Research › Search › Judgment

Calcutta High Court · body

2020 DIGILAW 487 (CAL)

Subal @ Bhola Patra v. State Of West Bengal

2020-06-12

SAHIDULLAH MUNSHI, SUBHASIS DASGUPTA

body2020
JUDGMENT Sahidullah Munshi, J. - This appeal is against the judgment and order of conviction dated 22nd September, 2015 and 23rd September, 2015 passed by the learned Additional District and Sessions Judge, 2nd Court, Tamluk, Purba Medinipur in Sessions Trial No. 13 (04) of 2014 arising from Sessions Case No. 545 (Sept) 2013 convicting the appellant under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as 'POCSO Act'), and sentencing the appellant to suffer rigorous imprisonment for a period of 12 years and with fine of Rs.10,000/- in default to suffer simple imprisonment for another three years under Section 6 of the POCSO Act, 2012 (hereinafter referred to as 'POCSO Act'). 2. The short fact involved in this case is based on a written complaint made by one Maniklal Jana with the Officer-in-charge women Police Station at Contai, Purba Medinipur on 24th May, 2013 on the basis of which the above-mentioned P.S. Case No. 19/13 dated 24.05.2013, was initiated under Section 376(2)(h) of the Indian Penal Code read with Section 6 of the POCSO Act. According to the complaint case on 23rd May, 2013 the victim aged about 11 years was sleeping alone in a newly constructed Palaghar beside their residence belonging to Dipak Panda, the owner of the fishery. Subal @ Bhola Patra was engaged by Dipak Panda to look after the said fishery accused Subal @ Bhola Patra committed the offence on the minor girl and accordingly the complaint was lodged by his father on 24.05.2013. 3. According to the complainant incident occurred on 23rd May, 2013 at about 2:30 pm. According to the prosecution case the accused was caught by the local people and was handed over to the police. Prosecution examined as many as 13 witnesses. Charge was framed against the accused, it was read over and explained to him but the accused pleaded not guilty and prayed for to be tried. In the examination under Section 313 of Cr.P.C. the accused had the only plea of innocence. On behalf of the accused, the learned Advocate appearing before us submitted that the entire prosecution case has been framed against the accused because of some previous enmity between the complainant and the owner of the fishery in regard to a passage leading to the Palaghar itself in between the complainant's residence and the fishery. On behalf of the accused, the learned Advocate appearing before us submitted that the entire prosecution case has been framed against the accused because of some previous enmity between the complainant and the owner of the fishery in regard to a passage leading to the Palaghar itself in between the complainant's residence and the fishery. The accused is only an employee of the owner of the fishery and he has nothing to do with the stretch of passage over which there was a dispute between the owner of fishery and the complainant. 4. Learned Counsel further submitted that the medical evidence does not support the prosecution case at all rather shows that the accused has been harassed by implicating in a false case. He submitted that there in no explanation with regard to the delay in lodging the written complaint. Learned Advocate submitted that although the offence alleged to have committed by the accused on 23rd May, 2013 at about 2:30 p.m. written complaint was registered with the police at Contai only on 24.05.2013 at about 2:15 p.m. Learned Advocate submitted that while the place of occurrence has been shown to be the Palaghar within the fishery complex but the accused was caught hold at the residence of the victim. He submitted that probability of such story is not applicable. He, accordingly, submitted that the place of occurrence is under doubt and the punishment inflicted upon the accused cannot be sustained because the prosecution has failed to prove the occurrence. 5. While convicting the accused, learned Court below upon appreciation of evidence on record held that although P.W. 1, de facto complainant though identified the content of the F.I.R., in course of evidence suppressed material fact regarding actual mode of occurrence. Similarly, P.W. 3 wife of the de facto complainant tried to suppress the actual mode of occurrence. However, the learned Court below based on the evidence of the victim who gave vivid description of the occurrence and the offence committed by the accused upon her person more so the offence being an offence under the POCSO Act. 6. The learned Court below has held that the accused is to take a plea whether he is guilty or not and under Section 29 the presumption is always a rebuttable presumption which goes against the accused unless he proves the negative. 6. The learned Court below has held that the accused is to take a plea whether he is guilty or not and under Section 29 the presumption is always a rebuttable presumption which goes against the accused unless he proves the negative. Considering the adverse situations against the accused the learned Court below and in absence of any defence taken by the accused in support of his innocence, the Court below convicted the accused holding that the prosecution has proved this case beyond all reasonable doubts and further that the accused has failed to repeat the evidence against him. In course of investigation police sent the victim girl to the learned Magistrate for recording her statement under Section 164 of the Code of Criminal Procedure. Such statement of the victim was recorded by the learned Magistrate on 24.05.2013 and the same has been marked Exbt. 5 victim girl was examined as P.W. 2. On perusal of the statement recorded under Section 164 and her substantive evidence before the Court it appears that statement of the victim under Section 164 of Cr.P.C. fully corroborates the substantive evidence. From the substantive evidence before the Court of the victim it appears that she has given vivid description of the manner in which she has been violated by the accused on the date of occurrence on 23.05.2013 on or about 2:30 p.m. and that she had stated everything before the Investigating Officer. She deposed 'I disclosed the I.O. of this case the said fact what I am stating before the learned Court today. After such incidence the accused person fled away from the spot but he was kept in custody and thereafter police came and arrested the uncle.' The victim was examined by the doctor on 24.05.2013 at the SubDivisional Hospital at Contai and thereafter, she was taken to Contai Court on that day and learned Magistrate recorded her statement under Section 164 Cr.P.C. her signatures on the 164 statements were identified and marked Exbts. 