Kumud Nath vs The State Of Assam & Anr.

(Shamima Jahan, J.)

This is a criminal appeal filed by the convict appellant challenging the judgment and order dated 30.01.2024, passed by the Additional Sessions Judge-cum- Special Judge (POCSO) at Barpeta, in Special (POCSO) Case No. 130 of 2023. By the said judgment and order, the appellant was convicted under Section 376 of the Indian Penal Code, 1860 (hereinafter, referred to as “the IPC”, for short), read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter shortly referred to as ‘the POCSO Act’) and was sentenced to undergo Rigorous Imprisonment for a period of 20 years with a fine of Rs. 10,000/-, and in default to undergo Simple Imprisonment for another period of 2 (two) years. Although the appellant was convicted under Section 376 IPC also, but no separate sentence was inflicted under the said Section. It is this conviction and sentence that the appellant has put to challenge by preferring the present criminal appeal.

The instant case commenced with lodging of the ejahar dated 28.05.2023, by the father of the victim before the Officer-In-Charge, Sorbhog Police Station, stating inter alia, that the appellant had been maintaining illicit physical relationship with his daughter, aged about 18 years by making various allurements to her. The informant further stated that due to the said physical relationship, his daughter became pregnant and that she was carrying 7 months’ pregnancy by the time, the ejahar was lodged. He also stated that the said fact was unknown to him and that when the occurrence took place, his daughter was a minor. The Police, on receipt of the ejahar, registered the case as Sorbhog PS Case No. 60 of 2023, under Section 417 IPC, read with Section 4 of the POCSO Act. On completion of the investigation, the Police submitted charge sheet against the appellant on 28.05.2023, charging the appellant under Section 6 of the POCSO Act. The charge sheet was, thereafter, laid before the Hon’ble Special Judge, Barpeta, and the case was transmitted to the Court of learned Additional Sessions Judge-cum- Special Judge (POCSO), Barpeta. Thereafter, cognizance of the offence was taken by the said Court and after furnishing copies to the appellant, framed charge under Section 376 IPC and Section 6 of the POCSO Act, vide order dated 16.09.2023, which was read over and explained and the accused pleaded not guilty and claimed to face trial. During the course of the trial, the prosecution examined 8 (eight) witnesses, and, thereafter, the Trial Court examined the appellant under Section 313 of the CrPC, and after hearing the arguments on behalf of both the parties, passed the impugned Judgment and Order mentioned above. The Trial Court had delivered the said Judgment and passed the sentencing order mainly on the following grounds:-

The foundational facts were established by the prosecution and the appellant could not rebut the said presumption.

On the basis of the above findings, the Trial Court had convicted the appellant under Section 376 IPC and Section 6 of the POCSO Act, and inflicted the punishment upon the appellant as stated above.

The informant, i.e., the father of the victim was examined as PW-1 and he stated that the date of birth of his daughter was 15.10.2004, and that after the occurrence, when he took his daughter to the doctor, the doctor confirmed that his daughter was carrying a pregnancy of 7 months. He further submitted that his wife asked his daughter as to who was responsible for her pregnancy and her daughter replied that the appellant was responsible. He also stated that his daughter gave birth to a baby boy. This witness then stated that before lodging the FIR, a discussion took place amongst the villagers, who had called the appellant and that the appellant admitted his guilt during the discussion.

This witness was cross-examined by the defence and he stated that although he had not mentioned about the particular date of incident, but he stated that at the time of pregnancy, his daughter was minor. He also deposed that the birth certificate of his daughter was seized by the Investigating Officer.

