Gauhati High Court
Md. Rekman Choudhury vs The State Of Assam on 6 February, 2020
Author: Manish Choudhury
Bench: Manish Choudhury
Page No. 1/16
GAHC010270532018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRL.A(J) 106/2018
1:MD. REKMAN CHOUDHURY
CACHAR.
VERSUS
1:THE STATE OF ASSAM
REP. BY PP, ASSAM.
Advocate for the Petitioner : MS. PURNIMA BARUAH BORDOLOI, AMICUS CURIAE
Advocate for the Respondent : PP, ASSAM
BEFORE HONOURABLE MR. JUSTICE MANISH CHOUDHURY JUDGMENT & ORDER Date : 06-02-2020 This appeal from jail is preferred against the judgment and order dated 11.07.2018 passed by the Court of Special Judge, Cachar at Silchar ("the trial Court", for short) in Special (POCSO) Case No. 23/2016 whereby the accused-appellant has been convicted under Section 366, Indian Penal Code ("the I.P.C.", for short) and sentenced to undergo rigorous imprisonment for 5 (five) years and to pay a fine of Rs. 2,000/- (Rupees two thousand), in default of payment of fine, to undergo simple imprisonment for further 2 (two) months. The accused-appellant has also been convicted under Section 4 of the Protection of Children from Sexual Offences Act, 2012 ("the POCSO Act", for short) and on that count, he has been sentenced to undergo rigorous imprisonment for 7 (seven) years with fine of Rs. 2,000/-
Page No. 2/16(Rupees two thousand), in default of payment of fine, to undergo simple imprisonment for another 2 (two) months. The sentences are ordered to run concurrently.
2. Heard Ms. Purnima Baruah Bordoloi, learned Amicus Curiae for the accused-appellant and Mr. P. S. Lahkar, learned Additional Public Prosecutor for the State of Assam.
3. The prosecution story, in brief, as unfolded from the First Information Report (FIR) (Ext.-1) lodged by one Md. Abdul Habiz Barbhuiya (P.W.-2), on 06.03.2013, before the Officer In-Charge, Joypur Police Station, District - Cachar, Assam is that his daughter, aged about 14 years, was a student of Class-X. She used to go to tuition classes every day morning to the house of a teacher at Nutan Bazar, Joypur. On 04.03.2013, at about 8-00 a.m., his daughter went to Nutan Bazar, Joypur in the vehicle, a Cruiser bearing registration no. AS-11/AC-7024, belonging to the accused for tuition but as soon as she tried to get down from the vehicle at Nutan Bazar, Joypur the accused forcefully dragged her into the vehicle and kidnapped her by speeding away at once driving the vehicle. The accused, on that day, had allowed another person to drive the vehicle. Coming to know about such kidnapping, the informant's side searched for the victim but till the time of lodging of the FIR, she could not be traced.
4. On receipt of the said FIR, the Officer In-Charge, Joypur Police Station registered a case being Joypur Police Station Case No. 11/2013 under Section 366A, I.P.C. and took up the investigation of the case himself as the Investigating Officer (I.O.). Correspondingly, G.R. Case No. 799/2013 was registered. During the course of investigation, the I.O. (P.W.-12) visited the place of occurrence and prepared a sketch map of the place of occurrence (Ext.-
5). The statements of the witnesses were also recorded by him under Section 161, Code of Criminal Procedure, 1973 ("the Cr.P.C.", for short). The victim girl was stated to have been recovered, on 09.03.2013, from a rented house located at Ladrimbai, Meghalaya with the assistance of local police. After such recovery of the victim, she was taken back to Silchar and sent for medical examination. Thereafter, the statement of the victim was recorded under Section 164, Cr.P.C. on 11.03.2013. The Cruiser vehicle bearing registration no. AS-11/AC- 7024 along with documents was seized from the possession of one Sri Niranjan Paul, the owner of the Cruiser vehicle. When attempts to apprehend the accused failed as he was Page No. 3/16 found absconding, the I.O. submitted a charge sheet being Charge Sheet No. 13/2013 dated 30.06.2013 (Ext.-9) finding a prima facie case established against the accused under Sections 366A/376, I.P.C. and in the said charge sheet, the accused-appellant was shown as an absconder.
