Research › Search › Judgment

Calcutta High Court · body

2017 DIGILAW 238 (CAL)

Ganesh Das v. State of West Bengal

2017-03-02

JOYMALYA BAGCHI

body2017
JUDGMENT : 1. The appeal is directed against the judgment and order of conviction and sentence dated 24.03.2015 and 25.03.2015 passed by the learned Additional Sessions Judge, II Court, Krishnanager, Nadia, in Sessions Trial No. X(VIII) of 2014 arising out of Sessions Case No. 6(4) of 2014 convicting the appellant for commission of offence punishable under Section 8 of the Protection of Children from Sexual Offences Act, 2012 and sentencing him to suffer rigorous imprisonment for five years and to pay a fine Rs.5000/-, in default, to suffer rigorous imprisonment for three months more. 2. The prosecution case, as alleged, against the appellant is to the effect that the victim who is aged about eight and half years was returning home from school on 26.03.2014 at about 11.30 AM when the appellant called her to his house. It is alleged that the appellant thereafter removed the wearing apparel of the victim and tried to rape her. As the victim did not return home, the mother of the victim searched and found her at the residence of the appellant. Subsequently on inquiries the victim narrated the incident of her mother. The victim also stated that she did not report the incident earlier as she had been threatened by the appellant and only after suffering agony at the time of urination she decided to narrate the incident to her mother. She was taken to Fulia Health Centre and thereafter to Santipur State General Hospital. On the basis of written complaint of the mother of the victim Santipur Police Station Case No. 158/2014 dated 12.04.2014 under Section 376/511 of the Indian Penal Code read with 4/8 of the Protection of Children From Sexual Offences Act was registered. Charge-sheet was filed in conclusion of investigation and charges were framed against the appellant under Section 8 of the POCSO Act, 2012. The appellant pleaded not guilty and claimed to be tried. In course of trial the prosecution examined as many as ten witnesses. The defence of the appellant is one of the innocent and false implication. He examined one witness in support of his defence. In conclusion of trial the Trial Court by judgment and order dated 25.03.2015 convicted and sentence the appellant, as aforesaid. 3. Mr. In course of trial the prosecution examined as many as ten witnesses. The defence of the appellant is one of the innocent and false implication. He examined one witness in support of his defence. In conclusion of trial the Trial Court by judgment and order dated 25.03.2015 convicted and sentence the appellant, as aforesaid. 3. Mr. Kar, learned counsel appearing for the appellant submitted that deposition of the victim in Court is at variance to her statement recorded under Section 164 of Cr.P.C. Medical evidence does not support the prosecution case of sexual assault. It is also submitted that the prosecution witnesses are interested and no independent witness was examined in the instant case. He accordingly, prayed for acquittal of the case. 4. On the other hand Mr. Dutta, learned counsel for the State submitted that the evidence of the victim is supported by the medical evidence and there is no scope to interfere with the judgment and order of conviction and sentence. 5. P.W.I is the victim in the instant case. She deposed that the incident occurred at noon while she was returning from school, appellant called her to take rice in his house. She refused to accept the proposal. Thereafter, the appellant dragged her inside the house, removed her inner garment, laid her down and pushed his penis into her vagina. Something like water dropped from her vagina. Thereafter the appellant left her. She was suffering pain in her private parts. She went to the house and narrated the incident to her mother. Thereafter, she was taken to the hospital for treatment. She narrated the incident to the Magistrate who recorded her statement under Section 164 of Code of Criminal Procedure. She proved her signature on the statement (Exbt. I). 6. In cross-examination she stated that the incident she narrated to the magistrate was true. She further stated that she stated these things before the Court as per the dictation of her mother and uncle. 7. P.W. 2 is the mother of the victim and the de facto complainant in the instant case. She deposed that on 26.03.2014 at about 11.30 AM the incident occurred. On that date her daughter went to her school. As she was not returning from her school, the witness started searching for the victim. She was found the victim in the house of the appellant. She deposed that on 26.03.2014 at about 11.30 AM the incident occurred. On that date her daughter went to her school. As she was not returning from her school, the witness started searching for the victim. She was found the victim in the house of the appellant. Upon queries she disclosed that appellant asked her to come to the house for eating rice. The victim further disclosed that the appellant pushed his penis on her vagina and something like water dropped from his penis and she suffered pain in her vagina. She lodged a written complaint at Santipur P.S. One Sikha Roy wrote the complaint as per dictation and she signed on the complaint (Exbt. 2). She also put her signature on the seizure list relating to the seizure of the birth certificate and wearing apparels of the victim. 8. In cross-examination, she stated that her husband used to reside outside. The incident took place on 26.03.2014. She lodged the written complaint on 12.04.2014. 9. P.W. 3 is a relation of the victim. She deposed that on 26.03.2014 the victim had been to her school. The school ended at about 11.30AM. Victim was called upon by the appellant to his house. As the victim was not returning to her house, P.W. 2 went to search for the victim. P.W. 2 recovered the victim from the house of the appellant after the incident. The victim started suffering pain in her vagina and started weeping. On being asked the victim disclosed that the appellant had sexually violated her. She was taken to hospital. The witness identified the appellant in Court. 10. P.W. 4 is the uncle of the victim. He deposed that on 26.03.2014 the victim went to her school but she did not return home. Upon search she was recovered from the house of the appellant. 2-3 days after the incident the victim disclosed that the appellant had sexually assaulted her in his house and that she had not disclosed the incident earlier out of fear. The victim was taken to local hospital and thereafter to Santipur General Hospital for treatment. He proved his signature in the seizure list relating to seizure of birth certificate and the inner garment of the victim. 