Nurai Sk. @ Nurul Sk vs State Of West Bengal
2021 Latest Caselaw 5661 Cal

Form J(2)
                    In the High Court at Calcutta
                    Criminal Appellate Jurisdiction
                           Appellate Side


Present : The Hon'ble Mr. Justice Bibek Chaudhuri

      IA No.:CRAN/1/2019 (Old No. : CRAN/583/2019)
                         in
                   CRA 45 of 2019


                     Nurai Sk. @ Nurul Sk.
                             -Vs.-
                     State of West Bengal


For the appellant       :    Mr. Navanil De, Adv.
                             Ms. Ayantika Roy, Adv.,
                             Mr. Subhrajit Dey, Adv.

For the respondents :        Mr. Narayan Prasad Agarwala, Adv.,

Mr. Pratick Bose, Adv.

Heard & Judgment on :        15.11.2021.


      Bibek Chaudhuri, J.:

Way back in 2002 when Protection of Children from Sexual

Offences Act, 2012 did not see the light of the day, the Hon'ble

Supreme Court through the Hon'ble Y. K. Sabharwal, J. in

Criminal Appeal No. 1975 of 1996 (State of Rajasthan -Vs.- Om

Prakash) observed, "it is necessary for the Courts to have a

sensitive approach when dealing with cases of child rape. The

effect of such a crime on the mind of the child is likely to be

lifelong. A special safeguard has been provided for children in

the Constitution of India in Article 39 which, inter alia,

stipulates that the State shall, in particular, direct its policy

towards securing that the tender age of the children is not

abused and the children are given opportunities and facilities to

develop in a healthy manner and in conditions of freedom and

dignity and that the childhood and youth are protected against

exploitation and against moral and material abandonment".

At the same time, one should not forget that

administration of justice is not one way traffic. On the basis of

the case and counter case based on facts and evidences, both

oral and documentary, administration of criminal justice is to be

imparted. The duty of the Trial Court in assessment of evidence

on record in its true spirit cannot but be over emphasized

because the Trial Court is the basic structure of administration

of justice upon which the superior forums are standing. If the

basic structure is without any base, the super structure will not

only fall, but it will cause denial of justice to an innocent

person.

Bearing the above basic principle in mind, let us now dwell

upon the facts and circumstances involved in the instant appeal.

The appellant was convicted and sentenced to rigorous

imprisonment for two years with fine and default clause for

committing offence under Section 354 of the Indian Penal Code.

He was further sentenced to suffer rigorous imprisonment for

two years and to pay fine of Rs.10,000/- with default clause for

committing offence under Section 354A(2) of the Indian Penal

Code. For offence under Section 506 of the Indian Penal Code

he was sentenced to suffer rigorous imprisonment for one year

with fine and default clause. The appellant was further

sentenced to suffer rigorous imprisonment for four years and to

pay fine of Rs.10,000/- with default clause for offence

punishable under Section 8 of the POCSO Act. He is also

sentenced to suffer rigorous imprisonment for one year and to

pay fine of Rs.10,000/- with default clause for committing

offence under Section 12 of the POCSO Act.

All the sentences were, however, directed to run

concurrently.

According to the prosecution, the victim girl was returning

from school on 24th August, 2017 at about 4.10 p.m. and on her

way back to home, the accused dragged her 'orna' and

proposed her to marry. He also threatened her to cause injury

by throwing acid on her body if the victim girl refused to accede

to his proposal.

The materials-on-record further shows that both the

victim and the accused reside in the same locality. After the

incident, FIR was not lodged immediately, though the local

police station is situated at a stone throw distance from the

house of the victim. Only on 26 th August, 2017, the FIR was

lodged by the uncle of the victim. In the FIR, no allegation was

made against the appellant that he pulled the hand of the

victim. On the contrary, it was stated that the accused pulled

the 'orna' of the victim and threatened her that he would cause

injury to her if he did not agree to the proposal of marriage

given by the accused to her.

In evidence the victim girl as P.W. 1 stated on oath that

the incident took place on 27th of a particular month in the year

2017 at about 10.30 a.m. when she was going to her school

with her friend, Rimi. Thus, at the time of recording evidence of

P.W. 1 the date and time of incident was wrongly stated by the

victim girl. The prosecution noticing grave lacuna in its case

filed an application for recalling P.W. 1 after about two months

of her deposition for the first time in Court. In the evidence

dated 13th July, 2018, the deposition of P.W. 1 was rectified and

she was made to depose that the incident took place on 24 th

August, 2017 at 4.10 p.m.

The eyewitness of the occurrence, namely Rimi who

accompanied the victim girl was not examined in this case. All

other witnesses heard the incident and their evidence being

hearsay in nature is of little relevance. Learned Trial Judge on

appreciation on evidence held that the specific act of the

accused of dragging the 'orna' of the victim girl and insisting

her to marry him was done with intent to outrage her modesty

with sexual intent. The learned Trial Judge held that the

accused has caused her sexual assault and harassment by

physical contact by pulling her hand and advance unwelcome

and explicit sexual overtures to marry him. Therefore, the

learned Trial Judge held the accused guilty for committing

offence under Sections 8 and 12 of the POCSO Act. He also

held that the specific act of the accused in the nature of sexual

harassment within the meaning of Section 354 A (1)(ii) of the

Indian Penal Code.

