IN THE COURT OF THE SESSIONS JUDGE : : TINSUKIA
District:
Tinsukia
Present:
Smti M. Nandi,
Sessions Judge,
Tinsukia
Sessions Case No. 134 (M) of 2014
U/s.376(2)(i) of I.P.C., r/w Sec.4 of POCSO Act
The State of Assam……………………………………………………………Complainant
-
Versus –
Sri Jowang Singpho,
S/o Sri Gopal Singpho,
R/o Dibang Gaon, Margherita, P.S. Margherita,
District: Tinsukia (Assam).………………………..………………………...Accused
Appearance:
Sri B.L. Agarwal,
Public Prosecutor……………............For the State
Sri N. Prasad,
Advocate……………………………..….…For the Accused
Date of Argument:
22.07.2015
Date of Judgment:
03.08.2015
J U D G M E N T
1.
The prosecution case, in brief, is that the informant Smti Sandhya
Begum lodged ejahar before the O.C., Margherita Police Station stating inter
alia that on 1.3.14 at about 4.30 P.M., her daughter Muskan Begum, aged
about 12 years went to Dibang village Budha Mandir area to collect firewood.
1
At that time, Jowang Singpho @ Om Dutta forcibly committed rape on her
and also assaulted her with fists and blows.
On receipt of the ejahar, police
registered a case and after completion of investigation, submitted chargesheet against accused Jowang Singpho @ Om Dutta u/s.376(F) I.P.C., r/w
Sec.8 of POCSO Act.
2.
During trial, the accused put his appearance before the court and
thereafter he was
enlarged on bail.
Charge was framed u/s.376(2)(i) of
I.P.C., r/w Sec.4 of POCSO Act, which was read over and explained to the
accused person, to which he pleaded not guilty and claimed to be tried.
3.
In this case, prosecution examined seven witnesses and the defence
examined none. The plea of the defence is plea of denial.
4.
POINT FOR DETERMINATION
(i)
Whether the accused person on 1.3.14 at about 4 P.M. forcibly
committed rape and sexual assault on the victim Muskan Begum, aged
about 12 years and thereby committed an offence u/s.376(2)(i) of
I.P.C., r/w Sec.4 of POCSO Act?
5.
DISCUSSION, DECISION AND REASONS FOR DECISION
PW1 is Nur Mohammad Ali.
He deposed in his evidence that the
incident took place on 1.3.14. On that day he was on duty. When he came
back home at about 5 P.M., he came to know from his wife Sandhya Begum
that when his daughter had gone to collect firewood from a nearby forest,
the accused dragged her and assaulted her and on the point of dao,
committed rape on her and thereafter she was left to her house by the
mother of the accused. Thereafter he referred the matter to the villagers.
Gaonbura Mahendra Pungkung took cognizance of assault only and did not
consider the act of sexual assault and advised them to compromise the
matter. On the next day, his wife lodged ejahar at Margherita Police Station.
In his cross-examination, PW1 replied that one village meeting was held at
2
Pali Vidyalaya School. About fifteen persons were present in the meeting.
The accused was also present. The villagers collected Rs.1,000/- and handed
over to him for the treatment of his daughter and he accepted the same.
6.
PW2 is the informant Sandhya Begum. She deposed in her evidence
that the incident took place on 1.3.14. On that day at about 5 P.M., her
daughter came home and told that while she had gone to pick up firewood,
the accused dragged her, disrobed her and committed rape on her.
In
addition to that, he also assaulted her. The victim was brought to her home
by the mother of the accused, who asked her daughter not to disclose the
facts to anyone. In the night, she inquired about the boy and could come to
know about the accused. In the morning, they went to Gaonbura. Gaonbura
asked them not to disclose the fact and that he will pay Rs.6,000/- and as it
was a matter to assault only, asked them to conceal the matter and not to
disclose before the police and assured them to pay Rs.6,000/-. On the next
day i.e. 2.3.14, the accused gave them Rs.1,000/-. Since the condition of her
daughter was serious, on 3.3.14, she went to the police station and lodged
the ejahar. In her cross-examination, PW2 replied that her daughter came
home at about 5 P.M. on the date of the incident. Her husband came home
at about 8 P.M. Her daughter told her that she was raped by the accused
person and she told this fact to her husband.
