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RANTU DAS V/S THE STATE OF ASSAM, decided on Thursday, July 6, 2017.
[ In the High Court of Gauhati, Crl.A(J) No. 79 of 2015. ] 06/07/2017
Judge(s) : A.M. BUJOR BARUA
Advocate(s) : A. Ahmed, Learned Amicus Curiae. B.J. Dutta, Learned Addl. P.P.
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    Oral Judgment & Order:1. Heard Mr. A. Ahmed learned Amicus Curiae for the appellant and Mr. B.J. Dutta learned Additional Public Prosecutor Assam.2. This a jail appeal preferred by the accused/appellant Rantu Das against the judgment of conviction of the learned Sessions Judge Golaghat in Special (POCSO) Case No.08/2014 whereby the accused has been sentenced to undergo rigorous imprisonment for 10(ten) years and to pay fine of Rs. 1000/- (rupees one thousand) and in default of payment of fine simple imprisonment for one month for committing the offence u/s 6 of the Protection of Children from Sexual Offences Act 2012. Aggrieved by the aforesaid judgment the accused/appellant has preferred this jail appeal.3. The prosecution case in brief is that an ejahar dated 15.12.2013 was lodged by Sri Lukan Das the father of the victim girl/prosecutrix stating that about 08(eight) months back the accused/appellant namely Rantu Das had taken away his minor daughter who was aged about 14 years and had indulged in a physical relationship with her. It was also stated in the ejahar that the accused/appellant had threatened the victim girl with life and therefore she had not disclosed the occurrence earlier. It was stated that the incident came to light when the victim girl was medically examined wherein it was revealed that she was pregnant.4. On receipt of the said ejahar the Officer-in-Charge of Sarupathar Police Station registered a case being 123/2013 u/s 376(2)(i) IPC read with section 4 of the Protection of Children from Sexual Offences Act (in short POCSO Act) and started investigation. During investigation the Investigating Officer visited the place of occurrence recorded the statements of the witnesses got the victim girl medically examined recorded her statement u/s 164 Cr.P.C arrested the accused person and forwarded him to the Court and on completion of investigation submitted charge-sheet.5. During trial the prosecution examined as many as 09(nine) witnesses including the Medical Officer and the Investigating Officer and the defence also examined two witnesses. The accused/appellant was examined u/s 313 Cr.P.C wherein he pleaded his innocence and claimed to be tried.6. The learned trial Court after considering the evidence of the witnesses and the materials available on record found the accused/appellant guilty u/s 6 of the POCSO Act and accordingly convicted him under the said section and sentenced him to undergo rigorous imprisonment as aforesaid.7. The victim girl who was examined u/s 164 of the Cr.P.C on 17.06.2014 had stated that the accused Rantu Das is her uncle and he had been indulging in a physical relationship with her since about 8 to 9 months prior. It was also stated that the accused/appellant had threatened the victim girl with her life in the event she discloses the occurrence to her parents. Therefore the victim girl had not revealed about the occurrence before her parents. It was stated that when the statement was taken she was carrying 09(nine) months pregnancy.8. In her deposition the PW-1 stated that the accused person is her uncle being the younger brother of her father. At the time of the incident the accused uncle used to reside separately along with her grandmother which was at a distance of about 4 to 5 nal. The accused called the victim girl to his residence every night for the purpose of cooking and taking advantage of the same the accused used to disrobe the victim and indulged in sexual intercourse with her. In the event the victim resisted the accused the accused used to threaten that he would kill her. The victim girl stated that in such manner the accused uncle used to do the bad act for almost a month. The victim girl stated that when her menstrual cycle had stopped she was taken to a doctor who initially stated that she was suffering from some kidney problem but later on when she was taken to the hospital in Jorhat an ultrasound was done and it was revealed that the victim was pregnant. The victim girl further stated that in this respect a village meeting was called and in the said village meeting the victim girl had narrated as to what the accused had done to her and that the accused had also admitted the same.9. The mother of the victim girl Smti Jetuki Das was examined as PW-2. She also corroborated that when the menstrual cycle of the victim girl stopped she was taken to a doctor who had stated that the victim girl is suffering from some kidney ailment. But later on when the victim girl was taken to a hospital in Jorhat the ultrasound was done and it was revealed that she was pregnant. PW-2 also stated that in this respect a village meeting was called wherein the victim girl had narrated as to what was done to her by the accused/appellant and the accused/appellant had also admitted the same.10. The father of the victim girl namely Lukan Das was examined as the PW-3 and he also corroborated the statement of the victim girl by stating that when the monthly cycle of the victim girl had stopped she was initially taken to a nearby Public Health Centre and thereafter she was taken to a hospital in Jorhat wherein the ultrasound had revealed that the victim was pregnant. PW-3 also refers to the village meeting wherein the victim had narrated the entire incident and the accused/appellant had