Gauhati High Court
Milton Gogoi @ Ram Charan vs The State Of Assam on 20 May, 2019
Equivalent citations: AIRONLINE 2019 GAU 152, 2019 CRI LJ 3113 (2019) 8 GLR (NOC) 25, (2019) 8 GLR (NOC) 25
Author: Rumi Kumari Phukan
Bench: Rumi Kumari Phukan
Page No.# 1/5
GAHC010107912011
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Rev.P. 339/2011
1:MILTON GOGOI @ RAM CHARAN
S/O LT. BISWA GOGOI R/O VILL- VIZ KAPAHERA UNDER MORIGAON
POLICE STATION IN THE DIST. OF MORIGAON, WITHIN THE STATE OF
ASSAM.
VERSUS
1:THE STATE OF ASSAM
Advocate for the revision accused/petitioner: Mr. K. Sarma,
Mr. A. Hussain,
Mr. D. Das and
Mr. P.K. Saha.
Advocate for the State/respondent: Mr. D. Das, Addl. P.P., Assam.
BEFORE
HON'BLE MRS. JUSTICE RUMI KUMARI PHUKAN
Date of hearing & judgment: 20.05.2019.
JUDGEMENT AND ORDER (ORAL)
Heard Mr. K. Sarma, learned counsel appearing for and on behalf of the accused /petitioner as well as Mr. D. Das, learned Addl. P.P., Assam, representing the State respondent.
Page No.# 2/5
2. The prosecution case in brief is that on 25.04.2009, one Smti Jyoti Lahan lodged a written FIR with the Mikirbheta P.S. alleging inter alia that on 24.04.2009, at about 6:00 P.M., the accused person called her daughter aged 7 years to his house and committed rape on her. Accordingly the Mikirbheta P.S. Case No.60/2009 was registered u/s. 376(2)(f) IPC and took up investigation. On completion of the investigation, the I.O. submitted charge sheet against the accused u/s.376(f) of the IPC.
3. During trial, the accused appeared before the Court and the learned trial Court, after hearing both sides and perusal of the case diary, charge u/s.376(2)(f) IPC was framed and read over and explained to the accused, to which he pleaded not guilty and claimed to be tried.
4. During the course of trial, the prosecution examined altogether twelve (12) witnesses including the Medical Officer and the I.O. The plea of the defence was of total denial and the defence examined none in support of his case. The statement of the accused u/s.313 CrPC was recorded and after hearing the arguments, the learned Asstt. Sessions Judge, Morigaon by its order dated 08.06.2010, the accused was sentenced to undergo R.I. for six months and to pay fine of Rs.1,000/-, in default to suffer R.I. for another one month, u/s.354 IPC.
5. On appeal being preferred, the conviction and sentence was affirmed by the appellate Court. Hence the present revision petition is filed challenging the legality and validity of the impugned order.
6. The contention raised in the present petition is that the prosecution case is not beyond the shadow of doubt, as the victim who is a minor did not reported the matter immediately after the alleged occurrence and filing of the FIR on the next day is also doubtful. That apart, it has been contended that there is no eyewitness or any supporting evidence to the occurrence and the victim being minor is tutored one so her evidence cannot be relied.
7. I have considered the above contention raised by the Mr. K. Sarma, learned counsel for the petitioner and the learned Addl. P.P., Assam, Mr. D. Das. Gone through the impugned judgment and order and the evidence on record.
Page No.# 3/5
8. So far as the present case is concerned, we are aware that the victim is a minor one aged about 7 years at the time of occurrence, so her evidence is to be read carefully along with the statement of her parents.
9. As the mother of the victim girl lodged the FIR after knowing the incident, so it will be useful to discuss her evidence who first observed the conduct and reaction of the victim girl. According to the informant/PW.1, on the day of occurrence, in the evening hours the accused/petitioner called her two minor daughters i.e. PW.2 seven years and PW.3 six years to his house to offer banana. After 15/20 minutes the girls returned home crying that the accused person is a bad man and he should not be called to their house. In the evening they slept by uttering that the accused person is bad man and in the morning on being asked, the PW.2 reported that the accused has committed bad act upon her by removing panty and pushed his private part to her private part. Knowing about the affair from her daughter, the FIR was lodged immediately and the Gaonburha was also informed.