7.
PW3 is the victim Muskan Begum. She deposed in her evidence that
on the date of occurrence i.e. 1.3.14, she had gone to pick up firewood from
the forest near her house. At that time, the accused came there and dragged
her inside the forest, put dao on her neck, assaulted on her face with fists
and blows, disrobed her and thereafter committed rape on her. Thereafter
she came in limping condition. On her way home, she met one lady. Then
the lady took her to her house and offered rice, which she could not swallow.
She told the lady about the incident and the lady also massaged her back and
on her request, she escorted her to her house. Later on, she came to know
that the said lady was the mother of the accused. She narrated the incident
to her mother. Her father came later on. On the next day, a village meeting
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was held and in the said meeting, she narrated the said facts before the
villagers. However, the accused denied the said facts. Gaonbura advised
them not to disclose the fact of rape and only to disclose about assault. One
person gave Rs.1,000/- for her treatment. In her cross-examination, PW3
replied that there were 15/20 persons present in the meeting. Though she
disclosed about the commission of rape on her by the accused, but that
matter was not disclosed in the said meeting. She stated before the police
that one unknown boy assaulted her, while she was picking up firewood.
8.
PW5 is Mohendra Pungkhung. He deposed in his evidence that on
1.1.14, father of the victim came to his house with an application that he had
quarrel with one Hong and not Jowang. On summoning, father of the victim
came and told him that quarrel took place near No.1 Dibang Gaon near the
road. He also brought the victim along with him and he had noticed mark of
injury on her cheeks, but they did not utter the name with whom, mar-pit
took place. The villagers paid Rs.1,000/- as compensation to the victim for
her treatment. This witness was declared hostile by the prosecution.
9.
PW6 is Probin Saiko. He deposed in his evidence that one day in the
evening at about 4/4.30 P.M., the victim along with her parents came to him
and told that the victim was assaulted by someone while picking up firewood.
They did not spell the name of the assailant. However, they gave description
of his clothing and told that the assailant was wearing a lungi. He noticed
injury mark on both cheeks of the victim. On the next day morning, he again
went to the house of the victim and took the information, whether she was
assaulted only or any other act was done on her. Then her mother told that
no other offence was committed on her. Later on, he came to know that the
incident was caused by the accused person. On the next day, there was a
public mel.
He had asked the accused, whether he had committed any
offence and the accused replied that he had assaulted the victim out of anger
and denied to have done any sexual act with her.
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10.
On perusal of the evidence of aforesaid witnesses, it is seen that the
victim and her mother alleged that on the date of incident, when the victim
went to the forest to collect firewood, accused committed rape on her and
assaulted her with fists and blows. It is also alleged that though one meeting
was held in presence of elderly persons of the village, but the matter of rape
was not disclosed and the Gaonbura Mahendra Pungkung did not consider
the act of sexual assault and advised them to compromise the matter. In her
cross-examination, PW2 i.e. mother of the victim replied that the victim only
disclosed about assault on her by the accused. The victim PW3 also replied
in her cross-examination that in the meeting, her mother demanded money
from the accused, but the accused did not pay the amount and as such her
mother lodged ejahar before the police station. The victim also replied in her
cross-examination that she sustained injury on her private parts and blood
was oozing out from the same and she stated this fact before the doctor at
the time of her examination and the injury remained there for seven days.
11.
Dr. Surabi Bora was examined in this case as PW4. She deposed in
her evidence that on 4.3.14, she examined Muskan Begum, aged about 12
years in connection with Margherita P.S. Case No.40/14. On examination, she
found swelling on left side of her face and left eye. Small abrasion 3 cm on
the left side of the neck, two in numbers present. Multiple bruises over the
back present, but she did not find any injury on the private parts of the
victim. The doctor replied in her cross-examination that if a 12 years old girl
is subjected to rape, there may or may not be injury on the private parts.
