Nirud Phukan vs State Of Assam And Ors

M. R. Pathak, J

1) This appeal from jail is preferred by the accused appellant, namely, Sri Nirod Phukan being aggrieved with the judgment dated 22.12.2015 whereby the learned Sessions Judge, Dibrugarh in POCSO Case No. 18/2014 arising out of GR Case No. 1723/2014 corresponding to Tengakhat Police Station Case No. 56/2014, convicted said appellant under Sections 6, read with Section 5(1) of the Protection of Children from Sexual Offences (POCSO) Act, 2012 sentencing him to undergo Rigorous Imprisonment for life with fine of Rs. 20,000/- and on realisation of said fine amount to pay the same to the victim.

2) Heard Ms. Reetuja Datta, learned Amicus Curie for the appellant and Mr. Makhan Phukan, learned Additional Public Prosecutor, Assam for the State.

3) The prosecution case, as it emerges from the First Information Report dated 02.07.2014 (Exhibit-2) lodged by the informant Smti. Labanya Phukan (PW.3) before Tengakhat Police Station is that informant's husband Nirod Phukan forcefully committed sexual intercourse with his own daughter, who is a minor by threatening her variously and as a result of same, the victim became pregnant and knowing it, her husband ran away in the absence of any members in the house. By the said FIR, the informant requested the Officer-in-charge of Tengakhat Police Station to apprehend the accused person and to do the needful to punish him stringently.

4) On receipt of said FIR, Tengakhat Police Station Case No. 56/2014 under Section 376 of the Indian Penal Code read with Section 10 of the Protection of Children from Sexual Offences (POCSO) Act corresponding to G.R. Case No. 1723/2014 was registered against the accused person, the appellant herein.

5) During investigation, the Investigating Officer visited the place of occurrence, drawn its sketch map (Exhibit-4), forwarded the victim to the Assam Medical Hospital for medical examination of the victim, forwarded the victim (PW.1) and the informant (mother of the victim/PW.3) to the Magistrate for recording their statements under Section 164 of the Code of Criminal Procedure (Exhibits - 1 and 3 respectively), recorded the statements of the persons who are acquainted with the facts of the case under Section 161 Cr.P.C., arrested the accused persons, obtained the Medical Examination Report of the victim (Exhibit-3) and on completion of the investigation, finding prima facie evidence, against the appellant/accused persons, filed the Charge Sheet vide No. 46/2014 dated 31.07.2014 (Exhibit-5) against the accused appellant, for the offence under Sections 376 of the IPC, read with Section 10 of the POCSO Act.

6) After receipt of the charge sheet in the case and finding involvement of Section 376 of the IPC read with Section 10 of the POCSO Act, learned Sessions Judge, Dibrugarh being the Special Judge under the POCSO Act, by order dated 16.08.2014 directed the said case to be registered under the POCSO Act and accordingly said Tengakhat PS Case No. 56/2014 was registered and numbered as POCSO Case No. 18/2014 in the Court of learned Sessions Judge, Dibrugarh.

7) Initially by his order dated 15.09.2014 learned Sessions Judge, Dibrugarh being the Special Court under the POCSO Act framed the formal charge under Sections 10 of the POCSO Act, 2012 against the accused appellant to which he pleaded not guilty and claimed to be tried. Accordingly, the trial of the case began.

8) In the trial, 6 (six) witnesses were examined by the prosecution and none on behalf of the defence. On perusal of evidence on record, the Trial Court came to a view that charge under Section 10 of the POCSO Act against the accused requires alteration to one under Section 6, read with Section 5(1) of the POCSO Act, 2012 and by order dated 08.09.2015, learned Sessions Judge, Dibrugarh accordingly framed the formal charge under Sections 6, read with Section 5(1) of the POCSO Act, 2012 against the accused appellant for allegedly committing rape on his own minor daughter. Said charges were read over & explained to the accused, to which he pleaded not guilty and claimed to be tried. Learned Trial Court gave chances to the defence to recall Prosecution Witness if any, due to alteration of charges during the trial. But the defence declined to recall any of the Prosecution Witnesses. On conclusion of recording of evidence of prosecution witnesses, the learned Trial Court recorded the statements of the accused/appellant under Section 313 Cr.P.C. on 19.09.2015. Though, the defence side did not adduce any evidence but they cross examined the prosecution witnesses. After conclusion of the trial, finding the guilt of the accused / appellant being proved, he was convicted and sentenced as aforesaid, giving rise to this appeal.