The victim was examined as PW-2, and she stated before the Trial Court that the incident took place about 2 (two) years prior to the date of her deposition. She stated that two years earlier, the sister-in-law of the appellant had an operation and that the wife of the appellant had to stay with her sister at the hospital and that the daughter of the appellant was with the appellant. She stated that the daughter of the appellant was of her age and further that, the wife of the appellant had asked her to stay in their house. She, thereafter, stated that on the request of the wife of the appellant, she went and stayed in the house of the appellant, and that on the first night, she stayed with the daughter of the appellant, but on the next day, she was asked to sleep separately on the bed, where the wife of the accused used to sleep. She, thereafter, stated that on the second night, at around 01:00 am, the appellant came inside the room, gagged her mouth and had sexual intercourse with her and had threatened her not to disclose the incident to anyone and that she did not disclose it out of fear. The victim, thereafter, stated about a second incident, which according to her, took place after 1 (one) year from the first incident. She stated that the wife of the brother-in-law of the appellant, gave birth to a child and during that juncture, she again went and stayed in the house of the appellant, wherein again, she was made to sleep with the daughter of the appellant on the first night and on the second night, she was made to sleep in a separate bed, and that while she was sleeping, the appellant came inside and committed sexual intercourse with her, after gagging her mouth. She again, for the second time, did not disclose the incident to anyone, out of fear. This witness then stated that 7 months thereafter, her periods stopped and she was detected as being pregnant and that when her mother asked her, she told her that it was the appellant who impregnated her. She, thereafter, stated that during the discussion held by the villagers, the appellant admitted his guilt. She also stated that the child she gave birth to, was handed over to an NGO.

During cross-examination, she reiterated that the first incident of sexual intercourse took place about 2 years ago, and that she was on visiting terms with the family of the appellant, even after she was subjected to sexual intercourse by the appellant. She also stated that during the discussion, the village elders forced the appellant to marry her and she also did not object to the said proposal. However, she denied that by taking her consent, the appellant had established sexual relationship with her.

PW-3 is one of the villager, who was present in the discussion and he stated before the Trial Court that during the discussion, the appellant admitted his guilt, i.e., he was the one who impregnated the victim.

However, during the cross-examination, this witness proved the contradiction that he did not state before the Police that in the discussion held by the villagers, the appellant admitted his guilt and the ground given by him for not stating the same, was that the Investigating Officer did not ask him.

PW-4 is a distant relative of the victim and she stated that she came to know about the pregnancy of the victim and she along with the mother of the victim, took the victim to a dispensary, and upon sonography being done, the doctor told them that the victim was pregnant by 7 months. She further stated that upon asking the victim, the victim told her that the appellant had impregnated her. This witness also stated that the appellant admitted his guilt in the discussions held by the villagers. However, during her cross-examination she stated that she did not remember whether she stated before the Investigating Officer about the admission of guilt by the appellant.

PW No. 5 is a relative of the appellant and he stated that the wife of the informant requested him, to present himself in the village discussion, but he did not attend the same. At this stage, on the prayer made by the prosecution, this witness was declared hostile.

The stepmother of the victim was examined as PW No. 6 and she stated before the Trial Court that she took the victim to the hospital and on medical test being done, the victim was found to be pregnant and further, on asking her, the victim told that appellant had impregnated her. She also stated that during the village discussion, she was present.

During cross-examination, this witness stated that during the village discussion one person, namely, Nabadip Nath assaulted the appellant after the incident of pregnancy came to light and she further stated that it is not a fact that appellant did not admit his guilt during the discussion.

The doctor who examined the victim deposed as PW-7 and he found the victim pregnant with a gestational period of 28 weeks and 3 days and he also found an old tear at 8’o clock position with regard to the hymen of the victim. The doctor opined of no sign of recent sexual intercourse on the victim as well as no injury mark on her private parts.

The Investigating Officer was examined as PW-8 and he stated before the Trial Court that on receipt of the ejahar, he conducted the investigation of the case and recorded the statement of the informant and the victim and other witnesses. He stated that he had seized the birth certificate of the victim and also got the statement of the victim recorded under Section 164 CrPC and on completion of the investigation, he submitted charge sheet.