5. On submission of the charge sheet, the Court of Judicial Magistrate, 1 st Class, Cachar, Silchar issued warrant of arrest against the accused-appellant. The accused was, thereafter, arrested and was produced before the said Court on 03.03.2014 from jail custody. The Court of Judicial Magistrate, 1st Class, Cachar, Silachar by securing the production of the accused from jail custody, had committed the case to the Court of Sessions Judge, Cachar, Silchar by order dated 06.03.2014 after compliance of the formalities prescribed under Section 207, Cr.P.C., as the offences were found triable exclusively by the Court of Sessions. The Public Prosecutor was accordingly notified while sending the case record of G.R. Case No. 799/2013.
6. On receipt of the case record of G.R. Case No. 799/2013, the Court of Sessions registered the same as Sessions Case No. 38/2014 and the case was transferred to the Court of Assistant Sessions Judge for trial. Upon hearing the Public Prosecutor and State Defence Counsel and perusal of the materials on record, the Assistant Sessions Judge framed charges under Section 366, I.P.C. and under Section 376, I.P.C. against the accused on 26.03.2014. The charges were then read over and explained to the accused, who then pleaded not guilty and claimed to be tried. During the course of trial, it is found that a charge under Section 4 of the POCSO Act was required to be framed against the accused. The case was, thereafter, transmitted to the Court of Sessions Judge. On 01.09.2016, the Sessions Judge as in the capacity of Special Judge framed a charge under 4 of the POCSO Act. Thereafter, the said charge was read over and explained to the accused. The accused pleaded not guilty to the said charge and claimed trial. Consequently, Sessions Case No. 38/2014 stood registered as Special (POCSO) Case No. 23/2016 and the trial proceeded with the examination of prosecution witnesses on and from 14.09.2016.
7. During the course of trial, 13 (thirteen) nos. of witnesses were examined by the Page No. 4/16 prosecution. The prosecution side also exhibited 9 (nine) nos. of documents. The prosecution witnesses were (1) P.W.-1 :- Ruksana Begum Barbhuiya; (2) P.W.-2 :- Abdul Habiz Barbhuiya; (3) P.W.-3 :- Rijia Begum Barbhuiya; (4) P.W.-4 :- the Victim girl; (5) P.W.-5 :- Gultara Begum; (6) P.W.-6 :- Aklima Begum; (7) P.W.-7 :- Sona Mia Laskar; (8) P.W.-8 :- Altaf Hussain Barbhuiya; (9) P.W.-9 :- Ali Haidor Mazumder; (10) P.W.-10 :- Dr. (Mrs.) Monalisa Dev.; (11) P.W.-11 :- Joydeep Kumar Saha; (12) P.W.-12 :- I.O. Rahul Dewri; and (13) P.W.-13 :- I.O. Akon Teron. After closure of the evidence from the prosecution side, the accused-appellant was examined under Section 313, Cr.P.C. The defence adduced no evidence. On appreciation of the evidence, the trial Court finding the accused guilty of the charges under Section 366A, I.P.C. and under Section 4, POCSO Act, convicted and sentenced him in the manner mentioned hereinabove. Assailing the said judgment and order dated 11.07.2018, the present appeal has been preferred.
8. Learned Amicus Curiae by referring to the depositions of the prosecution witnesses, has submitted that the impugned judgment and order is not sustainable. She has submitted that there was delay of 2 (two) days in lodging the FIR without any explanation for the cause of delay. She further submits that one vital witness, Marina Bakla was not examined. The age of the victim, she submits, cannot be considered to be below the age of majority in view of the medical evidence on record. There were no eye-witness except the victim and the conviction could not have been based on the sole testimony of the victim when it did not inspire confidence. The statement of the victim under Section 164, Cr.P.C. was recorded after a few days. In the medical examination report, no injury was detected. From the conspectus of facts, it can be inferred that the victim had gone with the accused willingly. For the aforesaid reasons, the impugned judgment and order is liable to be interfered with.
