Gauhati High Court
Page No.# 1/16 vs The State Of Assam And Anr on 13 February, 2025
Author: S.K. Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/16
GAHC010058362023
2025:GAU-AS:1447
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./92/2023
UMAKANTA SINGH
S/O SRI RAM SINGH,
RESIDENT OF KATHALGURI TE, PS MARIANI, JORHAT, ASSAM
VERSUS
THE STATE OF ASSAM AND ANR.
REPRESENTED BY PP ASSAM
2:SIMA PATNAYAK
W/O BIRKHO PATNAYAK.
RESIDENT OF KATHALGURI TE
PS MARIANI
JORHAT
ASSA
Advocate for the Petitioner : MR. A U CHOUDHURY, MS A DEKA,MR. R P SARMAH,MS. D R
CHOUDHURY,MR S ISLAM
Advocate for the Respondent : PP, ASSAM, MR. A ISLAM,MR. A Z AHMED,MR. L R
MAZUMDER
Linked Case : I.A.(Crl.)/911/2023
UMAKANTA SINGH
S/O SRI RAM SINGH
RESIDENT OF KATHALGURI TE
PS MARIANI
JORHAT
Page No.# 2/16
ASSAM
VERSUS
THE STATE OF ASSAM AND ANR.
REP. BY THE PP
ASSAM
2:SIMA PATNAYAK
W/O BIRKHO PATNAYAK. RESIDENT OF KATHALGURI TE
PS MARIANI
JORHAT
ASSAM
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Advocate for : MR. R P SARMAH Advocate for : PP ASSAM appearing for THE STATE OF ASSAM AND ANR.
Linked Case : CRL.A(J)/65/2024 BASANTA PATNAYAK S/O-LT. JIBON PATNAYAK R/O-KOTHALGURI T.E. MARIANI P.S.-MARIANI DISTRICT-JORHAT ASSAM VERSUS THE STATE OF ASSAM AND ANR.
REPRESENTED BY THE PUBLIC PROSECUTOR ASSAM 2:SMTI. SIMA PATNAYAK W/O-BIRKHO PATNAYAK R/O-KOTHALGURI TEA STATE MARIANI P.S.-MARIANI DISTRICT-JORHAT ASSAM
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Advocate for : MS S SARMA HAZARIKA Page No.# 3/16 Advocate for : PP ASSAM appearing for THE STATE OF ASSAM AND ANR.
Before
Hon'ble mr. justice Sanjay Kumar Medhi
Hon'ble Mr. Justice Kakheto Sema
For the Appellant : Shri R. P. Sharma, Sr. Advocate
Shri D. Doley, Advocate in Crl.A.92/2023
Ms. D. Borpujari, Legal Aid Counsel in
Crl.A.(J) 65/2024
For the Respondents : Ms. S. Jahan, Addl.P.P., Assam
Shri L.R. Mazumdar, Respondent No. 2.
Date of Hearing : 28.01.2025.
Date of Judgment : 13.02.2025.
JUDGMENT & ORDER
(S.K. Medhi, J.)
Both the appeals having arisen from the same judgment and order are considered and heard together and are disposed of by this common judgment and order. While Crl.A./92/2023 is a regular appeal, the other appeal being Crl.A.(J)/65/2024 is preferred from jail. By the impugned judgment and order dated 23.02.2023, the learned Special Judge, Jorhat, passed in Special Case No. 29/2019 under Sections 376/354A/34 IPC read with Section 4 of the POCSO Act, 2012, convicted the appellants under Section 4 (2) of Page No.# 4/16 the POCSO Act, 2012 and sentenced them to undergo rigorous imprisonment for a period of 20 years and fine of Rs. 10,000/- (Rupees Ten Thousand) in default of fine to simple imprisonment of 1 year.