9) Ms. R. Datta, learned Amicus Curie for the appellant submitted that the evidence on record adduced by the prosecution discloses many contradictions and the learned Trial Court on such evidence came to the conclusion that it is the accused who committed rape on the victim. She stated that the victim was totally silent against the accused for a very long period. Ms. Datta pointed out that the day when her evidence was recorded by the Trial Court the victim stated that the occurrence took place four months back and also stated that said incident occurred one month prior to the lodging of the FIR of the case, whereas on the same day of lodging the FIR, the victim was medically examined and it was found that she was 18 weeks pregnant. Ms. Datta, learned Amicus Curie submitted that only after such disclosure of the Doctor, when her mother interrogated her, the victim told that it is her father who committed rape on her. As such learned Amicus Curie stated that as victim's evidence is not reliable, since there is no eye witness to the incident and the reason for the delay in making such allegation by the victim against the father that too on being enquired by her mother after doctor's report, therefore, the impugned judgment and conviction and sentence against the accused appellant should be set aside and quashed, as the prosecution failed to prove the guilt of the accused person beyond all reasonable doubt. Learned Amicus Curie as such submitted that the accused appellant should be set at liberty.

10) However, Mr. M. Phukan, learned Additional Public Prosecutor submitted that the prosecution by adducing sufficient evidence proved the guilt of the accused beyond all reasonable doubt and that the learned Trial Court by the impugned judgment have rightly convicted and sentenced the accused person of the case. Therefore, Mr. Phukan submitted that the impugned judgment of conviction and sentence does not call for any interference.

11) To begin with, let us briefly peruse the evidence recorded by the learned Trial Court.

12) PW.1 is the victim. She in her evidence deposed before the learned Special Judge that her family comprises of her mother, father, younger sister, elder brother and herself and that her elder brother resides in the house of uncle, elder brother of his father and that her mother goes out for work, whereas she stays back at home to look after her younger sister who is only 3 years old. She deposed that in the absence of her mother about four months back, i.e., about one month prior to the filing of the FIR in the case, her father, the accused by showing a dao threatened her, gagged her mouth and committed bad things to her and even thereafter he continued with such acts on several occasions by threatening her, telling her that if she discloses it to anybody he would kill her mother. She stated that for committing such sexual intercourse, her monthly period stopped about 4 months back. However, she clarified that such occurrence took place much prior to the time her period started missing and that she reported about stopping of her monthly period to her mother as she had pain in her stomach. She also deposed that though her mother told her that she would take her to a doctor but by that time, 3 to 4 months were already elapsed. On examining her by the doctor and testing her urine, she stated that the Doctor disclosed to her that she was four months pregnant and on being asked by her mother, she narrated the whole incident as to how her father by threatening her used to commit such sexual intercourse with her in the absence of her mother. She also stated that on coming to know about the same, her mother reported the matter to the co-villagers and local Mahila Samittee as well as police and that when the local Mahila Samittee and police asked her about the incident, she told them that it is her father who is responsible for the incident. After lodging of the FIR by her mother, she stated that police recorded her statement and police forwarded her to the Court for recording her statement and her statement was recorded by a Magistrate, Exhibit-1 with her signature in it and then abortion on her was carried out at Civil Hospital, Tinsukia and, thereafter, she started residing at Smile House, Dibrugarh.

