Partly allowed

MD Dildhar Hussain @ Dilder @Dildar @ Dilwar Hussain v. the State of Assam and Anr.

Gauhati HC27 Nov 2019Crl.A./118/2018

Case brief

AI extract

What is this about?

The High Court allowed the appeal partly, converting the conviction from Section 6 to Section 4 of the POCSO Act. The court held that absence of physical injury does not negate assault, upheld the statutory presumption against the accused who failed to rebut the prosecution case, and reduced the sentence from 10 to 7 years rigorous imprisonment.

What did the court decide?

Conviction under Section 6 of POCSO Act converted to Section 4; sentence reduced to 7 years rigorous imprisonment and fine; appeal partly allowed.

MD Dildhar Hussain @ Dilder @Dildar @ Dilwar… — Child Sexual Offences (POCSO) | Gauhati HC (2019)

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GAHC010001122017

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THE GAUHATI HIGH COURT

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(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : Crl.A. 118/2018

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1:MD DILDHAR HUSSAIN @ DILDER @DILDAR @ DILWAR HUSSAIN S/O MD. NOOR ISLAM, VILL- KUTHARI, PS- JAKHALABANDHA, DISTGOLAGHAT, ASSAM

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VERSUS

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1:THE STATE OF ASSAM and ANR GUWAHATI

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2:MRS NURJAHAN BEGUM W/O MD. BHAIJAN ALI R/O- URIAMGHAT GELAJAN GAON P.S- URIAMGHAT DIST- GOLAGHAT ASSAM 78560

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Advocate for the Petitioner : MS. S K NARGIS

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Advocate for the Respondent : MR. D. DAS(ADDL.PP, ASSAM)

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BEFORE

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HONOURABLE MRS. JUSTICE RUMI KUMARI PHUKAN

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ORDER

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Date : 27-11-2019

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Heard Ms. S.K. Nargis, learned counsel appearing for the appellant/accused as well as Mr. D. Das, learned Addl. P.P., Assam appearing for the State respondent.

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This appeal has been preferred against the judgment and order dated 03.11.2016, passed

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by the learned Special Judge, Golaghat, in Special (POCSO) Case No.09/2015, whereby the accused/appellant has been convicted u/s.6 of the POCSO Act and sentenced him to undergo rigorous imprisonment for a period of 10 (ten) years and to pay fine of Rs.5,000/-, in default simple imprisonment for another one month.

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The prosecution case in nutshell is that on 08.01.2013 at about 2:00 P.M., one Rimpi Begum (actual name withheld), the granddaughter of informant Noorjahan Begum was kidnapped by accused Salman Ali and thereafter she was handed over to accused Dilwar Hussain, who confined her in his house and forcefully committed penetrative sexual assault upon her. She informed her parent over phone and after her recovery grandfather filed the FIR. On receipt of the ejahar, the Officer-in-charge registered the Urimghat P.S. Case No.04/2013, u/s.6 of the Protection of Children from Sexual Offence Act (POCSO Act) and entrusted ASI Phanidhar Basumatary to investigate the case. The I.O. then visited the place of occurrence, examined the witnesses and prepared sketch map of the place of occurrence. Thereafter, the victim girl was recovered from the custody of the accused Dildar Hussain, arrested the accused and forwarded him to the Court and got the victim girl examined by the doctor and collected the report and produced the victim before the Magistrate to record her statement u/s.164 of the CrPC and collected the birth certificate of the victim girl. After conclusion of the investigation, the I.O. submitted charge sheet against accused Dilder Hussain and Salman Ali u/s.366(A)/376 of the IPC, to stand the trial, showing accused Salman Ali absconder.

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On appearance of the accused Dilder Hussain, charge was framed u/s.6 of the POCSO Act and the same was read over and explained to the accused, to which the accused person pleaded not guilty and claimed to be tried.

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During the course of trial, the prosecution examined as many as nine witnesses including the Medical Officer and Investigating Officer, in support of the case, whereas the defence examined none. The plea of the defence is of total denial. At the conclusion of the trial, the learned trial Court found and hold the accused guilty and convicted him as aforesaid. Hence the appeal.