11. In the cross-examination he stated that the appellant is a student of college. P.W.5 is the cousin of the victim who used to bring the victim from school. He proved his signature in the seizure list relating to seizure of birth certificate and the inner garment of the victim. 11. In the cross-examination he stated that the appellant is a student of college. P.W.5 is the cousin of the victim who used to bring the victim from school. On 26.03.2014 he brought the victim from school and dropped her in a crossing near her house. At that time he found that the appellant was coming to the spot. At about 12.00 noon, P.W. 2 inquired from him as to the whereabouts of the victim over telephone. In reply, he stated that he had dropped the victim at the crossing at 11.30AM. They searched for the victim. At 12.30 PM P.W.2 informed him that the victim had been recovered. 5-6 days later he went to the house of the victim and found that the victim was suffering from pain at the time of discharging urine. The victim was treated by the doctor. The victim was raped and as a result she was suffering pain as stated by the doctor. A case was registered against the appellant. 12. P.W. 6 is a neighbour of the victim. He heard the incident after 3-4 days. He identified the appellant. 13. P.W.7 was a doctor who was attached to Santipur State General Hospital. He examined the appellant and found him potent. He proved his report (Exbt. 4). 14. P.W. 8 is the doctor who examined the victim. On examination he found that the hymen was ruptured and there was an abrasion on the lower part of the vagina. As per statement of the victim she was raped by the appellant probably not for the first time. He proved the injury report (Exbt.5). 15. In cross-examination, he stated that he did not mention the age of abrasion. He examined the patient on 12.04.2014 and the date of incident as stated by the patient was on 26.03.2014. Hymen may be ruptured if the girl jumps during game. The age of abrasion was recent that is 1-2 days from the date of incident. 16. P.W. 9 was posted as S.I. of Police at Santipur Police Station. He deposed that A.S.I, Partha Pratim Roy endorsed the F.I.R (Exbt.2/1) and drew up the formal F.I.R (Exbt.6). He took up the investigation of the case. The age of abrasion was recent that is 1-2 days from the date of incident. 16. P.W. 9 was posted as S.I. of Police at Santipur Police Station. He deposed that A.S.I, Partha Pratim Roy endorsed the F.I.R (Exbt.2/1) and drew up the formal F.I.R (Exbt.6). He took up the investigation of the case. During investigation he visited the place of occurrence and prepared rough sketch map with index (Exbt.7). He examined the witnesses under Section 161 of the Code of Criminal Procedure. He sent the victim for medical examination and collected the injury report. He arrested the appellant and collected the potency report of the appellant. He recorded the statement of the victim under Section 164 of the Code of Criminal Procedure before the Magistrate (Exbt.1/1). He seized the birth certificate of the victim (Exbt.3/1). He submitted charge-sheet. 17. P.W. 10 is the Magistrate who recorded the statement of the victim under Section 164 of the Code of Criminal Procedure (Exbt.1/1). 18. D.W. 1 was examined on behalf of the defence. He, however, admitted in cross-examination that he knew nothing of the incident. He further stated that he heard one incident had taken place in the village. 19. From the evidence on record it appears that the victim who is aged about eight and half years had been called by the appellant to his room. The appellant had thereafter, removed her inner garments and tried to insert his penis into her vagina. The evidence of the victim P.W.1 is corroborated by all the witnesses including the medical witnesses. P.W.8 spoke of rupture of hymen as well as abrasion near the vagina of the victim. From the aforesaid evidence on record I find that the evidence of the injured victim is corroborated by ocular as well as medical evidence in the instant case. The appellant in course of cross-examination was unable to shake the credibility of the prosecution witnesses in any manner whatsoever. 20. Hence, I am of the opinion that the trial court has rightly convicted the appellant of the charge levelled against him. 21. Coming to the issue of sentence I find that the appellant had committed sexual assault causing injury on the private parts of the victim. Accordingly, I am of the opinion that the sentence awarded upon the appellant is justified and does not call for interference. 22. 21. Coming to the issue of sentence I find that the appellant had committed sexual assault causing injury on the private parts of the victim. Accordingly, I am of the opinion that the sentence awarded upon the appellant is justified and does not call for interference. 22. Coming to the issue of compensation I find that the trial Court had failed and/or neglected to address herself in the matter. The trial Court has also failed to screen the identity of the victim and has disclosed her name and identity in the body of the judgment in violation of section 33(7) of the Act. I have laid down the parameters relating to compensation and/or other guidelines in the matter of dealing with cases under POCSO Act in C.R.A. No. 663 of 2016. Such guidelines shall be construed to be a part of this judgment also. In the instant case, although the appellant has been convicted under Section 8 of the POCSO Act, the victim, an 8 years old child, had suffered injuries in her private parts and the case nearly borders on penetrative sexual assault. In view of the gravity of the offence, the injuries suffered by the victim and the mental trauma arising there from, I am of the opinion that a just and fair compensation to the tune of Rs.1.5 lakhs may be awarded to her and shall be payable to the victim through her legal guardian PW 2 by the State through the State Legal Services Authority within 30 days from date. 23. Period of detention suffered by the appellant during investigation, enquiring or trial shall be set off against the substantive sentence in terms of section 428 of the Code of Criminal Procedure Code. 24. Copy of the judgment along with LCR be sent down to the trial court at once for necessary awareness, sensitization and execution of the sentence in accordance with Law. 25. Copy of the judgment be sent also to the Secretary, State Legal Services Authority for necessary action. 26. The appeal is accordingly disposed of.