Sultan Miah vs State Of Tripura

S. Talapatra, J

Heard Mr. P.S. Roy, learned counsel appearing for the appellant as well as Mr. S. Debnath, learned Addl. P.P. appearing for the state.

This is an appeal by the convict, hereinafter referred to as the appellant, from the judgment and order of conviction and sentence dated 12.04.2018 delivered in Special 12 of 2017(POCSO) by the Special Judge, Gomati Judicial District, Udaipur. By the said judgment dated 12.04.2018 the appellant has been convicted under Section 6 of the POCSO Act and under Section 342 of the IPC. Pursuant to the said finding of conviction, the appellant was sentenced to suffer ten years rigorous imprisonment and fine of Rs.7000/- for the offence punishable under Section 6 of the POCSO Act with default stipulation. The appellant has been further sentenced to suffer six months‟ rigorous imprisonment for offence punishable under Section 342 of the IPC. The said judgment and order are under challenge in this appeal as stated.

The prosecution as it appears from the records was launched on the basis of the complaint [Exbt.2] filed by one Archana Das [PW-2] revealing that on 30.12.2016 at about 1.00 p.m. in the afternoon when she was having her bath and thereafter changing the clothes in her room, the wife of her younger brother namely Sima Das came screaming and told her that Sultan Miah [the appellant] confined two girls namely the victim [the name is withheld for protecting her identity] and Sumi Akhtar [PW-1] into his room and "raped" the victim. Sima Das who has not been cited as the witness, heard the screaming of the victim when she entered in the house premises of the appellant and she has asserted that she found the appellant standing in the naked state and the victim was also without any apparels. After seeing this, Sima Das ran and came to the house of the informant [PW-2]. Based on the said complaint dated 30.12.2016 R.K. Pur Women Police Station Case No.2016 WRP 076 under Section 342/376(2)(i) of the IPC and under Section 6 of the POCSO act was registered and taken up for investigation. Smti. Madhabi Debbarma [PW-14] having been entrusted with the investigation, completed the investigation on collecting the evidentiary materials and filed the police report under Section 173(2) of the Cr.P.C. sending up the appellant to face the trial. Having received the final report, the special Judge on taking cognizance, framed the charges under Section 6 of the POCSO Act and also separately under Section 342 of the IPC, to which the appellant pleaded not guilty and claimed to be tried.

In order to substantiate the charge the prosecution adduced as many as fourteen witnesses and introduced a series of documentary evidence [Exbts.1 to 10] including the medical examination report of the victim [Exbt.9] and the report from the State Forensic Science Laboratory [Exbt.10].

After the prosecution evidence was recorded, the appellant was examined under Section 313 of the Cr.P.C. for having his response to the incriminating materials those surfaced in the record of evidence. The appellant reiterated his plea of innocence and stated that the evidence are all fabricated and cannot be relied upon. But he has clearly stated that he would not adduce any evidence to rebut the evidence of the prosecution. It is to be noted that the statements of PWs-1 and 4 were recorded under Section 164(5) of the Cr.P.C. during the investigation. Having recorded the evidence as such, the special Judge returned the finding of conviction having observed inter alia as under :

"16. The ocular evidence has found strong and clinching corroboration in the medical evidence of PW12 Dr. Sayantika Saha, who has deposed that there was one perineal tear measuring ½ cm x 0.1 cm. between the vagina and the anus of the victim who was complaining of pain in walking. On the basis of said injury she finally opined that there was evidence of recent attempt of vaginal intercourse. After receipt of the report of forensic lab she gave opinion that there was evidence of recent vaginal forceful penetration. In cross-examination she reiterated that the chances of this type of tear being caused by any other source is very remote. The Pws have been sufficiently cross-examined by the defence but in their cross-examination, other than some routine and trite suggestions like land dispute, previous enmity etc. and denials, nothing striking has transpired to render their evidence doubtful.