During her cross-examination, the victim denied the suggestion that she had been tutored to say that her father is responsible for said pregnancy and also denied the suggestion that under the influence of liquor/alcohol, her father committed such bad act with her. On being asked by the defence counsel, she denied the fact that as the relation between her father and mother is bad and denied that she had falsely implicated her father.

13) PW.2, Smt. Bhogeswari Phukan, deposed that the incident took place in July, 2014 and when the mother of the victim Smt. Labanya Phukan (PW.3) raised hue and cry, she could come to know that it is the accused who destroyed his own daughter's life by committing rape on her. She deposed that she accompanied the victim to the dispensary for her medical examination and there she could come to know that the victim was pregnant. She also deposed that on coming to know about the said incident, the VDP Members took the accused to the police station and the mother of the victim lodged the FIR at Police Station.

During her cross-examination, PW.2 stated that she deposed about the victim whatever was told to them when they went to the house of the victim after hearing hue and cry of her mother further stating that she had no personal knowledge about the occurrence.

14) PW.3, Smt. Labanya Phukan, mother of the victim, informant of the case deposed that it is her husband who is the accused of the case. She stated that her husband use to sent her forcefully to the garden for work so as to maintain the family as he did not use to do any work. She stated that for maintaining her family, she had to work in other person's house and also in the tea garden. She deposed that she along with her husband and two daughters that includes the victim, resides in the house and as her daughter, the victim had some problem, she took her to the dispensary where doctor did her urine test, which revealed that her daughter was pregnant by four months and on interrogating her daughter, the victim, she revealed that it is her own father who committed rape on her. She also stated that her daughter told her that as she fears her father, who often used to beat her and threatened her with dao and others, she did not reveal the incident to her mother earlier and on coming to know about the said incident, she made hue and cry, for which local people came gathered in her house, to whom she informed about the incident and her daughter, the victim narrated the whole incident before the said gathering that as a result of rape committed by her father, she became pregnant. PW.3 deposed that she lodged the FIR at Police Station which is Exhibit-2 and she put her signature on it and that her statement was recorded by police and also by Magistrate which is Exhibit-3 wherein she had given her signature. She also deposed that she took her said daughter, victim, to the doctor, who abortion her.

In her cross-examination, PW.3 denied the suggestion that her daughter did not state anything before the public and also denied the suggestion that her husband did not commit rape on her daughter and that some other person is responsible for pregnancy of her daughter. However, she admitted the fact that she did not ask for any test to be conducted in establishing that her husband was responsible for pregnancy of her daughter.

15) PW.4, Smt. Akan Phukan, is a hearsay witness, who on being told by the informant, mother of the victim, came to know that the victim was pregnant due to physical relation with the accused.

16) PW.5, Dr. Mohsina Ahmed, the doctor of Assam Medical College and Hospital, Dibrugarh, deposed that she examined the victim who was forwarded by police pertaining to Tengakhat P.S. Case No. 56/2014 and that the victim was accompanied by a lady Constable and her mother. She deposed before the Court that she examined the victim on 04.07.2014 and on obtaining consent also examined her genitals and found her Hymen with one small old tear having 18 weeks size pregnancy. She also deposed that the Radiological examination of the victim reveals that the Epiphysis around her elbow joint was found to be fused, her wrist joint-Epiphysis of the lower and the radius and ulna was not fused with the shaft of the Bond and that victim's joint-Epiphysis of the upper end of the humerus was found to be fused. She also deposed that on the basis of physical examination, Radiological and Laboratory investigation, on the date of examination of the victim, her actual age was about 16 years and below 18 years and that there was no evidence of any recent injury on her body and on her private parts and that the duration of her pregnancy was approximately 18 weeks. She stated that the Exhibit-3 is the medical report of the victim, which contains her signature.

During her cross-examination, the said doctor PW.5 stated that the victim told her that she became pregnant due to physical relation with her father but she stated that she cannot confirm victim's statement as there was no way to prove the same from her side.