9. Per contra, learned Additional Public Prosecutor has submitted that no interference is called for as the trial Court is absolutely justified, upon proper appreciation of the evidence on record, to reach the finding of guilt of the accused-appellant. The prosecution has been able to establish the charges against the accused-appellant on both the counts. In view of the presumption under the POCSO Act, it was the accused who had to discharge the burden placed on him but the accused, in the instant case, had failed to discharge the said burden.
Page No. 5/1610. I have considered the submissions advanced by the learned counsel for the parties and also considered the materials including the depositions of the witnesses, available in the case record of Special (POCSO) Case No. 23/2016, in original.
11. P.W.-1, an aunt of the victim, deposed to the effect that the alleged occurrence took place on 04.03.2013. At that time, the victim was a student of Class-X in Rajabazar Morning High School. On that day, at about 7-00 a.m., the victim along with her friend, Marie Bakla, had gone to attend private tuition in the house of a teacher named Joydeep (P.W.-11). On that day, at about 12 O'clock (Noon), the victim's friend came to their house and informed that when they were on their way for tuition the accused took away the victim in a vehicle. As the father of the victim (P.W.-2) was at Karimganj at that time, P.W.-1 had informed him about the matter. When P.W.-2 arrived at their house, they made a search for the victim but could not find any trace of her. Thereafter, the matter was informed to police. After about 5 (five) days, the victim managed to talk to the private tutor (P.W.-11) to inform that she was taken forcibly and requested for her recovery. Accordingly, the private tutor, Joydeep (P.W.-11) reported the matter to them and thereafter, the police was informed. The police recovered the victim from Ladrimbai.
12. P.W.-2 i.e. the father of the victim had corroborated P.W.-1 as regards the date of the incident as 04.03.2013. He deposed that on that day he was at Karimganj and P.W.1 informed him over telephone that his victim daughter when on her way for tuition at Rajabazar in the morning with her friend, she was kidnapped by the accused. On receipt of such information, he returned home and made a search for her daughter. When they could not find any trace of his daughter then he lodged the FIR (Ext.-1). He further exhibited the birth certificate of his daughter (Ext.-2) wherein, her date of birth is recorded as 22.10.1998. P.W.-2 stated that it was after about 4 (four) days, the victim managed to talk with the private tutor (P.W.-11) and requested for her recovery from Meghalaya. Accordingly, on receipt of the said information the matter was informed to the police who recovered the victim from Ladrimbai, Meghalaya. P.W.-3 is the step mother of the victim who in her testimony, also stated that the victim along with her friend, went to attend private tuition on the date of the incident in the morning Page No. 6/16 hours and her friend coming back at about 11-00 a.m. to their house, informed that the accused had taken away the victim. The matter was then informed to P.W.-2 who was at Karimganj at that time. When P.W.-2 returned home at about 3-00 p.m. he searched for the victim but he could not find her. Thereafter, P.W.-2 lodged the FIR. She also corroborated P.W.-1 and P.W.-2 as regards the making of telephone call by P.W.-1; information provided by P.W.-11 to them and about passing of that information to police. P.W.-3 further stated that the victim had reported to her that she when on her way to private tuition by the vehicle driven by the accused, she was not allowed to get down from the vehicle by the accused and was taken away by him. The contradictions elicited from P.W.-3 after being confronted with her previous statement and confirmed through the I.O. are to the effect that P.W.-3 did not state earlier that the victim from Meghalaya asked P.W.-11 to recover her from Meghalaya and P.W.- 11 thereafter, informed her family. She denied the suggestions that the family of the victim wanted to give marriage of the victim with the accused and as, accused refused the proposal they conspired to file the case against him with false allegation. She also stated that the victim and her friend went out for tuition at about 7-00 a.m. Nothing was elicited from P.W.-1 during her cross-examination to demolish the above testimony of P.W.-1 except to the extent that she did not witness the taking away of the victim as she was in their house at the time of the incident which does not bear any significance for the defence. P.W.-1 denied the suggestion that accused did not commit any wrong with the victim. She further denied the suggestion that the victim was not a minor. Similarly, nothing contradictory to the above, could be elicited from P.W.-2 during his cross-examination. He denied the suggestions that no such alleged incident took place; that the accused did not take the victim away and her friend by a vehicle; and that the accused did not take the victim away on the way leaving her friend. By confronting with his previous statement made before the I.O. (P.W.-12) which was, later on, confirmed from P.W.-12, it was elicited that P.W.-2 did not state earlier that the victim had asked the private tutor (P.W.-11) over telephone to recover her from Meghalaya, a discussion about which will be made hereinafter when the testimonies of the victim (P.W.-4) and P.W.-11 will be examined. The contradiction elicited from P.W.-3 has already been indicated above.
