Sarif Sk. @ Sarip Sk @ Mohiruddin Sk vs The State Of West Bengal & Ors
2021 Latest Caselaw 2318 Cal

                 IN THE HIGH COURT AT CALCUTTA

                    Criminal Revisional Jurisdiction

Before :

The Hon'ble Mr. Justice Bibek Chaudhuri.


                CRAN/1/2018 (Old No:CRAN/3246/2018)
                                in
                        C.R.A./514/2018

                  Sarif Sk. @ Sarip Sk @ Mohiruddin Sk.
                                   Vs.
                     The State of West Bengal & Ors.

For the appellant              : Mr. Pratip Kumar Chatterjee, Adv.,
                                 Mr. Mihir Kundu, Adv.,
                                 Mr. Soumya Majumder, Adv.


For the State                  : Ms.Sukanya Bhattacharjee, Adv.
                                 Mr.Mirza F.A.Begg.


Heard on                        :   23.03.2021

Judgment on                     :   25.03.2021.


Bibek Chaudhuri, J. :
                                    2


     This is an appeal under Section 374(2) of the Code of Criminal

Procedure filed by the convict/appellant assailing the judgment and

order of conviction dated 27th August, 2018 and the order of sentence

dated 28th August, 2018 passed by the learned Additional Sessions

Judge, Kandi, Murshidabad in S.T. No.08(06) of 2018 in C.Spl. No.

13/2018 (C.IS Reg. No.13 of 2018) arising out of Kandi Police Station

Case No.112 of 2018 under Section 376 (2)(i) of the Indian Penal

Code and Sections 4 and 6 of the POCSO Act. By impugned judgment

and order of conviction, the appellant was convicted and sentenced to

suffer imprisonment for seven years and to pay a fine of Rs.5,000/-, in

default, to suffer further imprisonment for six months for offence

punishable under Sections 4 and 6 of the POCSO Act read with Section

376 of the Indian Penal Code.
                                    3


      It is pertinent to mention that both the appellant and the victim

were minor on the date of commission of offence. On the basis of a

written complaint submitted by one Dolly Begum, mother of the victim

alleging, inter alia, that on 2nd April, 2018 her daughter who was aged

about 13 years at the relevant point of time went to take tuition in the

afternoon at a place known as Bishramtala, Kandi. There she met the

appellant who was previously known to her daughter. The appellant

proposed her to give a lift to her house by his motorcycle.

Accordingly, the victim rode on the motorcycle of the appellant. Two

friends of the appellant also followed them with their motorbikes.

Then the appellant took her to a field behind Kandi Narandhar Park.

Other two friends of the appellant went away from the said spot.

Thereafter, the appellant committed rape upon the minor daughter of

the de-facto complaint.

      On the basis of the said complaint police registered Kandi Police

Station Case No.112 of 2018 dated 3rd April, 2018 under Section 376

(2)(i) of the Indian Penal Code read with Sections 4 and 6 of the

POCSO Act and took up the case for investigation.
                                   4


     Investigation culminated into by filing of charge-sheet and the

accused faced trial. During trial, prosecution examined six witnesses,

produced certain documents which were marked paper exhibits. The

appellant was examined under Section 313 of the Code of Criminal

Procedure and finally he was held guilty and convicted and sentenced

accordingly.

     Learned Advocate for the appellant has assailed the impugned

judgment on the following grounds:
                                     5


      First, it is submitted by Mr. Chatterjee, learned Advocate for the

appellant that according to prosecution case, on the date of occurrence

the victim went to Bishramtala, Kandi to take private tuition.       It is

stated by the de facto complainant that Bishramtala is a populated

area and there are many shops at that place. He further reminds me

that according to prosecution case, the appellant forcibly took the

victim to his motorcycle. The victim and her father (P.W.2 and P.W.3)

also deposed that the appellant forcibly took the victim from

Bishramtala to an isolated place and committed rape upon her. The

learned Advocate for the appellant has raised a question that if a girl is

forcibly taken by the accused on his motorcycle, it is very natural and

probable that she would raise an alarm. Surprisingly enough, she did

not raise any alarm which might attract local people at Bishramtala to

intervene and resist the accused from taking the victim away by his

motorcycle.