As regards the age of the victim Pw 4, she has stated in her evidence that she is aged 8 years. Her mother has deposed that at the time of incident the victim was reading in Class III meaning thereby that her age was around 8/9 years at the time of occurrence. It appears from the record that the school certificate of the victim was seized by the IO but the prosecution did not examine the Headmaster who issued the school certificate although from the certificate her date of birth appears to be 18.03.2008. Also in the ossification test report dated 24.01.2017 of the Dental Surgeon the age of the victim is stated to be between 8-9 years. But as the said school certificate and the ossification reports were not exhibited through the evidence of the Headmaster and the Dental Surgeon, the same cannot be taken into consideration. However, from the other evidence particularly, the evidence of the victim and her mother (Pw 2) it is clear that the age of the victim at the time of incident was 8/9 years being a student of Class-III. Moreover, in the medical report of the doctor Pw 12 (Exbt.9) also the victim‟s age is mentioned as 9 years. In the FIR and 164 Cr.P.C statement of the victim her age is noted as 8 years. Otherwise also there is no whisper in the evidence and materials on records or from the side of the defence, that the victim was not a minor at the time of incident. Situated thus, the non-examination of the Headmaster or the non-exhibition of the school certificate does not cast any shadow of doubt on the issue of the victim girl being a child i.e. under the age of 18 years as required under the POCSO Act."

But from the report of the State Forensic Science Laboratory (SFSL) it surfaced that no seminal stain/spermatozoa of human origin could be detected in the exhibits marked as Exbts.A and C. The special Judge has while returning the finding of conviction observed that as the act of the accused was detected immediately which could be a reason for his having not discharged semen as he failed to complete the intercourse. The trial court is of the further opinion that the absence of semen in the SFSL report has no cascading effect on the veracity of the prosecution story.

Fundamentally, these were the basis of the conviction of the appellant and the trial Judge has categorically stated that barring some minor discrepancies here and there, the charge has been proved beyond all shade of doubt.

Mr. P.S. Roy, learned legal aid counsel appearing for the appellant has quite vehemently submitted that there are material discrepancies in the testimony of the witnesses. For example, he has stated that the victim has stated that PW-1 was outside the room and PW-1 has stated that she was inside the room for sometime and thereafter she came out. PW-1 has stated that the door was "almost closed" but by the space between two shutters of the door she could see the act of the appellant. According to Mr. Roy, learned legal aid counsel this is an improbable story. That apart, Mr. Roy, learned legal aid counsel has referred to the testimony of PW-3, Smt. Maya Rani Das. PW-3 has stated that after hearing the screaming inside the room of Sultan Miah, at the time when she went to his premises for spreading her wet clothes in the sunshine, she found that the door of the room was partly closed and partly opened and she had also heard alarm of the victim. Then she entered into the room of the appellant and found that :

"The victim was lying on the cot and Sultan Miah was lying upon her. I noticed that panty of ......[the name has been withheld for protecting her identity] was removed up to her feet label and Sultam Miah was totally naked having no wearing apparel on his person. Then I rescued .........the victim and took her to my house."

PW-3 has stated that she thereafter informed the matter to the mother of the victim and also to her mother-in-law namely Jashoda Das. On asking, the victim told her that both she and Sumi Akhtar [PW-1] were playing in a nearby field and thereafter Sultan Miah called them in his house and committed the said act. In the cross-examination, she has admitted that she did not state to the police that the door was "partly closed and partly open". Even she has admitted that the victim did not inform her about the incident. But immediately thereafter, she has stated that she informed the mother of the victim. When she entered in the room she found Sumi Akhtar inside the room of Sultan Miah.

Mr. Roy, learned legal aid counsel having placed emphasis on those aspects has stated that what is probable is that neither PW-1, Sumi Akhtar nor PW-3 Smti Maya Rani Das was speaking the truth, as PW-1 herself has stated that she was outside the room of Sultan Miah. The suggestions, contrary to what she has stated in the examination-in-chief have been flatly denied. Even Mr. Roy, learned legal aid counsel has questioned the reliability of the victim [PW-4] for her statement being contradictory to the statement that was recorded by the Judicial Magistrate who was not examined in the trial and what is further apparent is that at the time of cross-examination, no reference in respect of her statement was made to PW-4 in any manner. Despite that the statement recorded under Section 164(5) of the Cr.P.C. is a judicially noticeable document within the ambit of Section 58 of the Evidence Act. After the test, the statement of the witness of tender age of the victim was recorded on 31.12.2016 meaning, on the following day of occurrence. The relevant part of the statement reads as under :

"At that time „Dadu‟(grandfather) called me and took me and Sumi in his house. Grandfather closed the door and by disrobing me laid me on the bed caused pain in my vagina by getting over me. At time Sumi was standing but she could not open the door.