5/1, 5/2 and 5/3 entire 164 statement has been marked as Exbt. 5 without objection. 7. On perusal of the judgment and order of conviction passed by the learned Court below we are of the view that the learned Court below has dealt with the evidence very casually. 5/1, 5/2 and 5/3 entire 164 statement has been marked as Exbt. 5 without objection. 7. On perusal of the judgment and order of conviction passed by the learned Court below we are of the view that the learned Court below has dealt with the evidence very casually. It may be true that the offence has been committed by the victim but the nature of the offence and the sentence whether passed therefor has been correctly assessed by the Court below or not is a matter of further scrutiny before us. Instead of scrutiny of the evidence in detail, the learned Judge in the Court below has taken shelter more under Section 29 of the POCSO Act where the accused is to prove that he is not guilty. But at the same time learned Court below has failed to consider whether in absence of convincing evidence simply on a vivid description of victim, accused is to be punished under Section 6 of the POCSO Act whereby he has been directed to undergo a sentence of higher degree. Therefore, further scrutiny of the evidence on record is required to be made in detail. 8. If we hold that the statement of the victim recorded under Section 164 of the Code of Criminal Procedure has been the correct expression of the occurrence, and if it is found that such statement corroborates the substantive evidence of the victim in Court then it is apparent that the victim has never alleged that the accused has committed an offence of rape under Section 376 together with Section 6 of the POCSO Act for which charges were framed against him. Neither ingredients of Section 376 nor any ingredient under Section 6 of POCSO Act is available. In the present case the description which is apparent in 164 statement of the victim and her substantive evidence before the Court attracts the provisions of Section 4 of the POCSO Act. We shall deal with the provisions hereinafter for further clarification. 9. We have also perused the statement under Section 164 recorded by the learned Magistrate and we do not find any discrepancy with regard to the compliance for recording of such statement. Indisputably in the cases of such nature while the allegation is of rape and the victim is of the age of 11 years only her testimony can be weighed as the testimony of injured witness. 10. Indisputably in the cases of such nature while the allegation is of rape and the victim is of the age of 11 years only her testimony can be weighed as the testimony of injured witness. 10. Therefore, simply on the basis of the testimony of this victim we can conclude to convict the accused but since we have some doubt in our mind that the allegation of rape has not been proved beyond all reasonable doubt we seek corroboration from other witnesses. P.W. 3 is the mother of the victim girl her statement was also recorded under Section 164 of the Code of Criminal Procedure. Statement of P.W. 3 recorded under Section 164 corroborates the statement of her substantive statement/evidence in court P.W. 3 during her crossexamination stated 'I disclosed the fact also to the Magistrate prior to giving evidence before this learned Court. Except disclosing the fact to the Magistrate today for the first time I am deposing the said fact before the learned Court. Not a fact that I am deposing falsely that on that particular date and time of incidence my daughter came weeping and she told me that Bhola misbehaved with her and he caught hold her and told her breast will be developed. Not a fact that I have stated falsely that our villagers first caught Bhola and restrained him and thereafter police came and arrested him. I went to the hospital when my daughter was examined.' Then again the witness said 'not a fact that the said complaint was lodged against this accused persons out of enmity due to dispute. Not a fact that this case has been filed falsely.' 11. Therefore, it is apparent that this evidence of P.W. 3 fully corroborates P.W. 2 the victim. It is true that the evidence of P.W. 1 does not fully corroborate the complaint filed by him but surrounding circumstances evident from the evidence of other witnesses particularly P.W. 1 victim and P.W. 3 mother of the victim there is no ray of doubt that the occurrence was committed by the accused is guilty of sexual offence may not be to the degree of the offence for which punishment has been inflicted. 12. If the evidence of P.Ws. 12. If the evidence of P.Ws. 2 and 3 and part of P.W. 1 is taken into consideration it reveals that the complaint cannot be put under doubt and if again this evidence is compared with those of the medical evidence, it is apparent that the medical evidence corroborates the victim's statement regarding commission of offence. Medical evidence particularly Exbt. 8 does not reveal specifically about the sexual intercourse but the description of the victim under Section 164 regarding the offence of sexual offence committed upon her by the accused is apparent from the other medical evidence. Ossification test report Exbt. 15 also reveals that the victim is a minor between the age group of 10 to 11. If a minor girl has been used by the accused for sexual last without any penetrative sexual assault comprising the offence of aggravated assault defined under Section 6 and punishable under Section 7 of the POCSO Act. We are left with no option, in the facts and circumstances of the cases, based on the evidence available on record particularly the evidence of the victim which gets corroboration from all other surrounding evidence. We are of the firm belief that there has been an offence under Section 4 of the POCSO Act. 13. In addition to the statement made by the PW1, PW2 and PW3, it has been rightly pointed out by Mr. Maity appearing for the State that even on cross-examination by the defence PW2 remained unshaken and various question were asked to the victim but nothing contrary could be found. Therefore, this cross-examination clearly goes against the accused. 