Shri Deoraj Dewan vs The State Of West Bengal
2021 Latest Caselaw 6223 Cal

Form J(2)       IN THE HIGH COURT AT CALCUTTA
                   Criminal Appellate Jurisdiction
                                Appellate Side

Present :
The Hon'ble Justice Bibek Chaudhuri


                         C.R.A. 108 of 2015

                         Shri Deoraj Dewan

                               Vs.
                    The State of West Bengal .




For the Appellant        : Mr. Kalyan Kumar Chakraborty, Adv.
                           Mr. K. Bhattacharya, Adv

Amicus Curiae          : Ms. Shaila Afrin, Adv.

For the State          : Mr. Ranabir Roy Chowdhury, Adv.
                         Mr. Ashok Das, Adv.


Heard on                 : 06.12.2021.

Judgment On              : 09.12.2021.

Bibek Chaudhuri, J.

In our society, the existence of pedophiles are not uncommon.

Little boys and girls are harassed and abused by those mentally ill

persons in their schools, play grounds and other public places

surreptitiously. Though according to the psychiatrist, pedophobia is a

disease which should be properly treated, it is the statutory

mandate that pedophiles are to be dealt with in strong hands to save

the childhood of the victims, failing which as a result of the specific

act of the pedophiles, it will leave a permanent scar and horrific

memory in the minds of the little boys and the girls.

The case in hand is a story of a pedophile harassing the

students of a boarding school.

One Mrs. Reba Sarkar, mother of a boarder student of Victoria

Boys' School, Dowhill, Kurseong submitted a letter of complaint to the

Headmaster of the said school stating, inter alia, that she personally

witnessed a shameful event of sexual harassment of a minor student

by an unidentified male at the corridor of the kitchen of the hostel of

the said school at about 2:45 p.m. on 12th May, 2013.

The Principal of the said school conducted an in-house enquiry

to ascertain the veracity of the complaint. On inquiry he came to

know that a student of Class-V who is referred to as "A" in the body of

the judgment was sexually harassed by the appellant. This Court is

not inclined to disclose his name being the victim of the harassment.

He also came to know that the appellant is in the habit of sexually

abusing the boarder students of Class-V and VI under flimsy pretext.

The Principal of the said school accordingly lodged a complaint before

the Officer-in-Charge, Kurseong Police Station against the appellant.

The Officer-in-Charge of the Kurseong Police Station registered Police

Station Case No.103 of 2013 under Section 12 of the Protection of

Children from Sexual Offences Act, 2012 and endorsed the case to

A.S.I. Birendra Chetri for investigation.

On completion of investigation, police submitted charge-sheet

against the accused/appellant before the learned Special Judge under

the POCSO Act, Darjeeling. The learned Trial Judge framed charge

against the appellant under Section 8/12 of the POCSO Act. The

charge so framed was read over and explained to the appellant to

which he pleaded not guilty.

During trial, prosecution examined as many as 12 witnesses.

Some documents were marked exhibits. The accused was examined

under Section 313 of the Code of Criminal Procedure. The accused,

however, did not adduce any evidence in support of his defence.

The learned Trial Judge on consideration of the evidence on

record held the accused guilty for committing offence under Section 8

of the POCSO Act and convicted and sentenced to suffer simple

imprisonment for 4 years and to pay fine of Rs.2,000/-, in default, to

suffer further simple imprisonment for 6 months. The said judgment

and order of conviction and sentence is assailed in the instant appeal.

It is pertinent to mention at the outset that being the first Court

of appeal, it is the duty of this Court to apprise the evidence on record

independently to come to a finding as to whether the learned Trial

Judge was justified in passing the judgment of conviction and

sentence as recorded above.

It is already stated that the prosecution examined 12 witnesses,

amongst them P.W.1, S.I. Bhusan Chetri of Kurseong Police Station is

the Recording Officer who received the complaint from the Principal of

the school, recorded P.S.Case No.103 of 2013 and entrusted A.S.I.

B.Chetri to investigate into the case.