At that time I screamed, Sumi screamed too and at that time aunty (maternal uncle) Maya Rani Das came after which Sumi jumped and opened the door. When aunty (maternal uncle) came, grandfather started looking for the „lungi‟. At that time Puja who came along with aunt (maternal uncle) called my mother, and thereupon my mother and my grandmother came. At that time three Muslim ladies too came."

In the trial, the victim [PW-4] has stated that :

"Thereafter said „dadu‟ asked Sumi to stay outside the door and then he partly closed the door. Thereafter „dadu‟ removed my panty and took me on his cot and also put his lungi upward and laid on me. Thereafter he pressed in my vagina by something but I could not notice it. I got pain on my vagina. Then I raised alarm. Then hearing my outcry Sumi also entered into the room and she also raised alarm. Then my maternal aunt namely Maya Rani Das entered into the room and saved me. On the said day of incident there was examination going on in my school and said date was fixed for examination of my Bengali paper and I also appeared in the said examination. I returned from the school at 10 am on that date. At that time I was reading in Class III."

In the cross-examination she has admitted that she did not state to the police officer or to the Magistrate that „dadu‟ asked Sumi Akhtar to stay outside the door and the door was partly closed. The suggestions those were made were all denied. She was re-examined by the prosecution. For purpose of identification, the victim showed the accused [the appellant] by video recording by smart phone. The witness replied that that was her „dadu‟ who took her in the house on the day of incident. This mode of identification is according to us is permissible within the framework of the POCSO Act.

Mr. Roy, learned legal aid counsel having extensively referred the evidence has submitted before us that if the medical examination report and the forensic report respectively marked as Exbts.9 and 10 are keenly read, it would be apparent that there was no penetrative sexual assault within the meaning of Section 3 of the POCSO Act and hence having due regard to the definition of aggravated penetrative sexual assault as provided under Section 5 of the POCSO Act, this court would be persuaded to take a different view from the trial court inasmuch as if the penetrative sexual assault is not proved, the accused cannot be convicted under Section 4 and under Section 6 of the POCSO Act.

From the other side, Mr. S. Debnath, learned Addl. P.P. appearing for the state has submitted that the word „penetration‟ has occupied much wider meaning in the POCSO Act. Mr. Debnath, learned Addl. P.P. has submitted that even the trial Judge has noticed presence of injury on the perineum of the victim and the trial Judge has observed that injury in the perineum indicates to the penetrative sexual assault. Mr. Debnath, learned Addl. P.P. has further submitted that penetration to any extent would bring the offence within the definition of Section 3 of the POCSO Act. That apart, Mr. Debnath, learned Addl. P.P. has submitted that even by the touchstone of the cross-examination, the testimony of the victim [PW-4] is critically examined, it would surfaced that without some minor discrepancies with her statement as recorded under Section 164(5) of the Cr.P.C. what has appeared in her testimony, those are absolutely insignificant inasmuch as the core of the charge has been well established by the prosecution by means of clinical proof.

For better appreciation of the submissions, made by the learned counsel for the parties, even though, at the time of recording of submission of the learned counsel, substantive part of the testimonies have been reproduced but still we are persuaded to take a brief survey of the evidence that has been recorded during the trial.

PW-1, the girl namely Ms. Sumi Akhtar was all along with the victim [PW-4] and in this regard, there is no incongruity with the testimonies of the prosecution witnesses. Even PW-1 has stated in the trial quite categorically that she knew the appellant as the appellant was a close door neighbour. She used to call him „dadu‟. She could not recollect the date and month to identify the day of the occurrance. But she has categorically stated that it was about 1 p.m. in the noon when she was with the victim in the field in front of their house. At that time Sultan Miah [the appellant] called herself and the victim into his hut and accordingly they went there. Thereafter Sultan Miah closed the door of the room but did not lock it, rather he asked her to stay near the door. Thereafter he put the victim on a cot and sit on her. At the time of putting the victim on the cot Sultan Miah removed the panty of the victim and he also put his lungi upward. The maternal aunt of the victim namely Sima Das suddenly arrived there and rescued the victim. It is to be verified at this point of time that in the complaint reference was made to Sima Das but Sima Das and PW-3 is the same person. It appeared when we noticed the relation. When Sultan Miah got the victim laid onto the cot she was outside the hut near the door and the door was in the closed position. However, as the door was not completely closed, she could see the incident from outside. When the maternal aunt of the victim arrived in that house, she raised alarm and the maternal aunt rescued the victim. She has also stated that her statement was recorded under Section 164(5) by the Magistrate. By the cross-examination, her testimony could not be dented.