admitted the same.11. The accused/appellant in his statement u/s 313 Cr.P.C the accused/appellant merely makes a general denial of the charges made against him by further stating that he came to know about the pregnancy only in the meeting that took place in the village.12. The learned amicus curiae representing the accused/appellant makes a submission that although the incident had taken long time back the concerned ejahar was lodged only on 15.12.2013 and therefore as there is a considerable delay in lodging the ejahar the entire prosecution case against the accused/appellant is fatal. Apart from the said submission the learned amicus curiae could not bring it to the notice of the Court at any other discrepancy in the evidence of the prosecution.13. In order to substantiate his case the learned amicus curiae relies upon a decision of this Court rendered in Nayan Jyoti Das –vs- State of Assam reported in 2011 (5) GLT 788 wherein in paragraph-9 it was recorded that the alleged occurrence of that case had taken place about 06(six) months before but the ejahar was lodged on 08.07.2005 and on 04.06.2005 a village meeting was held as regards the occurrence and further the delay in filing the FIR was sought to be explained that it was caused due to failure of the village bichar in solving the issue. In the said circumstance and more particularly in view of the factual position therein that the victim had sexual intercourse with the perpetrator in subsistence of a love affair and there was a promise on the side of the perpetrator to marry the prosecutrix this Court was of the view that the delay in filing the FIR was not explained.14. The factual situation involved in the said decision of the Court is at a variance from the factual situation involved in the present case. In the present case the act of sexual intercourse was done on a minor girl of 14 years and the ejahar was immediately lodged upon the fact of pregnancy being revealed by the medical authorities where prior to such information being revealed the informant had no occasion to know about the occurrence.15. The learned amicus curiae also relies upon a Division Bench judgment of the Hon’ble Tripura High Court rendered in Criminal Appeal (Jail) No.04/2011. The factual background of the said criminal appeal also revolves around the fact that the prosecutrix had a sexual relationship with the perpetrator and the ejahar was lodged by the prosecutrix only upon a subsequent situation wherein the perpetrator had refused to marry the prosecutrix. The learned Division Bench of the Hon’ble Tripura High Court had relied upon a decision of the Apex Court rendered in Vijayan –vs- State of Kerala reported in (2008) 14 SCC 763 wherein the prosecutrix had a sexual affair with the accused and the ejahar was lodged after seven months on being pregnant and secondly there was no DNA test conducted to find out whether the child that was born out of the incident was fathered by the accused therein. The learned Division Bench also relied upon another decision of the Apex Court rendered in K.P. Thimmappa Gowda –vs- State of Karnataka reported in (2011) 14 SCC 475 wherein also the factual situation was that the accused had assured the prosecutrix that he would marry her and had the sexual affair which was repeated on several occasions but when she became pregnant and the accused did not marry her the ejahar was lodged after the delay of eight months.16. All the aforesaid factual circumstances involved in the criminal appeal decided by the Hon’ble Tripura High Court as well as the two decision of the Apex Court relied therein are all rendered in a factually different situation. In all the three cases there was a consensual sex between the prosecutrix and the perpetrator with an element of marriage between them and only when the prosecutrix had become pregnant and there was a refusal of marriage the concerned ejahars were lodged.17. In the instant case as already stated hereinabove the factual matrix is different. The victim is a 14 years old girl who was sexually exploited by her own uncle by taking advantage of her close proximity with him due to their family relation. There was neither any element of consensual sex nor there was any element of marriage between the parties. Further the evidence of the prosecutrix shows that there was an element of threat by the accused/appellant by putting fear in her mind that death would be caused to her if the act is revealed to her parents. In the aforesaid circumstances no infirmity can be attributed to the act of the prosecutrix in not revealing the occurrence to her parents earlier. Further evidence that has been led shows that the prosecutrix had revealed the identity as well as the occurrence to her parents only when she was asked about it on being medically detected that she was pregnant. Further the factual situation shows that the ejahar was lodged by the father of the victim girl immediately after it was revealed that the victim had become pregnant and upon the victim having informed her parents as to who had perpetrated the act.18. In this respect the learned Additional Public Prosecutor relies upon a decision of the Apex Court rendered in Md. Ali –vs- State of Uttar Pradesh reported in (2015) 7 SCC 272 wherein in paragraph 17 it had been held as follows:-“It is apt to mention here that in rapes cases the delay in filing the FIR by the prosecutrix or by the parents in all circumstance is not of significance. The authorities of this Court have granted adequate protection/allowance in that aspect regard being had to the trauma suffered the agony and anguish that creates the turbulence in the mind