Md. Khajul Uddin vs The State Of Assam & Anr.

(Shamima Jahan, J.)

This is a criminal appeal filed under Section 374(2) of the Code of Criminal Procedure, 1973, by the convict appellant, namely, Md Khajul Uddin, who has challenged the Judgment and Order dated 28.02.2024, passed by the Special Judge, POCSO, Morigaon, in POCSO Case No. 126/2021. By the said Judgment and Order, the Appellant was convicted under Section 376 AB of the Indian Penal Code, 1860 (hereinafter, referred to as “the IPC”, for short), read with Section 6 and 8 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 20 years with a fine of Rs. 10,000/- and in default for payment of fine, the appellant was further directed to undergo Rigorous Imprisonment for another period of 3 (three) months under Section 6 of the POCSO Act. The appellant was also sentenced to undergo Rigorous Imprisonment for 3 (three) years with a fine of Rs. 3,000/- and in default, to undergo Rigorous Imprisohnment for another period of 1 month under Section 8 of the POCSO Act. In view of Section 42 of the POCSO Act, no sentence is however awarded under Section 376 AB IPC upon the appellant.

The present case started with lodging of the First Information Report by the mother of the victim before the Officer-In-Charge of Lahorighat Police Station, registered on 27.06.2021, stating inter alia that on 12.06.2021, at around 12:00 noon, the appellant who was working in the jute field, called her 7 year old daughter for fetching him a glass of water and that after drinking the water, it was alleged that the appellant removed the clothes of the victim and after making her naked touched her breasts. The informant further stated that the appellant had bit her, on her breasts and touched her private parts. It was also alleged that when the appellant tried to establish sexual intercourse with her daughter by forcibly inserting his penis into her vagina, her daughter shouted and upon hearing her cries, the informant ran to the jute field, wherein she found the victim in a naked position, with scratch marks on her chest and breasts. It was further alleged that the appellant tried to kill the victim by pressing her neck and that while the informant and others were on their way to lodge the ejahar, they received death threats. The informant also stated that subsequent to the said incident, the village elders held a meeting and called the appellant, but the appellant did not attend the same. Thereafter, on the advice of the village elders, she went and lodged the FIR. Due to the above reasons, some delay was caused in lodging the same.

The Police on receipt of the said ejahar, registered the case as Lahorighat Police Station Case No. 400 of 2021, under Section 376 AB/307/506 IPC, read with Sections 6/8/10 of the POCSO Act. On completion of the investigation, the Police submitted charge sheet on 30.07.2021 against the appellant, charging him under Sections 376 AB/307 IPC read with Sections 6/8/10 of the POCSO Act. After completion of the required procedures as mandated by law, the case was committed to the learned Court of Additional Sessions Judge, Morigaon, who framed charges against the appellant under Sections 376 AB/307/506 IPC, read with Section 6 and 8 of the POCSO Act. During the trial, the prosecution examined 7 (seven) numbers of witnesses including the doctor and the Investigating Officer and, thereafter, examined the appellant under Section 313 of the CrPC and after hearing the arguments on behalf of both the sides delivered the Judgment and Order dated 28.02.2024 as mentioned above. The learned Trial Court had framed 4 (four) points for determination and decided as follows:-

ii) Whether the evidence adduced in the present case is sufficient to hold that the appellant was the perpetrator of the offence?

This point was also decided in favour of the prosecution, on the basis of the evidence of the victim, which the Trial Court found to be consistent before other authorities as well as before the said Trial Court and further that the evidence of the victim was corroborated by other evidences on record.

iii) Whether the appellant could be punished under Section 307 and Section 506 IPC?

This point was however not decided in favour of the prosecution inasmuch as the trial Court held that the evidence on record fell short of attracting the said offences.

iv) Whether benefit of probation can be extended to the accused?

This point was decided not in favour of the accused person in view of the fact that the victim was less than 12 years at the time of incident, and on the finding reached by the Trial Court that the harm caused to her is irreparable, the conviction was award under Section 376 AB IPC, read with Section 6 and 8 of the POCSO Act, and the appellant was inflicted with the punishment as indicated above.