2. The criminal law was set into motion by lodging of an Ejahar by PW-1, who is the mother of the victim. It has been stated in the Ejahar, lodged on 11.06.2019, that on 06.06.2019 her minor daughter was raped by the two accused persons. It was alleged that she was shown pornographic videos on the phone. Based on the said Ejahar, the FIR was registered and investigation was done, leading to laying of a charge-sheet. The statement of the victim was also recorded under Section 164 of the CrPC. The charges were, accordingly framed and on pleading not guilty by the two accused persons, the trial had begun, in which evidence of seven numbers of prosecution witnesses were adduced.
3. The informant, who is the mother of the victim, had adduced evidence as PW-
1.She had deposed that on happening of the incident, the victim was first taken to the Kathalguri Tea Estate Hospital, from where she was referred to the Jorhat Medical College Hospital. However, the Jorhat Medical College Hospital had asked for lodging of an Ejahar first, which was accordingly done. She had also stated that statement of her daughter under Section 164 of the CrPC was recorded. The said PW-1 was subjected to cross-examination.
4. PW-2 is an Anganwadi worker, whose evidence, however would not throw much light.
5. PW-3 is the victim of the incident. The deposition recorded would reveal that the capacity of PW-3 to understand the questions were examined and it appears that the victim had clearly narrated the incident. She had deposed that she was playing with two of her friends, namely, Saraswati and Bhagawati, when the accused Basanta took her to the shop of the other accused Munim (Umakanta) and Munim had inserted a candle in Page No.# 5/16 her vegina. She had also stated that she was put out through the window and she had come back home by walking and had told the incident to her paternal aunt Gultu, who accordingly told the incident to her mother. She even deposed that her parents had scolded the appellant Umakanta and he had absconded, whereafter her mother had lodged the case. She had deposed about being medically examined and that her statement under Section 164 CrPC was recorded before the Magistrate. In the cross- examination, she had, however, stated that at that relevant time she was playing with her two friends when accused Basanta had taken her away and though she had shouted, he had closed her mouth. She reiterates of narrating the incident to her paternal aunt Bultu Pehi.
6. PW-4 is the Doctor who had examined the victim on 11.06.2019. He had however deposed that there was no evidence of recent sexual intercourse and no injuries were found. The age of the victim was however stated to be between 7-9 years. The report was proved as Ext-1.
7. PW-5 and PW-6 are hearsay witnesses whose deposition may not be of much relevance.
8. PW-7 is the Investigating Officer who had investigated the case. He had proved the Sketch Map as Ext.P.-3 and the charge-sheet submitted as Ext.P.-4. In his cross- examination, he had however stated that PW-1, the mother of the victim did not state regarding any swelling or becoming reddish in colour of the private parts of the victim.
9. After completion of the evidence, the implicating materials were placed before the accused persons in their examination under Section 313 of the CrPC, in which they had denied their involvement. It may, however be mentioned that accused Basanta in a question against serial no. 12, had taken the plea of alibi by stating that on the relevant date, he was admitted in the Jorhat Medical College Hospital.
Page No.# 6/16
10. We have heard Shri R. P. Sharma, Senior Counsel assisted by Shri D. Doley, learned counsel appearing in Crl.A./92/2023 and Ms. D. Borpujari, Legal Aid Counsel appearing in Crl.A.(J)/65/2024. We have also heard Ms. S. Jahan, Additional Public Prosecutor, Assam and Shri L.R. Mazumdar, learned counsel for Respondent No. 2.
11. Shri Sharma, the learned Senior Counsel who appears for appellant, Umakanta, has submitted that there is discrepancy in the narration of the Ejahar and the Statement of the informant made as PW-1. He has submitted that the discrepancy is major which would raise a serious doubt on the veracity of the case of the prosecution. He has also submitted that the evidence of the doctor, who was examined as PW-4, is in favour of the appellant. He has also highlighted the aspect that the Investigating Officer of the case, who was examined as PW-7, in his cross-examination had stated that the informant did not say the relevant things to him in her examination under Section 161 of the CrPC.
