GAUHATI HIGH COURT ISSUES ORDER ON DIPAK NAYAK DIBRUGARH, ASSAM V/S THE STATE OF ASSAM AND ORS

GUWAHATI, India, May 28 -- Gauhati High Court issued the following order on April 27:

1. Heard Mr. A. Sandilya, Learned Amicus Curiae, appearing for the appellant. Also heard Ms. A. Begum, Learned Addl. P.P. Assam, appearing for the State/respondent No.1 and Dr. P. Agarwal, Learned Legal Aid Counsel, appearing for the respondent No. 2 (informant).

2. This appeal has been filed by the appellant against his conviction under Section 376AB IPC and Section 6 of the POCSO Act, by the learned Sessions Judge, Dibrugarh, in POCSO Case No. 36/2020, arising out of Khowang P.S. Case No.76/2020, vide the impugned Judgment dated 11.02.2022. The appellant was subsequently sentenced to undergo rigorous imprisonment for 20 years with a fine of Rs.3000/-, in default, to undergo simple imprisonment for 1 month, under Section 6 of the POCSO Act, in view of Section 42 of the POCSO Act.

3. The appellant's counsel submits that there is a delay in filing the FIR. He also submits that though the victim has stated in her testimony before the Court and under Section 161 Cr.P.C., that she had been raped by her uncle (mother's brother) in the house of her uncle, the victim in her Section 164 Cr.P.C. statement has stated that she had been raped in her own house. This discrepancy in the place of occurrence puts a question mark on the reliability of the victim as a witness. He however, submits that the victim's Section 164 Cr.P.C. statement had not been exhibited during trial, nor was the evidence of the person who recorded the said statement under Section 164 Cr.P.C. recorded before the learned Trial Court. He accordingly submits that when conviction has been made on the basis of the sole statement of the victim, the victim's statement has to be truthful and should inspire the confidence of the Court. However, in the present case, the discrepancy in the place of occurrence of the alleged incident not being ascertained by the victim, the entire evidence of the victim girl could not have been the sole basis for convicting the appellant under Section 376AB IPC and Section 6 of the POCSO Act.

4. Ms. A. Begum, learned Addl. P.P. submits that though there is some discrepancy in the testimony of the victim when compared with the statement given by her under Section 164 Cr.P.C. regarding the place of occurrence, the fact that the victim had been subjected to aggravated penetrative sexual assault by the appellant was not in doubt, as the testimony of the victim had been corroborated by the medical evidence. She also submits that the evidence of the victim showed that the Tea Garden Manager had beaten up the appellant, which the appellant did not deny in his examination under Section 313 Cr.P.C. The learned Addl. P.P. further submits that the discrepancy in the testimony of the victim and her statement under Section 164 Cr.P.C. could have been clarified, if the appellant had cross-examined the victim further during recording of the victim's evidence. However, the same was not done. She submits that the evidence recorded by the learned Trial Court with regard to the aggravated penetrative sexual assault was only with regard to one incident, while the victim (PW-3) had clearly stated in her examination-in-chief that the appellant had done the same thing upon her 'on three days.'

*Rest of the document can be viewed at: (https://hcservices.ecourts.gov.in/ecourtindiaHC/cases/display_pdf.php?filename=zDLovBVSUw02H8XukOjXfP19Yj39Vy8d0A1XfoQa7Allq5BFJQtg2yX8UkqxPi7j&caseno=CRL.A(J)/40/2022&cCode=1&cino=GAHC010055412022&state_code=6&appFlag=)

Disclaimer: Curated by HT Syndication.