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2024 DIGILAW 376 (CAL)

Tankeshwar Das v. State

2024-02-20

JAY SENGUPTA, MD.NIZAMUDDIN

body2024
JUDGMENT : JAY SENGUPTA. J. 1. This appeal is directed against a judgment and order of the conviction and sentence dated 20.01.2022 passed by the Learned Additional Sessions Judge-cum-Judge, Special Court (POCSO Act), Andaman and Nicobar Islands, Port Blair in Special Case No. 27 of 2018 : Special Trial No. 10 of 2019, thereby convicting the appellant under section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and sentencing him to suffer imprisonment for life and to pay a fine of Rupees Two Lakhs and to suffer rigorous imprisonment for ten (10) years with a fine of Rupees Ten Thousand for committing the offence punishable under section 315 of the Indian Penal Code, in default, to suffer rigorous imprisonment for six months. If the fine was paid by the convict, the same was to be paid to the victim girl/survivor to meet her medical expenses and rehabilitation. By the same order, the co-accused/wife of the appellant was acquitted of all charges. The Administration was also advised to pay Rupees Ten Lakhs as compensation. 2. At this stage, it is submitted on behalf of the State that the girl is presently staying at an Ashram and the fine amount paid has already been released in her favour. 3. On 25.04.2018 the victim girl (PW1) lodged an FIR being Humfrigunj PS Case No. 35/2018 dated 25.04.2018 under sections 376(2)/313/506 of the IPC and sections 5/6 of the POCSO Act. It was alleged that the appellant being the own biological father of the minor victim girl committed penetrative sexual assaults upon her since 2015, which led to her pregnancies and consequent abortions. Soon after the incident of 2018, the victim went to the Panchayat authorities and disclosed everything. She was taken to the police station thereafter where she lodged the complaint. 4. After completion of investigation, a chargesheet was submitted under sections 376(2)/313/506/34 of the IPC read with sections 5/6/21 of the POCSO Act. Charges were framed. 5. During trial as many as 12 witnesses were examined by the prosecution while two witnesses were adduced by the defence. 6. PW-1 was the victim girl herself. She elaborately stated about the sequence of events and the manner in which the appellant committed sexual assault upon her and the knowledge about the subsequent events by the co-accused/mother of the victim. During trial as many as 12 witnesses were examined by the prosecution while two witnesses were adduced by the defence. 6. PW-1 was the victim girl herself. She elaborately stated about the sequence of events and the manner in which the appellant committed sexual assault upon her and the knowledge about the subsequent events by the co-accused/mother of the victim. She also referred to her birth certificate as well as the documents pertaining to her abortion. During cross, few commonplace suggestions were given about a possible affair with a third person. PW-2 was the Gram Panchayat Pradhan to whom the victim girl for the first time confided about the incident on 25.04.2018. She came there with relevant documents. PW-3 was the Ward Member present there. PW-4 was the Police Constable and PW-5 was the Police Head Constable who, respectively acted as the scribe and the facilitator in registering such FIR. PW-6 was the Doctor who conducted the termination of the pregnancy in 2018. However, at that time there was no mention about who was responsible for the pregnancy. PW-7 was the Doctor who prepared the injury report of the victim. PW-8 examined the victim girl medically. In the cross, some discrepancy was suggested in respect of the particular form that was filled up. PW-9 was the Inspector of Police who filed chargesheet. PW-10 was the Panchayat Secretary who was a witness to the statement of the victim girl before the police. PW-11 was the Medical Officer who examined the appellant and found him capable of committing such sexual act. PW-12 was the Investigating Officer of the case to whom a suggestion was made in the cross about the purported delay in lodging FIR. 7. In the examination of the two accused under section 313 of the Code of Criminal Procedure, the accused made a simple denial and did not provide for any explanation in respect of the pregnancies of the victim girl, far less any illusion to the involvement of a third person. 8. DW-1 was another daughter of the appellant and DW-2 was his son. Both of them denied of having any knowledge about such incidents. 9. Learned counsel appearing on behalf of the appellant submits as follows. The prosecution case is based solely on the testimony of the victim girl. 8. DW-1 was another daughter of the appellant and DW-2 was his son. Both of them denied of having any knowledge about such incidents. 