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2021 DIGILAW 459 (CAL)

Satyajit Mondal @ Kesto v. State of West Bengal

2021-11-26

BIBEK CHAUDHURI

body2021
JUDGMENT : Bibek Chaudhuri, J. 1. The instant appeal is directed against the judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, 2nd Court, Malda in POCSO Case No.15 of 2015 (Sessions Trial No.59 of 2015) arising out of G.R. Case No.262 of 2014 and Gazole Police Station Case No.31 of 2014 dated 23rd January, 2014, thereby convicting and sentencing the accused/appellant under Section 12 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter described as the POCSO Act) for committing offence under Section 11 of the POCSO Act. 2. A short question involved in the appeal is that if the accused/appellant was identified by the victim girl at the time of trial, although he was not distinctly identified at the time of commission of offence and the victim girl made allegation against the accused only on her assumption, whether subsequent identification in Court sufficiently connects the accused with the commission of offence. 3. Prosecution story as revealed from the FIR lodged by the father of the victim girl on 23rd January, 2014 is that his daughter, i.e., the victim girl aged about 15 years at the relevant point of time was a student of Class-X at Bardanga High School. One Prakash Sammadar of that school and Satyajit Mondal of another school with others proposed her to establish love relation with them. They also used to threaten her with dire consequences in case of her refusal to accept such proposal. The victim girl informed the matter to his father, the de facto complainant. On 17th January, 2014 at about 6 p.m. when the victim girl was going to the house of her maternal grandfather, situated in the same village, the accused persons gagged her mouth with a handkerchief and dragged her to some distance. 4. The victim became unconscious. When she regained conscious she found the button of her sweater was open, her wearing apparels were torn. The de facto complainant and others conducted search for the said victim girl and found her coming towards the house crying. She was taken to Gazole Primary Health Centre. The Medical Officer referred her to Malda District Hospital. She was admitted to the said hospital as indoor patient. The de facto complainant and others conducted search for the said victim girl and found her coming towards the house crying. She was taken to Gazole Primary Health Centre. The Medical Officer referred her to Malda District Hospital. She was admitted to the said hospital as indoor patient. It is also stated by the de facto complainant in her written complaint that on the date and time of occurrence his sister, Jharna Ghosh was going towards a nearby pond. Seeing her, the accused person fled away. It is also stated by the de facto complainant that as he was busy in medical treatment of his daughter there was delay in lodging FIR. 5. On the basis of the said complaint, police registered the aforesaid case under Sections 341/328/376/511/34 of the Indian Penal Code read with Sections 12/18 of the POCSO Act. On completion of investigation, charge-sheet was submitted. The case was transferred to the Court of the learned Additional Sessions Judge, 2nd Court, Malda. Charge under Sections 328/376/511 of the Indian Penal Code and Section 12 of the POCSO Act was framed against the accused as he pleaded not guilty when the charge was read over and extended to him. Trial of the case commenced. During trial, prosecution examined as many as 11 witnesses. The incriminating materials appearing in the evidence of the witnesses on behalf of the prosecution was confronted with the accused under Section 313 of the Code of Criminal Procedure where he pleaded his innocence. The defence, however, did not adduce any evidence. 6. The learned Trial Judge on consideration of evidence on record held the accused guilty for committing offence under Section 11 of the POCSO Act and convicted and sentenced him accordingly under Section 12 of the said Act. 7. The said judgment and order of conviction is assailed in the instant appeal. 