        Secondly, it is submitted by him that the prosecution failed to

prove very genesis of the case. According to P.W. 2 , the victim and

P.W. 1, the de facto complainant, she went to one Pintu Sir on the

date of occurrence     at about 5.30 p.m      to take private tuition at

Bishramtala . But the said Pintu Sir was not examined by the

prosecution in this case to ascertain as to whether he used to impart

private tuition   to the victim at the relevant point of time     or not.
                                    6


Investigating Officer was examined by the trial Court as P.W. 6. In her

cross -examination, she clearly stated that during investigation    she

tried to trace out the said Pintu Sir of Bishramtala . However her

investigation revealed that there was no private tutor , named, Pintu

Sir at Bishramtala. According to the learned advocate for the appellant

if the whereabout of the private tutor was not established       by the

prosecution during investigation, presence of the victim at Bishram

Tala becomes doubtful.

       Thirdly, the learned advocate for the appellant has drawn my

attention to the   written complaint   where the defacto complainant

stated that the victim was allegedly ravished    by the appellant   in a

field behind Kandi Narandhar Park.

      The victim, on the other hand, stated in her cross examination

that the place of occurrence is not a park, but there is a park near the

place of occurrence. P.W. 3 also stated that the alleged incident took

place in a field behind the park . Next, he calls upon this Court to the

sketch map prepared by the Investigating Officer in presence of the

victim girl and her mother. From the sketch map it is ascertained that

the place of occurrence    was on the eastern side of Dadtala field.

Learned counsel for the appellant also refers to point no. B and C of

the sketch map wherefrom it is ascertained that a Mango orchard

and a house of one Somnath Chowdhury and one Prasad Baral are
                                       7


situated on the eastern and western side respectively of the place of

occurrence . Surprisingly enough, they were not examined by the

investigating Officer . If a 13 years' old girl is forcibly raped by an

accused ,     it is very natural that she would raise alarm which would

attract local people. But no local people was cited as witness in the

case. In view of contradictory statement as to the identification of the

place of occurrence itself, entire prosecution case stands on same

baseless allegation against the accused.

           It is also pointed out by the learned advocate for the appellant

that the prosecution failed to prove seizure of the wearing apparels

of the victim. The seizure witnesses were not examined by the

prosecution. According to the investigating Officer, she seized one

blood stained leggings and one blood stained panty from the

possession of the mother of the victim . But the victim in her evidence

clearly stated that she did not use any panty on the date of

occurrence. Thus, the seizure list is concocted for the purpose of this

case.

           Fifthly, it is urged by the learned advocate for the appellant

that the medico legal examination report        of the victim was proved

by P.W.4 Dr Unmesh Mukherjee. From his evidence it is ascertained

that on 2nd April, 2018 he examined the victim girl who came to the

hospital     with a history of sexual and physical assault and vaginal
                                     8


rupture on 2nd April, 2018. On clinical examination, the doctor found

a linear laceration on deeper part of vagina (Posterior Fornix) at the

level of cervix with profuse bleeding. Her hymen was repaired by

conducting surgery in the operation theater of the hospital under

anesthesia. P.W. 4 opined that the injury was caused due to rupture of

hymen and laceration on deeper part of vagina near cervix which

suggests forcible vaginal penetration. In his cross examination he

opined that hymen may be ruptured for many causes other than rape.

It is also pointed out by the learned advocate for the appellant that the

appellant was medically examined by P.W.5 Dr. Pradip Majumder . He

only opined that private part of the appellant stimulates clinically

under normal circumstances. The Medical Officer did not find any

injury on the private part of the appellant. During cross examination,

P.W.5 was asked as to whether there will be injury on the penis of the

accused, if he inserts his penis in the vagina which admits only one

finger, P.W.5 answered in the negative.

      Lastly, it is submitted by the learned advocate for the appellant

referring to impugned judgment that the learned trial Judge proceeded

with hearing of the case with a pre-conceived notion that the appellant

committed    the offence of rape. It is further argued by the learned

advocate for the appellant that learned trial Judge applied the

statutory presumption under Section 29 of the POCSO Act in the
                                      9


instant case to hold the   appellant guilty. Without,   considering the

above-mentioned      lacunae in the prosecution case and wrongly

applying the principle of statutory presumption under Section 29 of the

POCSO Act inasmuch as        the prosecution is bound to prove the

foundational fact of the prosecution case and only then presumption

under Section 29 of the POCSO Act is available. In support of his

contention, he refers to a decision in the case of Subrata Biswas and

another - versus- State , reported in 2019 SCC Online Cal 1815.

      Learned advocate for the State respondent are found absent at

the time of hearing of the appeal.