According to the doctor, the age of the victim would be above 14 years and
below 18 years.
12.
Ld. Counsel for the accused has argued before me that evidence of
the victim girl suggestive of the fact that the victim and the accused is well
known to each other. The medical evidence indicating no sign of rape or any
injury on the external or private parts of the body of the victim and there are
contradictions in the statement of the witnesses also, for which the accused
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cannot be convicted for the offence u/s.376(2)(i) I.P.C. or Sec.4 of POCSO
Act.
13.
In support of his submission, ld. Counsel has placed reliance on same
case laws, reported in Diganta Mazumdar – Vs – State of Assam, 2010
(1) GLT 731, Crl.A 312/2013, date of judgment – 7.4.15, Moham Ali
& Ors. – Vs – State of Assam, 2014 (4) GLT 976 and Criminal Appeal
No.2238 of 2010 Md. Ali @ Guddu – Vs – State of U.P.
14.
Ld. Counsel for the accused has also submitted that a false case has
been instituted against the accused, as the accused did not pay the amount,
which was demanded by the mother of the victim and the medical evidence
also did not support the case of the prosecution on the point of rape. As
such the accused deserves to get acquittal.
15.
According to the victim, she was 12 years of age at the time of the
incident. Her mother i.e. PW2 also stated that at the time of the incident, her
daughter was 12 years old.
The Medical Officer also stated that as per
radiological report, the age of the victim was above 14 years and below 18
years at the time of the incident, but the accused’s side did not agitate the
matter regarding the age of the victim. No suggestion has been put to the
witnesses that the victim was major and above 18 years of age at the time of
the incident.
As such it can be said that the victim Muskan Begum was a
minor girl, below the age of 16 years at the time of the incident.
16.
The statement of the victim was recorded u/s.164 CrPC, wherein she
stated her age as 12 years before ld. Magistrate. The victim stated the name
of the accused as Om Dutta and also stated that Om Dutta committed bad
act with her by removing her clothes.
As she raised alarm, the accused
threatened her on the point of dao. She received injuries on her neck and
the accused also assaulted her with fists and blows.
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17.
Though ld. Counsel for the accused has raised point regarding
identification of the accused, but the witnesses have clearly stated that they
knew the accused, who is their co-villager. The victim also indentified the
accused at the court as well as before the Magistrate and also stated the
name of the accused while her statement was recorded just after the
incident.
18.
It appears from the evidence of the medical evidence that the doctor
did not find any injury on the private parts of the victim, but at the time of
examination, doctor had noticed injury on the face, left eye and left side of
the neck and multiple bruises over the back of the victim. So, as there was
no other option to take that the victim was assaulted by any other person on
the date of incident, it can be said that the accused is responsible for the
injuries caused to the victim. All the witnesses have supported the fact that
they had noticed injury on the face and neck of the victim.
19.
Ld. counsel for the accused further argued that the victim was more
than 18 years of age at the time of the incident and no document regarding
her age is produced and exhibited in this case. The victim being a major girl,
she may be a consenting party and accused cannot be held guilty for the
offence u/s.376(2)(i) I.P.C. or Section 4 of POCSO Act.
20.
It is well established from the record of this case that at the time of
commission of the offence, the victim was a minor girl, aged about 12/13
years. This fact was not only stated by the parents of the victim i.e. PW1 and
PW2 but also by the village headman Mohendra Pungkhung. Parents of the
girl may reasonably be expected to be naturally having direct knowledge on
the birth of their daughter. Their testimony therefore, inspires confidence.
The testimony of the parents on the point of her age is further corroborated
by the medical evidence in this case. Once the age of the victim is found to
be 13/14 years i.e. much below the age of 16 years at the time of the
incident, her consent becomes quite immaterial. Consent given by a minor
7
for doing an act, being done so to her, which act constitutes an offence is not
a consent in a criminal case.
21.
In this case, charge was framed u/s.376(2)(i) I.P.C. and Section 4 of
POCSO Act. Now, question comes, whether the offence committed by the
accused falls u/s.376 I.P.C. or Section 4 of POCSO Act or any other offence.