17) PW.6, Sri Tapan Das, Sub-Inspector of Police, the concerned Investigating Officer of the case, deposed before the Court that on receiving the Ejahar from PW.3, Labanya Phukan, it was registered as Tengakhat P.S. Case 56/2014 under Section 376 IPC read with Section 10 of the POCSO Act, he recorded the statement of the informant at the Police Station itself, visited the place of occurrence, recorded the statement of witnesses, drawn the sketch map (Exhibit-4) and also stated that the accused was handed over to the police by the public, whom he took to the police station and arrested the said accused person. He also deposed that he sent the victim to the Assam Medical College and Hospital, Dibrugarh for her medical examination with her mother and a lady constable. He also deposed that he forwarded both the victim and her mother, the informant to the Court for recording of their statements by Magistrate and after collecting the medico-legal report of the victim and on completion of the investigation of the case, finding sufficient evidence against the accused person, he submitted the charge sheet Exhibit- 5 with his signature in it.

During his cross-examination, said Investigating Officer PW.6 stated that though he had come to know that the victim was pregnant, he did not make any prayer for any DNA test and that on the basis of the statements of the victim, the complainant and others, he had filed the charge sheet in the case against the accused person. He denied the suggestion that he wrote the statement of the victim as well as the mother, informant of the case as per his own will implicating the accused and filed charge sheet in the case.

18) It is seen that after completion of recording of evidence of prosecution witnesses, the Trial Judge on 19.09.2015 recorded the statement of the accused under Section 313 Cr.P.C. in which the accused denied all the allegations made against him by the prosecution witnesses except stating that the victim was above 14 years. It is also seen that the accused though asked, refused to adduce any evidence, except stating that he is innocent and has been falsely implicated in the case.

19) Exhibit-1 is the statement of the victim recorded on 04.07.2014 under Section 164 Cr.P.C. by learned Judicial Magistrate, First Class, Dibrugarh. On its perusal we found that whatever the victim deposed before the learned Trial Judge Court in her evidence as PW.1, it is similar to that of her statement made before the Magistrate concerned under Section 164 Cr.P.C.,. In her statement under Section 164 Cr.P.C., the victim on 04.07.2014 stated that since last 6 months, in absence of her mother, her father forcefully had sexual intercourse with her, by threatening her keeping a dao in his hand, forcing her to commit such act. She also stated before the Magistrate that her father is a gambler, drunker and a man of very bad moral character, whom she hates and is a devil according to her.

20) We have observed that the PW.5, the doctor of Assam Medical College and Hospital, Dibrugarh, who examined the victim and also gave the medical report of the victim, Exhibit-3 is an independent witness and on being asked by the defence, she deposed that victim told her that she became pregnant due to physical relation with her father and said statement remained intact and further, the defence could not place anything before the Court not to believe the statement of said PW.5.

21) There may be some slight contradiction on the statement of the victim regarding the exact point of time when her father committed rape on her, but from her deposition before the learned Trial Court and her statement before the Magistrate, recorded under Section 164 Cr.P.C., Exhibit-1, we found that the victim was consistent with her statement and we are of the opinion that such little contradiction of exact point of time of rape on a minor victim that too committed by her own father, regarding one month prior to the date of lodging FIR or four months prior to the date of her deposition before the learned Trial Judge is insignificant.

22) Father is the savior and protector of his family members. In the case in hand, PW.3, the informant, mother of the victim and wife of the accused deposed that she along with her husband and two daughters, including the victim, resides in the house, her husband did not use to do any work and he use to sent her forcefully to the garden for work so as to maintain the family. We have also seen from the evidence which discloses that by threatening the minor victim keeping a dao in his hand, telling her that if she discloses the incident to anybody he would kill her mother, forced her to commit such sexual act on many occasions, in absence of her mother, i.e., in absence of his wife. The victim being a minor girl and of tender age, was physically and psychologically vulnerable. The minor victim was helpless and defenseless child and being in a miserable situation could not have shown any kind of resistance against the threat, fear and forcible sexual act of her father and it is for such act of her father, the minor victim had said that her father is a devil.