13. P.W.-11 in his examination-in-chief, had deposed that the victim and her friend, used to attend private tuition in his house situated at Joypur Nutan Bazar in the morning hours. On Page No. 7/16 the date of the incident, the victim and her friend did not attend the tuition class. He further stated that he used to note down his cell phone number in the exercise book of each and every student. In the evening hours of the date of incident, the elder sister of the victim met him and inquired whether the victim attended the class on that day which he replied in the negative. He further deposed that about 5-6 days later, he received one telephone call from a male person from an unknown number with a request to make contact with the guardian of the victim. Accordingly, P.W.-11 stated to have informed the guardian of the victim about the call as in the meantime, he was told by the elder sister of the victim that the victim was kidnapped by someone. In his cross-examination, P.W.-11 stated that he used to take tuition from 7-00 a.m. to 9-00 a.m. and the victim and her friend used to attend his tuition regularly. Though P.W.-11was confronted with his previous statement made before the I.O. (P.W.-12) but the same was not put to the I.O. during his cross-examination. He denied the suggestion that he did not receive any phone call from an unknown number after 5-6 days of the alleged incident. From a conjoint reading of the testimonies of the above witnesses, it has emerged that in the morning hours on the date of the incident the victim and her friend had started for private tuition at the house of P.W.-11. It has further emerged that the friend of the victim returned without attending the private tuition and informed P.W.-1 about the accused taking away the victim in a vehicle when they were on their way to tuition at the house of P.W.-11. After being so informed, the family members of the victim including P.W.-1 and P.W.-2 had made a search for the victim and when they could not find any trace of her, they informed the police.
14. P.W.-5 is a neighbour of the family of the victim. She deposed that she came to know from P.W.-1 that accused kidnapped the victim as it was reported to her that when the victim was on her way to tuition in the morning hours. It was reported to her that the victim was recovered from Meghalaya with the help of police of Meghalaya. In her cross-examination, P.W.-5 admitted that she came to know about the incident after about 2-3 days. She denied that she stated before the I.O. that the victim was taken forcibly and recovered from Meghalaya by police. The said fact is confirmed through the I.O. who stated that P.W.-5 did not state before him that the victim was taken forcibly and recovered from Meghalaya. Thus, the testimony of P.W.-5 is of no assistance as she is found to be a reported witness only. Like Page No. 8/16 P.W.-5, P.W.-6 is also a co-villager, who also came to know about the incident from the family members of the victim. P.W.-7 is also a co-villager who knew both the victim and the accused. P.W.-7 also came to know about the incident only after 3 (three) days of its occurrence.
15. P.W.-8 had deposed to the effect that after the incident, the father of the victim reported to him that the accused had forcibly taken away his daughter in his vehicle when she was on her way to tuition in the morning hours. On receipt of the information, he came to the house of the victim and they started to search. During such search, they came to know that the accused was at Kelehariahat, Meghalaya with the victim. Thereafter, he along with one Ali Haider (P.W.-9), an uncle of the victim, and police went to Ladrimbai, Meghalaya. On reaching Ladrimbai, they found that the victim was kept in a house and the accused had fled away. On their query, the victim told him that on her way to private tuition in the morning the accused kidnapped her. The victim further stated that she was accompanied by her friend who was allowed to get down from the vehicle. After allowing her friend to get down the accused forcibly took her away and she was kept for 3 (three) days during which period the accused had committed rape on her. P.W.-8 had further stated that the age of the victim was 15-16 years. In his cross-examination, he stated that he had talked with the accused over telephone. After 3 (three) days of the incident, they went to Meghalaya and the victim was found in a house but they did not find the accused. They went to Meghalaya at about 11-00 p.m. and they returned and reached Silchar Medical College & Hospital ("the SMCH", for short) at about 6-00 a.m. This witness was confronted with his previous statement that he did not state before the I.O. (P.W.-12) that the victim disclosed that she was taken away by the accused and was raped by him during the period of 3 (three) days. The contradiction has been confirmed by the defence from the I.O. (P.W.-12) during the cross-examination of P.W.-
12. P.W.-9 is an uncle of the victim. In his testimony, he deposed that during search he learnt that the victim was taken to Ladrimbai, Meghalaya and thereafter, she was recovered by police. In his cross-examination, he had stated that he did not see the incident of kidnapping but he was present at the time of recovery of the victim, who was recovered from a house of a relative of the victim where she was kept. He further stated that he did not see the accused at Ladrimbai, Meghalaya as he had fled away.
