Sympathy towards accused cannot be grounds for lesser punishment: Gauhati High Court

Page No.# 1 7 THE GAUHATI HIGH COURT HIGH COURT OF ASSAM NAGALAND MIZORAM AND ARUNACHAL PRADESH) Case No. : CRL.A(J) 120 2018 SUMON BHUMIZ THE STATE OF ASSAM REP. BY PP ASSAM 2:SRI JITUL BORAH S O KHAGEN BORAH DISTRICT CHILD PROTECTION OFFICER O O DCPO OLD HOSPITAL ROAD P.S. HAILAKANDI DIST. HAILAKANDI ASSA For the Appellant : Ms. Purnima Baruah Bordoloi Amicus Curiae For the Respondents: Mr. M. Phukan APP Assam THE HON’BLE MR. JUSTICE SUMAN SHYAM THE HON’BLE MR. JUSTICE MIR ALFAZ ALI Date of hearing : 30 03 2021 Date of judgement : 30 03 2021 JUDGEMENT AND ORDERCase No 11 2017 whereby the sole appellant had been convicted under section 6 of the POCSO Act 1012 and sentenced to undergo rigorous imprisonment for 14years and also to pay fine of Rs. 5 000 in default to undergo rigorous imprisonment for further 2(two 3. This is yet another shocking instance of sexual harassment of a minor girl wherein a complaint has been made by the mother of the victim that the father of the child had committed rape on his minor daughter 4. On 30 08 2017 the mother of the victim girl i.e. the PW 1 had lodged a complaint before the District Child Protection OfficerHailakandi reporting about sexual assault made by her husband upon her minor daughter aged about 11 years. In the complaint dated 30 08 2017 it had been inter alia mentioned that such activities were being indulged by her husband upon her daughter every night since past one month or so when the family members went to sleep. On 22 08 2017 her husband had returned home late at night and when all of them including her three daughters and one son had fallen asleep the second daughter screamed and asked for help. After lighting the lamp she found her minor daughter without clothes and the zip of the pant of her husband was opened. Her daughter had screamed and said that her father was upon her body who put his private part into her private part. On the next morning the victim complained of bleeding and severe stomach pain which was indicative of penetrative assault. In the complaint lodged by the mother of the victim it was further mentioned that prior to that the complainant could not sleep for 2 3 nights so as to keep any eye on the accused. But on 26th August 2017 she had fallen asleep having spent a number of sleepless nights when the accused had again attempted rape on her minor daughter who could not scream because her father had tied her hands strongly Page No.# 3 7 But her daughter had signaled her with her legs and then shewoke up and found him on top without clothes having sex with her minor daughter 5. The complaint dated 30 08 2017 was forwarded by the DCPO Hailakandi to the Police based on which Hailakandi P.S. case No. 536 2017 was registered under section 4 of the POCSO Act 2012 and the matter was taken up for investigation. Upon completion of investigation the IO had submitted charge sheet against the accused appellant. Accordingly charge was framed against the appellant under Section 6 of the POCSO Act 2012. Since the appellant had pleaded innocence and claimed to be tried the matter went up for trial Eventually by the impugned judgement and order dated 20 092018 the appellant was convicted and sentenced as indicated above 6. By referring to the impugned order dated 20 09 2018 Ms. Bordoloi learned Amicus Curiae submits that she is not arguing for acquittal of the appellant but merely seeks lessening of the jail sentence by adopting a sympathetic approach towards the appellant since he has a family to look after. 7. We find from the record that the mother of the victim Smt. Shanti Bhumiz who is also the complainant in this case was examined as PW 1. PW 1 has deposed that she has five children. At the relevant time her eldest daughter was at Karimganj and the second daughter was aged about 10(ten) years. On the night of the incident she was sleeping with her four children in one bed and her husband was sleeping in another bed. At that time she heard cry of her second childwas pulled upward and the accused was committing sexual intercourse with her minor child. Then she assaulted the accused and somehow managed to push him away. The accused wanted to assault her with a spade and thereafter he went out by breaking open the door. PW 1 has also stated that her daughter had reported to her that the accused used to do the same “act” with her since before. She then came to Hailakandi town and informed the matter to the concerned office. PW 1 has proved her signature in the complaint dated 30 08 2017 Hailakandi was examined as PW 2. This witness has confirmed that he had received a written complaint from the PW 1 informing about sexual assault on her minor daughter by her husband. He then forwarded the complaint to the Officer in Charge Hailakandi Police Station