Arun Tanti vs State Of Assam

Heard Ms. M. Deori, learned Amicus Curiae appearing for the appellant and also heard Mr. B. Gogoi, learned Addl. Public Prosecutor appearing

on behalf of the State of Assam.

The informant Pulchand Pator lodged an ejahar/FIR before the I/c, Jagun Out Post under Lekhapani P.S. stating inter alia that on 04.08.2015 at

about 2 P.M., his daughter, aged about 13 years went to Dahmile to bring something from a shop, but she did not return back home. The informant

searched for his daughter, but he could not trace out. Next day in the morning hour, the informant came to know that one Arun Tanti had kidnapped

his daughter and he is a married person, having four wives and children. Later on, his daughter was recovered from the house of the accused person.

On receipt of the information, Police registered a case and after completion of investigation, submitted charge-sheet against the aforesaid accused

person under Sections 336(A)/376 IPC r/w Section 6 of POCSO Act.

As the case is exclusive triable by the Special Court, the case was committed to the Court of Sessions.

During trial, the accused person remained in jail hazot. Charge was framed under Section 4 of POCSO Act, which was read over and explained to

the accused, to which he pleaded not guilty and claimed to be tried.

In course of the trial, prosecution examined as many as 7(seven) witnesses and the defence examined none. The plea of the defence is of total

denial.

At the conclusion of the trial, the learned Court found and hold the accused guilty u/s 4 of the POCSO Act and convicted him u/s 4 of the POCSO

Act and sentenced to rigorous imprisonment for 7(seven) years and also to pay a fine of Rs. 2,000/-(Rupees Two thousand only).

That apart, the learned Court directed to pay compensation to the victim of Rs. 1,00,000/- (Rupees One Lacs) to be paid by the District Legal

Service Authority, Tinsukia.

As against the aforesaid order of conviction, present appeal has been preferred as a jail appeal.

Heard the submission of Ld. Amicus Curiae Ms. M. Deori and also the Ld. counsel for the State. According to Ms. M. Deori the victim girl having

sufficient maturity has herself eloped with the accused/appellant and resides with him so the accused has committed no offence. The conduct of

victim is stated to be relevant in as much as she remained with the accused at her own will and there is no exclusive evidence as regard the minority

of the victim girl.

Per contra the Ld. Addl. PP vehemently submitted that consent of a minor is no consent in the eye of law and the prosecution has established the

fact that the victim is a minor and the accused is involved with the offence alleged. Accordingly it is contended that there is no infirmity in the order of

the Trial Court which may call for any such interference.

Let us examine the evidence on record. As the whole case revolves around the testimony of the victim so we will examine the evidence of the

victim at first.

According to the victim/P.W-3(name withheld) aged 14 years, she went to the shop in her village where she met the accused person and he called

her to his house and accordingly she went with him. She stayed in the house of the accused person for 7(seven) days as husband and wife and they

also have physical relation but as her father lodged an FIR, she was recovered by the Police from the house of the accused. She was sent for medical

examination and her statement was also recorded before the Court by the learned Court u/s 164 CrPC. She, however, could not disclose her date of

and age.

The P.W-1, Fulchand Pator, father of the victim girl and P.W-2, Kandari Pator, mother of the victim both of them have given similar sort of

evidence that on the day of occurrence their daughter/P.W-3 went out to the shop but she did not return. After searching, they came to know that the

accused person, Arun Tanti has taken away their daughter and then FIR was filed by P.W-1.

· In cross-examination, both of them stated that they did not remember the date of birth of their daughter but however, they said that their daughter

was born in the year 2002.

Other witnesses P.W-4 and P.W-5 are neighbour of the victim. They have no knowledge about the incident but on being told by the P.W-1, they

came to know that the accused person has kidnapped their daughter, aged about 13 years and she was recovered after few days and she was raped

by the accused person.

