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2020 DIGILAW 148 (CAL)

Bharat Chettri v. State Of West Bengal

2020-02-06

SHIVAKANT PRASAD

body2020
JUDGMENT Shivakant Prasad, J. - The instant appeal is directed against the judgment and order of conviction and sentence dated 6th March, 2017, passed by the learned Additional Sessions Judge, 2nd Court, cum Special Court Darjeeling under Protection of Children from Sexual Offences Act in Special Case No.32 of 2014 Sessions Trial No. 60(8)/16 arising out of Sadar Police Station Case No.153 dated 18.11.2014, whereby the appellant was convicted for the charge under Section 8 of the POCSO Act and sentenced to suffer Rigorous Imprisonment for five years and also to pay fine of Rs.10,000/-, in default to suffer R.I. for six months and with further direction that 50% of the fine should be paid to the victim girl, inter alia, on the ground that the learned Additional Sessions Judge acting as a Special Judge under POCSO has committed in error holding the appellant guilt of the said charge inasmuch as there are serious lacuna and inconsistency in the evidence on record which makes the prosecution case doubtful. 2. Precisely the facts leading to the instant appeal is that the complainant Avilasha Thapa lodged a complaint before Sadar P.S., Darjeeling on 18.11.14 to the effect that accused on 15th November 2014 called her in her cell phone at 12.30 P.M. to send the victim girl to the A1 Coaching Classes and sent her for tuition. When the victim girl came back home at 6.00 P.M. she saw her hysterically crying and found marks on her cheeks and when the complainant asked how it happened she answered that the accused had inappropriately touched her. During the class other children who attended the said class were sent outside the said building to play and the accused tried to come close to her and touched her chest and forcefully kissed her and ran his hand all over her body touching her thigh and chest and also locked the door when the victim girl started crying but the accused tried to console her and insisted her to stay in the class but again let her open the door and she went outside and told her friend Bunu who studies in the same tuition class. Bunu also confessed about similar instances, the accused had molested her and shown dirty videos in his computer. Moreover, the victim girl met Sunila Miss and complained to her but she did nothing. 3. Bunu also confessed about similar instances, the accused had molested her and shown dirty videos in his computer. Moreover, the victim girl met Sunila Miss and complained to her but she did nothing. 3. On the complaint of Avilasha Thapa the aunt of the victim girl Darjeeling Sadar P.S. Case No.153/14 dated 18.11.2014 under Section 8 of the Protection of Children from Sexual Offences Act, 2012 was started against the accused-appellant and on usual investigation, I.O. submitted charge-sheet against him. 4. The accused-appellant stood trial for the charge under Section 8 of the Act to which he abjured the guilt and claimed to be tried. The prosecution examination as many as 10 witnesses to bring home the charge against the accused-appellant. After the conclusion of the evidence, the learned Judge upon hearing the parties found the appellant guilty of the offence under Section 8 of the POCSO and handed over punishment to suffer rigorous imprisonment for five years and to pay fine of Rs.10,000/- with default clause by the impugned judgment. 5. The accused-appellant was examined under Section 313 of Cr.P.C. to which he declined to adduce any defence evidence but he pleaded not guilty as having been implicated in the case. In the course of investigation, the I.O. had placed the victim girl before the learned Judicial Magistrate, Darjeeling for recording her statement under Section 164 of the Cr.P.C. and her statement was recorded by the Judicial Magistrate on 01.12.2014 proved as Exhibit - 1 which corroborates the written complaint Exhibit- 2 proved during trial. The incident took place on 15.11.2014 at 12.30 P.M. on which date the victim had been to take tuition as called by her teacher Bharat Chettri, the appellant. According to the victim girl, the appellant had called her aunt, Avilasha Thapa, the complainant over phone told to send her for tuition at Red Cross Building. Upon her aunt telling her to go to take the tuition, she along with her younger brother and sister went for the tuition. On reaching there she saw that there were other two female students and her tuition teacher started giving tuition in Math to her and her younger brother and sister. Upon her aunt telling her to go to take the tuition, she along with her younger brother and sister went for the tuition. On reaching there she saw that there were other two female students and her tuition teacher started giving tuition in Math to her and her younger brother and sister. After sometime, the appellant asked her brother and sister to go out and play then, finding her alone in the room the said tuition teacher, the appellant herein started touching her chest and private parts and he also forced her hands to touch his private part and then he kissed her. To protest she spit on his face but the appellant slapped her four times on her face. Then the victim girl started crying and the appellant tried to console her and told not to tell anybody about the incident. After having come out from the tuition room, she told about the incident to her friend Bunu Rai examined as witness no.7 who also told the victim girl, P.W.1 that she had also experienced of such act by the appellant. Thereafter, she told about the incident to her aunt, Avilasha Thapa and also told her that previously in the month of August, 2014 her tuition teacher, Bharat Chettri had shown her a blue film in computer. This statement of the victim girl finds corroboration by her ocular testimony as well as the P.W.7 barring few minor contradictions. 