8. Suffice it to say that at the time of commission of alleged offence there was no person other than the victim girl on the village road. Therefore, there is no eyewitness to the occurrence. According to the victim girl, on 17th January, 2014 at about 6 p.m. when she was going to her grandfather’s house at Bardanga, the appellant gagged her with a handkerchief from behind, she fell unconscious. Therefore, there is no eyewitness to the occurrence. According to the victim girl, on 17th January, 2014 at about 6 p.m. when she was going to her grandfather’s house at Bardanga, the appellant gagged her with a handkerchief from behind, she fell unconscious. When she regained conscious she found that she was lying by the side of a pond at Bardanga, the button of her sweater was opened and her wearing apparel (Kurti) was torn at places. The victim was of the view that the accused persons attempted to commit rape upon her. On the same day, she was taken to Gazole Hospital. P.W. 8, Dr. Brindabon Roy examined her at Gazole Rural Hospital. Before Dr. Brindabon Roy neither she nor the patient party did make any statement regarding history of the incident. She was referred to Malda Medical College & Hospital on the same day and was examined by Dr. Mita Halder, RMO, Malda Medical College & Hospital. The Medical Officer examined the victim girl. At the time of examination, the Medical Officer elaborately recorded her statement as to the history of incident. Let me record the statement made by the victim girl before the Medical Officer from the medical examination report itself (exhibit–1) :- “According to victim girl’s statement, she was kidnapped by two persons with handkerchief in her mouth, whom she assumes to be Satyajit Mondal and Prokash Samaddar (student in her school) and she became senseless and could not comment what had happened to her and when she regained conscious, she was left alone 4-5 houses away. She came to home herself”. 9. On examination the Medical Officer, however, did not find any injury on her private part or other part of the body. The victim was also found to be conscious. 10. The FIR was lodged after five days of the occurrence. In the FIR, the father of the victim girl took the name of the appellant and another person. The statement of the victim girl was recorded under Section 164 of the Code of Criminal Procedure on 27th January, 2014, i.e., 10 days after the occurrence. There the victim girl narrated the incident involving the appellant. 11. In the FIR, the father of the victim girl took the name of the appellant and another person. The statement of the victim girl was recorded under Section 164 of the Code of Criminal Procedure on 27th January, 2014, i.e., 10 days after the occurrence. There the victim girl narrated the incident involving the appellant. 11. It is important to note that the victim girl got the opportunity to state the names of the appellant as the perpetrator of offence on the date of occurrence itself when the Medical Officer at Malda Medical College & Hospital recorded her statement. There is no explanation as to why the victim girl specifically did not take the name of the appellant as perpetrator of offence. On the other hand, she stated that she assumed that the appellant and another person sexually harassed her. It is needless to say that assumption as to the identity of the accused cannot take place of proof of identification. The incident took place during dusk. It is not the case of the prosecution that under the darkness of a winter evening, the victim could not identify the accused and he came to know about the involvement of accused subsequently. Except the victim girl, all other witnesses are her relatives and their evidence is hearsay in nature. Therefore, no relevance can be placed with regard to identification of the accused by other witnesses. When it is not proved beyond the shadow of doubt that the appellant was involved in committing the offence no presumption can be drawn against him with regard to culpable state of mind under Section 30 of the POCSO Act. 12. The learned Trial Judge did not consider the said fact at all. He proceeded with delivery of judgment on the basis of the evidence adduced by the victim girl and other witnesses and on the basis of their identification of the accused on dock. However, he failed to consider that the victim could not state in unequivocal term that it was Satyajit Mondal who was involved in committing the offence before the Medical Officer in front of whom he got chance to make her statement within few hours after the incident. 13. However, he failed to consider that the victim could not state in unequivocal term that it was Satyajit Mondal who was involved in committing the offence before the Medical Officer in front of whom he got chance to make her statement within few hours after the incident. 13. For the reasons stated above, this Court is of the view that the accused is entitled to get benefit of doubt and the judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, 2nd Court, Malda in Sessions Trial No. 59 of 2015 (Regn. No. 8/2015) cannot stand. 14. For the reasons stated above, the instant appeal is allowed on contest. The judgment and order of conviction and sentence is set aside. The appellant be discharged from the bail bond. 15. Let a copy of this order be sent to the learned Trial Court along with the Lower Court Records at the earliest. The parties are at liberty to act on the server copy of the judgment. Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties on usual undertakings.