22.
In order to arrive at the correct conclusion, it deems it appropriate to
examine the basic ingredients of Section 375 I.P.C. punishable u/s.376.
“375 I.P.C. Rape – A man is said to commit rape who, except in the
case hereinafter excepted, has sexual intercourse with a woman under
circumstances falling under any of the six following descriptions:First – Against her will. Secondly – Without her consent. Thirdly –
With her consent, when her consent has been obtained by putting her or any
person in whom she is interested in fear of death or of hurt. Fourthly – With
her consent, when the man knows that he is not her husband, and that her
consent is given because she believes that he is another man to whom she is
or believes herself to be lawfully married. Fifthly – With her consent, when,
at the time of giving such consent, by reason of unsoundness of mind or
intoxication or the administration by him personally or through another of any
stupefying or unwholesome substance, she is unable to understand the
nature and consequences of that to which she gives consent. Sixthly - With
or without her consent, when she is under sixteen years of age.
Explanation – Penetration is sufficient to constitute the sexual
intercourse necessary to the offence of rape.
Exception – Sexual intercourse by a man with his own wife, the wife
not being under fifteen years of age, is not rape.
23.
U/s.375 I.P.C., six categories indicated above are the basic ingredients
of the offence. In the facts and circumstances of this case, the prosecutrix
was about 12 years of age, therefore, her consent was irrelevant.
The
allegation against the accused is that he took the prosecutrix in a nearby
jungle and committed rape on her and also assaulted her. The important
8
ingredient of the offence u/s.375 punishable u/s.376 I.P.C. is penetration
which is altogether missing in the instant case. No offence u/s.376 I.P.C. can
be made out unless there was penetration to some extent. In absence of
penetration to any extent would not bring the offence of the accused within
four corners of Section 375 of the Indian Penal Code. Therefore, the basic
ingredients for proving a charge of rape are the accomplishment of the act
with force. The other important ingredient is penetration of the male organ
within the labia majora or the vulva or pudenda with or without any emission
of semen or even an attempt at penetration into the private part of the victim
completely, partially or slightly would be enough for the purpose of Section
375 and 376 I.P.C.
24.
The Hon’ble Supreme Court had an occasion to deal with the basic
ingredients of this offence in the case of State of U.P. – Vs – Babul Nath
(1994) 6 SCC 29. In this case, this Court dealt with the basic ingredients of
the offence u/s.375 in the following words:“It may here be noticed that Section 375 of the I.P.C. defines rape
and the Explanation to Section 375 reads as follows:
“Explanation – Penetration is sufficient to constitute the sexual
intercourse necessary to the offence of rape.
From the Explanation reproduced above it is distinctly clear the
ingredients which are essential for proving a charge of rape are the
accomplishment of the act with force and resistance. To constitute the
offence of rape neither Section 375 of I.P.C. nor the Explanation attached
thereto require that there should necessarily be complete penetration of the
penis into the private part of the victim/prosecutrix.
In other words, to
constitute the offence of rape it is not at all necessary that there should be
complete penetration of the male organ with emission of semen and rupture
of hymen. Even partial or slightest penetration of the male organ within the
labia majora or the vulva or pudenda with or without any emission of semen
or even an attempt at penetration into the private part of the victim would
be quite enough for the purpose of Section 375 and 376 of I.P.C. That being
so it is quite possible to commit legally the offence of rape even without
9
causing any injury to the genitals or leaving any seminal stains. But in the
present case, the Medical Officer did not find any injury on the private parts
of the victim, but she received some injuries on other parts of the body, like
face and neck and multiple abrasions over the back.
25.
In the backdrop of settled legal position, when we examine the instant
case, conclusion becomes irresistible that the accused cannot be convicted
u/s.376 I.P.C. or Sec.4 of POCSO Act. It does not appear from the evidence
on record that the accused had neither undressed himself nor even asked the
victim to undress, so there was no question of penetration.
26.
