Father committing rape upon minor daughter is aggravated penetrative sexual assault under Section 5(n) of the POCSO Act, 2012: Tripura High Court

Page 1 THE HIGH COURT OF TRIPURA CRL A(J) 48 OF 2019 Sri Manik Bhakti S o Lt. Dinesh Bhakti resident of Sanichara Ward No.4 P.S. Churaibari District North Tripura. Vs …. Appellant The State of Tripura HON’BLE THE CHIEF JUSTICE MR. AKIL KURESHI HON’BLE MR. JUSTICE ARINDAM LODH For the appellant Mrs. S. Chakraborty Advocate. For the respondent Mr. S. Debnath. Addl. Public Prosecutor. Date of hearing Date of delivery of Judgment & Order Whether fit for reporting : NO JUDGMENT & ORDER Arindam Lodh J) This is an appeal filed by the appellant against the judgment and order of conviction and sentence dated 09.11.2017 passed by the learned Special Judge North Tripura Dharmanagar in Case No. POCSO ACT 017 whereby and whereunder the appellant has been convicted under Section 6 of Protection of Children from Sexual Offences Page 2 Act and sentenced to suffer R.I. for life which shall mean remainder part of his life and to pay a fine of `10 000 with default stipulation. Briefly stated that the mother of the victim Smt. Sumitra Bhakti lodged a written complaint on 08.09.2017 to the Officer in Charge of Churaibari Police Station Dharmanagar inter alia stating that on 05.09.2015 when she her other sons and daughters were not at home her husband namely Manik Bhakti at noon made an attempt to commit rape upon her victim daughter while she was alone at her home. Hearing the cry of her daughter Namita Chanda and her husband Binay Chanda rushed to her house and saved her. It was further stated that at the time of lodging of that complaint her victim daughter was suffering from physical pain. Explaining the delay in lodging the complaint the complainant stated that the incident was discussed within her family and for that purpose a considerable time was consumed to lodge the complaint. On the basis of the said complaint dated 08.09.2015 the OC Churaibari PS registered a case being FIR No.CRB 036 under Section 354B of the Indian Penal Code and under Section 6 of POCSO Act. Investigation was carried out. During investigation police seized the wearing apparels of the victim arranged to record the statement of the victim under Section 164(5) of CrPC arranged for medical examination of the victim as well as Page 3 the accused sample of vaginal swab was sent to the State Forensic Science Laboratory arranged for ossification test to determine the age of the victim examined and recorded the statements of the available witnesses. Thereafter being satisfied that a prima facie case was established IO submitted charge sheet against the accused appellant. On being committed the case learned Special Judge framed charges against the accused under Section 6 of the POCSO Act 2012 as well as under Section 376(1) of the Indian Penal Code. In order to substantiate the charges prosecution examined as many as 12 witnesses and introduced 11 documents which were exhibited on At the closure of recording prosecution evidence accused appellant was examined under Section 313 CrPC to which he pleaded his innocence and also expressed his desire to adduce evidence on his behalf. Accordingly he adduced two witnesses including him. Having heard the learned counsels appearing for the parties and on consideration of the evidence and materials brought on record the learned Special Judge recorded the finding of guilt against the accused and convicted and sentenced him as aforestated. Page 4 Being aggrieved by the said judgment and order of conviction and sentence the appellant has preferred the instant appeal and prayed for In course of hearing of this appeal we have heard Mrs. S.Chakraborty learned counsel appearing for the appellant. Also heard Mr. S. Debnath learned Additional Public Prosecutor appearing on behalf of the State respondent. Mrs. Chakraborty learned counsel for the appellant submitted that the prosecution has miserably failed to substantiate the charges levelled against the accused appellant. According to her the version of the victim was not found to be trustworthy. Learned counsel for the appellant tried to persuade us that the prosecution has failed to produce the complainant the mother of the victim to adduce evidence before the court though her name was shown as one of the witnesses to the case. Mrs. Chakraborty learned counsel further contended that there were material contradictions between the statements made in the FIR and the testimonies of PW 1 PW 2 and PW 3deposed that victimwas raped by her father the appellant Page 5 herein. Learned counsel for the appellant further argued that learned Special Judge has committed an error of law and facts in believing the age of the prosecutrix below 18 years. On the other hand Mr. S. Debnath learned Additional Public Prosecutor would contend that the prosecution has been able to prove the case beyond reasonable doubt. The discrepancies as surfaced in the evidence of the prosecution witnesses were to be treated in minor in nature but the factum of rape had been proved beyond reasonable doubt. According to learned Addl. P.P. the medical report clearly