The victim was examined as PW-1 and the learned Trial Court after examining her competency in deposing as a witness found that the victim could give rational answers and on finding the same, recorded her evidence. The victim in her statement before the Trial Court, stated that while she was playing on the day of occurrence in front of a shop, which was little far from her house, the appellant whom she addresses as Kaka, i.e., brother and who was working in the field called her and asked her to bring him a glass of water to which she complied and brought him a glass of water. She further stated that after drinking the water, the appellant grabbed her chest and by removing her clothes, inserted his finger into her private part to which she felt pain and cried. She thereafter, stated that at this, she cried out to her mother and hearing her cries, her mother came to the place of occurrence and that seeing her mother the appellant ran away and that she told her mother about the incident. During her statement, she also stated that she had given her statement before the Police under Section 161 of the CrPC, before the Magistrate under Section 164 of the CrPC and that she was also examined by the doctor.

This witness was cross-examined by the defence wherein she stated that prior to the incident, the appellant occasionally gave her chocolates and biscuits and showered affection upon her. Further, the appellant had never committed any bad act upon her prior to the present incident. A contradiction was put to her, to which she replied that it is not a fact that she did not state before the Police that appellant had inserted his fingers into her private parts.

The informant of the case, i.e., the mother of the victim was examined as PW No. 2, and she stated before the Trial Court that she knew the appellant, who was her neighbor and that her daughter is 8 years of age at the time she deposed. This witness had exhibited the birth certificate of the victim. She, thereafter, stated that on the day of occurrence at about 12:00 noon, when she was working in her house, she heard the cries of her daughter and that she rushed to her and she saw her victim daughter, crying in the paddy field and that when she asked her victim daughter the reason of her crying, her daughter replied that the appellant had asked her to bring her a glass of water and when she handed over the glass of water, the appellant caught her, touched her breasts and committed misdeeds with her. This witness further stated that subsequently, she brought her daughter home and that she revealed the incident to her neighbors and that her husband was not at home at that juncture. She also stated that pursuant thereto, a discussion was held by the village elders, wherein the appellant was called, who however, did not appear in the said discussion.

This witness was cross-examined by the defence wherein she stated that there was a delay of 20 days in lodging the ejahar and that her statement was recorded on the date of lodging of the ejahar. She also stated that the appellant is the cousin of her husband and that she did not see the occurrence, neither she saw the appellant at the place of occurrence.

A maternal aunt of the informant was examined as PW No. 3 and she stated that she heard about the incident to the effect that the informant went to the field and brought the victim daughter to her house. This witness was however, declared hostile on the prayer of the prosecution and during her cross-examination by prosecution, she denied of stating before the Police that the victim shouted from the jute field and upon hearing the same, she rushed immediately and that she saw the appellant running away therefrom and further that, the victim told her by crying that appellant pressed her breasts, bit her and inserted his finger into her vagina and also that, the appellant pressed her neck. In her cross-examination by the defence she stated that she was not present in her house during the occurrence.

PW-4 was the neighbor who stated before the Court that on the day of occurrence, he was present in his house and upon hearing hue and cry in the house of the victim, he went to the said house and upon seeing the victim crying, he asked her the reason as to why she was crying, to which the victim replied that while she was playing in the house of the appellant, the appellant who was working in the jute field, called her to bring some water and when she went to give him the water, the appellant by removing her clothes, pressed and bit her breasts and inserted his finger into the vagina of the victim and that her mother on hearing hue and cry, went to the place of occurrence and brought her back. This witness was cross-examined by the defence and he stated that he saw the cut-mark on the breast of the victim as she was not wearing any top, when he met her in her house.

PW-5 is another neighbor who deposed that during the time of occurrence, the mother of the victim was sitting in her house and that they heard the victim shouting from the jute field and upon hearing the cries, the mother of the victim and she went to the place of occurrence. This witness thereafter, stated that upon reaching the place of occurrence, the victim told her mother about the appellant, telling her to bring water and also about the appellant scratching her breasts and inserting his finger in her private part. She, thereafter, stated that informant had then narrated the occurrence to her.