P.W.11, Mrs. Reba Sarkar is the mother of the boarder student,

named "D" who was studying in the said school in Class-V in the year

2013.

P.W.2, Dr. Jayanta Pal was the Principal of the school at the

relevant year of 2013.

P.W.3, "A", P.W.6, "M", P.W.7, "S", P.W.8, "K", P.W.9, "R" and

P.W.10, "B" were the students of the Class-V, V and VII of the said

boarding school in the year 2013.

P.W.4, Sumitra Rai and P.W.5, Rupa Gurung were the

employees of the kitchen of the said boarding school at the relevant

point of time. P.W.12, A.S.I. B.Chetri is the Investigating Officer of

this case.

It appears from the evidence of P.W.11, Mrs. Reba Sarkar that

on 12th May, 2013 she came to visit her son "D" in the school during

the tea time of the students. She was walking in front of the kitchen

to come to the dining hall. Other children were also present there.

All on a sudden, she found that one person was trying to remove the

trouser of the student in front of all at the corridor of the dining hall.

P.W.11 raised protest. She also came to know that the victim was a

student of Class-V named "A". On the next date she lodged a

complaint to the Principal of the school disclosing the incident. The

said letter of complaint was marked Exhibit.2/1 during trial of the

case.

Apart from P.W.11, all the above-named students stated in

unequivocal terms that during 2013, one day or other the appellant

either pulled their pant and touched their private parts in presence of

others when the victims tried to raise objection, the appellant used to

say that he was their friends and was doing such act out of fun.

Not only the student, P.W.4 Sumitra Rai who was a staff of the

dining hall of the school, corroborated the said fact in her evidence.

P.W.5, Rupa Gurung is another employee of the dining hall of

the said school, according to her evidence, the victim student "A" fell

down on the ground and his pant became wet in rain water, his pant

was slipping down and the accused put it up in its original position.

However, the said victim boy (P.W.3) stated in his evidence that the

appellant purposefully opened his pant and touched his private part

when he was playing cricket in the corridor with other boys. The said

fact was corroborated by other witnesses. From the evidence of the

Principal of the school(P.W.2), it is ascertained that he conducted an

in-house inquiry and being satisfied that the appellant is the offender,

lodged a complaint against him in the local Police Station.

Mr. Kalyan Kumar Chakraborty, learned Advocate for the

appellant has taken two technical objections against the impugned

order of conviction and sentence.

First, he submits that Kurseong Police Station Case No.103 of

2013 was investigated by an Assistant Sub-Inspector of Police.

According to Mr. Chakraborty, an A.S.I. is not competent to

investigate into a case under the POCSO Act. Therefore, the entire

investigation and filing of charge-sheet against the appellant is

vitiated being done not in accordance with law. In order to

substantiate his contention, Mr. Chakraborty makes a reference to

Section 24 of the POCSO Act.

Section 24 provides the manner and mode by which statement

of a child is to be recorded. It is stated that the statement of the

child shall be recorded at the residence of the child or at a place

where he usually resides or at the place of his choice and as far as

practicable by a woman police officer, not below the rank of Sub-

Inspector. At the time of recording statement of the child, the police

officer shall not be in uniform. The Investigating Officer shall ensure

that during investigation, the child should not come in contact with

the accused and the identity of the child shall not be disclosed at any

stage of investigation. On careful reading of the above provisions, it

appears to this Court that Section 24 prescribes a guideline as to how

the statement of the child is to be recorded. Recording of statement

of the victim may or may not be a part of investigation. The appellant

could have taken such ground of objection if the previous statement

recorded under Section 161 of the Code of Criminal Procedure by the

Investigating Officer of the students of the said school who are the

victims of offence, were confronted with them when they appeared in

Court to depose during trial. Previous statement under Section 161 of

the Code of Criminal Procedure of the students who deposed during

trial of the case were not confronted or contradicted with them.