9. Learned counsel appearing on behalf of the appellant submits as follows. The prosecution case is based solely on the testimony of the victim girl. She has made such a serious complaint only after about three years from the first alleged date of occurrence. There is no proper explanation for the delay. No DNA report was obtained in respect of the parties. Anybody could have been responsible for such incidents. Significantly the other co-accused, who was allegedly a collaborator, was acquitted of all charges. It is sufficient to simply deny the allegations when examined under section 313 of the Code. In the alternative, the sentence imposed is far too severe in the circumstances of the case. 10. Learned counsel appearing on behalf of the State submits as follows. The sole testimony of a victim girl is sufficient for a conviction on a charge under section 6 of the POCSO Act. In the instant case the victim is a minor girl. After being brutalized by her father for years together and that too with the mother’s knowledge and non interference, she was compelled to seek relief from the local Panchayat Members. She produced the relevant documents regarding earlier pregnancies and gave cogent evidence against her own father in open Court. This was supported by a statement made by her before the learned Magistrate under section 164 of the Cr.PC. There is no discrepancy between the two and the version of the victim girl is supported by the medical documents. Presumption in terms of the section 29 of the POCSO Act also operates in favour of the prosecution. Furthermore, there is no explanation provided by the accused in the examination under section 313 of the Code. Therefore, the prosecution was able to prove its case beyond all reasonable doubts. 11. I have heard the learned Counsels for the parties and have perused the petition of appeal, evidence and other materials on record. 12. This is an abhorrent case of incestuous lust of a father. A minor girl alleges that she has been sexually exploited by her own biological father. However, there is a purported delay of three years in lodging an FIR, which needs to be looked into. 13. 12. This is an abhorrent case of incestuous lust of a father. A minor girl alleges that she has been sexually exploited by her own biological father. However, there is a purported delay of three years in lodging an FIR, which needs to be looked into. 13. In the FIR lodged by the victim girl, she had clearly delineated the manner in which she was sexually exploited by her own father. This version given at the first point in time, has not been digressed from either in her statement made before the learned Magistrate or at the time giving evidence before the Trial Court. Her testimony could not be shaken in the cross-examination. 14. One needs to understand that the victim girl was hardly 15 years old when she was raped by her father for the first time. Even her mother was not by her side. Then, in the natural course of things, how could she possibly complaint about her misery to any other family member? It is not inconceivable that at some point all the pent up pain and emotion would burst and the same may fairly happen at a more mature age of 17 years. This provides sufficient explanation for the purported delay in reporting the incidents. 15. It is trite law that, if found reliable and trustworthy, a conviction under section 376 of Indian Penal Code, or for that the matter, under section 6 of the POCSO Act can be based on the sole testimony of the prosecutrix. On the reliance may be placed on Ganesan vs State (Rep. by Inspector of Police), (2020) 10 SCC 573 (3Js). 16. Moreover, the version given by the victim girl finds support from the medical documents relied upon by her. It is further supported by the testimonies of doctors examined during trial. 17. Furthermore, the presumption under section 29 of the POCSO Act, comes to an aid of the prosecution. The presumption could not be rebutted by the appellant in the instant case. 18. Here, then question of having a DNA test done on parties is hardly of any consequence as the FIR was lodged some time after the last abortion. Therefore, the foetus was not available for any test 19. The defence evidence adduced does not at all contradict the prosecution version. 18. Here, then question of having a DNA test done on parties is hardly of any consequence as the FIR was lodged some time after the last abortion. Therefore, the foetus was not available for any test 19. The defence evidence adduced does not at all contradict the prosecution version. It only shows that the two other children were unaware of the particular facts or about when the same might have happened. They also did not allude to the possible involvement of a third person. 20. Quite significantly, the appellant failed provide any explanation for the allegations leveled although he was provided adequate opportunity for the same while being examined under section 313 of the Code of Criminal Procedure. In the present facts, this acts as an additional link in the chain of circumstance appearing against the accused. On this, reliance may be placed on State of Rajasthan vs Kashi Ram, (2006) 12 SCC 254 . 21. The evidence of the minor victim girl coupled with medical documents also makes out a case under section 315 of the Penal Code. 22. Therefore, the prosecution has been able to prove its case beyond reasonable doubt. 23. Considering the gruesome nature of the offences and the extreme depravity exhibited by a biological father in committing sexual assaults on her own minor daughter, no leniency can be shown to the offender. 24. It is surprising indeed that the State did not prefer an appeal against the acquittal of mother of the victim girl. But, some time has elapsed after such conviction. Therefore, this Court does not want to deal with the said issue any further. 25. In view of the above discussions, this Court does not find any merit in the appeal. Accordingly, the same is dismissed. 26. Let the Trial Court records be sent down along with a copy of this judgment. 27. Urgent Photostat certified copy of the judgment, if applied for, be supplied to the parties upon compliance of all legal formalities. MD. NIZAMUDDIN. J.- I agree.