Therefore, I proceed to adjudicate the instant appeal on the

basis of the submission made by the learned advocate for the

appellant.

Since both the appellant and the victim are admittedly minors

let me first consider the applicability of statutory presumption under

Section 29 of the Protection of Children from Sexual Offences Act.

Section 29 of the POCSO Act lays down a special provision

relating to presumption which reads thus :-

"29. Presumption as to certain offences.- Where a person is

prosecuted for committing or abetting or attempting to commit

any offence under sections 3, 5, 7 and section 9 of this Act, the

Special Court shall presume, that such person has committed or

abetted or attempted to commit the offence, as the case may

be, unless the contrary is proved."

The words appearing in Section 29 of the POCSO Act "Where a

person is prosecuted ......." embraces a complete exercise on the part

of the prosecution to prove the prime allegation set out in FIR

corresponding to the charge framed against the accused persons

during the course of trial, which is of course rebuttable subject to

developing a strong case, contrary to that established by the

prosecution during cross-examination by defence. When a different

story is developed during trial by the victim prosecutrix, contrary to

the story of prosecution, and that developed story received ratification

from the near relatives of the victim prosecutrix, in the given fact

situation, it stands to reason that despite having been provided with

sufficient opportunity to prove the case, prosecution fails to probalise

incident complained of in the FIR.

The concept of reverse burden of proof can only be made

available in a case where prosecution has already led substantial

evidence as regards the offence complained of. There is hardly any

scope for direct application of Section 29 of POCSO Act, even in a case

where there is no foundational evidence being laid by the prosecution.

The issue was addressed by the Division Bench of this Court in

the case of Subrata Biswas (supra), where the ratio decided was that

proof of penetrative sexual assault is a sine qua non prior to making

application of the presumption available under Section 29 of the

POCSO Act.

This being the legal position, the initial burden is upon the

prosecution to prove the foundational fact of the case by adducing

cogent, trustworthy and reliable evidence. Section 29 has got no direct

and automatic application irrespective of standard of evidence adduced

in a particular case. Thus, without proof of foundational evidence in a

case under the POCSO Act, the onus to prove the reverse burden does

not come into operation. The statutory presumption, therefore, cannot

be taken to be absolute.

Bearing this interpretation made by the Division Bench of this

Court in the case of Subrata Bisws (supra), let me now examine the

instant case independently on the basis of the evidence on record.

According to the prosecution the incident took place on 2 nd

April, 2018. The written complaint was filed on 3rd April, 2018. It is not

disputed and the learned advocate for the appellant has not also urged

any question on the fact situation that on 2 nd April, 2018 itself, the

victim, a minor girl aged about 13 years was admitted to Kandi

hospital with vaginal injury and profuse bleeding. The injury of the

victim was repaired by surgery in the operation theatre of the hospital.

The victim was hospitalised for about three days. The medico legal

examination was marked as Ex-5 during trial of the case. PW-4 Dr.

Unmesh Mukherjee examined the victim on 2 nd April, 2018. In the

injury report he recorded the statement of the patient to the effect

that she suffered vaginal penetration on 2n d April, 2018. Hymen of the

victim was ruptured and lacerated on deeper part of vagina (posterior

fornix) near cervix. The Doctor also opined that the nature of injury

suggested forceful vaginal penetration.

In the injury report it also recorded that on 2 nd April, 2018 at

5.45 p.m. Sarif Sk. took her behind a park removed her wearing

apparels inserted something into her vagina. The said statement

recorded by PW-4 is the first statement made by the victim after the

occurrence to the medical officer. The FIR was lodged on the next day.

The FIR contains allegation against Sarif Sk. It is found from the

evidence of PW-1 and PW-2 as well as from the FIR that Sarif Sk. was

previously known to the victim. Sarif proposed the victim girl for a lift

by his motorcycle to her house. Accordingly, the victim rode on the

motor cycle of Sarif. Then he took her to a field behind the park. In

the FIR the name of the park was stated as Narandhar Park. The

victim in her evidence could not state the name of the park. She

stated on oath that Sarif took her to a field and there was park beside

the said field.

It is true that in the sketch map the existence of Narandhar

field has not been depicted by the Investigating Officer. It is also true

that the I.O. showed eastern side of Dadtala field as the place of

occurrence. If the evidence on record is considered holistically to its

entirety, it is found that the offence was committed on a field beside a

park. It may so happen that place of occurrence was described by

different persons in different names but the very fact that the victim

suffered serious injury on her private part on the date and time of

occurrence is sufficiently proved.