The standard operating procedure in respect of investigation of

an offence under the POCSO Act is that any allegation under the

POCSO Act ought to be investigated by a woman police officer. It is

expected that the investigating officer would possess the knowledge

of child psychology and psychiatric. Nowhere in the statute it is

stated that the investigation of a case under the POCSO Act shall not

be conducted by an officer below the rank of Sub-Inspector of Police.

An Assistant Sub-Inspector is empowered to conduct investigation to

a criminal case. When the statute does not provide any such

provision, the Court cannot hold that an Assistant Sub-Inspector of

Police is incompetent to conduct investigation of the POCSO Act. It is

also pertinent to mention that a case under the Penal Code or under a

Special Act cannot be thrown away on the ground of irregularity of

investigation. Therefore, this Court is not in a position to accept the

above objection raised by Mr. Chakraborty in his argument.

Secondly, it is urged by the learned Advocate for the appellant

that the appellant was a leader of Employees' Association of the said

school and he was vocal for the demands of the employees at large of

the said school. Naturally he was an eye shadow of the

administration. So the administration instituted a false case against

the accused with the help of a guardian and some students of the said

school.

This objection also has no leg to stand. During cross-

examination of the witnesses on behalf of the prosecution by the

learned Advocate for the appellant, it is not suggested to the Principal

of the said school (P.W.2) that the accused was a leader of

Employees' Association of the said school. When such plea was not

taken during trial, the appellant cannot take the defence before this

Court of appeal.

On careful perusal of the evidence on record, this Court finds

that P.W.11, Mrs. Reba Sarkar disclosed for the first time that the

accused was sexually assaulting the student in the corridor of the

dining hall by pulling down his pant. She immediately informed the

matter to the Principal. The Principal of the school held in-house

inquiry and found the accused a habitual offender of sexual assault of

the students of the school. From the evidence of the students, it is

ascertained that he not only pulled down the pants of the students but

also used to touch their penis. Therefore, from the evidence of the

students of the said school, it is proved beyond reasonable doubt that

the appellant is a habitual offender of sexual assault by pulling down

the pants of the students and touching their private parts. By such

specific act of the appellant, it is open for the Court to take a

presumption of existence of culpable mental state. Such presumption

is of course rebuttable but the appellant did not take any step to

rebut such presumption.

Therefore, the learned Trial Judge rightly convicted the

appellant under Section 8 of the POCSO Act.

The learned Trial Judge failed to consider that P.W.3 who is one

of the victims was aged about 10 years at the time of commission of

offence. P.W.6 was also aged about 10 years when an offence of

sexual assault was committed upon him. Same was the age of P.W.7,

P.W.8 and P.W.9. In view of Sub-clause (n) of Clause (a) of Section 9

of the POCSO Act, whoever commits sexual assault on a child below

12 years and Sub-Clause (l) of the said Section that whoever commits

sexual assault on the child more than once or repeatedly, he is liable

to be convicted for the offence aggravated sexual assault and in case

of aggravated sexual assault, the punishment shall not be less than 5

years but which may extend to 7 years and shall also liable to fine in

view of the penal provision contained in Section 10 of the POCSO Act.

Thus, this Court holds that the provision of Section 9(a)(l & m)

of the POCSO Act were lost sight of the learned Trial Judge and taking

into consideration the aggravated form of offence, the appellant ought

to be punished under Section 10 of the said Act.

For the reasons stated above, the instant appeal is dismissed

on contest.

The Special Case No.7 of 2014 corresponding to Sessions Trial

No.30 of 2014 be remanded back to the learned Trial Court below

with a direction to frame charge against the appellant under Section

9(a) (l), (m) read with Section 10 of the POCSO Act and try the case

giving opportunity to the accused/appellant and the prosecution to

lead fresh evidence as per charge-sheet.

The learned Trial Judge is further directed to issue

notice/summons upon the accused to appear before the Court of trial

to face fresh trial of the case.

The learned Trial Judge shall take all endeavour to conclude the

trial within 6 months from the date of receipt of the lower court record

with a copy of this judgment.

Parties are at liberty to act on the server copy of the order.

(Bibek Chaudhuri, J.)