Page No. 9/1616. P.W.-10 was serving, on 09.03.2013, as the GDMO, Department of Forensic Science at the SMCH. On that day, she examined the victim on police requisition. She stated that the victim narrated before her how she was forcibly taken away by the accused on the day of the incident in his Cruiser vehicle when she was on her way to private tuition. On that day, the victim and her friend got into the Cruiser vehicle of the accused and when they reached near the tuition place the accused did not allow the victim to get down from the vehicle while allowing her friend to get down. There were no other passengers in the Cruiser vehicle other than the accused and one handyman. The accused threatened to kill her if she would shout and took her to Silchar. In Silchar, the accused kept her in a hotel for 3 (three) days and during those 3 (three) days the accused had committed rapes with her. It was after 3 (three) days the accused had taken her to Meghalaya and kept her at his uncle's house. There the victim managed to ask one boy and requested him to call her parents from her mobile and to inform her whereabout. As the victim's parents had some relatives there, they informed the matter to the parents of the victim. Thereafter, she was rescued.
17. P.W.-10 upon examination of the victim had not detected any bodily injuries on the person of the victim. As regards the results of vaginal swab smear examination P.W.-10 has stated that vagina did not show spermatozoa or gonococci on microscopic examination she had opined that the age of the victim was above 16 years but below 18 years. On examination, no evidence of recent sexual penetration was detected. P.W.-10 did not detect any evidence of recent injuries on the person of the victim on the date of her examination. She opined that no evidence of sexual intercourse was detected. In her cross-examination, she stated that she gave the report of age of the victim considering the margin of error. P.W.- 10 exhibited the medical report (Ext.-3). She further stated that in case of application of force during sexual intercourse, there may be some injuries depending upon the physical force using upon the victim.
18. It is the testimony of the victim P.W.-4 which assumes significance. In her testimony, she stated that on 04.03.2013, at about 7-00 a.m., she was proceeding with her friend, Marina Bakla for private tuition to the house of P.W.-11. At that time, she was studying in Class-X in Jaypur Public High School. She deposed that as the house of P.W.-11 is at Jaypur, Page No. 10/16 they used to go there sometime by Cruiser vehicle and sometime by way of public bus. The accused is a driver of a Cruiser vehicle. On the date of the incident, when they were standing on the main road waiting for a vehicle the accused asked them to board the vehicle by offering lift to the house of P.W.-11. They got into the vehicle. When the vehicle reached near Jaypur Rajabazar, her friend Marina Bakla got down from the vehicle but she was not allowed to get down from the vehicle as the accused did not allow her to get down. Thereafter, the accused took her to Silchar by the vehicle and at Silchar, the accused kept her in a hotel for 3 (three) days. When she requested for her release, he threatened her to kill her by pointing a dagger. She further deposed that during that period the accused had committed rapes on her. He contacted his maternal uncle who came to the hotel and thereafter, she was taken to Meghalaya where she was kept for a day. When she made cry, one unknown boy helped her to make contact with P.W.-11. Thereafter, P.W.-11 made contact with P.W.-1. When the accused came to know that her family had been informed, he told her to say before all that she voluntarily went with him. Thereafter, he took her out and handed her over to her relatives, one Jaydul who took her with him to his house situated at Ladrimbai, Meghalaya. She further stated that she disclosed everything to the Magistrate and the Doctor. She exhibited her statement recorded under Section 164, Cr.P.C. as Ext.-4. On a query of the Court, she stated that her date of birth as 22.10.1998. In her cross-examination, she reiterated as to why she was made to board the Cruiser vehicle driven by the accused and how she was not allowed to get down while her friend was allowed to get down from the vehicle. She further stated that prior to getting her in the hotel at Silchar she was kept inside the running vehicle and on the way, the handyman got down from the vehicle. She was taken to Meghalaya by a reserve vehicle where apart from the accused and the driver, the uncle of the accused was also a passenger. The victim was confronted with her previous statement only in respect of her statement that she did not state before the I.O. (P.W.