12. The learned Senior Counsel has also submitted that in connection with the present appeal, IA No. 911/2023 has been filed with a prayer for adducing further evidence at the appellate stage. By drawing the attention of this Court to the said interlocutory application, the learned Senior Counsel has submitted that on 06.06.2019, a medical certificate by the Senior Medical Officer of Assam Company has been issued as per which the appellant was stated to be suffering from urinary tract infection and was sent to the Jorhat Medical College Hospital. He has also annexed a Discharge Certificate issued by the Jorhat Medical College Hospital as per which the appellant was admitted in the hospital on 06.06.2019 and was discharged on 13.06.2019. The diagnosis of the appellant was, however, stated to be 'alcohol withdrawal symptom'. He has also annexed a pathological report dated 08.06.2019 to make out a case of alibi. The learned Senior Counsel submits that when the co-accused had made out a clear case of alibi, and the role of the co-accused being pivotal in the commission of the alleged offence, the same should be considered by this Court and evidence be allowed to be adduced at this stage. The learned Senior Counsel has also drawn the attention of this Court to the Page No.# 7/16 provisions of Section 233 of the CrPC. He has submitted that when the learned Trial Court on consideration of the facts and circumstances came to a finding of guilt, then the accused persons ought to have been given a further chance to make representation or/and adduce evidence in their defence.
13. In support of his submission, the learned Senior Counsel has relied upon the case of Satbir Singh & Another Vs. State of Haryana reported in (2021) 6 SCC 1. He has also relied upon the case of Reena Hazarika Vs. State of Assam reported in (2019) 13 SCC 289 on the aspect of Section 313 of the CrPC. Reliance is also made on the case of Premchand Vs. State of Maharashtra reported in (2023) LiveLaw (SC) 168 as well as the case of Rajeswar Prasad Mishra Vs. the State of West Bengal and Another reported in AIR 1965 Supreme Court 1887. The aforesaid cases are on the aspect of additional evidence at the appellate stage.
14. The learned Senior Counsel has submitted that the inconsistencies in the case of the prosecution is apparent. He submits that the maternal aunt, Bultu Pehi, was not examined. He has also highlighted the aspect that when admittedly two of the friends of the victim were playing with her when she was allegedly taken away by accused Basanta, the evidence of those two friends would have been of much relevance who, however, were not produced as witnesses. He has also submitted that, if the medical evidence so far as accused Basanta is concerned is factually correct, the foundation of the prosecution case itself would be in grave doubt as the said accused Basanta was a pivotal character in the commission of the offence. He has also highlighted the aspect of delay in lodging of the FIR by submitting that the incident was of 06.06.2019 while the FIR was lodged on 11.06.2019. The medical evidence which also does not support the case of the prosecution so far as the nature of the injuries said to be caused has also been highlighted.
15. Supporting the case projected by the learned Senior Counsel, Ms. D. Borpujari, Page No.# 8/16 the learned Legal Aid Counsel appearing for appellant Basanta has submitted that though her client has not come up with any application for adducing additional evidence, the same has been done by the other appellant, Umakanta, which is required to be considered. She has also reiterated and endorsed the submissions made by the learned Senior Counsel for the co-accused by contending that relevant witnesses including Bultu Pehi and the two friends of the alleged victim were not produced and the medical evidence was also not supporting the case of the petitioner. The delay in lodging the Ejahar was also highlighted by the learned Legal Aid Counsel.