· In cross-examination, they have stated that they did not know the date of birth of the victim. They came to know about the age of the victim from

the informant. They could not say, if the victim voluntarily accompanied the accused.

The Medical Officer/P.W-6, Dr.(Mrs.) Mouchumie Gogoi, who have examined the victim girl has testified the fact that the victim girl was found

to be above 14(fourteen) years and below 18(eighteen) years of age as per the radiological reports and victim had sexual intercourse.

The learned trial Court, on the basis of the above evidences hold that the victim girl was minor and the accused/appellant could not rebut the

presumption laid under Section 29/30 of POCSO Act and convicted the accused as aforesaid.

I have perused the discussion made by the Trial Court as regard the age factor of the victim as well as the appreciation of other evidence on

record. It is to be note that the Trial Court has discussed all the relevant aspect while arriving at the decision. Although the ld. Counsel for the

appellant has tried to impress upon the Court regarding the conduct of the victim who was a consenting party to the whole affairs by referring to her

evidence but the same is liable to be discarded, as minor consent is no consent.

In the given case, the victim was a rustic girl having no educational background. While giving her statement u/s 164 CrPC as on 12.8.2015 she

stated her age as 13 years and at the time of giving evidence on 27.4.2016 her age is stated to be 14

years. Her parents stated that she was born in the year 2002, then obviously in the year 2015 her age will be 13 years. On the other hand, according to

the evidence of the Medical Officer that the age of the victim girl was 14 years or above but below 18 years. All this aspect unanimously established

that the victim was very much minor on the day of occurrence as on 4.8.2015 and as such her consent to the affair is inconsequential. She was not in

a age of giving consent to the sexual affairs or to run a marital life in absence of any marriage. The defence failed to disprove the factum of age of

the victim girl, neither can rebut the statutory presumption under the law.

The provisions of the Protection of Children from Sexual Offences, 2012 in its wisdom has embodied certain enactment in the Act which provides

that the accused is to rebut the presumption under the law as below:

· Sec. 29 presumption as to certain offences

“where a person is prosecuted for committing or abetting or attempting to commit any offence u/s 3, 5, 7 and 9 of the this Act, the Special Court

shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved.â€​

· Further, Section 30 of the POCSO Act provide for culpable mental state of the accused which read as follows-

· Sec. 30 Presumption of culpable mental state

(1) “ In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall

presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to

the act charged as an offence in that prosecution.â€​

(2) “ For the purpose of this Section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not

merely when its existence is established by a preponderance of probability.â€​

The accused being a matured man has indulged himself in such affairs knowing fully well that the victim is a minor one which clearly established

that the accused/appellant has culpable mental state to have sexual intercourse with a minor girl, which has rendered him liable for the offence u/s 4 of

the POCSO Act. The Ld. Trial Court has properly appreciated all the matters on record and has taken note of non compliance of provision of

POCSO Act mentioned above and also the legal pronouncement that the child witness is a competent witness to depose before the Court and

conviction can be rest upon such evidence of child witness if found reliable, as has been held in Dattu Ramarao Sakhre Vs. State of Maharastra

(1997) 5 SCC 341, Ratansingh D. Nayak Vs. State of Gujarat (2004) 1 SCC 64.

Let us reproduce the observation of Hon’ble Supreme Court on Child Rape Cases in (2002) 5 SCC 745 State of Rajasthan Vs. Omprakash

“ 19. Child rape cases are cases of perverse lust for sex where even innocent child are not spared in pursuit of sexual pleasure. There cannot be

anything obscene than this. It is a crime against humanity. Many such cases are not even brought into light because of social stigma attached

thereto….â€​

In view of all above, the appeal is found devoid of merit and accordingly dismissed. Return the LCR.

For the assistance rendered by the learned amicus curiae, a sum of Rs 7,500(Rupees seven thousand, and five hundred) be paid to Ms. M. Deori,

Amicus Curiae by the State Legal Services Authority.