It is vehemently argued by the learned advocate for the

appellant that Bishramtala is a populated area and there are many

shops. If the accused/appellant forced the victim to ride on motorcycle

of the appellant it attracted local people of Bishramtala. Learned

advocate for the appellant also draws my attention to the evidence on

record where the witness stated that the appellant forcibly took the

victim to his motorcycle and went away. What is not referred by the

learned advocate for the appellant is the victim's statement recorded

under Section 164 of the Code of Criminal Procedure. The victim

stated in her statement under Section 164 of the Code of Criminal

Procedure, she knows Sarif as he was a resident of the village of his

maternal uncle. She also stated that she did not want to go with Sarif

by her motorcycle but Sarif insisted her to ride on his motorcycle and

took her to a place following a road running behind the correctional

home at Kandi. The victim in her statement stated that when she did

not want to go with Sarif initially he forced her (Jor Kore) to ride on

the motorcycle. In Bengali parlance the term "Jor Kore" bears

different meanings at different places. "Jor Kora" means forcibly. Again

the term "Jor Kore" is used when a person agrees to do some act or

omits to do something being repeatedly insisted by the other. If we

read the statement of the victim under Section 164 of the Code of

Criminal Procedure in order to mean thereby that when the victim

initially refused to ride on the motorcycle of the accused he repeatedly

insisted her to ride and the victim agreed. However, the rape was

committed of course forcibly which is apparent from the medico legal

examination report prepared by PW-4.

It is needless to say that conviction for an offence of

aggravated sexual penetration can be based on sole testimony of the

victim. The decision of the Hon'ble Supreme Court in State of

Maharashtra vs. Chandraprakash Kewal Chand Jain reported in

(1990) 1 SCC 550 and State of Punjab vs. Gurmit Singh reported

in (1996) 2 SCC 384 may be relied on in this regard. What is material

in such case is that the testimony of the prosecutrix must be

trustworthy, reliable and unblemished. It must be free from any

inconsistencies or improbabilities. Only when the evidence of the

prosecutrix suffers from inherent contradiction, the court requires

corroboration, as led down in the case of State of Himachal Pradesh

vs. Gian Chand reported in (2001) 6 SCC 71.

In the instant case immediately after the occurrence, the victim

narrated the incident to her mother. Her mother found that the victim

was bleeding profusely from her private part and she was immediately

admitted to the hospital. The oral evidence of the victim gets support

from the evidence of the Medical Officer, PW4. Therefore, I do not find

any reason to disbelieve the evidence of the victim in the instant

appeal.

I am not unmindful to note that there are contradictions in the

description of the place of occurrence or the items of seizure. The

victim girl stated that she did not wear panty on the date of

occurrence but the Investigating Officer seized bloodstain leggings and

one panty. Again if I carefully read the statement of the victim

recorded under Section 164 of the Cr.P.C. (Ex-4) it is found that the

victim girl stated that the appellant took off her pant and forcibly tied

her mouth with the said pant and committed rape upon her. After rape

she was left on the field and the accused went away. She came to the

house wearing pant which was found stained with blood. It is not even

suggested to the victim (PW-2) at the time of her cross-examination

that she underwent menstruation at the relevant point of time. If I

consider the evidence on record with the medical evidence, there is no

other consequence available except that the victim was subjected to

penetrative sexual assault on the date and time of occurrence.

I have already stated that the victim immediately after

occurrence stated to the Doctor she ravished by Sarif. This was the

first statement of the victim about the occurrence within few hours of

the incident. This part of statement remains intact through out the trial

of the prosecution case.

In view of such circumstances, the contradictions which are

referred to by the learned counsel for the appellant are to be treated

as minor contradictions not touching upon the fate of the case. In view

of the fact that the prosecution has been able to prove the

foundational fact of penetrative sexual assault under Section 4 of the

POCSO Act, presumption under Section 29 of the POCSO Act will go

against the accused.

For the reasons stated above, I do not find any ground to spill

ink over the judgment and order passed by the Learned Additional

Sessions Judge, Kandi, Murshidabad in Sessions Trial No. 08(06) of

2018.

Thus the appeal fails.

With the disposal of the appeal, CRAN 1 of 2018 (Old No.CRAN

3246 of 2018) is also disposed of.

(Bibek Chaudhuri, J. )