In her cross-examination, she reiterated that the informant was present in her house at the time of occurrence. She also stated that father of the victim is her cousin and denied of not stating before the Police that appellant had scratched the breast of the victim by his nails.

The doctor who examined the victim, deposed as PW No. 6 and on the examination of the said victim, he found that hymen of the victim was not ruptured. He opined that no injury was found on the body of the victim as well as in her private parts.

The Investigating Officer of the case was examined as PW No. 7 and he stated that upon receiving the ejahar, lodged by the informant, i.e., the mother of the victim, he conducted the investigation. He further stated that the appellant, on 29.06.2021, surrendered at the Police Station. During the cross-examination, the contradiction which was put before the victim was put to him, to which he replied that the victim did not state before the Police that the appellant inserted his fingers in her private part. This witness has also stated about the statements made by the hostile witness, i.e., PW No. 3, before him.

These are the evidences led by the prosecution. Thereafter, the appellant was examined under Section 313 of the CrPC, wherein all the incriminating circumstances appearing in the evidences of the prosecution witnesses, were put to him to which, he denied. He, however, stated few statements in his favour, which were as follows:-

After completion of the said examinations and after hearing the arguments put forth by the prosecution and the defence, the learned trial Court had convicted and sentenced the appellant as mentioned above.

Mr. Pallav Kataki, learned Senior Counsel assisted by Mr. N. Saikia, appearing for the appellant submitted that there was a formidable delay in lodging the ejahar, by the mother of the victim. He submits that there was 15 days delay in lodging the ejahar and the only ground taken by the informant was that there was a discussion held by the village elders, but the said discussion cannot lead to such a long delay and as such, he submits that the same is fatal to the case of the prosecution. The learned counsel further submits that in the First Information Report, the story projected by the mother of the victim, was different to the effect that the appellant had inserted his penis into the vagina of the victim, whereas in the subsequent statements, both by the victim as well as by the informant, the allegation was only to the extent that the appellant had touched the private parts of the victim and committed bad act upon her. The learned counsel, as such, submits that the appellant could not have been convicted under Section 6 of the POCSO Act. He also submits that the medical report with regard to the victim had not corroborated the prosecution case inasmuch as, no injury was found on the body of the victim.

Per contra, Ms. A. Begum, learned Additional Public Prosecutor for the State of Assam, submits that the testimony of the mother of the victim lends support to the statement of the victim, in view of the fact that the mother reached the place of occurrence upon hearing cries of the victim and when she asked the victim as to what had happened, the victim narrated the entire incident, establishing the complicity of the appellant. She further submits that the testimony of PW-4 and PW No. 5 also supports the prosecution case, inasmuch, as the victim narrated the incident to PW-4 and also that, PW-5, went along with the mother of the victim to the place of occurrence and who upon hearing the occurrence had deposed before the Court. The learned counsel also submits that the statement of the victim, recorded under Section 164 CrPC by the Magistrate corroborates the statement of the victim made before the Trial Court. She also stated that the age of the victim was barely 7 years at the time of occurrence and the appellant committing such an act upon such a small girl, shows his evil intention and that the trial Court had rightly convicted the appellant on the evidences on record.

Mr. A. K. Azad, learned counsel appearing for respondent No. 2, had supported the arguments made by the learned State Counsel and further added that there is consistency in the statement of the victim, before the authorities and as such, the Judgment and Order may not be interfered with by this Court.

The present case is with regard to a sexual offence and it is no longer res integra that in cases of such nature, the evidence adduced by the prosecutrix is clinching, provided the same inspires the confidence of the Court. The statement of the prosecutrix should be of a high quality and should be of such a nature that the same can be accepted without any hesitation as to the factum of the case and the complicity of the accused person. Her evidence should lead to the only conclusion that the accused person is the perpetrator of the crime and also that, he had committed the offence with all the particulars as stated by her. The prosecutrix should then be considered as the sterling witness of the case. 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.