PW-2, Smt. Archana Das is the informant. She has stated that at about five years ago from the day when her testimony was recorded at about 1 p.m. in the noon her daughter [the victim] was playing in a nearby field along with Sumi Akhtar [PW-1]. At that time the wife of my brother namely Sima Das who is also an adjacent neighbour called her and told that Sultan Miah was doing something wrong with the victim in his house. Then she rushed to the spot and found both Sultan Miah and the victim in his room and lungi of Sultan Miah was in untied condition, whereas the panty of the victim was also in the removed condition. It would be appropriate to note at this point at the instance of the appellant, contradiction has also been sought to be brought out. Then her mother-in-law namely Jashoda Das arrived there and on asking by them, the victim told that Sultan Miah called her and Sumi Akhtar to his room and thereafter Sultan Miah got the victim laid on his cot, removed her panty and pulling upwards his lungi, he pressed his penis against the vagina of the victim for which the victim got pain and raised cry. The incident was communicated to the Panchayat Pradhan and on their instruction, the police was informed about the matter and she filed the complaint, which has been identified and admitted in the evidence by her. She could not say the exact date of birth of the victim but she has stated that at the time of incident she was reading in Class-III in Purba Gokulpur H.S. School. It is to be noted that according to her statement the victim was a child within the definition of Section 2(d) of the POCSO Act. Even there is no challenge by the appellant. In the cross-examination, nothing can be dented.

PW-3, Smt. Maya Rani Das has been discussed in detail and hence the repetition is avoided.

PW-4 is the victim. She had also been discussed in detail when recording the submission of the learned counsel appearing for the parties and the substantive part has also been put in the narrative. She has denied the suggestions and as such the testimony is not dented anyway.

PW-5, Smt. Jashoda Das is the grandmother of the victim. She has stated that „at about 7/8 months‟ ago in the noon at about 1 p.m., she was in her house and she heard hue and cry in the house of Sultan Miah, the appellant. She rushed there and on reaching in that place, she found Sultan Miah "was committing rape" upon the victim on his bed and panty of the victim was pulled down below her knee. She also found her daughter Maya Rani Das and Sumi Akhtar and some other persons of the locality. Her statement is full of exaggeration and hence, it cannot be relied.

PW-6, Smt. Rabia Bibi is a neighbor and has stated that she came out of the house after hearing the hue and cry and when she appeared in the house of Sultan Miah she found the victim and her mother, Archana Das who were standing near the boundary of the house of Sultan Miah. She heard that the victim was telling her mother that Sultan Miah had called both her and Sumi Akhtar to his room and thereafter asked Sumi Akhtar to stand outside the door and thereafter he closed the door, removed panty of the victim and then laid on her on his bed, pressed his penis on the vagina of the victim. Hearing the outcry of the victim, Sumi Akhtar and the maternal aunt of the victim went there. This witness is not of that significance except for testing veracity by way of immediate statement. She heard the tale from the victim.

PW-7, Smt. Silu Chanda is a constable from R.K. Pur Women P.S. and she was witness to the seizure of one panty of the victim. She has identified the seizure list [Exbt.4] and her signature. She was also the seizure witness of the medical report of the victim and she had identified that seizure list [Exbt.5] with her signature.

There was no effective cross-examination.

PW-8, Smt. Minati Debbarma is another constable of the R.K. Pur Women P.S. She was the seizure witness of the blood sample of the appellant [Sultan Miah] on 31.12.2016. She identified the seizure list [Exbt.6] on identifying her signature. No effective cross-examination was attempted.

PW-9, Smt. Jayashri Chakrabroty is another constable of the R.K. Pur Women P.S. She was the witness to the seizure of the vaginal swab of the victim on 30.12.2016. She identified the seizure list [Exbt.7] with her signature.

PW-10, Sri Goutam Dey wrote the complaint for the informant, Smt. Archana Das [PW-2]. He identified the complaint and admitted in the evidence.