10. The victim girl PW.2 (name withheld) was aged seven years at the time of occurrence and her younger sister Kakali Lahan, PW.3, both of them have given similar statement that on the pretext of giving banana, the accused took both of them to his house and thereafter the accused committed the bad act as stated by PW.1. They asked her mother not to allow the accused person to come to their house and also reported the matter to their mother. Their evidence remains un-rebutted throughout cross-examination and nothing emerges as to why a false case will be projected by the informant by taking the shield of her minor daughter. Their statement was recorded u/s.164 CrPC also tallied with the statement given during the course of trial.
11. PW.4 grandmother and PW.5 father of the victim had given similar statement as that of PW.1 that matter was reported to them by the victim. Other witnesses i.e. PW.6 to PW.10 all of them have given similar evidence that they were apprised about the commission of rape by the accused person, upon PW.2. Obviously they are reported witnesses and their evidence can be accepted as res geste Page No.# 4/5 u/s.6 of the Evidence Act.
12. It is to be noted that both the children of the informant including the victim had given consistent evidence during the course of trial as that of statement given u/s.164 CrPC. Except giving suggestions, defence failed to exploit their evidence to shake the authenticity of their testimony. Nothing emerges for false implication of the accused person with such serious offence. The accused in the present case is a matured man, aged about 45 years at the time of occurrence having fatherly relation with the child/victim and nothing can be attributed to this minor victim girl to raise a concocted story against the accused person.
13. The Medical Officer/PW.11 who examined the victim girl has gave the report that there is history of attempt to sexual intercourse by the accused but there was no sign of sexual intercourse upon the victim who is aged about 7/8 years. The evidence of the I.O. is formal in nature.
14. The learned trial Court although relied upon the verbal testimony of the victim and other witnesses but basically referring to the Medical evidence who found no sign of sexual intercourse come to a finding that offence u/s.354 IPC is made out against the accused person instead of offence u/s.376 IPC. The learned Appellate Court also did not interfere into the findings of the learned trial Court and upheld the same.
15. Now the revisional Court has to appreciate as to whether the evidence on record has been taken into consideration by the trial Court in proper perspective of fact and law and whether the findings of the trial Court as well as the appellate Court are illegal and perverse. The revisional Court cannot however re-appreciate the entire evidence like that of appellate Court so as to arrive at a decision of its own, from a different point of view. Although in this case, there was scope on the part of the Courts below to appreciate the matter whether the offence u/s.376 IPC is made out or not but at this stage, being the revisional Court, we refrain from giving another decision on the subject.
16. From the totality of the evidence on record, it can be found that the accused/petitioner is Page No.# 5/5 rightly held guilty u/s.354 IPC and nothing appears to interfere into such findings of guilt of the accused petitioner.
17. The learned counsel for the petitioner has however submitted that the accused petitioner is now an elderly person aged about 60 years and he has also undergone detention during the course of trial, so the same may be considered and the offence being prior to the amendment, certain amount of fine can be imposed. It appears that no compensation was awarded to the victim.
18. Accordingly while maintaining the conviction, the accused is sentenced to the period already undergone and as the learned Court below has not given any fine or compensation to the victim, the accused petitioner is hereby directed to pay an enhanced amount of fine to the tune of of Rs.40,000/- (Rupees forty thousand only), in default R.I. for six months. The petitioner will deposit the fine amount before the learned trial Court, within a period of three months from today. The amount of fine, if realized, be given to the victim, as compensation. However the victim being the minor, the amount may be withdrawn by the informant on her behalf, after due identification.
19. The petition is disposed of accordingly.
20. Return the LCR immediately along with the copy of the judgment.
JUDGE Comparing Assistant