6. Mr. Biplab Mitra, learned advocate appearing for the appellant submits that the learned Court ought to have taken the adverse presumption against the prosecution for not examining the most natural witness namely Chandrika and Lakhi Thapa with whom the victim girl, P.W.1 had interacted after the occurrence and this creates a doubt about the credibility and truthfulness of the prosecution case. It is also submitted that P.W. 7, Bunu Rai as per her evidence was subjected to sexual assault in the month of August but she remained quiet for months together with regard to the said assault and she became vocal in the month of November, 2014 after the complaint was filed against the appellant at the behest of the complaint, the aunt of the victim. 7. 7. It is argued that the evidence of P.W.7 suffers from serious doubt inasmuch as her presence at the coaching centre has neither been corroborated by any witness nor the attendance register maintained for recording the attendance of the students in the coaching centre was seized or produced to support that PW 7 continued to be a student at the coaching center before the Court. 8. It is argued that while assessing the evidence of PW 1, learned Court ought not have relegated into oblivion the fact that in an examination of PW 1, she stated that on the same day she had taken tuition from one Abhishek Sir and continued her coaching class from the next date of occurrence. This conduct of the PW 1 is contrary to the normal human conduct and creates serious doubt about the prosecution case. 9. Accordingly, it is submitted that the presumption under Section 29 of the Act having been rebutted and the prosecution having not adduced reliable and trustworthy evidence in support of the charge under Section 8 of the POCSO Act, the appellant is entitled to be acquittal of the charge. 10. I have gone through the evidence of P.W.1 the victim girl who has stated on oath that Bharat Sir called her aunt, Avilasha Thapa over phone at about 12.30 P.M. and her aunt asked her to go for tuition as called by Bharat Sir. She went to tuition at Red Cross Building with her brother and sister on the day of incident Bharat Sir took tuition on the ground floor and she found two sisters there. Bharat Sir taught Math and after the class was over, asked her brother and sister to go out to play outside and then she was alone and the accused locked the door from inside as well as from the outside and put his hand on her private part and asked her to touch his private part and he kissed her. She has categorically stated on oath that she spit on his face for which she was slapped by the appellant. Then she started crying and the accused tried to pacify her and asked her not to reveal the incident to anybody. But when she came out of the coaching she found her friend Bunu Rai, PW 7 to whom she narrated the whole incident. Then she started crying and the accused tried to pacify her and asked her not to reveal the incident to anybody. But when she came out of the coaching she found her friend Bunu Rai, PW 7 to whom she narrated the whole incident. Bunu Rai also told her that the appellant had committed the same offence with her. 11. Pw1 informed the matter to her friend that accused appellant also showed her blue film in his computer and Bunu Rai also told her that accused had shown her blue film. Then she returned home and on the way to her home she met the mother of her friend Chandrika and then went to her house. She narrated the whole incident to her aunt Avilasha Thapa. 12. It is stated that brother and sister of the victim girl and mother of her friend namely, Chandrika have not been examined but I am of the view that non-examination of witnesses does not demolish the case of the prosecution because there is no categorical rebuttal of the presumption of the case deposed by PW1, the victim girl., she deposed that on her way to her house she met the mother of her frined Chandrika but she directly went to her house without narrating the incident to her friend's mother. 13. During cross-examination, PW1 has deposed that she was taught by Abhishek Sir in mathematics in the evening and she reported the incident to Sunila madam of the said coaching centre who has been examined as PW6, but has been declared hostile by the prosecution. 14. It is argued that the prosecution case is doubtful as the PW1 stayed at the coaching centre from 1 p.m. to 4 p.m. but her friend Bunu Rai, PW 7 to whom she narrated the incident just after coming out from the centre otherwise deposed that when PW 7 enquired PW 1 on seeing her cry, the latter told her that accused had slapped her since she did not do her Maths home work. PW 7 deposed about her that at about 5 p.m. that accused showed her blue film and also touched her body in the chamber. 15. In this regard, learned counsel for the appellant submits that PW 7 has not given evidence of facts in issue. PW 7 deposed about her that at about 5 p.m. that accused showed her blue film and also touched her body in the chamber. 