for legal action. PW 2 has also proved his signature Ext. 2(1) in the FIR and has stated that the Police has recorded his statement 9. The victim girl was examined as PW 3. Before recording her statement the learned Special Judge Hailakandi had asked a few usual questions to the child witness so as to test as to whether the minor girl was able to give logical answers to the queries put to her. On being satisfied as regards the state of mind of the witness her deposition was recorded. In her deposition the PW 3 had given a version which was consistent with the complaint dated 30 08 2017and has confirmed that her father did “bad things” with her which had led to bleeding in her vagina. Her mother woke up from sleep at night and kicked her father and thereafter the case was lodged 10. PW 4 Smt. Saraswati Goswami is a social worker in the District Child Protection Unit Hailakandi and she has deposed that on 30 08 2017 the complainant came to their office and reported about the rape committed on her minor daughter by her husband. Accordingly Ms. Rajashree Roy Deb had prepared a complaint as per the version of the complainant in her presence and later the DCPO Sri Jitul Bora had forwarded the said complaint to the Officer in Charge Hailakandi Police Station. This witness has also confirmed that on being entrusted by the DCPO she had conducted social investigation over the matter and the Police had recorded her statement 11. PW 5 Smt. Krishnamoni Dutta was a Women Police Constable who was attached to the Hailakandi Police Station on that day. PW 5 has deposed that on the date of the incident she along with Deputy Superintendent of PoliceSmt. Rajashree Dhandia went to the house of the Member POCSO Committee viz. Smt. Rajasree Roy and found the victim girl along with her mother. Then the victim and her mother narrated the entire incident as to how the accused had committed rape on his minor daughter in a drunken condition. The victim was then taken by them to the Civil Hospital Hailakandi and later referred to the Silchar Medical College and Hospital Silchar for medical examination. The next day the victim was handed over back to her mother Page No.# 5 7 12. PW 6 Smt. Rajashree Roy was posted at the District Child Protection Unit Hailakandi as a POCSO support member. She has deposed that on 30 08 2017 at around 3 p.m. the complainant came to her office and narrated the entire facts as to how her daughter was sexually assaulted by her husband. PW 6 has also stated that the age of the victim girl was about ten years. After hearing the version of the complainant she had drafted the complaintaddressing the same to the District Child Protection Officer Hailakandi 13. PW 7 Sri Milu Kalindi is known to the accused but he did not have any personal knowledge about the incident. Therefore the testimony of this witness is not of much significance in this case 14. The medical examination of the victim girl was conducted by Dr. Orina Raha who was posted as the GDMO Forensic Medicine SMCH Silchar on 01 09 2017. According to Dr Rahathe medical examination of the victim was conducted on that day at about 11 30 a.m. and she found that the age of the victim was around 10 years. The doctor has opined that on examination of the victim she found hymen old tear at 9’O clock position. In her deposition the PW 8 has also stated that there was evidence of sexual penetration found in the person of the victim although there was no injury on the body 15. PW 9 Smt. Rajasree Dhandia was the Deputy Superintendent of Policewho was on duty in the Hailakandi Police Station on 30 08 2017. PW 9 has stated that on being informed by the Officer in Charge as regards the complaint received from the District Welfare Officer lodged by the PW 1 a case was registered and the matter was entrusted to her for investigation. She had visited the place of occurrence recorded the statement of the witnesses and found the accused person in his house. Accordingly the accused was apprehended by her. On getting the information that the victim was with her mother in the house of one Smt. Rajashree Roy where she was working as a Maid the PW 9 immediately went there recorded the statement of the victim her mother and Smt Rajashree Roy and thereafter forwarded the victim to the Civil Hospital Hailakandi. Later on the victim was referred to the SMCH Silchar. PW 9 has also stated that the statement of the victim and her mother under Section 164 Cr.P.C. was recorded. She had also collected the medical report from the SMCH and thereafter submitted charge sheet against the accused under section 4 of the POCSO Act 16. In his statement recorded under Section 313 Cr. P. C the accused has denied all the Page No.