JUDGMENT : RAJARSHI BHARADWAJ, J. 1. This appeal arose out of a judgment and order of conviction dated 28th March, 2017 and 29th March, 2017 passed by the learned Chief Judge, City Sessions Court, Calcutta in Special POCSO Case no. 02 of 2014 (S.T. No. 02(8) of 2014) sentencing the appellant to suffer rigorous imprisonment for four years and to pay a fine of Rs. 10,000/-; in default, to suffer rigorous imprisonment for a further period of six months for commission of offence punishable under Sections 7/8 of the Protection of Children from Sexual Offence Act, 2012. 2. The prosecution case in short is that on 17th March, 2014 one Bela Bera lodged a complaint before the Officer in Charge, Jorabagan Police Station alleging that at about 7.30/8.00 p.m. she along with her four years old grand daughter were gossiping with their neighbour Shibnath Dalui in front of their house. Her grand daughter resided with her as her father had passed away and her mother had remarried and left her. At about 8 p.m. the complainant went to see a TV serial and after ten minutes she started searching for her grand daughter as she could not find her. The complainant proceeded towards the room of Shibnath Dalui, she found that the room was locked from inside and when she called and peeped through the gap in the door of the room, she saw that Shibnath Dalui was lying naked over her grand daughter and performing immoral act. She raised alarm and the local people came to the spot. Shibnath Dalui opened the door and came out and the complainant took her grand daughter with her. 3. N the basis of the said complaint, a criminal case, being Jorabagan P.S. Case No. 53 dated 17th March, 2014 was initiated against the accused/appellant. The accused was arrested and produced before the Court and was subsequently granted bail. After completion of investigation, charge sheet was submitted against the accused under Section 4 of the Protection of Children from Sexual Offences Act. On the basis of the materials on record charge was framed against the accused under Section 4 of the POCSO Act. The substance of accusation was read over and explained to the accused to which he pleaded not guilty and claimed to be tried. 4. On the basis of the materials on record charge was framed against the accused under Section 4 of the POCSO Act. The substance of accusation was read over and explained to the accused to which he pleaded not guilty and claimed to be tried. 4. On completion of the prosecution evidences the accused/appellant was examined under Section 313 of the Code of Criminal Procedure and the appellant pleaded innocence by defending himself. 5. Mr. Ashis Kumar Sanyal, learned senior advocate appearing on behalf of the appellant submitted that the said case was concocted out of personal enmity and such personal enmity was established by the defence and also transpired during the examination of the appellant under Section 313 of the Code of Criminal Procedure in question no.94 where the accused stated that he had been falsely implicated due to family dispute. He further argued that the FIR was registered on the basis of the statement made by P.W.2, Bela Bera, grandmother of the victim girl alleging that she had seen the victim girl with the appellant couple of minutes before 8 p.m. and at about 8 p.m. she went inside her room in the slum to watch television and after a few minutes she came out to look for the victim girl. Being unable to see her she went to the door of the appellant and started peeping inside. According to P.W.2, she kept on peeping inside and saw that the appellant was lying naked over the victim girl and was indulged in illicit and forcible sexual activity. He also argued that the learned Judge overlooked the fact that the area where the alleged offence was committed, was a slum area and it was not possible to look through the gap of the door as the doors of the houses were fitted and the Investigating Officer did not indicate the gap in the sketch map prepared by him. He also submitted that when P.W.2 raised alarm, the appellant came out of the room and P.W.2 picked up the victim girl in her lap and left the place, which was contradicted by the statement of P.W.1, the victim girl, who deposed that she herself left the room. He also submitted that when P.W.2 raised alarm, the appellant came out of the room and P.W.2 picked up the victim girl in her lap and left the place, which was contradicted by the statement of P.W.1, the victim girl, who deposed that she herself left the room. He further submitted that P.W.3 stated in her deposition that the appellant resided in the room along with his parents, brother and sister and this statement corroborated the appellant's contention that he could not effectuated the alleged assault as he resided in the said room along with his family and since P.W.3 had not been declared hostile by the prosecution, her evidence was binding upon the prosecution. From the medical report it appears that there was no assault upon the minor girl and therefore, the learned Trial Judge came to the conclusion that since there was no penetrative sexual assault, the appellant was not convicted under Section 4 of the POCSO Act, 2013; however, the