In this case, the accused has been charged with Section 376(2)(i)
I.P.C. and Section 4 of POCSO Act. Now the question comes, in absence of
charge under any other section, the accused should be acquitted or whether
he should be convicted for committing any other offence pertaining to forcibly
outraging the modesty of a girl. In a situation like this, Section 222 of the
Code of Criminal Procedure can be taken into consideration, which provides
that in a case where the accused is charged with a major offence and said
charge is not proved, the accused may be convicted of the minor offence,
though he was not charged with it. Section 222 CrPC reads as under :“222. When offence proved included in offence charged – (1) when a
person is charged with an offence consisting of several particulars, a
combination of some only of which constitutes a complete minor offence, and
such combination is proved, but the remaining particulars are not proved, he
may be convicted of the minor offence, though he was not charged with it.
(2) When a person is charged with an offence and facts are proved which
reduce it to a minor offence, he may be convicted of the minor offence,
although he is not charged with it. (3) When a person is charged with an
offence, he may be convicted of an attempt to commit such offence although
the attempt is not separately charged. (4) Nothing in this section shall be
deemed to authorize a conviction of any minor offence where the conditions
requisite for the initiation of proceedings in respect of that minor offence
have not been satisfied.
10
27.
In this section, two illustrations have been given which would amply
describe that when an accused is charged with major offence and the
ingredients of the major offence are missing and ingredients of minor offence
are made out then he may be convicted for the minor offence even though
he was not charged with it. Both the illustrations given in the said section
read as under (a)
A is charged u/s.407 of the Indian Penal Code with criminal
breach of trust in respect of property entrusted to him as a carrier. It
appears that he did commit criminal breach of trust u/s.406 I.P.C. in
respect of the property, but that it was not entrusted to him as a
carrier. He may be convicted of criminal breach of trust under the
said Section 406.
(b)
A is charged u/s.325 of the Indian Penal code, with causing
grievous hurt.
He proves that he acted on a grave and sudden
provocation. He may be convicted u/s.335 of I.P.C.
28.
In the case of Lakhjit Singh and another – Vs – State of Punjab,
1994 Supp. (1) SCC 173, the Hon’ble Supreme Court had an occasion to
examine the similar question of law. In this case, the accused was charged
and tried u/s.302 of the Indian Penal Code but ingredients of Section 302
were missing but ingredients of Section 306 were present, therefore, the
court deemed it proper to convert the conviction of the appellant from
Section 302 to Section 306 I.P.C.
In this case, it was argued that the
accused cannot be tried u/s.306 I.P.C. and therefore, they are prejudiced by
not framing a charge u/s.306 I.P.C., therefore, presumption u/s.113-A of
Indian Evidence Act cannot be drawn and consequently a conviction u/s.306
I.P.C. cannot be awarded.
According to this Court, in the facts and
circumstances, Section 306 was attracted and the appellants’ conviction
u/s.302 I.P.C. was set aside and instead they were convicted u/s.306 I.P.C.
29.
A three-Judge Bench of Hon’ble Supreme Court in the case of
Shamnsaheb M. Multtani – Vs – State of Karnataka, (2001) 2 SCC
11
577 had an occasion to deal with Section 222 of the Code of Criminal
Procedure. The Court came to the conclusion that when an accused is
charged with a major offence and if the ingredients of major offence are not
proved, the accused can be convicted for minor offence, if ingredients of
minor offence are available.
30.
In view of above legal proposition and careful analysis of the
prosecution evidence and the documents on record, I am of the opinion that
accused cannot be convicted u/s.376(2)(i) I.P.C. or Section 4 of POCSO Act,
but the accused is found guilty u/s.354 I.P.C., because ingredients of Section
354 I.P.C. are present in the available case.
31.
So far as the offence u/s.354 I.P.C. is concerned, intention to outrage
the modesty of the women or knowledge that the act of the accused would
result in outraging her modesty is the gravamen of the offence.
32.
The essence of a woman’s modesty is her sex. The culpable intention
of the accused is the crux of the matter. The reaction of the woman is very
relevant, but its absence is not always decisive. Modesty is an attribute
associated with female human beings as a class. It is a virtue which attached
to a female owing to her sex.
