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2019 DIGILAW 975 (CAL)

Badal Mohanta v. State of West Bengal

2019-12-17

JOYMALYA BAGCHI, SUVRA GHOSH

body2019
Judgment : Suvra Ghosh, J. 1. The appeal is directed against judgment and order of conviction dated 29-08-2015 and 31-08-2015 passed by the Learned Judge, Special Court cum Additional District Judge, 2nd Court, Balurghat, Dakshin Dinajpur, in Special. Trial. No. 09(12) 2014 in Special. Case. No. 29 of 2014, convicting the appellant under Sections 448/307 of the Indian Penal Code (in short the IPC) and under Sections 4/18 of the Protection of Children from Sexual Offences Act, (in short the POCSO Act). By the said judgment, the learned trial Court sentenced the appellant to undergo rigorous imprisonment for 1(one) year and pay fine of Rs.5,000/-, in default to suffer rigorous imprisonment for another 2(two) months for offence under Section 448 of the Indian Penal Code and to suffer rigorous imprisonment for life and pay fine of Rs.50,000/-, in default to suffer rigorous imprisonment for another 5(five) months for the offence under Section 307 of the IPC. The trial Court further sentenced the appellant to suffer rigorous imprisonment for 7(seven) years and pay fine of Rs.5,000/-, in default to suffer rigorous imprisonment for further 3(three) months for offence punishable under Sections 4/18 of the POCSO Act. 2. The case of the prosecution, in a nutshell, is that the defacto complainant and the mother of the victim Dipali Sarkar lodged complaint before Balurghat Police Station on 22-09-2014 to the effect that on 21-09-2014 around 4:30 p.m, when her daughter Sikha Sarkar aged about 15 years was alone in her house, the accused-appellant entered into their house on the pretext of borrowing a chopper (daa) and taking advantage of the child being alone in the house the appellant dragged her to the room, undressed her and attempted to commit rape on her. He also dragged her by her hair and throttled her with a rope with the intention to kill her as a result of which blood and saliva oozed out of her mouth. The appellant fled away leaving the child alone. The complainant returned home and found her daughter lying unconscious. She took the child to the hospital where she regained her sense after treatment and narrated the incident. The complaint was lodged after a day's delay as the mother was busy attending the child. 3. The appellant fled away leaving the child alone. The complainant returned home and found her daughter lying unconscious. She took the child to the hospital where she regained her sense after treatment and narrated the incident. The complaint was lodged after a day's delay as the mother was busy attending the child. 3. On receipt of the complaint, Balurghat Police Station Case No. 713 of 2014 dated 22-09-2014 was registered under Sections 448/376/511/307 of the IPC read with Section 10 of the POCSO Act. Upon completion of investigation, charge sheet was submitted against the accused under Sections 448/376/511/307 of the IPC read with Section 10 of the POCSO Act. The case was committed to the Court of the Learned Sessions Judge and thereafter transferred to the Learned Special Judge (under POCSO Act) cum Additional District Judge, 2nd Court, Balurghat, Dakshin Dinajpur for trial. 4. Charge was framed against the accused-appellant under Sections 448/376(2) (i)/511/307 of the IPC and Section 8 of the POCSO Act. Substance of accusation was read over and explained to the accused to which he pleaded not guilty and claimed to be tried. The prosecution examined 9 (nine) witnesses in support of its case and the defence case, as it appears from the trend of cross-examination as well as statement of the accused under Section 313 of the Cr.P.C, is a denial of the prosecution case and a plea of innocence. Upon consideration of the evidence on record, ld. trial Court passed the order of conviction and sentence. 5. In assailing the judgment impugned, learned advocate for the appellant has submitted that the charge framed by the Trial Court is bereft of the mode and manner of the alleged offence as well as the place of occurrence. The statement of the victim under Section 164 of the Cr.P.C. was recorded about 2(two) months after the alleged occurrence and such recording was also not in accordance with law. There are contradictions in the statement of the victim before the doctor, before the Magistrate, and before the Trial Judge. The chopper (daa) was not seized by the Investigating Officer. The evidence on record is too scanty to bring home the charge against the accused-appellant. Learned advocate has prayed for acquittal of the appellant. 6. There are contradictions in the statement of the victim before the doctor, before the Magistrate, and before the Trial Judge. The chopper (daa) was not seized by the Investigating Officer. The evidence on record is too scanty to bring home the charge against the accused-appellant. Learned advocate has prayed for acquittal of the appellant. 6. Learned advocate representing the State has supported the judgment impugned and has submitted that the First Information Report (FIR) is corroborated by the evidence of the defacto complainant and the victim and is also supported by medical evidence. The rope of the mosquito net which was used by the appellant to strangulate the victim was seized in course of investigation. The prosecution evidence, considered as a whole, leads to the irresistible conclusion that the appellant and none else committed the offence. The prosecution has succeeded in proving the guilt of the accused-appellant beyond all reasonable doubt and the appeal ought to be dismissed. 