learned Judge convicted the appellant under Section 8 of the POCSO Act. In this connection, he cited a decision of this Hon'ble Court in the case of Sahid Hossain Biswas vs- State of West Bengal reported in, (2017) 3 CalLT 243 (HC), particularly paragraph 24 thereof, wherein it was held that "Once the foundation of the prosecution case is laid by leading legally admissible evidence, it becomes incumbent on the accused to establish from the evidence on record that he has not committed the offence or to show from the circumstances of a particular case that a man of ordinary prudence would most probably draw an inference of innocence in his favour. The accused may achieve such an end by leading defence evidence or by discrediting prosecution witnesses through effective cross-examination or by exposing the patent absurdities or inherent infirmities in their version by an analysis of the special features of the case. However, the aforesaid statutory presumption cannot be read to mean that the prosecution version is to be treated as gospel truth in every case. However, the aforesaid statutory presumption cannot be read to mean that the prosecution version is to be treated as gospel truth in every case. The presumption does not take away the essential duty of the Court to analyse the evidence on record in the light of the special features of a particular case, e.g. patent absurdities or inherent infirmities in the irresistible inference of falsehood in the prosecution case while determining whether the accused has discharged his onus and established his innocence in the given facts of a case. To hold otherwise, would compel the Court to mechanically accept the mere ipse dixit of the prosecution and give a stamp of judicial approval to every prosecution, howsoever, patently absurd or inherently improbable it may be." 6. Learned advocate for the appellant also pointed out paragraph 5 of the said judgment wherein it was held that "Mr. Ganguly, learned senior counsel appearing for the appellant submitted that the evidence of the victim (P.W.1) does not inspire confidence. He took me through the cross-examination of the victim wherein she had admitted that there was enmity between her grandfather and the family of the appellant over the issue of illegal hooking of electricity and damage of crops. Other prosecution witnesses also admitted that they had made statements in the case at the behest of one Puchu Ghosh @ Putu, a political leader." 7. Learned advocate for the appellant prayed for setting aside the impugned order of conviction and sentence and for acquittal of the appellant from the charge framed against him. 8. Learned advocate for the State submitted that the statements of P.W.1, P.W.2, P.W.3 and P.W.7 established the fact that the accused/appellant assaulted the victim girl. He further submitted that the version of the victim ought to be read in the light of the statutory presumption under Section 29 of the POCSO Act and in view of the fact that her version has been corroborated by other witnesses, the appeal is liable to be dismissed. 9. Heard learned advocates for the parties. 10. The prosecution has examined as many as ten witnesses to substantiate the charge against the accused person. 11. 9. Heard learned advocates for the parties. 10. The prosecution has examined as many as ten witnesses to substantiate the charge against the accused person. 11. P.W.1, Nishantika Bera, the victim girl deposed that on the day of 'Dol' (Holi), Sunday last year around 7 p.m. she was playing with her friends with 'Abir' in her locality and at that time Shibu kaka came and asked her to go to his house for watching T.V. She stated that the house of Shibu kaka was near to her house and at the relevant time the family members of the accused had gone to visit Puri. She was scared of the accused as he used to threaten and rebuke her on one plea and other. The victim girl told the accused that she did not know how to operate T.V. and the accused lifted her on his lap and upon entering into his room, put her on the 'chouki' in the room. The accused was leaving the room without switching on the T.V. and P.W.1 asked him as to why he was leaving without switching on the T.V. and also requested him to switch it on. Thereafter, Shibu kaka suddenly locked the door from inside with the bolt (chitkini), came to the chouki and asked for the remote control of the T.V. When she tried to hand it over to the accused, he asked her to switch on the T.V. by pressing the button of the remote control and while sh was doing so, he took the remote and kept it by the side of the T.V. As the T.V. could not be switched on, P.W.1 wanted to leave the room but the accused asked her to lie down. Being threatened she lay down on the chouki taking one pillow. She was wearing nighty and one pant. Shibu kaka then started removing her pant to which she felt uneasy and started moving. Then Shibu kaka threatened her and asked her not to move. Due to fear she became silent. The accused then removed her pant and thrown it away and thereafter, he also opened his pant and lay down on her. Thereafter, Shibu kaka inserted his penis into her vagina. Then Shibu kaka threatened her