These are the evidences put forth by the prosecution. The Trial Court, thereafter, examined the appellant under Section 313 CrPC by putting all the incriminating circumstances appearing in the case to the appellant, to which he replied that he is innocent and that false allegation has been levelled against him. However, to the query as to whether he would adduce defence evidence, he replied in the affirmative and stated that he would examine his uncles, but no defence witness was examined on his behalf and the Trial Court, after hearing arguments of both the parties, delivered the Judgment and Order as mentioned above.

Mr. A. M. Dutta, learned Amicus Curiae appearing for the appellant had submitted his written submissions and further argued that the act causing pregnancy of the victim was committed by the appellant when the victim was major, if at all the act was committed by the appellant. He submits that the age of the victim was not proved as per Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015. He also submits that the prosecution failed to prove the foundational facts and as such, the presumption under Section 29 of the POCSO Act, is not attracted. The learned counsel further submits that the statement of the prosecutrix was not of sterling quality and since there was no record maintained with regard to the village discussion, the alleged admission of guilt by the appellant cannot be believed. He, thereafter, submits that for the sake of argument, even if it is considered that some extra-judicial confession is made, the same requires corroboration, which, however, was not present in the instant case. The learned counsel, on the facts of the case, therefore, submitted that the prosecution had tried to prove the pregnancy of the victim, but not the alleged rape committed by the appellant upon the victim. The learned counsel also submitted that although it is alleged that appellant had admitted his guilt, but to what extent and in respect of what offence, is not discernible in the present case. He, as such, submits that the Judgment and Order passed against the appellant, be set aside and quashed.

Mr. Kan Kan Das, learned APP for the State, submitted that even if the offence under POCSO Act is not established, offence under Section 376 IPC is well established and that there was no consent on the part of the victim, as could be seen from the facts. He also submits that the defence had not even put a suggestion that no rape was committed by the appellant upon the victim. He further relied upon the extra-judicial confession made by the appellant during the village discussion, which had been stated in clear terms by PW Nos. 3, 4 and 6.

Ms. S. Sarma, learned counsel appearing for respondent No. 2 submits that the victim was consistent in stating that rape was committed upon her and her statement was not demolished during her cross-examination. She further submits that the statement of the victim recorded under Section 164 of the CrPC corroborated the statement of the victim adduced before the Trial Court. She also reiterates the submissions made by the Government Counsel that during the village discussion, the appellant had admitted his guilt.

At the very outset, it is imperative upon this Court to deal with the age determination of the victim. The birth certificate of the victim issued by the Director of Health Services, under Section 12 of the Registrar of Births and Deaths Act, 1969, was seized by the Investigating Officer from the possession of the step-mother of the victim and the same was exhibited as Material Exhibit No. 1. The Investigating Officer, had seized the said certificate vide seizure list dated 29.05.2023, and the time of seizure was reflected as 08:40 pm. A bare perusal of the birth certificate shows that the victim was born on 15.10.2004 and by calculation, the victim attained her majority, i.e., 18 years of age, on 15.10.2022. Although no specific date was mentioned as to when the incident of sexual intercourse happened between the appellant and the victim, however, it is stated by the victim that one year prior to the recording of the deposition of the victim, the victim was subjected to physical relationship by the appellant. One year prior to the deposition of the victim would be 29 of September, 2022. However, the deponent in her statement under Section 161 and Section 164 CrPC, stated that about 7 or 8 months ago, from the date of her deposition, i.e., 29 of May, 2023, she was subjected to physical intimacy. The day when she was examined by the Medical Officer, i.e., on 29.05.2023, she was aged 18 years 7 months and 14 days and it was found by the doctor that she was pregnant by 28 weeks and 3 days, which is a little above 7 months. As such, it can safely be deduced that when she became pregnant, she was more than 18 years of age. Further, there is doubt with regard to the occurrence of the first incident as narrated by the victim. As such, the victim cannot be stated to be minor when she was subjected to physical intimacy by the alleged appellant in consequence of which, she became pregnant.