7. It is the case of the prosecution that on the relevant day, i.e., 21-09- 2014 at about 4:00 p.m, the accused trespassed into the house of the victim when she was alone on the pretext of borrowing a chopper and tried to commit rape upon her. He also tried to strangulate her with a rope of the mosquito net which was lying in the room. 8. The victim girl who was a minor on the date of the incident adduced evidence as PW-1 wherein she identified the accused as the perpetrator of the offence and stated that she knew the accused from her childhood. The victim alleged that the accused hugged her from behind, pressed her mouth, forcibly dragged her to the cot in the room, tried to pull out her shirt and removed her pant forcibly in an attempt to rape her. When she raised alarm, the accused tried to strangulate her with the rope of a mosquito net lying in the room for which she sustained severe injuries around her neck as well as on her leg and stomach. She was admitted to Balurghat District Hospital and remained there for 6/7 days. She narrated the incident before the doctor at the hospital and thereafter before the Police and the Magistrate who recorded the same. She also disclosed the incident to her parents and to local people. 9. She was admitted to Balurghat District Hospital and remained there for 6/7 days. She narrated the incident before the doctor at the hospital and thereafter before the Police and the Magistrate who recorded the same. She also disclosed the incident to her parents and to local people. 9. The defacto complainant of the case who is the mother of the victim was examined as PW-2 and stated that on the relevant date, when she was returning home from her place of work, she noticed her neighbour Badal (the accused) fleeing away by scaling the boundary wall adjacent to her house. Upon entering the house, she found her daughter Sikha lying unconscious on the floor with a rope tied around her neck. Sikha regained her sense at the hospital and narrated the incident to her. 10. PW-3 Anjali Sarkar who is a neighbour of the defacto complainant and the accused, saw the accused proceeding towards the house of the defacto complainant on the relevant date. After sometime, she heard hue and cry of the defacto complainant and rushed to her house where the victim was lying unconscious with a nylon rope around her neck. She accompanied the victim to the hospital. PW-4 Chhabi Sarkar saw the victim being taken to the hospital and noticed that the victim was not able to speak and there was a mark around her neck. This witness was declared hostile by the prosecution. Another neighbour PW-5 heard the incident subsequently and did not witness the same. PW-6 Dr. Sukanta Manna who treated the victim at the hospital noted the following injuries of the victim in his report: "a ligature mark found on frontal & upper portion of neck. Subconjunctival haemorrhage also found over both eyes." He recorded the statement of the victim in presence of staff, nurses and according to this witness, though the victim was little drowsy at that time, she was conscious and mentally fit to make such statement. The doctor also opined that the injuries inflicted on the victim could be fatal. 11. PW-7 who is the E.N.T. surgeon found brown black mark of ligature in front of upper part of the neck from one lateral side to the other. He noted that the patient could "speak well". 12. The Medical Officer of the hospital (PW-8) also examined the victim and noted the following injuries. 1. Subconjunctival haemorrhage (both eyes) 2. 11. PW-7 who is the E.N.T. surgeon found brown black mark of ligature in front of upper part of the neck from one lateral side to the other. He noted that the patient could "speak well". 12. The Medical Officer of the hospital (PW-8) also examined the victim and noted the following injuries. 1. Subconjunctival haemorrhage (both eyes) 2. Abrasion round the neck. 3. Abrasion right shoulder. 4. Abr asion right foot. According to the doctor, the said injuries could be caused by strangulation. 13. PW-9 Patrick Karketta, Sub-Inspector of Police and the Investigating Officer investigated the case and submitted the charge sheet against the accused. He seized two ropes from Namadanga forest on being shown by the accused. 14. The victim girl (PW-1) who was admittedly a minor at the time of the alleged incident is the star witness. She stated that the accused hugged her from behind inside the room, pressed her mouth, forcibly dragged her to the cot and tried to disrobe her and also removed her panty forcibly. She also stated that the accused tried to strangulate her with the rope of a mosquito net for which she sustained severe injuries around her neck and also injuries on her leg and stomach. The victim shifted from her evidence in her statement before the Magistrate under Section 164 of the Cr.P.C. wherein she stated that the accused pressed her mouth from behind and forcibly lay her down on the bed while threatening to kill her if she shouted for help. The accused also tied a nylon rope which was used as a clothes line and tied it round her neck tightly. In her statement before the doctor at the hospital, she said that the accused smothered and throttled her from behind and she became unconscious. 