14. The learned Magistrate who recorded statement of the victim as also her mother under Section 164 of the Criminal Procedure Court has also been examined and the 164 statement has been marked at the instance of this witness. Deposition of PW1 and PW3 is fully corroborated by their respective statement under 164 Cr.P.C. and further corroborated by the evidence of PW6 the learned Magistrate. Therefore, the description contained in the 164 statement and the deposition in Court by the victim (PW2) raises no doubt and/or suspicion to her trustworthiness and we also cannot doubt that neither PW1 the complainant /father made any false averment in the FIR (Exbt.13) nor the deposition of the scribe (PW4) who wrote the written complaint (Exbt.1) on the basis of which FIR was registered. Although, the scribe was later on declared hostile but his evidence both in chief and before he declared hostile and his cross-examination in compliance of Section 154 of the Indian Evidence Act has got sufficient evidentiary value and if such evidence is taken into consideration it clearly corroborates Exbt.1 and Exbt. 13. Mr. Maity, However, has also rightly pointed out that PW9 grandfather of the victim heard the incident immediately after the occurrence and is also present before whom the accused confessed in presence of others that he committed the offence complained of. This witness was interrogated by the Investigating Officer and before the Investigating Officer he also narrated the story which has been narrated in the complaint. On examination-in-chief this PW9 stated "But we called village people and thereafter Bhola confessed among us he pressed the mouth of Mampi with his hand and thereafter pushed his finger into her vagina. Therefore, we handed over Bhola to the Police." On crossexamination by the defence this witness PW9 reiterated "Not a fact I have stated falsely that thereafter myself and my son followed Bhola and cought him and brought him from other Palaghar. Not a fact that I have stated falsely that thereafter we called our village people & in presence of all of us then Bhola confessed that he pressed the mouth of Mampi and also pushed his finger into her vagina. I was interrogated by police on the same date of incidence at about 7.00/8.00 pm." 15. The statement both in chief and cross made by this witness PW9 also corroborates the medical evidence where the doctor opined that intercourse was not possible. Therefore, the sum total of the medical evidence of PW9, statement of the victim and her mother including their statement under Section 164 and the evidence of learned Magistrate who recorded the statement of the victim (PW2) and her mother (PW3) reveals an offence committed by the accused of a description within the meaning of Section 3 of the POCSO Act. The punishment for which has been mentioned in Section 4. For better illustration Section 3 and 4 of POCSO Act are reproduced below:- "S.3.- Penetrative Sexual Assault. The punishment for which has been mentioned in Section 4. For better illustration Section 3 and 4 of POCSO Act are reproduced below:- "S.3.- Penetrative Sexual Assault. A person is said to commit "penetrative sexual assault" if a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of the body of the child or makes the child to do so with him or any other person; or d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person. S.4.- Punishment for penetrative sexual assault. Whoever, commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may extend to imprisonment for life, and shall also be liable to fine." 16. Learned Court below however, arrived at a finding that the accused committed an offence of penetrative sexual assault which is not based on the material evidence available in this case and the punishment prescribed under Section 6 of the POCSO ACT. 17. Nor such allegation of penetrative sexual assault gets any support of the medical evidence or views, the evidence of the victim and other post-occurrence witnesses. on a cumulative analysis of the entire evidence on record particularly of the victim's deposition in Court, her statement recorded under Section 164 of the Cr.P.C., her medical evidence and her grand-father's evidence, we are of the view that it will be apt to hold that the accused has committed an offence of penetrative sexual assault within the meaning of Section 3(b) and (d) which invites a punishment with imprisonment of either description for a term which shall not be less than seven (7) years but which may extend to imprisonment for life and shall also be liable to fine. 18. 18. Considering each and every aspect very meticulously we, however, imposed imprisonment prescribed under Section 4 and we modify the sentences. 19. We, therefore, direct that the appellant be convicted under the offence of Section 3 and accordingly be punished with Rigorous Imprisonment for a period of seven (7) years with a fine of Rs.10,000/- (Rupees Ten Thousand) only, in default, to suffer further Simple Imprisonment for one (1) year as prescribed under Section 4 of the POCSO Act. Appeal is disposed of. 20. All concerned are directed to act on a server copy of this judgment and order. 21. Criminal Section is directed to send down the records to the learned Court below together with a copy of the judgment forthwith to the concerned learned trial Court. 22. Urgent Photostat certified copy, if applied for, be delivered to the learned counsel for the parties, upon compliance with all usual formalities. 23. I agree.