The statement of the victim was recorded by the Police under Section 161 of the CrPC, wherein the victim stated that the appellant was a related grandfather and that on the date of occurrence, she was playing near his house. She also stated that the appellant had told her to bring some water, which she brought it for him and after having the water, the appellant removed her clothes and he tried to commit bad act upon her. She further stated that the appellant bit her chest and that he got over her body and tried to commit bad act and also that, the appellant pressed her neck.

The victim made her statement before the Magistrate, which was recorded th under Section 164 CrPC on 28 of June, 2021, and the learned Magistrate after checking her competency to depose and upon finding her competent enough, recorded the statement. The victim stated that the appellant who was working in the jute field, called her when she was playing and asked her to bring a glass of water and after she gave him a glass of water, the appellant removed her clothes and pressed her breasts and bit them hard. She also stated that the appellant inserted his finger into her vagina. She then stated that she shouted and that her mother arrived and seeing her mother, the appellant fled from the place. She also stated that the appellant pressed her neck, when she shouted.

th 18. In her statement before the trial Court, which was recorded on 8 of November, 2021, the victim stated that while she was playing in front of a shop, which was little far way from her house, the appellant who was working in a nearby field, asked her to fetch a glass of water, which she accordingly did and that after having the glass of water, the appellant grabbed her chest and by removing her clothes, he inserted his fingers into her private part. She further stated that she felt pain and cried and that hearing her cries, her mother came and the appellant on seeing her mother, fled away from the scene.

On careful examination of the said statements made by the prosecutrix before the said authorities, it is seen that as far as the victim playing before the occurrence, the appellant asking for water, the victim giving him the glass of water and consequent thereof, the appellant touching and scratching her breasts and the appellant removing her clothes, are same before all the authorities. However, there appears a difference to the effect that before the Police, she stated that the appellant on getting over her body, had tried to commit bad act upon her, which she, however, did not state before the Magistrate or the Trial Court. Before the Police, she did not state that the appellant inserted his fingers into her vagina or private part, as she had stated before the Magistrate as well as the Trial Court respectively. As such, there appears a discrepancy in the statements of the victim and due to the said fact, the victim cannot be termed as a sterling witness, as has been held by the Supreme Court, as stated above. Her statement cannot be stated to be of a very high quality, to return the finding that her version can be accepted without any hesitation.

Further, the contradiction with regard to the above aspect i.e. her not stating before the Police that the appellant had inserted his fingers into her vagina, was put to her, during her cross-examination by the defence and the victim replied that she had stated the same before the Police. However, when the Investigating Officer, who was examined as PW No. 7, was confronted with the said statement of the victim, he clarified that the victim did not state before him that the appellant inserted his fingers in her private part. It is, therefore, seen that the contradiction appearing in the statement of the victim was proved as provided by the law. The Hon’ble Supreme Court in V. K. Mishra & Others vs. State of Uttarakhand and Others; reported in (2015) 9 SCC 588, had held that to prove the contradiction under Section 145 of the Evidence Act, the said contradiction has to be first put to the witness, whose statement is contradicted and if the witness accepts the contradiction, the contradiction stands proved but if the witness denies the same, the said statement showing the contradiction has to be put to the Investigating Officer, during his examination and if the Investigating Officer accepts the contradiction, the contradiction then stands proved. The relevant part of the said Judgment is reproduced below:

In view of the law laid down by the Hon’ble Apex Court and by applying the same in the instant case, it is noticed that the contradiction appearing in the statement of PW-1, i.e., the victim has been proved as per Section 145 of the Evidence Act and in that view of the matter, the alleged fact that appellant had inserted his finger into the private part of the victim, cannot be considered as a real fact. However, as far as other actions of the appellant are concerned, the same is established by the evidences on record.

It is a settled position of law that in case, the statement of the victim is not clinching, which cannot inspire the confidence of the Court or that the victim cannot be termed as a sterling witness, then in that case, corroboration to the statement of the victim should be sought for, from other evidences on record. It is, therefore, the duty of the Court, to look into other evidences which can be discerned from the record.