It is now the duty of the Court to look into the evidence of the victim and to find out whether the same inspires the confidence of the Court. It is an established position of law that in order to see the reliability of the victim’s statement or to find out the sterling nature of the victim, the Court is duty bound to examine her statement right from the beginning, i.e., before the Police, till her statement before the Court. It has been held by the Hon’ble Supreme Court in many cases and in one of such case, the observation was made by the Apex Court i.e. in Rai Sandeep vs. State of NCT of Delhi, reported in (2012) 8 SCC 21, which is reproduced hereinbelow:-

In view of what has been held by the Hon’ble Supreme Court as mentioned above, it is, therefore, the duty of this Court to examine the statements of the prosecutrix, right from the beginning, i.e., her statement recorded by the Police, till her statement recorded before the Trial Court.

By following the aforesaid principle of law, this Court jots down the statement of the victim before the Police recorded at the first instance. Before the Police, she stated that 7/8 months ago, she went to the house of the appellant and on the first night, she slept with the daughter of the appellant, but on the second night, she slept on the bed near the bed of the appellant and that the appellant came and established physical relationship with her by gagging her mouth. She also stated that she was threatened not to disclose the incident to anyone. She also stated that the appellant asked her to visit his place often and indulge in physical intimacy. She thereafter stated that she did not tell the incident to anyone and that subsequently, she went to the house of the appellant. She also stated on one hand, she went there on the request made the appellant’s wife and on the other, she stated that her mother requested her to go. She then stated that on that night, appellant forcefully, committed bad act upon her and she also stated that before her matriculation examination, the appellant again committed bad act upon her. She also made the further statement that although she wanted to disclose the incident to others, but she could not do it.

The victim in her statement before the Magistrate, under Section 164 CrPC, stated that 7/8 months ago, on the request of the appellant’s wife, she went to the house of the appellant and that she slept on the first night with the daughter of the appellant and on the second night, she slept on the bed of the appellant’s wife, and that in the middle of the night, she was subjected to physical intimacy. She stated that she was threatened by the appellant not to disclose the incident to anyone. She, thereafter, stated that subsequently, she again went to the house of the appellant and while she was sleeping on the bed of the appellant’s wife, the appellant subjected her to physical intimacy.

During the trial, the victim deposed as PW-2 and she stated that two years before her deposition, she went to the house of the appellant and that on the first night, she slept with the daughter of the appellant and that on the second night, she slept on the bed used by the wife of the appellant and that at midnight, the appellant came and had sexual intercourse with her. She further stated that on being threatened by the appellant, she did not disclose the incident to anyone. She, thereafter, stated about the second incident in similar terms that she went to the house of the appellant and she slept with the daughter of the appellant on the first night and on the second night, she slept in a different bed and that in the night, the appellant subjected her to sexual intercourse.

On a careful examination of the statements made by the victim before all the authorities, as far as the first incident is concerned, there is discrepancy in the statement of the victim stated before the Police, the Magistrate and the Court. Before the Police, she stated that 7/8 months ago, she was directed to go to the appellant’s house, wherein she stayed and on the second night, bad act was committed upon her by the appellant. In her statement before the Magistrate under Section 164 CrPC, she again stated that 7/8 months ago, when she was sent to stay in the appellant’s house she was subjected to physical relationship on the second night by the appellant. However, in her statement before the Trial Court, she stated that it was 2 years ago, when she went to the house of the appellant, wherein, she was forced into sexual relationship by the appellant. A further statement was added by the victim in her statement before the Police that pursuant to the first incident, the appellant told her to visit him often, so that physical relationship can continue between them. This statement, however, did not find place in her statement before the Magistrate as well as the Trial Court. The difference in the time which is not by one or two months, but by years, stated by the victim with regard to the first incident, makes the said first incident doubtful with regard to its occurrence. It is also a settled position of law that if two views are possible, the view in favour of the accused person will be acted upon. As such, the first incident narrated by the victim, does not inspire the confidence of this Court. It also cannot be reasonably believed that after the victim was subjected to a physical relationship by the appellant at the first instance, she would again visit the house of the appellant and stay during the night and that too, in the room of the appellant.

