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2020 DIGILAW 293 (CAL)

Jiten Roy v. State Of West Bengal

2020-02-27

JOYMALYA BAGCHI, SUVRA GHOSH

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JUDGMENT Joymalya Bagchi, J. - A thirteen year old child with special needs and poor eye sight is alleged to have been subjected to penetrative sexual assault by the appellant, a mendicant who promised to cure her poor eye sight by massaging her with oil. P.W.1, father of the child (P.W.4) had met the appellant at the panchayat office. In lieu of Rs.400/- the appellant had promised to cure his daughter's eyesight with medicine. Accordingly, on 13.5.2013, appellant came to the residence of P.W.1 and went into a room with the minor while her parents remained outside. After half an hour, the appellant left the room. Upon entering the room, parents of the child (P.W.1 and P.W.2) found the victim naked and in senseless condition. Subsequently, the child disclosed to her mother (P.W.2) that she had been raped. Other relations and locals were also informed of the incident. The child was in a traumatized stage and was treated by one Dr. Panchamani Ghatak. On 15.6.2013, P.W.1 lodged first information report against the appellant under Sections 420/376(2)(l)/506 of the Indian Penal Code. In conclusion of investigation, charge sheet was filed and charges were framed under Sections 376(2)(l) of the Indian Penal Code and under Section 3(a)/4 of the POCSO Act, 2012. The appellant pleaded not guilty and claimed to be tried. 2. In the course of trial, prosecution examined 14 witnesses including the minor, P.W.4 who was examined with the help of an interpreter, P.W.3. In conclusion of trial, by the impugned judgment and order dated 29.5.2015 and 30.5.2015, the appellant was convicted of the offence punishable under Section 376(2)(i) of the Indian Penal Code and under Section 4 of the POCSO Act and sentenced to suffer rigorous imprisonment for ten years and to pay fine of Rs.5,000/- in default to suffer rigorous imprisonment for five months more. 3. Learned Counsel appearing for the appellant assailed the prosecution case on various counts. Firstly, it is submitted that the charge framed in the instant case is defective. Although it is stated in the charge that the incident occurred in the night of 13th May, 2013, evidence on record shows that the incident occurred between 10/11.00 a.m. of that day. Secondly, no explanation is forthcoming with regard to inordinate delay in lodging the first information report. Although it is stated in the charge that the incident occurred in the night of 13th May, 2013, evidence on record shows that the incident occurred between 10/11.00 a.m. of that day. Secondly, no explanation is forthcoming with regard to inordinate delay in lodging the first information report. Thirdly, there is confusion when the child (P.W.4) disclosed the alleged sexual assault upon her to her parents. While her father (P.W.1) stated she disclosed the incident to him two days later, her mother (P.W. 2) stated she narrated the incident to her on the self same day. Dr. Panchamani Ghatak who had treated the victim had not been examined. There is confusion whether the appellant was available immediately after the incident as deposed by the panchayat member, P.W.6. Neither the birth certificate of the victim nor the ossification report has been placed on record to show that she was a minor. Genesis of the prosecution case has not been established and the appellant is entitled to an order of acquittal. 4. Learned Counsel appearing for the State submitted that the version of the victim, P.W.4, a specially challenged minor girl is clear and establishes the prosecution case beyond doubt. She narrated the incident of penetrative sexual assault upon her which is corroborated not only by her parents (P.W.1 and P.W.2) but others as well. The victim was in a traumatized state and her parents were engaged with her treatment. Hence, delay in lodging the first information report is adequately explained. Therefore, the prosecution case has been proved beyond doubt and the appeal is liable to be dismissed. 5. Pw 4 is the victim who was a special child having poor eyesight. She was examined with the help of interpreter PW 3. She deposed on 13.5.2013 a 'sadhu' came to the house and undressed her. He massaged her body with oil. Thereafter he behaved with her like "husband and wife". She made statement before the magistrate. She identified the appellant as her tormenter. 