-12) that she sometimes went to her teacher's place by Cruiser vehicle and sometimes by public vehicle and on that day, the accused-appellant stopped the vehicle at Jaypur Rajabazar point. Apart from putting the victim' said previous statement to the I.O., P.W.-12 no other contradiction had been elicited in her statement through the I.O., P.W.-12.The I.O. (P.W.-12) in his testimony, had stated that on receipt of the FIR, he took up investigation of the case. He prepared a sketch map (Ext.-5) of the place of occurrence. After recording the statements of Page No. 11/16 few of the witnesses he made attempts to recover the victim and to apprehend the accused. When it was learnt the victim was taken to Meghalaya, he with his staff went to Ladrimbai and made contact with the police of Ladrimbai Police Out Post. The victim was recovered from a rented house at Ladrimbai and seeing the police, the accused fled away. He exhibited the house search report (Ext.-6) wherein the victim and the owner of the rented house, Jayrul Hoque Sadial had signed. He further stated that he was accompanied by some relatives of the victim. The victim was brought to Silchar, and at Silchar, she was medically examined. She was also produced before the Magistrate for recording her statement under Section 164, Cr.P.C. In his cross-examination, he stated that apart from recording the statement of other persons, he recorded the statement of Marina Bakla. He reported that the victim was recovered from the rented house of Jayrul Hoque Sadial and during her recovery, he was accompanied by Meghalaya police personnel. P.W.-12 was also confronted with the previous statements of the witnesses recorded under Section 161, Cr.P.C., about which discussions have already been made above. P.W.-13 is the police officer who had submitted the charge- sheet (Ext.-9) in the case, after the transfer of P.W.-12 by completing the investigation. He exhibited a seizure list (Ext.-3) by which he seized the concerned Cruiser vehicle along with documents.
19. Learned Amicus Curiae has submitted that non-examination of the friend of the victim, Malina Bakla who had accompanied the victim on the date of the incident when the victim went to the private tuition, had dented the case by the prosecution. She submits that from the testimony of P.W.-12, it has emerged that he had recorded the statement of said Marina Bakla during the course of his investigation. But the prosecution, during the course of trial, did not examine her. In the considered view of this Court, the non-examination of Marina Bakla does not bring any prejudicial effect in the case of the prosecution as the testimonies of the other witnesses are found to be reliable and trustworthy. The defence has not been able to bring into light any material evidence which has the effect of negating the story described by the prosecution as regards the forcible taking away of the victim by the accused; after such kidnapping, getting her confined in a hotel room for 3 (three) days; and thereafter, taking her to a place called Ladrimbai in Meghalaya. The I.O. (P.W.-12) had clearly stated that the victim was recovered from Ladrimbai, Meghalaya with the help of police personnel from Page No. 12/16 Ladrimbai Police Out Post from Meghalaya. He in his evidence, had also proved the house search report (Ext.-6) wherein he had taken the signature of the victim and the owner of the rented house, Jayrul Hoque Sadial and during such recovery, he was accompanied by some relatives of the victim. Nothing was put to the I.O. by the defence in that regard which could have discredited the fact of such recovery of the victim. P.W.-8 had corroborated the testimony of the I.O. by saying that he along with P.W.-9, had gone along with police party to Ladrimbai, Meghalaya. P.W.-9 had also stated that when the victim was recovered from the house of a relative of the victim the accused was found to have fled away and he did not see the accused at Ladrimbai, Meghalaya. The situation in which the victim was recovered from the house of her relative had been explained by the victim herself, which has been corroborated by P.W.