15. It is a fact that there are contradictions in the statement of the victim recorded at different points of time. At the same time, the Court should not lose sight of the fact that the victim was a child of about 14 years at the relevant time and was undoubtedly in a state of pain and trauma when she gave statement before the doctor soon after the incident. At the same time, the Court should not lose sight of the fact that the victim was a child of about 14 years at the relevant time and was undoubtedly in a state of pain and trauma when she gave statement before the doctor soon after the incident. It is not unlikely that she was unable to reconcile with the incident and was not physically and mentally fit to narrate every minute detail of the incident when her statement was recorded by the doctor on the date of the incident. The victim was examined under Section 164 of the Cr.P.C. about two months after the incident and she adduced evidence in court about five months after the incident. Therefore, such minor discrepancies and contradictions in the statements of the victim which does not strike at the root of the case can be safely ignored, more so, as the statement of the victim is supported by contemporaneous medical documents. 16. Strangely enough, the learned trial Court framed charge against the appellant under Section 8 of the POCSO Act besides other provisions of law but convicted the appellant under Section 4/18 of the POCSO Act. No case of attempt to commit penetrative sexual assault has been made out by the prosecution and no injury was detected in the private parts of the victim. The evidence on record is silent regarding any attempt of penetrative sexual assault upon the victim at the behest of the accused. It transpires from the evidence on record that the accused embraced the victim from behind, lay her on the cot and tried to strangulate her. The allegation of the victim that the appellant tried to commit rape upon her has not found corroboration in the other evidence on record. So it can at best be held that the appellant is guilty of touching the person of the victim with sexual intent and has committed sexual assault on the victim. 17. It is pertinent to refer to Sections 29 and 30 of the POCSO Act which read as follows:- "Sec-29 Presumption as to certain offences. So it can at best be held that the appellant is guilty of touching the person of the victim with sexual intent and has committed sexual assault on the victim. 17. It is pertinent to refer to Sections 29 and 30 of the POCSO Act which read as follows:- "Sec-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 Section 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. Sec-30 Presumption of culpable mental state. - (1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. (2) For the purposes of this section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability." 18. In the case in hand, the appellant has failed to dispel the presumption that "he had no such mental state with respect to the act charged as an offence" and therefore culpable mental state of the appellant as required under Section 30 of the Act can be presumed. 19. As such, the appellant is liable to be convicted under Section 8 of the POCSO Act. In the same vein, it can be held that in absence of any cogent and convincing material against the appellant suggesting commission of offence under Sections 376(2) (i)/511 of the IPC, conviction of the appellant under Sections 376(2) (i)/511 cannot be sustained. 20. With regard to the offence under Sections 448/307 of the IPC, the evidence of the victim is corroborated by her mother Dipali Sarkar (the defacto complainant) who saw the accused fleeing away by scaling the boundary wall adjacent to her house immediately after the incident. PW-3 has also noticed the accused proceeding towards the house of the defacto complainant at the relevant time. 21. PW-3 has also noticed the accused proceeding towards the house of the defacto complainant at the relevant time. 21. It is a fact that as the victim was alone in her house when the incident occurred, there is no possibility of any ocular witness supporting the version of the victim. Nevertheless, both PW-2 and PW-3 saw the accused fleeing away and going towards the victim's house respectively and the evidence of these witnesses could not be shaken in cross- examination. The medical documents note ligature mark on the frontal and upper portion of the victim's neck and sub-conjunctival hemorrhage in both her eyes. The doctor (PW-6) opined that such ligature mark and sub-conjunctival hemorrhage in the eyes may be caused if the neck is tightly pressed with a nylon rope. The doctor also held that such injuries are, in the ordinary course, sufficient to cause death of a person. In fact, the condition of the victim was so serious that the doctor thought it prudent to record the statement of the victim at once. The observation of this doctor was supported by the other doctors of the hospital (PW-7 and PW-8). 