33.
In the case of Raju Pandurang Mahale – Vs – State of Maharashtra,
(2004) 4 SCC 371, it was observed by the Hon’ble Supreme Court that
modesty is given as womanly propriety of behaviour, scrupulous chastity of
thought, speech and conduct, reserve or sense of shame proceeding from
instinctive aversion to impure or coarse suggestions.
34.
The ultimate test for ascertaining whether the modesty of a woman
has been outraged, assaulted or insulted is that the action of the offender
should be such that it may be perceived as one which is capable of shocking
the sense of decency of a woman. The word modesty is not to be interpreted
12
with reference to the particular victim of the act, but as an attribute
associated with female human beings as a class.
35.
In the case of State of Kerala – Vs – Hamsa (1988) 3 Crimes
161, it was stated as under:“What the legislature had in mind when it used the word modesty in
Section 354 and 509 of the Penal Code was protection of an attribute which is
peculiar to woman, as a virtue which attaches to a female on account of her
sex. Modesty is the attribute of female sex and she possesses it irrespective
of her age. The two offences were created not only in the interest of the
woman concerned, but in the interest of public morality as well.
The
question of infringing the modesty of a woman would of course depend upon
the customs and habits of the people. Acts which are outrageous to morality
would be outrageous to modesty of women.
No particular yardstick of
universal application can be made for measuring the amplitude of modesty of
woman, as it may vary from country to country or society to society.”
36.
The Hon’ble Supreme Court in the case of Bisheshwar Murmu – Vs
– State of Jharkhand, 2004 CriLJ 326, stated as under :“The
evidence
showed
that
accused
caught
hold
hand
of
informant/victim and when one of the prosecution witnesses came there
hearing alarm of victim, offence u/s.376/511 was not made out and
conviction was converted into one u/s.354 for outraging modesty of the
victim.”
37.
Considering the above legal proposition as well as the evidence
available on record, the accused is convicted u/s.354 I.P.C.
38.
The accused is heard on the point of sentence.
He has stated before
me that he is a married person, having wife and minor daughter in his house.
By doing work in a hotel, he is maintaining his family. He is the only earning
member of his family. If he is sent to jail, his family members will face great
hardship.
13
39.
Considering the submission of the accused and his counsel and also
ld. P.P., the court has taken a lenient view.
O R D E R
40.
I convict the accused Jowang Singpho @ Om Dutta u/s.354 I.P.C. and
sentence him to S.I. for two months and to pay a fine of Rs.5,000/(Rupees Five Thousand), i/d S.I. for one year. The period which he
detained in custody, shall be set off from the period of imprisonment,
imposed on him.
41.
The prosecution has failed to prove the case against the accused
u/s.376(2)(i) of I.P.C. or Section 4 of POCSO Act. Hence, he is acquitted of
the said offence.
42.
A copy of the judgment be given to the accused free of cost.
Given under my hand and seal of this Court on this the 3rd day of
August, 2015.
Dictated & corrected by me.
(M.Nandi)
Sessions Judge
Sessions Judge
Tinsukia
Tinsukia
14
A P P E N D I X
PROSECUTION WITNESSES
1.
PW1
-
2.
PW2
3.
PW3
-
Prosecutrix
4.
PW4
-
Dr. Surabi Bora
5.
PW5
-
Sri Mohendra Pungkhung
6.
PW6
-
Sri Probin Saiko
7.
PW7
-
Sri Jatin Saikia
-
Sri Nur Mohammad Ali
Smti Sandhya Begum
PROSECUTION EXHIBITS
1.
Ext.1
-
2.
Ext.2
3.
Ext.3
4.
Ext.4
-
Sonography Report
5.
Ext.5
-
Laboratory Report
6.
Ext.6
-
Ejahar
7.
Ext.7
-
Sketch map
8.
Ext.8
-
Charge-sheet
-
Statement of PW3
Medical Report
Radiological Report
Sessions Judge
Tinsukia
15