of the victim to muster the courage to expose oneself in a conservative social milieu. Sometimes the fear of social stigma and on occasions the availability of medical treatment to gain normalcy and above all the psychological inner strength to undertake such a legal battle.”19. Although it had subsequently been stated that in case of a pregnancy the application of the aforesaid allowances can be referred to an earlier pronouncement in Rajesh Patel v. State of Jharkhand reported in (2013) 3 SCC 791 wherein in the facts and circumstance of that case a delay of 11 days in lodging the ejahar was treated as fatal but the said observation of the Apex Court is also found to be inapplicable in the facts of this case inasmuch as the ejahar was lodged by the father of the prosecutrix immediately after it was revealed that she was impregnated by the accused/appellant. But be that as it may the fact that the victim girl had not reported the incident to the parents can also be viewed from the aforesaid view of the Apex Court wherein it is provided that in rape cases the delay in filing the FIR by the prosecutrix or by the parents is not of significance and the Courts also have to give due consideration to the trauma suffered and the agony and anguish that creates the turbulence in the mind of the victim to muster the courage to expose oneself in a conservative social milieu.20. In the instant case the victim girl is a 14 years old girl upon whom sexual intercourse was done by a close relative being the uncle who had also put an element of fear in the prosecutrix by threatening her with death if she reveals the act to her parents. The aforesaid situation also indicates the mental state of the victim after the act was perpetrated on her which by itself in the considered view of this Court would be sufficient enough to prevent the victim girl from revealing the occurrence to her parents on an earlier occasion.21. In the aforesaid facts and circumstances and considering the law laid down on the issue this Court is of the considered view that the delay in lodging the ejahar in the instant case is not fatal to the prosecution.22. As regards the question as to whether the act was perpetrated by the accused/appellant on the victim girl the statement of the victim girl both in her statement recorded u/s 164 Cr.P.C as well as in her deposition before the trial Court clearly reveals that the accused/appellant had perpetrated the act of sexual intercourse upon her against her will and by putting her under a fear of threat. The aforesaid evidence of the prosecutrix had been duly corroborated by the evidence of the PW-2 being the mother as well as PW-3 being the father of the prosecutrix who were the first persons to whom the prosecutrix had revealed about the perpetration of the offence immediately after being detected that she was pregnant.23. Further the evidence of the victim girl as well as that of the PW-2 and PW-3 is also corroborated by the evidence of the PW-5 being the Gaon Bura who had stated that immediately after the occurrence was detected a meeting was held in the village wherein the victim girl had narrated the incident that the act was perpetrated upon her and the accused/appellant in the said meeting had admitted that he had done the act. Although the evidence of the Gaon Bura as regards the events that had taken place in a village meeting may not itself be sufficient to arrive at a conclusion that the alleged act was perpetrated by the concerned accused/appellant but when the said evidence corroborates the other primary evidence including that of the victim girl the evidence can also be taken into consideration by the Court for the purpose of corroboration.24. In the instant case the accused/appellant has been tried u/s 6 of the Protection of Children from Sexual Offences Act 2012 (in short POCSO Act). Section 6 of the POCSO Act inter-alia provides for the punishment for aggravated penetrative sexual assault which is a rigorous imprisonment for term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine. Section 5 of the said POCSO Act defines aggravated penetrative sexual assault wherein Section 5 (j) (ii) provides that whoever commits penetrative sexual assault on a child resulting in a pregnancy of a female child would amount to aggravated penetrative assault.25. In the instant case the evidence on record clearly indicates that the victim girl was aged about 14 years and therefore she was a child at the time when the offence was perpetrated on her. Secondly the medical evidence as well as the evidence of the victim and the PW-2 and PW-3 clearly reveals that the victim girl was impregnated due to sexual assault on her and later on she even gave birth to a child. In the aforesaid circumstances this Court is of the considered view that the offence perpetrated on the victim girl amounted to an act of aggravated penetrative sexual assault and as such the accused/appellant is held guilty for committing an offence as described u/s 5 of the POCSO Act.26. In view of the above finding this Court is of the considered view that there is no infirmity in the judgment and order of the learned Sessions Judge Golaghat in convicting the accused/appellant u/s 6 of the POCSO Act. Accordingly this appeal is devoid of any merit and the same stands dismissed.27. This Court appreciates Mr. A. Ahmed learned amicus curiae for the valuable assistance rendered by him and accordingly directs the State Legal Services Authority to pay him an amount of Rs. 7500/- as professional fees on receipt of a certified copy of this judgment and order.28. Let the case records be sent to the learned Court below.