6. Learned counsel submitted the victim is a tutored witness and has embellished her version in court. She did not speak of penetrative sexual assault before the magistrate. Evidence of a minor victim is to be treated with great care and sensitivity. More so, when the victim, as in the present case, is a special child with impaired eye sight. I have assessed her evidence from that perspective. She did not speak of penetrative sexual assault before the magistrate. Evidence of a minor victim is to be treated with great care and sensitivity. More so, when the victim, as in the present case, is a special child with impaired eye sight. I have assessed her evidence from that perspective. There is no evidence on record that her mother or any relation/ support person was present when the victim was examined before the magistrate in terms of section 26/38 of the POCSO Act. Any child who has suffered the trauma of sexual assault does not feel comfortable to recount the incident far less in graphic details. No interpreter was also provided to the magistrate while recording statement of the special child. Variations of her statement in court when compared to her earlier statement before magistrate who had examined her without the help of a support person or interpreter is, therefore, understandable. Hence, I consider it imprudent to reject the succinct and clear statement of penetrative sexual assault described by the minor as behaviour between "husband and wife" as an embellishment and I hold that her evidence is clear and unambiguous with regard to the penetrative sexual assault perpetrated upon her. 7. Evidence of the minor child (PW 4) is corroborated by her parents P.Ws 1 and 2. It is contended on behalf of the appellants that the parents contradicted one another with regard to the time when the minor disclosed the incident. I am unable to accept such contention. Both the parents deposed after the monk had left they rushed into the room and found the child naked and in senseless condition. Subsequently, the child narrated her trauma to her mother, P.W 2. Two days later, she narrated the incident to her father, PW 1. Sexual assault on a female child causes severe trauma on her tender mind. Such a victim would ordinarily confide her bitter experience only to the person closest to her i.e. her mother and none. Hence, the victim in this case confided the incident initially to her mother and subsequently upon gaining confidence to her father too. Assessed from such perspective, I do not find any improbability in the genesis of the incident as narrated by her parents. On the other hand, their evidence is consistent with each other and corroborates that of the minor. Hence, the victim in this case confided the incident initially to her mother and subsequently upon gaining confidence to her father too. Assessed from such perspective, I do not find any improbability in the genesis of the incident as narrated by her parents. On the other hand, their evidence is consistent with each other and corroborates that of the minor. Minor's version is also corroborated by her maternal uncle, PW 5. He is a neighbour of PW 1. He rushed to the spot and saw the child in the room in a naked condition. Upon regaining sense the child informed her mother of the sexual assault by using signs. Other witnesses including the Panchayat member (PW 6) were promptly reported of the incident. 8. Clear, convincing and reliable evidence of the minor corroborated by her parents and others lay sure foundation to the prosecution case. In this backdrop, non-examination of the doctor who treated the victim soon after the incident does not deal a fatal blow. 9. Pw 1, father of the child deposed she was 13 years of age. No serious challenge is thrown to such evidence. Evidence has also come on record that the child was studying in class VII at the time of trial. Hence, I have no doubt in my mind that the victim was a minor at the time of occurrence. Defect in the charge with regard to time of occurrence appears to be an inadvertent slip. Evidence on record is consistent that the incident occurred between 10/11 a.m. on the fateful day. Defence was fully aware of such evidence on record and was not misled due to such inadvertent error in the charge. Desperate plea with regard to false implication on score of political differences was squarely denied by all the witnesses. Even if it is believed that the appellant belonged to a different political party, no evidence was led to show there was enmity between the appellant on the one hand and the family of the victim on the other hand on such score which would prompt them to implicate the appellant in the heinous crime of subjecting a mentally challenged child to penetrative sexual assault. 10. In the light of the aforesaid discussion, I uphold the conviction and sentence imposed on the appellant. 11. 10. In the light of the aforesaid discussion, I uphold the conviction and sentence imposed on the appellant. 11. Coming to the issue of sentence, I note role of enhancement of sentence was issued at the time of admission of the appeal. No doubt, the offence is a grave one. But the appellant does not have criminal antecedents. 12. 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. 13. Accordingly, the appeal is dismissed. 14. Sentence imposed upon the appellant is almost below the minimum sentence prescribed in law. Accordingly, I am not inclined to enhance the sentence imposed upon the appellant. Sentence imposed upon the appellant is affirmed and the rule is discharged. 15. Copy of the judgment along with L.C.R. be sent down to the trial court at once. 16. Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities. 17. I agree.