and asked her not to move. Due to fear she became silent. The accused then removed her pant and thrown it away and thereafter, he also opened his pant and lay down on her. Thereafter, Shibu kaka inserted his penis into her vagina. At that time her grand mother while searching her, came there and after peeping through the hole of the door saw Shibu kaka was in naked condition and also saw her nighty was not in order. Seeing this her grand mother shouted saying "Sibu tui eki sorbonas korli". Other neighbours assembled there and Shibu kaka then left her. She then managed to wear her pant and rushed towards the door and opened the same. In the meantime, Shibu kaka started wearing his pant but the people saw him in a semi naked condition. Baisakhi Bera, aunt of P.W.1 took her to her house and she was crying at that time. Two friends of the victim girl, who were playing with her, asked her why she was crying and the victim girl narrated the incident to them. They also said that they had seen the incident through the hole of the door but did not inform the same to her grand mother. On being asked by her uncle Shyamal Bera, she narrated the incident to him. The police came and arrested Shibu kaka. Her uncle and grand mother took her to Jorabagan P.S. where she narrated the entire incident. She was kept in a home and subsequently, she was taken to a lady Judge, who recorded her statement. She was medically examined and put her signature on the medical report. 12. P.W.2, Bela Bera, grand mother of the victim girl deposed that Badal Bera, father of the victim girl expired and her mother left her about three years ago. The victim girl was being looked after by her. She also stated that the incident took place in the month of Baisakh in the year 2014 on the day of Dol. She identified the accused in Court whose house was adjacent to her house. The victim girl was being looked after by her. She also stated that the incident took place in the month of Baisakh in the year 2014 on the day of Dol. She identified the accused in Court whose house was adjacent to her house. On the date of incident P.W.2 did not find the victim girl in the house and while searching she went to the verandah of the house of the accused and on peeping through the hole of the door, she saw the accused lying on a 'chouki' in naked condition facing downwards. She could not see her grand daughter at that time. She continued peeping through the hole of the door and saw the accused lift the upper portion of his body. At that time she saw the head of her grand daughter and nighty and started shouting saying "Sibu tui amar natni key merey felli, Sibu tui ki korchis." At that time Unnoti Dolui, P.W.3, who was sitting on the door of the house, heard the cry and rushed there. She also peeped through the hole of the door and saw the accused lying on the victim girl and started shouting saying "Sibu tui ki korchis". Shibu replied he had done nothing. The chouki was placed at a certain height in the room of the accused and a tool was required to climb on it. The accused then started wearing his pant and her grand daughter got down from the chouki with the help of the tool and opened the door by moving the chitkini. Thereafter, hearing their voice many people assembled there. Her son Shyamal Bera came and took her grand daughter to Jorabagan P.S. By that time the accused fled away from his house and on that night police apprehended Sibnath Dolui. P.W.2 narrated the incident at Jorabagan P.S. and police recorded her statement. The contents were read over and explained to her and she signed on the same. 13. P.W.3, Unnati Dolui, next door neighbour of the accused deposed that when she was watching T.V., she heard the shout of Nishantika's grand mother. She rushed outside her room and went in front of Shibnath's room and found that Shibnath's room was locked from inside and there was a small gap in the door of the room. She peeped inside the room through the gap. The light of the room was switched on. She rushed outside her room and went in front of Shibnath's room and found that Shibnath's room was locked from inside and there was a small gap in the door of the room. She peeped inside the room through the gap. The light of the room was switched on. She saw that Nishantika was lying in the bed and Shibnath Dolui was lying on her. At that time Shibnath was naked and his trouser was at his heels. On hearing their voice, Shibnath rushed outside his room leaving his trouser and came to the verandah adjoining his room. Nishantika was also lying nude. She brought Nishantika and her grand mother and took her in her lap. All the inmates of the building gathered there and they caught Shibnath Dolui who said that he had not done anything. They assaulted Shibnath and called the police. The police came to the spot and arrested Shibnath. She identified Shibnath in Court. 