suggested that the victim was raped by the accused. Further it was contended that the fact that at the time of commission of offence the victim was below 18 years had been proved beyond reasonable doubt. Learned Addl. P.P. strongly defended the judgment and order of conviction and sentence as recorded by learned Special Judge. In view of the submissions advanced by the learned counsels appearing for the parties we have perused the evidence brought out by the prosecution witnesses. PW 1 Smt. Namita Chanda who was a neighbour of the complainant as well as PW 3deposed that on the fateful day at about 4:00 pm the victim went to her house and reported her that on that day Page 6 at noon her father forcefully committed rape upon her at their hut. She further deposed that the victim also reported that her mother and younger brothers and sisters at that time went to the ‘Loknath Mandir’ and getting her alone her father committed the offence. Nothing material was elicited from her cross examination by the defence regarding the statements she made in her examination in chief. PW 2 Sri Binay Chanda being the husband of PW 1 also deposed in the same tune as that of his wifeof CrPC sent the vaginal swab to SFSL for examination and report and also arranged for ossification test of the victim girl to determine her age. PW 9 Debabrata Datta deposed that he also investigated the case after PW 8. He collected the reports of medical examination and ossification test. He deposed that on 22.11.2016 the Medical Officer after examining the victim submitted his report and opined that the victim was about 15 years old but below 18 years. He specifically stated that he relied on the medical report regarding the age of the victim girl. PW 10 Dr. Sandip Deb who deposed that on 09.09.2015 at about 10:00 am he being the Medical Officer at Kadamtala CHC examined the victim. During examination he did not find any external injury. Page 9 However he found that her vagina permits two fingers. PW 10 further deposed that in the findings Column he only mentioned the following words “suggestive of repeated sexual intercourse”. Clarifying the terminologies he deposed that the words “suggestive of repeated sexual intercourse” mean that she was subjected to repeated sexual intercourse. PW 11 Dr. Mriganka Datta who medically examined the accused opined that the accused was capable of performing sexual intercourse. He identified his reportWhoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than twenty years but which may extend to imprisonment for life which shall mean imprisonment for the remainder of natural life of that person and shall also be liable to fine or with death. 2) The fine imposed under sub section shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim.” The term “aggravated penetrative assault” has been defined under Section 2(1)(a) of the POCSO Act 2012 which is as under: Page 11 “2(1)(a) “aggravated penetrative assault” has the same meaning as assigned to it in Section 5”. Now for the purpose of the case in hand Sub section of Section 5 of the POCSO Act is relevant which reads as under: “5(n) whoever being a relative of the child through blood or adoption or marriage or guardianship or in foster care or having a domestic relationship with a parent of the child or who is living in the same or shared household with the child commits penetrative sexual assault on such child.” In the instant case the victim is the minor daughter of the accused being her biological father. So the accused being the father committed rape upon his minor daughter which comes within the definition of aggravated penetrative sexual assault and attracts the definition of Section 5(n) of the POCSO Act 2012. Now let us discreetly examine whether the prosecution has been able to prove the charges levelled against the accused beyond reasonable doubt. The complainant being the mother of the victim who lodged the complaint and on the basis of which FIR was registered has not come forward to testify herself to support her contention which she made in the complaint but the victim as PW 3 has categorically deposed that when she was alone in the house her father committed rape upon her. At the very outset while she was in the hut her father came and undressed her and the Page 12 accused after removing her wearing apparels entered his private parts into the private parts of the victim. She could not raise alarm as her mouth was being pressed by the accused. After her release she rushed to the house of PW 1 and PW 2 where she disclosed the incident. PW 1 and PW 2 also supported the version of the victim in respect of the circumstance that after the incident she rushed to their house. The statements of PWs 1 and 2 are relevant under Section 3 of the Evidence Act because the factum of rape has been disclosed to them immediately after the incident and their evidences are to be treated as the evidence of res gestae and are admissible in evidence in view of the Section 6 of the Evidence Act. True it is that the accused has tried to establish his defence that since he used to scold his daughter for her not being serious to her study is found to be a weak piece of