# 6 7 incriminating circumstances put to him but the defense side did not adduce any evidence 17. Taking note of the evidence available on record the learned trial Court had found the accused guilty of committing rape upon his minor daughter and accordingly convicted him under Section 6 of the POCSO Act 2012 and sentenced him as above 18. From a careful reading of the testimony of the witnesses we find that the version of the victim girl is very categorical and the same is consistent with her statement recorded under section 164 Cr.P.C. and the version given in the complaintbut had also made similar attempts in the past on his eldest daughter as a result of which she had to be sent away to Karimganj. The evidence adduced by the prosecution side therefore proves the charge framed against the accused beyond reasonable doubt. Situated thus we do not find any justifiable ground to interfere with the impugned judgement and order dated 20 09 2018 passed by the learned trial Court. 21. Coming to the plea of lesser punishment raised by the learned Amicus Curiae we find from the testimony of PW 1 that the appellant does not have any earning and it is the PW 1 being the mother of five children who has to work as a domestic help so as to support her family. The accused does not support his wife or the children and he does not have any source of income. Having regard to the nature of offence committed by the appellant and keeping in mind the facts and circumstances of the case in its entirety we do not find any good ground to adopt a sympathetic approach towards the appellant and reduce his jail sentence. As such the submission made by the learned Amicus Curiae praying for reducing the jail sentence of the accused stands rejected 22. For the reasons stated herein before we do not find any merit in the appeal. The Page No.# 7 7 appeal is therefore dismissed 23. The conviction of the appellant awarded by the learned trial Court is hereby 24. Before parting with the record we would like to place on record our appreciation for the services rendered by Ms. Purnima Baruah Bordoloi learned Amicus Curiae and direct the Registry to make available to him just remuneration as per the notified rate. Send back the LCR JUDGE JUDGE

Summary: Given the seriousness of the crime committed by the appellant and all of the facts and circumstances of the case, we see no reason to be generous to the appellant and minimize his jail sentence. As a result, the learned amicus Curiae’s submission pleading for the accused’s jail sentence to be reduced is rejected. The court cannot see any merit in the accused’s plea of amicus curiae for a lighter penalty. This Honorable Judgement was passed in The Gauhati High Court in The Case of Sumon Bhumiz Vs the State of Assam &amp; Anr. [Crl.A(J)/120/2018] by Justice Suman Shyam and Justice Mir Alfaz Ali. The mother of the victim girl had lodged a complaint before the District Child Protection Officer (DCPO), Hailakandi, reporting about sexual assault made by her husband upon her minor daughter, aged about 11 years. In the complaint, it was stated that her husband is committing such activities for the past one month when all her family went asleep. One night, she discovered her minor daughter uncovered, and the zip of her husband’s pant had been opened. Her daughter shouted and said her father had put her private part in her private part on her body. The next morning, the witness complained of bleeding and extreme stomach pain that showed penetration. Following these charges was framed against the appellant under Section 6 of the POCSO Act, 2012. The matter went up for trial taking note of the evidence available on record, the learned trial Court had found the accused guilty of committing rape upon his minor daughter and accordingly convicted him. Following this, the amicus curiae pleas for a lesser sentence as he was the sole bread earner of his family and being in jail might affect the whole family’s conditions. The Court observed that “it is apparent that the husband of the informant is a habitual drinker and in a state of intoxication, he had not only repeatedly, sexually assaulted his minor daughter (victim) but had also made similar attempts in the past on his eldest daughter, as a result of which, she had to be sent away to Karimganj. The evidence adduced by the prosecution side, therefore, proves the charge framed against the accused beyond a reasonable doubt. Situated thus, we do not find any justifiable ground to interfere with the impugned judgement and order passed by the learned trial Court” The dismissing the petition the court stated having regard to the nature of the offence committed by the appellant and keeping in mind the facts and circumstances of the case in its entirety, “we do not find any good ground to adopt a sympathetic approach towards the appellant and reduce his jail sentence. As such, the submission made by the learned Amicus Curiae praying for reducing the jail sentence of the accused stands rejected.”