16. Per contra, Ms. S. Jahan, the learned Additional Public Prosecutor, Assam has submitted that there is consistency of the statements of the victim both under Section 164 of the CrPC as well as, as PW-3 in the dock. She has submitted that so far as the age of the victim is concerned, there is no dispute regarding her minority. She has submitted that the statement of the victim was also recorded under Section 161 CrPC on 11.06.2019 and, thereafter, under Section 164 of the CrPC on 13.06.2019 and both the statements are consistent. The victim was examined in the Court as PW-3 long thereafter on 26.02.2020 and, therefore, some inconsistencies which have crept in is natural and in any case those inconsistencies are minor in nature. She has submitted that so far as the evidence of the doctor examining the victim is concerned, admittedly the examination was on 11.06.2019. She submits that when the offence was of 06.06.2019 taking into account the nature of the offence, it is natural to come to a finding that there was no evidence of recent sexual intercourse or any injury marks. By terming the victim as a sterling witness, the learned Additional Public Prosecutor has relied upon the case of Rai Sandeep Vs. the State of NCT of Delhi reported in (2012) 8 SCC 21, wherein, the aspect of sterling witness has been stated. For ready reference, the relevant paragraph is extracted herein below:
"15. In our considered opinion, the 'sterling witness' should be of a very high quality and caliber whose version should, therefore, be Page No.# 9/16 unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross- examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co-relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a 'sterling witness' whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said Page No.# 10/16 witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
17. She has submitted that the prosecutrix evidence inspires confidence and therefore, the impugned judgment is not liable to be interfered with. By referring to Modi's Medical jurisprudence which has also been taken into consideration in the impugned judgment, the learned Additional Public Prosecutor has submitted that the allegation vis-à-vis the nature of injuries is consistent.
18. On the aspect of alibi, the learned Additional Public Prosecutor has relied upon the case of Binay Kumar Singh Vs. State of Bihar reported in (1997) 1 SSC 283, wherein the following observations have been made:
"21. The trial court and the High Court concurrently repelled, in toto, the plea of alibi put forth by the above appellants after dealing, in extenso, with the materials produced by them in the Court in support of the plea. Learned counsel who argued for the appellants in this Court submitted first that the strict view adopted by the two courts below that unless the plea of alibi is conclusively established no benefit would enure to the accused, is not a sound proposition in criminal cases. Learned counsel further contended that if an accused succeeded in creating a reasonable doubt regarding the possibility of himself being elsewhere then the plea of alibi needs acceptance."
She has submitted that alibi is not a general exception under the IPC and is only a Page No.# 11/16 rule of evidence.
19. As regards the aspect of Section 233 of the CrPC, the learned Additional Public Prosecutor has relied upon the case of N. Pishak Singh Vs. State of Manipur reported in (2005) 4 GLT 720, wherein it has been laid down that non-adherence to Section 233 of the CrPC may not be fatal. She has submitted that the conviction is under the POCSO Act and under Section 29 of the said Act, there is a presumption and that presumption has been rightly drawn as the foundational facts have been laid down. By criticizing the application made under Section 391 of the CrPC, the learned Additional Public Prosecutor has submitted that the said application is clearly an afterthought. She has also relied upon the case of Hemraj Singh Vs. State of MP reported in (2023) 0 Supreme MP 370 on the aspect that the application under Section 233 of the CrPC is to be made when the examination under Section 313 of the CrPC is done.
20. The learned Additional Public Prosecutor, accordingly, submits that the appeals do not warrant any merit and are liable to be dismissed.
21. Shri Mazumdar, the learned counsel has entered appearance for the respondent No. 2 has supported the learned Additional Public Prosecutor. He has submitted that so far as the application under Section 391 of the CrPC is concerned, the same is clearly an afterthought as in the cross-examination of PW-1 and PW-3, there is not even a suggestion that appellant Basanta was not there. There is also no suggestion that any false implication was there against the appellants. He has submitted that in the instant case, though the mother is a related witness, such evidence is liable to be taken into consideration as she is a natural witness. He reiterates that the evidence of PW-1 and PW-3 are believable and accordingly, the conclusion arrived at by the learned Trial Court is in accordance with law which does not require any interference.
22. In his rejoinder, the learned Senior Counsel for the appellant, Umakanta, has submitted that the aspect of application of Section 233 of the CrPC would come at a Page No.# 12/16 stage after the examination under Section 313 of the CrPC is over. He has submitted that in the examination under Section 313 of the CrPC, the option given that whether the defence would like to adduce any evidence is not in compliance of Section 233 of the CrPC which is at a different stage. He reiterates that the key witnesses Bultu Pehi and two friends of the alleged victim were not examined.