14. P.W.4, Mousumi Adhikari, resident of the slum deposed that Bela Bera lived in one room beside her room and stayed with her grand daughter. On the date of incident, i.e. on 17th March, 2014 at about 7.30/8 p.m. when she was watching T.V., suddenly she heard the shout of Bela Bera, victim's grand mother and saw that she was shouting and trying to peep inside the room of the accused through the gap of the closed door. She was also knocking the door and calling the accused as 'Shib' (his pet name) loudly. She saw Shibnath opening the door, coming out and going away from his room. He was wearing a torn ganjee and black shorts and his heir was unsettled. The victim's grand mother brought her out of Shibnath's room and was crying loudly. The police came to the spot and interrogated her. She not only identified the accused as her neighbour but also saw the accused fleeing away from the place of occurrence on the relevant date. 15. P.W.5, Rekha Saha, resident of the slum stated in her deposition that she knew Bela Bera and her grand daughter Nisha Bera stayed with her. On the date of incident Shibnath Dalui was alone in his room and his mother and other family members were not at home. She also stated that she saw Shibnath Dolui took Nisha Bera in his lap and took her towards his room. On the date of incident Shibnath Dalui was alone in his room and his mother and other family members were not at home. She also stated that she saw Shibnath Dolui took Nisha Bera in his lap and took her towards his room. She heard from neighbours that Shibnath took Nisha Bera to his room and shut her mouth and committed rape upon her. She heard the incident but did not see the same. The police came to the spot and Shibnath was handed over to the police. 16. P.W.6, Pintu Das, who used to sell fish at Sovabazar market, deposed that on 17th March, 2014 he was sleeping in his room after selling fish. In the evening hearing hue and cry he came out of his room and saw there was a crowd in front of the house of Shibnath Dalui. He went there and asked Bela pisi as to what had happened. He heard that Shibnath Dalui had taken Nisha Bera aged about 6 years into his room. He disrobed himself and also the girl and rubbed his private part against the private part of the girl. He also heard that previously on other occasions Shibnath Dalui had misbehaved with other girls and pulled their hands. At that time Shibnath Dalui fled away from his room. After that the police from Jorabagan P.S. came to the spot and interrogated him. He stated the entire incident before the police. 17. P.W.7, Manoj Sarkar, who had business of furniture, stated in his deposition that on 17th March, 2014 after the day of holi at about 8/8.15 p.m. he along with others were sitting near Sobha Bazar Rail gate and suddenly heard a hue and cry from the side of 143/6, Maharshi Debendra Road, Bhanga Bustee. He along with others went there and saw that there was a crowd in front of the house of Bholanath Dalui, brother of Shibnath Dalui. On being asked Unnati Dalui, P.W.3 took him to the closed door of the room of Bholanath Dalui. She showed him through the gap in the closed door that Shibnath Dalui and one child named Nisha aged about 8/9 years, resident of Bhanga bustee were standing nude. While knocking the door, Shibnath Dalui came out of the room. Some of the local boys slapped the accused and he fled away from the spot. She showed him through the gap in the closed door that Shibnath Dalui and one child named Nisha aged about 8/9 years, resident of Bhanga bustee were standing nude. While knocking the door, Shibnath Dalui came out of the room. Some of the local boys slapped the accused and he fled away from the spot. On being informed by some local people, the police from Jorabagan P.S. came to the spot. He left the spot before the police went there. 18. P.W.8, Dr. Chhandos Saha, Medical Officer of R.G. Kar Medical College & Hospital stated in his evidence that he examined Nishantika Bera, aged 8 years and after examination he prepared report in his own hand writing. The examination of the girl was done with consent of her grand mother Bela Bera, who put her signature in the medical report in his presence. 19. P.W.9, Chandraprova Chakraborty, Civil Judge, Senior Division stated that on 20th March, 2014 she recorded the statement of Nishantika Bera under Section 164 of the Code of Criminal Procedure. She had issued a certificate to the effect that the statement was recorded as stated by the victim girl and was read over and explained to the victim girl by her. 20. P.W.10, Pulak Banerjee, Sub-Inspector of Entally P.S. deposed that on the date of incident he was posted as Sub-Inspector of Jorabagan P.S. On 17th March, 2014, which was the next day of Dol, at about 10.45/11 p.m. one aged lady accompanied by a child came to him at the Police Station. The child was in a traumatized condition and could not speak properly. The grand mother of the child told him that at about 8 p.m. she was gossiping with some other persons sitting in front of a verandah in the slum area. At about 8 p.m. she went to look for her grand daughter on the way to watch T.V. serial in the house of another person. The victim girl was brought up by her grand mother as her father expired and her mother remarried and left her. When she did not find the child on searching, she started calling her in front of a room of Shibnath Dalui, which was about 2/3 rooms away from her room. She did not hear any sound from inside the room and peeped through the hole of the door of the room. When she did not find the child on searching, she started calling her in front of a room of Shibnath Dalui, which was about 2/3 rooms away from her room. She did not hear any sound from inside the room and peeped through the hole of the door of the room. She saw that both Shibnath Dalui and her grand daughter were naked and Shibnath was lying on the child. She raised alarm and the neighbouring people came to the spot. They started knocking the door of Shibnath and he somehow wore his clothes and came out of the room. The local people had intercepted him but he somehow managed to flee away. After that the grand mother brought the child to the Police Station and lodged complaint. 