PW-11 is the another child namely Puja Das who was also playing in the eve of the occurrence with the victim girl. She has simply stated that they were playing on that day with the victim but she did not reveal anything more.

PW-12, Dr, Sayantika Saha had carried out the medical examination of the victim following the procedure of the POCSO Act. She has stated in the trial that she had examined the victim and on examination, she found one perineal tear measuring ½ cm x 0.1 cm situated at a place in between the vagina and the anus. She was complaining of pain in walking. Except the same, no other injury was found. On the basis of the said injury, she has opined that there was evidence of "recent attempt of vaginal intercourse". She had collected vaginal swab of the victim and handed over the same to the police officer for forensic examination. The forensic examination did not find seminal stain/spermatozoa of human origin in her vaginal swab or on the apparel of the victim. The medical officer has given the final opinion that there was evidence attempt of sexual intercourse. By the said opinion she meant that there was attempt to have vaginal penetration.

This court is really shocked the way the opinion has been phrased. The opinion must be in the definite and specific terms. Either the opinion would be that there was evidence of recent vaginal forceful penetration or that there was attempted vaginal penetration. Both the phrase cannot be substituted in each other‟s place. She had identified her report in the cross-examination but she did not accede to the suggestions made to her.

PW-13, Dr. Subhankar Nath who was posted as Deputy Director, DNA Division, Tripura State Forensic Science Laboratory, Narsingarh on 10.01.2017. He had examined two sticks wrapped with cotton containing vaginal swab of victim, blood sample of one Sultan Miah and one brown coloured black/red printed panty which did not bear any blood or semen stain. He has clearly stated that by virtue of his report [Exbt.10] that no seminal stain or spermatozoa of human origin was detected in the panty and or in the vaginal swab. However, he found the human blood in the sample which was collected from the appellant. Therefore, the forensic report [Exbt.10] was of no use for the prosecution.

PW-14, Smt. Madhabi Debbarma was the recording officer. She has very briefly narrated how she had endorsed the investigation to Smt. Sakuntala Debbarma. She had identified the police report filed by Sakuntala Debbarma as in the trial, Sakuntala Debbarma was not examined.

Having appreciated the evidence and keenly going through the observations and the process as recorded in the medical examination report [Exbt.9] and the forensic examination report [Exbt.10], we are of the considered view that the prosecution has failed to make out a case of penetrative sexual assault as defined under Section 3 of the POCSO Act. If the penetrative sexual assault is not proved, the aggravated penetrative sexual assault cannot be held to have proved because Section 5 of the POCSO Act has catalogued all sorts of actions or beyond that which could be drawn as aggravated penetrative sexual assault. But there are substantial materials by which the commission of the sexual assault has been proved. Sexual assault as defined under Section 7 of the POCSO Act, reads as under :

"Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault."

We have also considered with much care and caution the plea of incongruity and absence of non-corroboration as raised by Mr. Roy, learned legal aid counsel but the discrepancies as pointed out do not provide us any earthly reason to disbelieve the victim in this case. She was so consistent from the time of her statement as recorded under Section 164(5) of the Cr.P.C. and when her testimony was recorded in the trial. The material parts have been corroborated by PWs.1, 2 and 3. As such, we do not have any doubt in our mind that the appellant has committed sexual assault within the meaning of Section 7 of the POCSO Act. In the result charge under Section 6 of the POCSO Act is interfered with and set aside. However, we are affirming the conviction under Section 342 of the IPC and without framing the formal charge in terms of Section 222(2) of the Cr.P.C., we convict the appellant for committing offence punishable under Section 8 of the POCSO Act. In consequence of the conviction as altered by us, the appellant is sentenced to suffer rigorous imprisonment for five years and he shall pay fine of Rs.5000/- and in default of the payment of fine, the appellant shall suffer simple imprisonment for two months. Needless to be further noted that the detention that the appellant has suffered during the investigation, trial and in the post-trial phase shall be set off from the substantive imprisonment in terms of Section 428 of the Cr.P.C. The appellant shall serve out that term of imprisonment. Both the sentences as imposed under Section 342 of the IPC and under Section 8 of the POCSO Act shall run concurrently.

In the result, the appeal stands partly allowed.

Send down the LCRs forthwith.

A copy of this order shall be furnished to Mr. Roy, learned Legal Aid Counsel.