23. On the aspect of the punishment, the learned Senior Counsel has submitted that the alleged offence was admittedly before the amendment of the POCSO Act which came in October 2019 and the incident was of 06.06.2019. He submits that before the amendment, the penalty prescribed was not less than 7 years which may extend to life, which, however, after the amendment has been made minimum of 20 years which may extend to life. The learned Senior Counsel, accordingly, submits that the sentence of 20 years is not in accordance with law, in case, he fails in the present appeal.
24. The rival submissions made by the learned counsel appearing for the parties have been duly considered and the materials placed before this Court including the LCRs have been carefully examined.
25. The allegation involved in these two appeals is under the POCSO Act, wherein a presumption is provided by the statute itself in Section 29. Of course, the said presumption would come into play only after laying down the foundational facts and in the instant case, the said foundational facts appear to have been clearly laid down. Therefore, the presumption would come into play. As a consequence, the defence is under a burden to make out a case that they were not involved with the offence.
26. In the instant case, the incident was of 06.06.2019 at about 1 pm. The evidence on record, namely, the deposition of PW-1 and PW-3 would show that the victim was first taken to the hospital at Kathalguri Tea Estate where she was referred to the JMCH, Jorhat. The said hospital had, however directed for lodging of an Ejahar first which was, accordingly, done on 11.06.2019 on which date, the statement of the victim was also Page No.# 13/16 recorded by the police. Thereafter, her statement under Section 164 of the CrPC was recorded on 13.06.2019. A comparison of the said statements would show that those are consistent. In a case of involving POCSO, the statement of the victim is of paramount importance and if it inspires confidence, there may not be requirement of any other further evidence. Here, in this case, the victim had deposed as PW-3 which was recorded on 26.06.2020 i.e. after more than a year from the date of the occurrence. Considering the tender age of the victim, which was around 7 to 9 years, the inconsistency which has appeared in the said statement which otherwise is trivial in nature would not make any significant impact in the veracity and truthfulness of her statement.
27. It is a settled law in criminal jurisprudence that it is the quality of the evidence and not the quantity which matters. This Court finds force in the submission made on behalf of the State that the victim, who had deposed as PW-3, is a sterling witness. Her version has been found to be consistent from her initial statement made before the Police, statement made before the Magistrate and as a witness in the Court albeit trivial difference, the probable reasons for which have been observed above. Though much stress was laid on the aspect of not examining the two friends of the victim and her aunt Bultu Pehi, as observed above, the quantity of witnesses are not matter and it is the quality which is material and in this case, the evidence of the procesutrix herself is found to be trustworthy and inspires confidence.
28. On the aspect of the lack of medical evidence, as argued on behalf of the appellants, we have noticed that while the date of occurrence was 06.06.2019, the examination was done on 11.06.2019. The observation made by the Doctor as PW-4 that there was no evidence of recent of sexual intercourse and absence of injury marks would not be of much relevance as the allegation is not of rape or sexual intercourse but of inserting a candle in the private part of the victim.
29. The appellants have raised the issue of delay in lodging the FIR without any Page No.# 14/16 explanation. The occurrence was of 06.06.2019 and the Ejahar was lodged by the mother of the victim on 11.06.2019 i.e. after 5 days. The aspect of delay in lodging an FIR would depend on the facts and circumstances of each case. While even a day's delay may be material in one case whereas delay of a substantial period may not be material in another case. Moreover, in the present case, it is on record that the victim was first taken to the Kathalguri Tea Estate Hospital from where she was referred to the JMCH and on the insistence of the JMCH, the FIR was registered on 11.06.2019. The same is followed by the treatment as well as recording of the statement of the victim under Section 164 of the CrPC on 13.06.2019. The delay, in our considered view is properly explained and acceptable.
