Research › Search › Judgment

Calcutta High Court · body

2024 DIGILAW 400 (CAL)

Rakesh Das v. State

2024-02-22

JAY SENGUPTA, MD.NIZAMUDDIN

body2024
JUDGMENT : JAY SENGUPTA. J. 1. This appeal is directed against the judgment and order dated 17th November, 2022 passed by the Additional Sessions Judge, North and Middle Andaman, Mayabunder –cum-Special Judge under the POCSO Act in Special POCSO Sessions Trial case No.19 of 2022: Special (POCSO) 15 of 2022, thereby convicting the appellant under section 4 of the POCSO Act and sentencing him to suffer rigorous imprisonment for ten years and also to pay a fine of Rs.50,000/-, in default to undergo rigorous imprisonment for six months more. 2. On 15.10.2022, the PW-1 lodged an FIR being Diglipur PS case No.46 dated 15.10.2022 under sections 3 and 4 of the POCSO Act and section 448 of the Indian Penal Code. 3. In the FIR, it was alleged that the de-facto complainant was the Warden of a Girls’ Hostel at Sita Nagar. On 15.10.2022, the brother of a girl student staying at the hostel called him up and informed that a boy had entered into the hostel. The de-facto complainant immediately spoke to the Cook of the Girls Hostel and asked her to check the said room No.11, which was locked from inside. The inmate of the room was asked to open the door and a boy was found inside the room. He was handed over to the police. It was learnt that the boy had come on the previous night and had been there with the victim girl for the whole night and had indulged in physical relation. The victim girl was about 16 years old. Three pieces of condom were allegedly recovered from the room. 4. After completion of purported investigation, a charge sheet was submitted on 14.11.2022 and on the very same date charges were framed. 5. The prosecution examined as many as 15 witnesses to establish its case and the entire trial was concluded within three days. 6. It appears that PW-1 was the de-facto complainant and Warden of the Hostel. PW-2 was the minor victim girl who was declared hostile during trial. PW-3 was the grandmother of the victim, who had no knowledge about the incident. PW-4 was the Cook at the hostel. She got information from the PW-1 and informed the police. She was essentially a post-occurrence witness. PW-5 was the Caretaker of the hostel, who received information from PW-4 and the boy was found hiding under a cot. PW-6 was the hostel in-charge. PW-4 was the Cook at the hostel. She got information from the PW-1 and informed the police. She was essentially a post-occurrence witness. PW-5 was the Caretaker of the hostel, who received information from PW-4 and the boy was found hiding under a cot. PW-6 was the hostel in-charge. PW-7 was the brother of another student staying at the hostel, who had informed the Warden over phone. Incidentally, his sister was not examined during the trial. PW-8 was the Protection Officer in whose presence the victim’s statement was recorded. PW-9 was the Doctor, who examined the accused and found him capable of committing a sexual act. PW-10 was the Doctor who examined the victim. PW-11 recorded the statement of PW-1. PW-12 and PW-13 were seizure list witnesses. PW-14 was the Station House Officer who filed the charge sheet. PW-15 was the Investigating Officer of this case. 7. Learned counsel appearing on behalf of the appellant submits as follows. There are several discrepancies in the manner in which the investigation was carried out. From the records it appears that the seizure was made prior to the arrest of the accused. There is no evidence whatsoever that there was any physical relationship between the two. In fact, none of the witnesses deposed in this regard except for the Investigating Officer who could not have been a witness to such incident. The victim had made exonerative statements before the learned Magistrate as well as before the Trial Court. The trial was concluded hurriedly. Prior to that there was no proper opportunity given to the accused at the time of consideration of charge. In spite of this the appellant is languishing in custody for nearly two years. 8. Learned counsel appearing for the State submits as follows. Admittedly, the appellant, aged about 22 years, was apprehended from the place of occurrence and formally arrested at the Police Station. There are numerous witnesses to such arrest. Three pieces of condom were recovered from the room. The victim girl admitting before the treating doctor that she had physical relationship with the accused on numerous occasions. There is no question of a minor granting of any consent to have a physical relationship. 9. We have heard the learned counsel for the parties and have perused the evidence and the other materials on record. 10. The victim girl admitting before the treating doctor that she had physical relationship with the accused on numerous occasions. There is no question of a minor granting of any consent to have a physical relationship. 9. We have heard the learned counsel for the parties and have perused the evidence and the other materials on record. 10. First, it is very surprising indeed that the trial was concluded with such haste. More importantly, the very day on which the charge sheet was submitted, copies were supplied and charges were framed. This makes it clear that the appellant was not given sufficient opportunity to deal with the materials during consideration of charge. This alone would be a ground for setting aside the order of conviction and sentence. 11. On merits, it appears that the minor victim girl had taken a consistent stand exonerating the appellant whether while making a statement before the learned Magistrate and even before the Trial Court, except for a purported recording of a different version by the Medical Officer that “incidents” took place on three occasions. Apart from this and the apprehension of the appellant from the place of occurrence, there is hardly any material which can remotely relate to the offences charged. 12. Quite significantly, no other student of the hostel was examined. 13. It is also germane to mention that although three pieces of condom were recovered from the room and were sent to forensic test, no report was made available. Nor was there any proof about who might have possessed such materials. 14. In view of the categorical assertions of the victim girl in her statement before the Magistrate and Trial Court, exonerating the appellant, it would be extremely unsafe to rely only on a recording of a purported different version by a Medical Officer to convict the appellant. 15. As the appellant was admittedly apprehended from the school hostel, he could have been charged with an offence of criminal trespass. However, that is not a lesser offence to what the appellant was charged with. After passage of so many years, it would be futile to send the matter back only for prosecuting the appellant under such charge. In any event, the appellant has already suffered custody for quite some time. 16. However, that is not a lesser offence to what the appellant was charged with. After passage of so many years, it would be futile to send the matter back only for prosecuting the appellant under such charge. In any event, the appellant has already suffered custody for quite some time. 16. In view of the above discussions, this Court is of the view that the prosecution has failed to prove its case beyond reasonable doubt. 17. Accordingly, the appeal is allowed and the judgment and order of conviction and sentence is quashed and set aside. 18. Let the appellant be released forthwith from custody in connection with the instant case. 19. Let the trial court records be sent down immediately along with copy of this judgment. In fact, a copy of the judgment and order be sent forthwith to the Trial Court by special messenger. 20. Urgent Photostat certified copy of the judgment, if applied for, be supplied to the parties upon compliance of all legal formalities. 21. All the parties to act on the basis of the server copy of this order duly downloaded from the official website of this Hon’ble Court. MD. NIZAMUDDIN. J.- I agree.