High Court
Case Details
Crl.A. 152/2006 BEFORE HON’BLE MR. JUSTICE HRISHIKESH ROY JUDGMENT AND ORDER (ORAL) This appeal is presented against the judgment dated 19.06.2006 in the Sessions C ase No.3(NL)/2004 rendered by the learned Addl. Sessions Judge (Ad-hoc), North L akhimpur whereby, the accused was found guilty of attempting to commit rape on a minor girl and was convicted U/s.376, r/w Section 511 of Indian Penal Code (he reafter referred to as the IPC). Consequently, he was sentenced to suffer R.I. of 7(seven) years with a fine of Rs.1,000/- and in default of fine, to suffer R .I. for another 6(six) months.
Legal Reasoning
2. and Mr. Z. Kamar, learned Public Prosecutor, Assam. I have heard Mr. B.D. Konwar, learned counsel for the appellant 3. The prosecution story as revealed by the FIR, is that on 07.12.2 003 at about 3 P.M. in the afternoon, the informant’s 7 year old minor daughter (hereinafter referred to as the victim) was sexually assaulted by the bank of Su bansiri river by the accused Lakheswar Saikia. The FIR was received at the Chou ldhowa Out Post on 10.12.2003 and after it was forwarded, the Boginodi P.S. Case No.60/2003 was registered U/s. U/s.354/376(2) (f)/511 of the IPC. After taking up the investigation, the Investigation Officer arr anged for examination of the victim by the doctor on 11.12.2003 and got the vict im’s statements recorded before the Magistrate U/s.164 Cr.P.C. When the investi gation was completed, the police filed charge sheet against the accused U/s.354/ 376(2)(f)/511 of the IPC. As the offence was exclusively triable by the Session s Court, the case was committed on 05.01.2004 and when the records were received , the trial was started. For the prosecution, 7(seven) witnesses were examined and althou gh the defence denied the charge, no evidence was adduced from the defence side. 4. PW-1 is the victim herself, who narrated how the accused physica lly carried her from her residence and made her lay-down in the reed growth by t he river bank. She gave vivid details of how she was disrobed and the accused a ssaulted her in her private part and how she suffered hurt during the assault. In her cross-examination the victim stated that her private parts were hurting a fter the assault. The witness denied that she was tutored to implicate the accus ed and in her re-examination she consistently reiterated her testimony in the Co urt and also the statement given by her U/s.164 Cr.P.C.(Ext-1). 5. PW-2 Smti. Minu Bora, is the mother of the victim and was the in formant in the case. On the day of the occurrence, when she returned home in th e evening from the paddy fields, she found the victim crying and lying on the be d. On the mother’s query, the victim narrated the entire sequence how the accus ed carried her to the place of occurrence and how the victim was subjected to se xual assault after being disrobed by the accused. The mother herself examined t he private part of the victim and saw the same to be inflamed and turning crimso n red in colour. The mother of the accused when informed by the witness about the sexual assault, regretted the incident and requested the accused to hush it up and offered Rs.300/- for giving medical treatment to the victim. Then the v ictim was taken to the Gogamukh Hospital and thereafter the FIR was lodged by t he PW-2. The informant explained the delay for the FIR by stating that they wer e busy with treatment of their minor daughter. 6. PW-3 Kusheswar Bora is the father of the victim. He was out on errand and returned home on the next day after the occurrence. His wife informe d him about the assault on their daughter and narrated that the accused’s mother requested to hush up the matter by assuring money and medical treatment of thei r daughter. The father also noticed the abnormal crimson colour on the private part of the minor victim. The witness took the victim for medical treatment ini tially to Gogamukh Hospital and thereafter on doctor’s advise, she was taken to doctors at Boginadi. 7. d hostile witnesses. PW-4 Shri Nabin Bora and PW-5 Shri Phanidhar Saikia were declare 8. PW-6 was the Sr. Medical & Health Officer on duty on 11.12.2003 at the North Lakhimpur Civil Hospital. She examined the victim and opined that she was below 12 years of age. The doctor did not notice any injury on the priv ate part of the victim, nor any spermatozoa was detected in her vaginal swab. 9. Shri Budheswar Bora, was the Investigating Officer and was PW-7. He arranged for medical examination of the victim and recording of her statemen t U/s.164 Cr.P.C. After the accused was arrested, he was charged by the I/O Und er Section 354/376(23)(f)/511 of the IPC. In his statement given U/s.313 Cr.P.C., the accused stated that 10. a false case is foisted against him because of enmity with the victim’s uncle, P W-4. But no evidence in support of the said plea of the accused was adduced duri ng the trial. 11. In a case of sexual assault, the testimony of the victim is most crucial. In this case, the victim was a very young girl aged below 12 years an d yet she consistently supported the prosecution story in her statement before t he police U/s.161 Cr.P.C., before the Magistrate U/s.164 Cr.P.C. and also in her evidence in Court during the trial. The trial judge observed her demenour and gave a positive indication about her. Although the witness was a very young girl aged about 12 years, the role of the accused is vividly described and she also narrated her pain and the medical treatment she received after assault. The vict im’s mother also corroborated the prosecution story in all material aspects and being the informant, also explained that the FIR was delayed as they were arrang ing for medical treatment of the victim. Although, the medical evidence did not show presence of any spermatozoa or injuries on the private part of the victim, it must be borne in mind that the medical examination was done on the 4th day af ter the assault. This might explain the negative medical report. But when the testimony of the victim (PW-1) is consistent and is supported in all material pa rticulars by the PW-2 & PW-3 and there is no reason to disbelieve the truthfulne ss of their evidence, I feel that guilt of the accused is clearly established th rough these evidence. On the accused plea of a false case being foisted on him, it is not found acceptable as because the reputation of a young girl is much to o precious to be set at jeopardy for such trifle reason and in the absence of an y supporting evidence from the defence side, the plea of the accused is not beli evable. 12. Having considered all the above and after considering the argume nts advanced by the learned counsel, I hold that the accused was rightly convict ed by the trial Court in the Sessions Case No.3(NL)/2004. Accordingly, the conv iction is sustained and the appeal is dismissed. 13. The LCR be returned.