Further, another surprising factor is also seen in the instant case, to the effect that the victim in her statement before the Trial Court had stated that during her second visit to the house of the appellant, she was again made to sleep with the daughter of the appellant, who was her friend during the first night and on the second night, she was told to sleep on a separate bed and that in the middle of the night, she was subjected to sexual relationship by the appellant. In her statement before the Magistrate, she stated that on the first night, she shared the bed with her friend, i.e., appellant’s daughter and on the next night, she was made to sleep on the bed of appellant’s wife, which was in the room of the appellant and that while she was asleep in the middle of the night, she was raped by the appellant. The same sequence cannot occur in both the occasions. In her statement before the Police, she did not state that on the second occasion, she stayed in the house of the appellant for two nights and that on the first night, she slept with the appellant’s daughter and on the second night, she slept in the appellant’s room. She simply said that when she went to the house of the appellant, the appellant had committed bad act upon her. As such, the discrepancy is writ large on the face of the evidence adduced by the victim.

There is one more discrepancy which is seen in the evidence of the victim to the effect that the victim stated before the Police that before her matriculation examination she was again subjected to physical relationship by the appellant, which she had not stated either before the Magistrate or before the Trial Court.

Although there appeared few discrepancies in the statement of the victim, but the core fact narrated by the victim that she was subjected to physical relationship by the appellant, stands intact. There is also a surprising fact that was revealed by the victim during her cross-examination before the Trial Court and that is, she stated that the village people during the discussion forced the appellant to marry her and that she did not object to the proposal. This shows that had the victim considered the appellant as a criminal, she would not have agreed to marry the appellant.

There is a further fact, which is discerned from the evidences on record to the effect that few villagers, who were present in the discussion deposed before the Trial Court that when they asked the appellant as to whether he was responsible for the pregnancy of the victim, the appellant admitted his guilt. This fact is in the statement of PW-1, PW-3, PW-4, and PW-6. As such, this piece of evidence will be considered as extra-judicial confession. There is no doubt that conviction can be based on extra-judicial confession, but it is well settled principles of law that in the very nature of things, it is a weak piece of evidence. It is to be proved just like any other fact and the value thereof, depends upon veracity of the witnesses to whom it is made. It is also a settled position of law that the extra-judicial confession requires appreciation with a great deal of care and caution and where an extra-judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and looses its importance. The Hon’ble Supreme Court in Sahadevan & Others vs. State of Tamil Nadu; reported in (2012) 6 SCC 403, had observed as follows:-

By keeping the aforesaid principles in mind, this Court is required to look into the evidence connected therewith. PW No. 1 stated that he along with other villagers were present in the discussion and in the said discussion, the appellant admitted his guilt. PW No. 3 had stated categorically that he was present in the village discussion and that the Gaonburah (Village Head), asked the appellant as to whether he was responsible for the pregnancy of the victim and while answering the query, the victim admitted his guilt. PW No. 4 also stated that she was present in the discussion and the appellant admitted his guilt before the village-head. This witness had reiterated the said fact during her cross-examination too. Apart from the said three witnesses, PW No. 6 also stated that during the village discussion, the appellant admitted his guilt that he was responsible for the victim’s pregnancy. During cross-examination, this witness further reiterated the said fact. Looking into the said evidence, it can safely be deduced that the same inspires confidence and also that the statement was made voluntarily. Further, it is also a requirement that the extra-judicial confession should be supported by cogent circumstances and corroborated by other evidences on record. In the instant case, the evidence of the victim corroborates the said extra-judicial confession made by the appellant.