As far as the mother of the victim is concerned, who deposed as PW-2, had only seen the victim crying at the place of occurrence. She had neither seen the appellant, at the place of occurrence nor she saw the appellant fleeing or running away from the place of occurrence. She simply said that on asking the victim, the victim narrated the incident and that the victim told her about the appellant catching hold of her and touching her breasts and committing misdeed with her. This witness, however, did not say that the daughter, i.e., the victim told her that the appellant inserted his fingers in her private part. Therefore, with regard to insertion of the fingers by the appellant into the private parts of the victim, there appears no corroboration from the mother of the victim.

The argument of the learned Additional Public Prosecutor, Assam that PW Nos. 4 and 5, by their testimonies, had corroborated the statement of the victim, also cannot be accepted by this Court. 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. To put it in clear terms with regard to the present case, it be stated here that if the victim reveals the necessary facts about the offence committed upon her, to another person, who reaches the place of occurrence 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. In the present case, the victim did not state to her mother about insertion of the fingers by the appellant in her private part and as such, the principle of Res-gastae will not be applicable.

There is one more witness, who reached the place of occurrence with the mother of the victim and who was examined as PW No. 5. The learned counsel for the State although has placed reliance upon the testimony of the said witness, but the said testimony cannot favour the prosecution, in view of the fact that although the said witness reached the place of occurrence along with the mother of the victim, but she had not stated that she heard about the incident from the victim herself. She simply stated that victim told her mother about the occurrence and the mother had told her. As such, the statement of this witness becomes a hearsay evidence and her evidence cannot form part of the same transaction. Further, the mother of the victim had not stated in her statement that victim told her that appellant had inserted his fingers in her private parts.

Furthermore, the testimony of PW-4 also cannot form part of the same transaction. This witness stated that upon hearing hue and cry, emanating from the house of the victim, he went to the victim’s house and upon asking the victim, he was apprised about the occurrence, which included the alleged fact that appellant inserted his fingers into the vagina of the victim. It is a settled position of law that a fact connected with the fact in issue, can form part of the same transaction only if the fact is narrated immediately after the occurrence. In the present case, the occurrence took place in the paddy field, which was stated to be little far away from the house of the victim as stated by the victim herself. PW-4 heard about the occurrence from the victim, when the victim reached her home, which undoubtedly took a considerable time for the victim to reach from the place of occurrence to her home.

26A. 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 also in the Judgment rendered in Atul Hazarika vs. State of Assam, reported in 2014 (1) GLR 314, had 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 by the Hon’ble Courts, it is, therefore, clear that in the present case, the statement made by PW-4 is much after the occurrence and the same cannot form part of the same transaction. Further, the statement of PW-5 also cannot form part of the same transaction because she heard about the incident from the mother of the victim who however did not say during her testimony that victim told her that appellant had inserted his fingers into her private part.

The evidence of the doctor also does not have the potentiality to support the case of the prosecution inasmuch as, in the report, it was specifically stated by the doctor, i.e., PW-6 that hymen of the victim was not ruptured and that no sign of injury on the private parts of the victim was seen. As such, this Court is unable to find any corroboration to the statement of the victim, with regard to the fact that the appellant had inserted his fingers into the private parts of the victim.

The learned Trial Court had returned the finding that case is established against the appellant under Section 6 of the POCSO Act, as well as under Section 8 of the POCSO Act. Section 6 of the said Act provides as under:-

To punish an accused person under Section 6 of the POCSO Act, the offence committed by the accused person should come within the definition of Penetrative Sexual Assault. Under Section 5 of the POCSO Act, it is provided that whoever commits penetrative sexual assault of various nature upon a child, would be held responsible and since in the present case, the victim was of less than 12 years of age, the relevant provision would be sub-section (m) of Section 5 of the POCSO Act which provides as under:

It can, therefore, be deduced by the law prescribed that the definition of penetrative sexual assault has to be seen and the same is defined under Section 3 of the POCSO Act. Section 3 of the said Act is reproduced below;

