her body, touched her vagina with his penis; in words, he penetrated his penis in any extent into her vagina. This fact has not been challenged except putting suggestion to her. The penetration however little, therefore, the hymen of the child remaining intact. The depth of penetration is immaterial in an offence as defined u/s 3 of the Protection of Children from Sexual Offences Act, 2012. The child is about 7 years old. Further, to constitute the offence of penetrating sexual assault on the child, it is not required that hymen should be ruptured. It depends upon the case."
12. The submission of Mr. Gogoi that the offence from the materials on record falls under Section 3 Sub Section (c) is accepted by this Court and the reasoning of the said acceptance is very much reflected, if the evidence of PW-3, i.e. the victim is considered. Keeping in view the offence to be covered under Section 3 of the POCSO Act, 2012, this Court accordingly comes to the conclusion that the accused/appellant is to be punished under Section 4 of the POCSO Act, 2012. Considering the age of the appellant and the acceptance of the submission of the learned counsel, Ms. Bordoloi that the appellant since 27.12.2013 is languishing in the jail, this Court, accordingly, reduce the sentence passed by the learned court below to a period of 7 years for the offence committed under Section 3 of the POCSO Act with fine of Rs.5000/- only and in default payment of fine, he shall undergo rigorous imprisonment of six months.
13. This Court while coming to the conclusion takes note of the service rendered by the learned Amicus Curiae and an amount of Rs.7500/- be paid to her towards her professional fees from the Legal Service Authority.
14. Accordingly, this appeal is allowed to the extent as observed. Send back the LCR.
JUDGE Rakhi Crl.App(J) 126 of 2014