30. On the aspect of Section 233 of the CrPC, a Division Bench of this Court in the case of N. Pishak Singh (supra) has already held that not adherence to the aforesaid provision may not be fatal. We are also of the opinion that to give a proper meaning to Section 233 of the CrPC, it has to be read into the provisions of Section 313 of the CrPC where the incriminating materials are placed before the accused person to have his explanation. The response given by an accused in an examination under Section 313 of the CrPC is not under oath and cannot be used against him to hold him guilty solely on its basis. It is only an exercise which is done in adherence of the principles of audi alterem partem. The aforesaid Section does not, expressly provide for calling upon the accused to adduce defence evidence, if any, which however is expressly mentioned in Section 233 CrPC. However, in such examination under Section 313 of the CrPC, the accused person, after being confronted with the materials against him are invariably asked if he has anything to say and whether any defence evidence could be adduced. In the instant case also, question nos. 12 & 13 were exactly on this aspect. For ready reference, the said questions along with the response are extracted hereinbelow-
"Question No. 12 do you want to say anything?
Page No.# 15/16 Answer: This is a false accusation against me. I am innocent.
Question no. 13. Do you want to adduce any evidence?
Answer: No."
31. In our considered view that the aforesaid aspect fulfills the requirement of Section 233 of the CrPC as it is only by this manner, the aforesaid provision can be given a practical meaning.
32. On the aspect of I.A.(Crl.)/911/2023 which has been filed under Section 391 of the CrPC, firstly we have noticed that by the said application additional evidence has been sought to be adduced before us which pertains to a plea of alibi. It is however, significant to note that the application is not filed by accused appellant Basanta on whose behest, the plea of alibi has been sought to be taken but by the other accused appellant Umakanta. A defence of alibi is not a defence which comes under Chapter IV of the IPC which is on "General Exception" and is simply to be governed by the rule of evidence. We have noticed that in the examination under Section 313 of the CrPC, neither of the accused persons had even made a passing reference to such a defence not to speak about adducing any defence witness. We have also noticed that even there was no foundation laid down for such a defence as no suggestion of any such nature was given in the cross-examination of PW-1 and PW-3 that accused Basanta was not present at the place of occurrence or that there was any false implication. We find force in the contention of the learned counsel for the respondent no. 2 as well as the learned APP that the aforesaid application has only been filed as an afterthought. We have also noticed that the appeal was admitted on 17.03.2023 and long thereafter, the I.A. was filed on 13.09.2023.
33. We have also taken into consideration the documents annexed with the I.A. which pertains to the treatment of accused Basanta. A bare perusal of the same, which are all Page No.# 16/16 photocopies, do not inspire any confidence. The Medical Certificate issued by the Senior Medical Officer, Assam Company India Limited is not on any Letter Head of the Company and is dated 24.08.2023 which is about an event of 06.06.2019. The aliment has been stated to be Urinary Tract Infection (UTI). The dates in the so-called Discharge Certificate of the JMCH are apparently overwritten and the diagnosis is for Alcohol Withdrawing Syndrome along with UTI. The originals of none of the documents were also produced before us.
34. In conspectus of the aforesaid discussion and the materials on record, we are of the view that the conclusion arrived at by the learned Special Judge, Jorhat, Assam in convicting the appellants in Special Case No. 296/2019 vide judgment dated 23.02.2023 does not warrant any interference and both the appeals are dismissed. Though the offence is of a date prior to the amendment of the POCSO Act, the punishment imposed is in conformity with the provision of the existing Act and does not require any reconsideration.
35. The appeals as well as I.A.(Crl)/911/2023 accordingly stand dismissed.
36. Send back the LCRs.
37. Before parting, we record our appreciation for the assistance rendered by Ms. Dipanjali Borpujari, the learned Legal Aid Counsel, who would be entitled to the prescribed fee.
JUDGE JUDGE Comparing Assistant