15. In this regard, learned counsel for the appellant submits that PW 7 has not given evidence of facts in issue. I do agree that as per Section 5 of the Evidence Act PW 7 is not enabled to give evidence of a fact which she is disentitled to prove as her testimony about the behavior of the appellant towards her was not in issue but on evidence I find that the statement of PW7 has also been recorded by the Judicial Magistrate proved as Exhibit- 6 and she has narrated the fact to the Magistrate to this effect that on 15.11.2014 at about 4 p.m. she was outside the coaching centre at Red Cross Building, Darjeeling with her friend. PW1, the victim girl, came out from the centre hysterically crying. Upon seeing her crying, she asked what had happened to her, then she told her that tuition teacher Bharat Chettri touched her private parts and also showed her blue-film. Then she also told her that he had also behaved in the same manner with her previously and had also shown her blue film on computer at the tuition centre on 30.08.2014. Then they went to complain the incident to one female teacher of the coaching centre but she refused to listen to them and in fact blamed them. Thereafter, they came out. Admittedly, PW7 Bunu Rai had not told about the incident which happened with her to her mother as she was a heart patient but in this case, even an irrelevant fact about behavior of the appellants towards PW 7 not in issue for decision becomes relevant. 16. All these facts narrated instead convince my judicial mind to conclude that the sexual assault was committed by the appellant on the victim girl so as to attract the charge under Section 8 of POCSO Act. 17. I do find that there are discrepancies in the evidence on record but they are not material discrepancies to demolish the testimony of the victim girl which would warrant an order of acquittal in favour of the appellant. 18. 17. I do find that there are discrepancies in the evidence on record but they are not material discrepancies to demolish the testimony of the victim girl which would warrant an order of acquittal in favour of the appellant. 18. Having perused the evidence on record and the judgment impugned and the evidence of the doctor PW 8, though no injury on the body of the victim was observed but the statement of the victim girl that Bharat Chettri had touched her breast, slapped her four times and kissed her on her cheek has been noted by the doctor as stated by her at the earliest point of time. Therefore, the learned Judge after going through the evidence was right in his finding to hold the appellant guilty of the offence charged under Section 8 of the POCSO Act and I find no fault in the judgment of conviction under Section 8 of the Act. 19. Now, learned advocate appearing for the appellant, submits that the appellant is serving sentence for more than three and half years and invites my attention to the conviction clause under Section 8 of the POCSO Act relating to punishment for 'sexual assault' as defined under Section 7 of the Act prescribing for punishment with imprisonment of either description for a term which shall not be less than 3 years but which may extend to five years, and shall also be liable to fine and, therefore, urged for reduction of sentence to the period of term of punishment already undergone by the appellant. 20. I have heard learned advocate appearing for the State and the appellant insofar as the sentence concerned. 20. I have heard learned advocate appearing for the State and the appellant insofar as the sentence concerned. The learned Judge did not dealt with the appellant in awarding sentence with levity bearing in mind the role of a teacher in the society with the responsibility of a mentor and to play role in the society growth as a teacher help to shape the nation by imparting education to the students and has to dedicate his life to educating the future generation and if a wrong doer is sympathetically dealt it will send a bad message to the society at large and accordingly, the learned Judge sentenced the appellant to maximum punishment with imprisonment for a period of 5 years of rigorous imprisonment with fine of Rs.10,000/- in default rigorous imprisonment for 6 months more for the offence charged under Section 8 of the POCSO Act. 21. The punishment prescribed under Section 8 of the Act is undoubtedly a term punishment providing for punishment which shall not be awarded less than 3 years and considering that the appellant is the only earning member of his family consisting of his dependent mother as one of mitigating circumstance, I am of the view that modification of the sentence period of 5 years to the period already undergone for three and half years would meet the ends of justice. 22. Accordingly, the sentence of rigorous imprisonment for 5 years is reduced to the period of sentence already undergone and served by the appellant in jail. 23. With the above modification, the Criminal Appeal being CRA 319 of 2017 is allowed in part. 24. A copy of this judgment together with LCR be sent down to the learned Trial court forthwith for necessary note in the Sessions Trial Register and for doing the needful. An extract of this judgment be also sent to the Superintendent, Jalpaiguri Correctional Home for his information and for necessary action. 25. Urgent Photostat certified copy of this order, if applied for, be supplied to the parties upon completion of all necessary formalities.