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I have heard the learned counsel for and on behalf of the appellant Ms. S.K. Nargis as well as Mr. D. Das, the learned Addl. P.P., Assam, appearing for the State respondent. None appears for the respondent No.2.

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Learned counsel for the appellant, Ms. Nargis has put forward her argument contending that the prosecution case is full of infirmities and the accused has been convicted on the basis of inconsistent evidence, coupled with inordinate delay in filing FIR and hence the conviction is not sustainable. Pointing towards the evidence of the victim and the content of the FIR, it has been argued that it does not tally with each other and that apart the medical report also does not support the case of the prosecutrix as no mark of injury and sign of sexual assault was found in private part of the victim. Over and above it is submitted that the conduct of the victim is not natural as she remained with the accused for so many days without protest and no clear picture is made out as to how the victim was recovered.

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Per contra, learned counsel of the State, Mr. B. Das, has opposed such submission of the learned counsel for the appellant and has submitted that the version of the victim itself reveals that she was deceitfully taken away by the co-accused thereafter, she was handed over to the present accused, who committed such offence. It has been contended that there is no such inconsistencies in the evidence of the victim as well as other witnesses so as to raise doubt upon the conduct of the victim as well as the delay in filing the FIR.

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Due consideration has been given to the rival submission of the learned counsel for the parties and gone through the evidence on record.

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Needless to say that each case has to be decided in the given background and the facts and circumstances, potentiality of the witnesses, their social status so as to assess the authenticity of the allegation and/or if there is scope for manipulation or false implication of the accused persons for any oblique purpose. In the instant case, the victim (PW. 2) was an minor aged about 13 years at the time of occurrence and she stayed in the house of her grandparents /PW.3 and PW.6 at Uriamghat, Dist. Golaghat whereas her parents (PW.1 & PW.5) resided at Dimapur, Nagaland in connection with their job. According to PW.3, on the fateful day, she rebuked the victim for not performing household works in the morning and then she went out of her house by saying that she will not stay in the house of PW.3 and will go to Dimapur to her mother. PW-3 informed PW.1 over phone that PW.2 has left her house and accordingly PW.1 awaited in the Railway station for arrival of her daughter but she did not arrive in Dimapur and then both Pw.1 and Pw.3 made search for their daughter but could not found. After few days, victim has reported to her parents that she is confined in Kuthari. Accordingly, PW.1 and PW.3 and Pw.6 along with others went to Kuthari in search of the victim and they came to know that

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PW.2 was kept by accused Dilwar in the house of his brother. On their arrival, the accused fled away and thereafter PW.3 filed the FIR before police and with the help of the police of Kuthari Police Station, the victim was recovered from the possession of the accused person.

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The evidence of PW.1, PW.3 and PW.5 are corroborative in nature and also supported the version of the victim girl/PW.2, on the facts and circumstances of the case. All above witnesses have stated that the victim girl was 13 years old at the time of occurrence and by the time she gave evidence in the year 2015 she is stated to be 15 years. In her evidence, the victim girl/PW.2 has stated that the same facts that she resided in the house of PW.3 and on the day of occurrence as she was rebuked by PW.3, so intending to return to her mother, she went to Sarupathar Railway station and at that time one boy, namely, Salman Ali, known to her asked her where she will go? As she disclosed that she will go to Dimapur then he asked her to go with him by Bus and she told that she has no money to travel in Bus then the said boy replied he will bear the cost of journey and took her in a Bus. After some time, he offered a Pan to her, and after consuming the Pan, she lost her senses. The boy took her to Kuthari and handed over her to accused Dilwar who forcefully committed rape upon her by saying that he will marry her and did not allow her to return home despite her request rather assaulted her. The accused took her to Nagaon and therefrom with the assistance of one boy she informed her mother over phone to recover her from Kuthari. After recovery, she gave her statement vide Exhibit-1 before Magistrate (under Section 164 CrPC). She has denied all the suggestion of defence side and has specifically denied that she being a major girl above 18 years voluntarily went with the accused persons. She also stated that she was born in the year 1999.