Apart from the said corroboration, another evidence appears in the fact of the case, which again corroborates the extra-judicial confession as well as the prosecution case and that is the res gestae evidence. Under Section 6 of the Evidence Act, it is provided that facts that are connected with the fact in issue, forms part of the same transaction, the said facts would be relevant even if they occur at the same time and place or at different times and places. This principle provided under Section 6 of the Evidence Act is termed as res-gestae evidence. With regard to the present case, it is in the evidence that when the victim was found pregnant, PW-4 asked her as to who was responsible for her pregnancy, to which the victim replied that it was the appellant. Further, it is also in the evidence of PW-6, that when she asked the victim after the sonography test was conducted, as to who had made her pregnant, the victim replied that appellant was responsible for the pregnancy. It be stated here that if the victim reveals the necessary facts about the offence committed upon her, to another person, immediately after the said occurrence, the facts known to the other person, become relevant as res-gestae evidence. Res-Gastae evidence is an exception to the hearsay evidence. The Hon’ble Supreme Court in Krishan Kumar Malik vs. State of Haryana, reported in (2011) 7 SCC 130, has observed that in order to bring the hearsay evidence within the ambit of Section 6 of the Evidence Act, the fact has to be stated immediately after the commission of the act and that there should not be any interval allowing fabrication. The observation made is reproduced hereinbelow:-

The Gauhati High Court in Atul Hazarika vs. State of Assam, reported in 2014 (1) GLR 314, held that whatever is stated even by the bystanders at the place of occurrence, immediately after the occurrence, so as to form part of the same transaction becomes relevant as res-gestae evidence. The relevant part is quoted hereinbelow:-

From the observations made in the Hon’ble Courts, it is, therefore clear that in the present case, i.e., the statements made by PW Nos. 4 and 6, become part of the same transaction and would be reliable under Section 6 of the Evidence Act.

In view of the said facts, the actions of the appellant would come under the purview of Section 376 IPC. Section 376 (1) IPC is reproduced below:-

The term ‘rape’ has been defined under Section 375 of the IPC, which is reproduced below:-

On a bare perusal of the definition of rape and applying the same in the instant case, it is clear that a man is said to commit rape if he penetrates his private part into the private part of a woman and that he does it either against her will, without her consent or with her consent but when the consent was obtained by putting her in fear. In the instant case, it is in the statement of the victim, all throughout, right from the initial statement till her statement before the Trial Court that she was subjected to sexual intercourse by the appellant by gagging her mouth and also that she was threatened by the appellant that he would kill her and her relatives, if she reveals the incident to anyone. As such, it is seen that the victim was threatened to such an extent that she could not disclose the incident to anyone out of fear and that when her periods stopped and her mother took her to a doctor, who examined her and found her pregnancy and then, when her mother asked her as to who was responsible, she revealed the name of the appellant. Therefore, in view of the same, the offence of rape is well established in the instant case and the perpetrator of the offence is also found to be the appellant.

In view of the findings mentioned herein above, this Court finds it fit to interfere with the Judgment and Order dated 30.01.2024, passed by the Additional Sessions Judge-cum- Special Judge (POCSO) at Barpeta, in Special (POCSO) sCase No. 130 of 2023, convicting the appellant under Section 376 IPC as well as Section 6 of the POCSO Act. Resultantly, the said Judgment and Order is set aside and quashed.

In the impugned Judgment and Order, though the learned Trial Court had convicted the appellant under Section 376 IPC, no sentence was inflicted upon the appellant and the only sentence imposed upon the appellant was under Section 6 of the POCSO Act. This Court, set asides the conviction and sentence of the appellant under Section 6 of the POCSO Act in view of the findings narrated above. However it maintains the conviction of the appellant under Section 376 (1) IPC and the appellant is sentenced to undergo imprisonment for a term of 10 (ten) years with fine of Rs. 5,000/-, in default, he is further directed to undergo imprisonment for another 6 months. The period of detention already undergone by the appellant, both during the Trial as well as after conviction, shall be set off as per Section 428 CrPC. The appeal is as such, partly allowed and disposed of.

We direct the Legal Services Authority to pay the remuneration, which is required to be given to the Amicus Curiae, for rendering his appreciable service to this Court, with regard to the present case.

Send back the Trial Court Records.