21. It appears from the evidence on record that the victim girl was a minor on the date of incident. She categorically stated in her statement under Section 164 of the Code of Criminal Procedure that the accused was alone in the room when the alleged incident occurred. P.W.2 and P.W.3 saw the incident and they stated that the accused completely disrobed himself in front of the victim inside the room and no cogent reason was assigned by the accused. The prosecution witnesses were independent witnesses and there was no reason to falsely implicate the accused in this case. Therefore, presumption of offence could be drawn up against the accused person under Section 29 of the POCSO Act. Section 29 of the POCSO Act postulates that "29. Presumption as to certain offences Where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3, 5, 7 and 9 of this 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." 22. From the statements of the prosecution witnesses it is evident that the de facto complainant, P.W.2 saw through the hole of the room of the accused that the accused was lying on the 'chouki' in naked condition over the victim. P.W.3, who was related to the accused, rushed to the spot on hearing hue and cry of P.W.2 and saw that the accused was lying in naked condition on the victim girl in the bed. P.W.3, who was related to the accused, rushed to the spot on hearing hue and cry of P.W.2 and saw that the accused was lying in naked condition on the victim girl in the bed. P.W.4 also came to the spot and saw the accused came out of his room wearing a torn ganjee and black shorts and his hair unsettled. P.W.5 also saw that the accused carried the victim girl in his lap to his room. He also stated in his deposition that on previous occasions the accused had misbehaved with other girls and had pulled their hand. P.W.7 claimed that he saw through the hole of the door of the room that the accused and the victim girl were standing nude inside the room. Those witnesses corroborated the statement of the de facto complainant. So it is proved that the victim girl was assaulted by the accused and there is no ground to disbelieve the victim girl. The victim girl was medically examined on 18th March, 2014 and it appears from the medical report (Ext.4) that no external sign of injury was found in person, her hymen was intact and no bleeding of vagina was found. Though the medical report does not support the commission of rape upon the victim girl by the accused, but at the same time it is clear from the evidence that the accused disrobed himself as well as the victim girl and he rubbed his private parts against the private part of the victim. In my view, since the incident has occurred, the appellant should be convicted under Section 4 of the POCSO Act. Although it has been vehemently argued for the first time before this Court that the appellant was not present at the time of the incident, no such plea was raised, nor any evidence led to probabilise such plea of alibi on behalf of the appellant during trial. 23. Reliance has been placed by the learned advocate for the appellant in the case of Sahid Hossain Biswas vs- State of West Bengal (supra). I have tested the evidence of the victim girl and the prosecution witness in the light of the aforesaid ratio as declared in the case of Sahid Hossain Biswas vs- State of West Bengal (supra). 23. Reliance has been placed by the learned advocate for the appellant in the case of Sahid Hossain Biswas vs- State of West Bengal (supra). I have tested the evidence of the victim girl and the prosecution witness in the light of the aforesaid ratio as declared in the case of Sahid Hossain Biswas vs- State of West Bengal (supra). I do not find any material that there was any animosity between the accused and the family of the victim girl and the ratio of Sahid Hossain Biswas (supra) is factually distinguishable in this case. 24. In view of the aforesaid discussion, the appellant is found guilty of the offence punishable under Section 4 of the POCSO Act. I uphold the order of sentence imposed on the appellant. 25. Period of detention suffered by the appellant during investigation, enquiry and trial shall be set off from the substantive sentence imposed upon him in terms of Section 428 of the Code of Criminal Procedure. 26. Accordingly, the appeal is dismissed. 27. Copy of the judgment along with LCR be sent down to the trial court at once for necessary compliance. 28. Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.