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2019 DIGILAW 450 (CAL)

Md. Ayub @ Md. Ayab v. State of West Bengal

2019-04-05

JOYMALYA BAGCHI, MANOJIT MANDAL

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JUDGMENT : Joymalya Bagchi, J. 1. Lower court records have been received. With the consent of the learned parties, the appeal is disposed of dispensing with preparation of paper books. 2. Appeal is directed against the judgment and order dated 15.06.2018 passed by the learned Additional District and Sessions Judge, 1st Court, Sealdah, South 24 Parganas, in Special Case No.02 of 2018 convicting the appellant for commission of offence punishable under Section 6 of the POCSO Act, thereby sentencing him to suffer imprisonment for 10 years and also to pay a fine of Rs.1,00,000/- out of which 90 per cent, if realised, shall be paid to the victim as compensation under Section 357 of the Code of Criminal Procedure, in default, to suffer rigorous imprisonment for one year more. 3. Prosecution case as alleged against the appellant is to the effect that the victim, a minor aged around 9 years old, used to reside with her aunt (P.W. 2). On 28th December, 2017 the victim complained of burning sensation in her private parts. Her aunt (P.W. 2) ignored such complaint. She again made similar complaint on 31st December, 2017. When her aunt (P.W.2) enquired as to the reason for such pain, the victim disclosed that 3 to 4 days ago the appellant had inserted his finger into her vagina. Victim was admitted and medically treated at N.R.S. Medical College and Hospital and on the complaint of P.W.2 the instant criminal case was registered. In conclusion of investigation, charge-sheet was filed against the appellant. Charges were framed under Section 376(2)(i) of IPC and under Section 6 of the Protection of Children from Sexual Offences Act (in short 'POCSO Act'). The appellant pleaded not guilty and claimed to be tried. 4. In the course of trial, prosecution examined 8 witnesses including the victim (P.W. 1) and exhibited a number of documents. 5. In conclusion of trial, the learned Trial Judge by judgment and order dated 15.06.2018 convicted and sentenced the appellant, as aforesaid. 6. Learned Counsel appearing for the appellant submitted that the version of the victim suffers from contradictions and/or embellishments. She could not specify the exact date of commission of offence. 5. In conclusion of trial, the learned Trial Judge by judgment and order dated 15.06.2018 convicted and sentenced the appellant, as aforesaid. 6. Learned Counsel appearing for the appellant submitted that the version of the victim suffers from contradictions and/or embellishments. She could not specify the exact date of commission of offence. In the medical paper it is alleged that the appellant had tried to penetrate his penis into the private parts of the victim whereas before the learned Magistrate she stated that the appellant had rubbed his finger into her private parts. There is delay in lodging F.I.R. The medical report does not disclose any injury on her private parts contradicting the prosecution case. Hence, the appeal is ought to be allowed. 7. On the other hand, learned Counsel appearing for the State submitted that the victim is a minor girl who was in the custody of her aunt (P.W. 2). Taking advantage of the situation, appellant penetrated his finger into her vagina. Only when the victim complained of pain the incident came to light. Due to delay in medical examination injuries were not noted in her private parts. Hence, prosecution case cannot be discarded on such score and the appeal is liable to be dismissed. 8. Evidence on record particularly that of P.W.1 unequivocally establishes that the victim, a nine year old girl was subjected to penetrative sexual assault by the appellant. 9. P.W.1, the victim deposed that 2/3 months ago at noon, the appellant dragged her into his room. After removing his wearing apparels, he lay down on her and inserted his finger into her vagina. She was admitted in the hospital. She made a statement before the Magistrate under Section 164 of the Code of Criminal Procedure. 10. Her version is corroborated by her aunt, P.W.2 in whose custody, she had been kept. P.W.2, has explained the delay in lodging the first information report. She deposed on 28th December, 2017, the victim complained of burning sensation in her vagina. She did not pay any heed to the complaint. Subsequently, when on 31st December, 2017, the victim again made similar complaint she enquired of the victim and the latter disclosed that the appellant had inserted his finger into her vagina. P.W.2 was astonished to hear such incident. She took the victim to the hospital where she admitted. She lodged first information report before police station. Subsequently, when on 31st December, 2017, the victim again made similar complaint she enquired of the victim and the latter disclosed that the appellant had inserted his finger into her vagina. P.W.2 was astonished to hear such incident. She took the victim to the hospital where she admitted. She lodged first information report before police station. Evidence of the aforesaid witnesses are corroborated by P.W.3, cousin of the victim and her father, P.W.4. 11. It has been strenuously argued that the conduct of the victim in remaining quiet after the incident is unnatural. I am unable to accept such contention. Victim was a nine year old girl. After the death of her mother, she was residing with her aunt, P.W.2. Her father, P.W.4 used to reside elsewhere. Circumstances prevailing in the life of the victim rendered her an easy prey to the perversion of the appellant and she was subjected to penetrative sexual assault as narrated by her. In this backdrop, it is natural that the victim was stunned to silence by the inhuman and unexpected sexual assault on her by the appellant and had no one to complain. Only after she suffered physical discomfort in her private parts, did she bring up the matter with her aunt, P.W.2. Even then, her aunt, ignored such inconvenience and responded only after the victim repeated her complaint a couple of days later. Delay in lodging the first information report is due to the casual indifference and lack of care towards the minor and cannot be a ground to disbelieve her version. 12. It has also been argued that the victim changed her stance with regard to the nature of assault at various stages. It is contended she complained of attempted to penile penetration before the doctor but in her statements before the Magistrate and in Court she referred to penetration by finger. There is nothing on record to show that the statement recorded in the admission sheet at the hospital was made by the victim. On the other hand, narration of the victim on the earliest occasion to her aunt, P.W.2, is reflected in the first information report which clearly shows that she had alleged insertion of finger by the appellant into her vagina. On the other hand, narration of the victim on the earliest occasion to her aunt, P.W.2, is reflected in the first information report which clearly shows that she had alleged insertion of finger by the appellant into her vagina. Insertion of a body part viz., finger into vagina of the victim would constitute an act of penetrative sexual assault as defined under Section 3 of the POCSO Act. 13. The victim had consistently narrated the incident before her aunt, P.W.2 as well as before Magistrate and in Court. There is no substantial variation in her versions with regard to the nature of penetrative sexual assault perpetuated by the appellant. On the other hand, her evidence receives corroboration from other prosecution witnesses and the attending facts and circumstances of the case. There was virtually no cross-examination of the victim during trial in the instant case. 14. Furthermore, in view of the nature of penetrative sexual assault as described by the victim, absence of injury in her private parts particularly when she was medically examined couple of days after the incident is natural and cannot be a ground to disbelieve her version. It is, however, undeniable that she was admitted in the hospital for treatment for a number of days due to penetrative sexual assault by the appellant. 15. In the backdrop of the evidence on record particularly that of the victim, P.W.1 which remained unchallenged during cross-examination, I am of the opinion that the defence has not been able to rebut the presumption under Section 29 of the POCSO Act and the conviction of the appellant is liable to be upheld. 16. In the light of the aforesaid discussion, conviction and sentence imposed upon the appellant are upheld. 17. Accordingly, the appeal along with the connected application is dismissed. 18. 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 428 of the Code of Criminal Procedure. 19. Copy of the judgment along with L.C.R. be sent down to the trial court at once. 20. Urgent photostat certified copy of this order, if applied for, shall be given to the parties, as expeditiously as possible on compliance of all necessary formalities. I agree.