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It emerges from the evidence of victim girl as well as other witnesses (her guardians) that she was a minor girl at the time of occurrence and she born in 1999 and the occurrence took place in the year 2013. PW.6 has produced the Exhibit-3 (photocopy of birth certificate of the victim, the original was returned to him) regarding the age of the victim that she born in the year 1999. The fact that she was a minor at the time of occurrence also supported by the medical evidence of PW.4, on the day of examination on 02.02.2013. The PW.4 has given findings that there is old ruptured post tear and the girl is below 18 years, however, there is no sign of recent sexual intercourse or injury on her body and he has denied that victim is above 18 years.

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PW.7 (Akmot Ali) stated that he being the Vice President of Thana Committee came to know from police that the accused Dilwar has kidnapped the victim girl and kept in Kuthari and

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Police took his vehicle to Kuthari to recover the girl and he accompanied police. He also stated that both the accused and victim was brought to the Uriamghat police station .

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PW.8 (Ali Hussain) is a hearsay witness, who has stated that he heard that one boy kidnapped a girl and given to Dilwar and later on both victim and present accused was brought to the police station.

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As usual the I.O./PW.9 has stated about the registration of the case and the investigation thereof and also stated that after conducting preliminary investigation another I.O. (since expired) completed the investigation and laid the charge-sheet. It is stated that victim girl was recovered from the custody of Dilwar and the statement girl was recorded u/s 164 Cr.P.C. He also stated about seizure of M. Ext.-1 (birth certificate) of the victim girl from her parents. No serious omission and contradiction of any witness is proved.

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Now the fact that the victim was minor at the time of occurrence is proved by the prosecution by producing oral as well documentary evidence (birth certificate) which is also supported by medical evidence. The accused persons took the plea of juvenility at the time of occurrence, and the learned trial court after enquiry found that the accused was not juvenile at the time of occurrence. As the said finding was not challenged thereafter, so the said aspect attains a finality and it needs no consideration at this stage.

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The present case is to be appreciated in the given background that the victim was girl of 13 years at the time of occurrence and she lacks maturity and she stayed in the house of her grand-parents. The facts depicts that the victim went out from the house of her grand-parents intending to return to her parents at Dimapur, Nagaland and while she went to railway station she was persuaded by the another accused (since absconded) who took her to the present accusedappellant who alleged to have committed the offence of penetrative assault upon her by keeping her confined in his house. Of course, she remained with the accused for several days and there was few delay in filing the FIR, but the fact remains such a minor aged 13 years may not be able to know how to return home as she was confined in an unknown place. Having regard to her tender age, she cannot be blamed for her conduct as she did not attain sufficient maturity to make an endeavor to flee away. Such a minor girl of tender age can be easily over powered, threatened or even induced by a matured man by his muscle power which has happened in the present case. The M. Ext.1 (birth certificate), a copy from the original one reveals that her date of birth is 20.10.1999 issued on 26.11.2008 by Birth and Death Registration authority, Golaghat.

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Even if, we consider defence plea that victim girl voluntarily went to the accused and stayed several days with him, and there was a delay consequently, but in no circumstances, the consent of a minor girl aged 13 years, is a relevant factor under the provisions of the POCSO Act, as the special Act deals with sexual assault upon minor child and as per Section 2 (d) a person below the age of 18 years is a child.

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The version of the minor victim girl appears to be consistent along with her earlier statement in course of investigation that was recorded immediately after her recovery and also in course of trial. There appears no any other reason whatsoever for false implication of the accused-appellant and the other accused absconded. From the evidence of PW.1, PW.3 and PW.5 and PW.6 along with evidence of I.O., the confinement of the victim girl by the accused appellant and recovery from his custody stands proved. Finding of the medical officer about absent of hymen suggestive of sexual assault upon the victim, there being no other finding or cross examination whatsoever that such absence of hymen may be caused due to other reasons. No material contradiction of any of the witnessed is surfaced other than minor omission here and there. The delay in filing the FIR in the given circumstances, appears to be not doubtful as all the witnesses has stated that they were in search of the girl by their own source. The informant herein is a rustic woman who has put thumb impression in the FIR whereas the FIR was written by other person and her evidence being an old aged lady is inspiring, there being no any other reason to discard her evidence.