-10, before when the victim narrated the incident and who does not have any reason to make a story of her own she being a neutral witness. There is no reason to disbelieve the testimony of P.W.-10. The victim had stated that after getting her inside the hotel for 3 (three) days the accused had taken her to Meghalaya and kept in the house of his uncle for one night. Thereafter, when she managed to report about the incident to P.W.-11 through a boy, the accused took her out and she was thereafter, handed over to be kept in the house of a relative. The victim had further stated that the matter of her taking away forcibly by the accused was reported by a boy to P.W.-11 and the same has found corroboration from the testimony of P.W.-11 where he stated that he received a phone call from a male person and not from the victim. After receipt of the said phone call, he reported the matter to P.W.-1. Thus from a conjoint reading of the testimonies of the above prosecution witnesses, it has clearly emerged that the victim was taken away on the date of the incident by the accused in his Cruiser vehicle when she was on her way to attend private tuition at the house of P.W.-11 with her friend, Marina Bakla. Thereafter, the accused did not allow the victim to get down from the vehicle while allowing her friend to get down at a place near to the house of P.W.-11. The fact of recovery of the victim at a place called Ladrimbai, Meghalaya further lends credence to the prosecution story.
20. The trial Court after an elaborate discussion of the prosecution evidence and the medical evidence, has come to a finding that at the relevant time of the incident the victim was a minor. In the instant case, the trial Court has convicted the accused under Section 4 of Page No. 13/16 the POCSO Act, for committing the offence of "penetrative sexual assault", as defined under Section 3 of the Act. As the name suggests, the key aspect of this offence is that it is penetrative in nature. According to Section 3, a penetrative sexual assault involves some form of penetration with a part like penis, finger, etc. into the vagina, mouth, urethra, or anus of the child. The victim, in the instant case, had stated that after she was forcibly taken away she was confined in a hotel room for 3 (three) days wherein during that period, the accused- appellant committed rapes on her, meaning thereby, the accused committed rapes on her more than one occasion. There is no other elaboration in what manner the sexual assault of rape was committed upon her. P.W.-10, the doctor who examined her was also told about the events by the victim in the same manner. But P.W.-10 upon examination of the victim, could not detect any bodily injuries on the person of the victim. On examination, no evidence of recent sexual penetration was detected. She opined that no evidence of sexual intercourse was detected. P.W.-10 was already told by the victim how rapes were committed upon her during her confinement in a hotel room for 3 (three) days. Thus, P.W.-10 was fully aware and conscious when she examined the victim what she (P.W.-10) had look for in the examination. After carrying out the examination, she (P.W.-10) had categorically stated that no evidence of recent sexual intercourse was detected on the person of the victim, whose age was found to be above 16 years but below 18 years. The victim being a student of Class-X at the relevant time, cannot be considered to be absolutely unaware about sexual assault. Thus, the ocular evidence of the victim is found at the variance with the medical evidence. The accused had taken the defence that no penetrative sexual assault had been committed upon her.
21. The opinion given by a medical witness cannot be considered to be the final opinion on the subject. The ocular testimony of a victim of sexual assault also cannot be thrown out rightly as the victim's evidence is otherwise has primacy over the medical evidence. The Supreme Court after surveying a number of decisions as regards variance between medical evidence vis-à-vis ocular evidence in Abdul Sayed vs. State of Madhya Pradesh , reported in (2010) 10 SCC 259, has observed as under :-
"39. Thus, the position of law in cases where there is a contradiction between medical evidence and ocular evidence can be crystallized to the effect that though the ocular testimony Page No. 14/16 of a witness has greater evidentiary value vis-à-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved."