22. It is pertinent to mention that the nylon rope which was the alleged weapon of strangulation was seized from the forest by the Investigating Officer as shown and identified by the accused though the said rope was found around the neck of the child by the witnesses. But again, as the medical evidence is sufficient and adequate to substantiate that there was an attempt of strangulation with a nylon rope, the entire prosecution case cannot be discarded due to such minor discrepancy despite the fact that there is no explanation as to how the rope reached the forest from the house of the victim. 23. It is evident from the record that the accused was seen to enter the house of the victim and flee there from at the relevant time. There is nothing on record to suggest that any person other than the accused was found to enter or had the opportunity to enter the victim's house at the relevant time and there is also no reason for the accused being falsely implicated in the case. There is nothing on record to suggest that any person other than the accused was found to enter or had the opportunity to enter the victim's house at the relevant time and there is also no reason for the accused being falsely implicated in the case. Of course, the accused complained in his statement under Section 313 of the Cr.P.C. that due to his enmity with Manoranjan, his parents and the father of Sikha, he has been falsely implicated. Manoranjan Sarkar happens to be a cousin of the victim and according to the victim's version, used to accompany the accused for jobs outside the State. Merely because of such acquaintance of Manoranjan with the accused, under no stretch of imagination can it be inferred that enmity cropped up between the two which led the defacto complainant to implicate the appellant, more so, as no case of dispute or difference between the parties is made out. 24. The entire evidence on record, considered as a whole, leads to the irresistible conclusion that the appellant and none else is the perpetrator of the offence under Section 448/307 of the IPC. 25. The prosecution has succeeded in establishing that the appellant trespassed into the house of the victim and strangulated her with a rope with the intention to deprive her of her life even before it blossomed fully. 26. Upon consideration of attending facts and circumstances of the case as well as the evidence on record, I have no impediment to hold that charges under Sections 448/307 of the IPC have been substantiated against the appellant to the hilt and conviction of the appellant for offence punishable under Sections 448/307 of the IPC is affirmed. Further, the sentence of rigorous imprisonment for the offence punishable under Sections 4/18 of the POCSO Act is modified by convicting the appellant under Section 8 of the POCSO Act and sentencing him to suffer rigorous imprisonment for a period of 3(three) years and pay fine of Rs.5,000/-, in default, to suffer rigorous imprisonment for further 3(three) months, all the sentences to run concurrently. 27. With regard to the sentence awarded to the appellant, it appears that the appellant is in custody for more than 5(five) years. The victim girl recovered and was discharged from the hospital on 26-09-2014. There is no adverse report from the Correctional Home Authority against the appellant during his custody. 27. With regard to the sentence awarded to the appellant, it appears that the appellant is in custody for more than 5(five) years. The victim girl recovered and was discharged from the hospital on 26-09-2014. There is no adverse report from the Correctional Home Authority against the appellant during his custody. No dismal antecedent to the credit of the appellant is reflected in the four corners of the record. Under such circumstances, striking a balance between the age and conduct of the offender/appellant and the offence committed, I am of the considered view that the sentence of rigorous imprisonment for life for offence punishable under Section 307 of the IPC should be reduced to a period of 10(ten) years in the interest of justice. 28. Accordingly, conviction of the appellant under Section 4/18 of the POCSO Act is modified and the appellant is convicted for offence under Section 8 of the POCSO Act. However, his conviction under Sections 448/307 of the IPC is affirmed. 29. The sentence awarded to the appellant is modified to the extent that the appellant shall suffer rigorous imprisonment for 3(three) years and pay fine of Rs.5,000/-, in default, suffer rigorous imprisonment for another 3(three) months for the offence punishable under Section 8 of the POCSO Act, suffer rigorous imprisonment for 1(one) year and pay fine of Rs.5,000/-, in default, suffer rigorous imprisonment for another 2(two) months for the offence punishable under Section 448 of the IPC and suffer rigorous imprisonment for 10(ten) years and pay fine of Rs.50,000/-, in default, suffer rigorous imprisonment for another 5(five) months for the offence punishable under Section 307 of the IPC, all the sentences to run concurrently. 30. The period of detention undergone by the appellant be set off against the substantive sentence of imprisonment under Section 428 of the Cr.P.C. 31. Rs.50,000/- out of the total fine amount, if realised, be handed over to the victim girl as compensation in terms of the order impugned. 32. C.R.A. 726 of 2015 is disposed of accordingly. 33. A copy of the judgment along with the lower Court records be sent down to the ld. trial Court at once. 34. Urgent certified website copies of this judgment, if applied for, be supplied to the parties expeditiously on compliance with the usual formalities.