A bare perusal of the said definition, makes it crystal clear that for punishing the appellant under Section 6 of the POCSO Act, the offence should within any of the said Sub-Sections of Section 3 of the POCSO Act. In the instant case, although it is stated by the victim before Trial Court and the Magistrate that the appellant had inserted his finger inside her private part but in her statement before the police, she stated that the appellant had tried to commit bad act upon her. She did not state before the Police that appellant inserted his fingers into her private part. However, the rest of the acts committed by the appellant upon the victim, i.e., touching and scratching her breasts, removing her clothes and pressing her neck, finds place in all the statements of the victim before all the authorities. To convict an accused person under Section 6 of the POCSO Act, insertion of any part of the body into the private part of the victim is required, which, however, is not established beyond reasonable doubt in the present case. As such, the conviction of the appellant under Section 6 of the POCSO Act is unsustainable in law.

However, the offence committed by the appellant which was stated by the victim consistently before the authorities comes within the definition of aggravated sexual assault provided under Section 9 of the POCSO Act and the victim being a child of less than 12 years, the relevant provision would be Sub-Section (m) of Section 9 of the Act, which is reproduced below:-

The term sexual assault is defined under Section 7 of the POCSO Act, which is quoted as under:-

In the present case, the victim stated that the appellant had touched and had bit her breasts and had also removed her clothes. The said actions would attract sexual assault upon the victim and under Section 9 of the POCSO Act, it is provided that whoever commits sexual assault on a child below 12 years of age, be punished for the offence of aggravated sexual assault. Section 10 of the POCSO Act, provides for the said punishment, which is reproduced below:-

A bare perusal of the aforesaid Section makes it clear that whoever commits aggravated sexual assault upon the victim, shall be punished for a term not less than 5 years, but which may extend to 7 years along with fine. Since in the present case, the appellant is found to have committed aggravated sexual assault upon the victim, the appellant is convicted under Section 10 of the POCSO Act.

It is also a settled position of law that in case, the evidence demonstrates the commission of a lesser offence, then the offence with which the accused person is charged of, the learned Court can convict the accused person for the lesser offence, although the charge was not framed.

In this context, Sub-Section (1) of Section 222 of the Code of Criminal Procedure be referred hereinbelow:-

On the plain reading of the aforesaid provision makes it clear that Section 222(1) of the CrPC deals with a case when a person is charged with an offence consisting of several particulars. The Section permits the court to convict the accused person of the minor offence, though he was not charged with it. The charge framed in this present case was under Section 376 AB/506 of IPC, as well as Section 6 and Section 8 of the POCSO Act. The learned Trial Court, however, acquitted the appellant for the charges under Section 307/506 of the IPC. Section 10 of the POCSO is admittedly a lesser offence than Section 6 and Section 8 of the said Act, as well as Section 376 AB of the IPC, and as such, conviction can be awarded under Section 10 of the POCSO Act. Further, Section 376 AB of the Indian Penal Code is also not attracted in the instant case, inasmuch as, there is no evidence on record that rape was committed by the appellant upon the victim as could be seen from above. As such, the appellant is acquitted of the charges under Section 376 AB of the IPC.

36A. In view of the findings mentioned herein above, this Court finds it fit to interfere with the Judgment and Order dated 28.02.2024, passed by the Special Judge, POCSO, Morigaon in POCSO Case No. 126/2021, convicting the appellant under Section 376 AB IPC read with Section 6 and 8 of the POCSO Act. Resultantly, the said Judgment and Order is set aside and quashed.

The appellant, namely, Khajul Uddin, is hereby convicted under Section 10 of the POCSO Act. As such, he is sentenced to undergo RI for a period of 7 years with fine of Rs. 5,000/- and in default, to undergo further Rigorous Imprisonment for a period of 1 (one) month. The period already undergone by the appellant both during the Trial as well as after the impugned Judgment and Order be set off against the total incarceration period. The appeal is as such, partly allowed and disposed of.

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