22. The effect of the presumption under Section 29 of the POCSO cannot be held to be absolute. Presumptions are rules of evidence and do not conflict with the presumption of innocence of the accused, for the burden on the presumption to prove its case beyond all reasonable doubts subsists till the end of the trial. Every accused is presumed to be innocent until he is proved guilty. The statutory presumption under Section 29 comes into operation only if the prosecution proves the foundational facts. If the accused is able to create serious doubt on the veracity of the prosecution case by drawing attention to contrary nature of the prosecution evidence by making it possible to infer that the prosecution version might not be the only possibility the presumption gets weakened. The evidence led by the prosecution to establish the foundational facts in the instant case, more particularly, in view of contrary nature of the ocular evidence of the victim vis-à-vis the medical evidence are found to be inconsistent. Though the statutory presumption get operational with the launching of the prosecution, the accused can discharge the onus shifted to him by the standard of preponderance of probabilities and he is not required to meet the standard of beyond all reasonable doubts.
23. It is in the above conspectus of facts and observations, the issue whether the accused can be held guilty of the offence defined under Section 366, I.P.C. is also to be examined. Section 363, I.P.C. has provided for punishment in case of kidnapping of any person from India or from lawful guardianship. What has been defined in Section 361, I.P.C. is kidnapping from lawful guardianship. The essential ingredients of the offence of kidnapping from lawful guardianship are : (a) taking or enticing away any minor under 16 (sixteen) years of age if a male, or under 18 (eighteen) years of age if a female, or any person of unsound mind, (b) out of the keeping of the lawful guardian of such minor or person of unsound mind, and (c) without the consent of such guardian. Thus, if the girl is less than 18 (eighteen) years of age, the consent of such girl is e-material. "Lawful guardian" has been explained in the Page No. 15/16 Explanation-2 to Section 361, I.P.C. The offence of kidnapping from lawful guardianship is complete when the minor is actually taken out from lawful guardianship. When a minor girl has been actually taken out of the keeping, the act is a completed one. Where the minor kidnapped girl is under 18 (eighteen) years of age, it cannot be the defence for the accused that he was not aware that the minor girl was under the age of 18 (eighteen). The essential ingredients for the offence under Section 366, I.P.C. are : (a) kidnapping or abducting any women; (b) such kidnapping or abducting must be (i) with intent that she may be compelled or knowing it to be likely that she will be compelled to marry any person against her will; or
(ii) in order that she may be forced or seduced to elicit intercourse or knowing it to be likely that she will be forced or seduced to elicit intercourse. Thus, while kidnapping is punishable per se under Section 363, if such kidnapping is accompanied by a particular purpose, as indicated in Section 364, Section 365 and Section 366, the accused is liable to be punished with the punishments contained therein. The intent of the accused is the basis for determination in each case of kidnapping. In the instant case, in the light of the discussions made in the preceding paragraphs, the intent of the accused has not been possible to decipher as to why he had kidnapped the victim, who was a minor. There was no evidence that they had a relationship from an earlier point of time. On the other hand, the accused had kept the victim with him all along during almost the entire period of such kidnapping. From the testimony of the victim, it is not borne out that the accused had contemplated the kidnapping for any of the purposes contemplated in Sections 364 to 366, I.P.C. In the aforesaid fact situation, the accused could not have been convicted under Section 366, I.P.C. However, the offence under Section 363, I.P.C. is held to be proved.
24. In the light of the discussions made above, this Court is of the considered view that while prosecution has been able to bring home the charge under Section 363, I.P.C. against the accused-appellant the evidence led in support of the charge under Section 4, POCSO Act has been found to have fallen short of the standard required to bring such charge home even after keeping in view of the presumption under Section 29, POCSO Act. Accordingly, the conviction and sentence passed by the trial Court under Section 4, POCSO Act against the accused-appellant is set aside. While converting the conviction of the accused-appellant from offence under Section 366, I.P.C. to Section 363, I.P.C. the sentence to undergo rigorous Page No. 16/16 imprisonment for 5 (five) years and to pay a fine of Rs. 2,000/- (Rupees two thousand), in default of payment of fine, to undergo simple imprisonment for further 2 (two) months is maintained. The appeal stands partly allowed to the extent indicated above.
25. We mention our appreciation for the services rendered by Ms. Purnima Baruah Bordoloi, learned Amicus Curie and direct that an amount of Rs. 7,500/- be paid to her as remuneration by the State Legal Services Authority.
Registry to return the LCR.
JUDGE Comparing Assistant