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The learned trial court in the circumstances has rightly appreciated that version of a victim of sexual assault can be acted upon in absence of corroboration, if her version is found to be believable (ref. State of Punjab vs. Gurmeet Singh, 1996 Crl. LJ 1728). Further, it has also been appreciated by the learned trial court that under Section 29 of the POCSO Act the court is under obligation to raise statutory presumption of commission of offence unless rebuttal evidence is produced. Obviously, the accused adduced no rebuttal evidence and in view of such positive evidence on record, the court is justified to draw legal presumption as mandated under Section 29 of the Act.

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Reliance place by the learned counsel for the appellant in the decision of Abhijit Dutta vs. State of Assam , (2019) 1 GLT 17 to submit that unexplained delay in lodging is fatal to prosecution is not applicable in the scenario of the present case. The tear hymen does not necessarily mean the sexual assault, as discussed in 2015 (9) SCC 91 (State of Madhya Pradesh

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vs. Keshar Singh) relied and referred by the learned counsel for the appellant, is of no help to the defence while the prosecution has otherwise proved the factum of sexual assault upon the victim, although the medical evidence not wholly supporting to the prosecution case.

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Regarding reliability of the testimony of victim, the Hon’ble Supreme Court is of the view that testimony of a victim in case of sexual offence is vital and unless there is compelling reasons, which necessitates looking for corroboration of such statement, the Court should not find difficulty to act on the testimony of the victim alone on sexual assault to convict the accused. Further, on the point of absence of injury upon the victim on the person of the victim as well as the hymen it has been held in 2013 11 SCC 688, Radha Krishna Nagesh –Vs- State of Andhra Pradesh and 2014 (13) SCC 574, Krishan –Vs- State of Haryana, that it is not expected that every rape victim should have injuries on her body to prove her case and penetration may not always result tearing of hymen and the same will depend upon the facts and circumstances of a given case. In case of limited penetration, there may not be possibility of rupture of hymen. The Apex Court held that absence of injuries on the prosecutrix could not justify drawing any adverse inference against prosecution. The Court is to examine the evidence of prosecution in its entirety to determine, whether it is a case of commission of sexual assault.

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Under Section 29 and 30 of the POCSO Act, the accused is under an obligation to rebut the prosecution case in due manner failing which the Court can raise statutory presumption against the accused for not challenging the case of prosecution. Sections 29 and 30 of the POCSO Act read as follows:-

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“ Section 29 : Where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3, 5, 7 and 9 of the Act , the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved.

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Section 30 : Presumption of culpable mental state- 1) In a any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.

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For the purpose of this Section, a fact is said to be proved only when the Special Court

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believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability.

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Reverting to the present case, as we found save and except denial no specific plea was taken by the accused during the course of trial and has failed to rebut the statutory presumption under Section 29 and Section 30 of the Act.

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Considering all entirety of the matter, learned trial court has come to a finding of aggravated penetrative sexual assault upon the victim, but it is to be noted that the victim remained along with the accused person for several days and during such period she was subjected to such penetrative assault and in the circumstances, offence under Section 4 of the POCSO Act can be attributed. Accordingly, the conviction under Section 6 of the Act is converted to Section 4 of the POCSO Act and sentence him to RI for 7 years and to pay the fine already imposed. Period already undergone by the accused shall be set off.

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Appeal is partly allowed as indicated above. Return the LCR.

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JUDGE

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Comparing Assistant

MD Dildhar Hussain @ Dilder @Dildar @ Dilwar Hussain v. the State of Assam and Anr.

Case brief

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MD Dildhar Hussain @ Dilder @Dildar @ Dilwar Hussain v. the State of Assam and Anr.

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