23) While describing rape on a minor victim the Hon'ble Supreme Court in the case of Shyam Narain -Vs- State (NCT of Delhi), reported in (2013) 7 SCC 77 have observed that -

"A minor girl, who was supposed to spend time in cheerfulness, was dealt with animal passion and her dignity and purity of physical frame was shattered. The plight of the child and the shock suffered by her can be well visualised. The torment on the child has the potentiality to corrode the poise and equanimity of any civilised society. The age-old wise saying that "child is a gift of the providence" enters into the realm of absurdity. The young girl, with efflux of time, would grow with a traumatic experience, an unforgettable shame. She shall always be haunted by the memory replete with heavy crush of disaster constantly echoing the chill air of the past forcing her to a state of nightmarish melancholia. She may not be able to assert the honour of a woman for no fault of hers."

24) A three Judge's Bench of the Hon'ble Supreme Court in a case of rape of a minor and her murder thereafter by the accused, in the case of Vasanta Sampat Dupare -Vs- State of Maharashtra, reported in (2015) 1 SCC 253 have held that -

"The rape of a minor girl child is nothing but a monstrous burial of her dignity in the darkness. It is a crime against the holy body of a girl child and the soul of society and such a crime is aggravated by the manner in which it has been committed. The nature of the crime and the manner in which it has been committed speaks about its uncommonness. The crime speaks of depravity, degradation and uncommonality. It is diabolical and barbaric."

25) Considering the entire aspect, we are of the view that there is no reason to disbelieve the above evidence and circumstances nor there is any reason to doubt the commission of offence by the appellant / accused.

26) For the reasons above, we are the opinion that the impugned judgment of conviction and sentence dated 22.12.2015 passed by learned Sessions Judge, Dibrugarh in POCSO Case No. 18/2014 arising out of GR Case No. 1723/2014 corresponding to Tengakhat Police Station Case No. 56/2014, convicting the accused appellant under Sections 6, read with Section 5(1) of the POCSO Act, sentencing him to undergo Rigorous Imprisonment for life with fine does not call for any interference and rather, we confirm the same. Accordingly, this appeal, being devoid of merit, stands dismissed.

27) We acknowledge the assistance rendered by the leaned Amicus Curiae of this case, Ms. Reetuja Datta as well as Mr. Makhan Phukan, learned Additional Public Prosecutor, Assam. The Gauhati High Court Legal Services Authority, Guwahati is directed to pay a sum of Rs. 7,500/- to Ms. Reetuja Datta towards her remuneration.

28) We direct the State to pay victim compensation of Rs. 5.00 Lakhs to the petitioner under Section 357A of the Code of Civil Procedure, the Protection of Children from Sexual Offence Act, 2012 and Rule 7 of the Protection of Children from Sexual Offences Rules, 2012 as amended, where Rs. 3.5 Lakhs shall be kept under Fixed Deposit Scheme in the name of the minor victim for minimum of 5 (five) years and remaining amount of Rs. 1.5 Lakhs shall be kept in the Bank Account of the victim with any Nationalised Bank. The said amount shall be paid by the District Legal Services Authority, Dibrugarh through the Special Judge/Sessions Judge, Dibrugarh on proper identification of the victim and on obtaining necessary acknowledgment from her. Such payment of victim compensation to the victim in the present case, as directed above by us, shall include any such amount of compensation that has already been paid to her, in terms of the impugned judgment dated 22.12.2015 of the learned Sessions Judge, Dibrugarh.

29) Registry shall return the Trial Court records alongwith a copy of this Judgment.

Registry shall provide a copy of this Judgment, free of costs, to the appellant named above through the Superintendent, Central Jail, Dibrugarh as well as the District Legal Services Authority, Dibrugarh, forthwith.