evidence since he has failed to rebut the evidence of PW 3 PW 1 and PW 2 by cogent evidence as contemplated under Section 29 of the POCSO Act 2012 that 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 Though not argued but we have taken note of the statements made by the victim girl recorded under Section 164(5) of CrPC. We find that she did not say in course of her evidence before the court that her father Page 13 asked her to massage his hand and legs and suddenly he hugged her. However the material part that her father put the pillow underneath of her waist and committed rape upon her are found to be stated and corroborated her statement she has made in her examination in chief. We are not oblivious of the well neigh principle that the court is to separate the wheat from the chaff considering the totality of the circumstances. According to us the accused has failed to establish the fact that he did not commit rape upon her daughter. Considering the overall evidence and materials on record we find no reason to dislodge the finding of guilt of the accused recorded by the learned Special Judge in convicting the accused appellant. However it is revealed from the examination of the accused under Section 313 CrPC that at the time of his examination the accused was aged about 58 years. Considering the age of the accused we are of the opinion that reasonable justice will be rendered if the accused appellant is sentenced to suffer rigorous imprisonment for 14 years. Accordingly we have interfered with the sentence to suffer rigorous imprisonment for life which shall mean for remainder of life. The sentence shall stand modified to the extent that the accused appellant shall suffer rigorous imprisonment for 14years. However the fine with Page 14 default stipulation imposed upon the accused appellant by the learned Special Judge is not interfered with. The appeal accordingly stands partly allowed and disposed. Send down the LCRs. J CJ. 

Summary: The accused has failed to establish the fact that he did not commit rape upon her daughter. Considering the overall evidence and materials on record, we find no reason to dislodge the finding of guilt of the accused recorded by the learned Special Judge in convicting the accused-appellant. This was said in the case of Sri Manik Bhakti vs The State Of Tripura [CRL A(J) 48 OF 2019] by Chief Justice Mr. Akil Kureshi Mr. Justice Arindam Lodh in the High Court of Tripura  The facts of the case date back to 09.11.2017 when Special Judge convicted the appellant under Section 6 of (POCSO) Act and sentenced to suffer R.I. for life which shall mean remainder part of his life and to pay a fine of `10,000/- with default stipulation. Assailing the judgment of the Special Judge, the appellant filed an appeal. The learned counsel on behalf of the appellant contended that the prosecution has miserably failed to substantiate the charges levelled against the accused-appellant. The version of the victim was not found to be trustworthy. Secondly, the prosecution has failed to produce the complainant, the mother of the victim to adduce evidence before the court though her name was shown as one of the witnesses to the case. Thirdly, it was contended that there were material contradictions between the statements made in the FIR and the testimonies of PW-1, PW-2 and PW- 3 (victim). It was further contended that Special Judge has committed an error of law and facts in believing the age of the prosecutrix below 18 years. The respondent contended that the prosecution has been able to prove the case beyond reasonable doubt. The discrepancies as surfaced in the evidence of the prosecution witnesses were to be treated in minor in nature but the factum of rape had been proved beyond reasonable doubt. According to learned Addl. P.P., the medical report clearly suggested that the victim was raped by the accused. Further, it was contended that the fact that at the time of commission of offence, the victim was below 18 years had been proved beyond reasonable doubt. After analysing the submissions made by parties and perusing the evidence on record, the Court opined that “the victim is the minor daughter of the accused being her biological father. So, the accused being the father committed rape upon his minor daughter which comes within the definition of aggravated penetrative sexual assault and attracts the definition of Section 5(n) of the POCSO Act, 2012”. Furthermore, the Court said that “we have taken note of the statements made by the victim girl recorded under  Section 164(5) of CrPC. However, the material part that her father put the pillow underneath of her waist and committed rape upon her are found to be stated and corroborated her statement she has made in her examination-in-chief. According to us, the accused has failed to establish the fact that he did not commit rape upon her daughter”. Considering the age of the accused, we are of the opinion that reasonable justice will be rendered if the accused-appellant is sentenced to suffer rigorous imprisonment for 14 years instead of imprisonment for life as under the statute. Hence, the appeal was partly allowed. Click here to read judgment