Let me now appreciate the evidence on record as well as

legal position as well as penal provisions contained in statutes

independently.

In a criminal trial date of occurrence, time of occurrence

and place of occurrence are the most vital pieces of evidence

which the prosecution is bound to prove beyond any shadow of

doubt. If there is a deviation of the above-mentioned three

facts, the entire case remains doubtful because the Court is

every reason to hold that no such incident took place at the

given time in the given manner at the given place and the

accused is entitled to get benefit of doubt. It is needless to say

that the victim girl who was a student of Class-XII, on the date

of examination, might forget the date of occurrence but it is

heard to believe that she also would forget the time when the

incident took place. In her examination-in-chief, she stated

that while she was going to school with her friend, the incident

took place. Subsequently, she was recalled and stated that

while she was returning home from school on 24 th August,

2017, the incident took place at about 4:30 p.m. In view of

such discrepancies, it is open for the Court to consider the

prosecution story with pinch of salt.

In the FIR, the uncle of the de facto complainant never

stated that the accused dragged the hand of the victim.

Statement of the victim under Section 164 of the Code of

Criminal Procedure was recorded after 10 days of occurrence on

4th September, 2017. In the said statement, the victim

introduced that she was pulled by her hands.

It is needless to say that a statement under Section 164 of

the Criminal Procedure Code is not a substantive piece of

evidence. The evidence that is led by the witness in Court on

oath. Substantive piece of evidence and a statement under

Section 164 of the Code of Criminal Procedure can only be used

for corroboration or contradiction. Such statement under

Section 164 of the Code of Criminal Procedure should not be

taken into consideration where the victim tried to exaggerate

the incident.

Section 8 of the POCSO Act is the penal provision of

sexual assault. Section 7 defines sexual assault which runs

thus: -

"7. Sexual assault. - Whoever, with sexual intent

touches the vagina, penis, anus or breast of the child or makes

the child touch the vagina, penis, anus or breast of such person

or any other person, or does any other act with sexual intent

which involves physical contact without penetration is said to

commit sexual assault."

Similarly, Section 12 is punishment for sexual harassment

and the specific acts constituting sexual harassment are defined

in Section 11 which is reproduced below:-

"11.Sexual harassment. - A person is said to commit

sexual harassment upon a child when such person with sexual

intent-

(i) utters any word or makes any sound, or makes any

gesture or exhibits any object or part of body with

the intention that such word or sound shall be

heard, or such gesture or object or part of body

shall be seen by the child; or

(ii) makes a child exhibit his body or any part of his

body so as it is seen by such person or any other

person; or

(iii) shows any object to a child in any form or media

for pornographic purposes;

(iv) repeatedly or constantly follows or watches or

contacts a child either directly or through

electronic, digital or any other means; or

(v) threatens to use, in any form of media, a real or

fabricated depiction through electronic, film or

digital or any other mode, of any part of the body

of the child or the involvement of the child in a

sexual act; or

(vi) entices a child for pornographic purposes or gives

gratification therefor."

Even assuming that the appellant has committed the

alleged act of dragging 'orna' and pulling hand of the victim and

proposed her to marry, such act does not come within the

definition of either sexual assault or sexual harassment.

At best for the act of the accused, he may held liable for

committing offence under Section 354 A read with Section 506

of the Indian Penal Code.

For an offence under Section 354 A(1)(ii), the prescribed

punishment is rigorous imprisonment for a term which may

extend to 3 years or with fine or with both.

For the offence punishable under Section 506 of the Indian

Penal Code, the offender shall be punished with imprisonment

of other description for a term which may extend to 2 years or

with fine or with both.

From careful evidence on record, I find that no other

charge is proved against the accused.

For the reasons stated above, the instant appeal is

allowed in part.

The appellant is held not guilty from the charge under

Sections 354, 354B and 509 of the Indian Penal Code. The

appellant is also held not guilty for the charge under Sections 8

and 12 of the POCSO Act.

The appellant is, accordingly, acquitted from the above

charge, set at liberty and release from bail bonds.

The instant appeal is dismissed in part and the order of

conviction and sentence passed by the learned Additional

Sessions Judge, Kandi in Sessions Trial No.06(3)/2018 arising

out of C. Special No.111 of 2017 is partly affirmed so far as it

relates to conviction and sentence passed by the learned Trial

Judge for committing offence under Sections 354(1)(ii) and

Section 506 of the Indian Penal Code.

The appellant be released from Correctional Home if he

served out sentence for the offence punishable under Section

354A(1)(ii) and Section 506 of the Indian Penal Code.

Let a plain copy of this judgment be sent to the Trial Court

immediately along with lower court record.

The parties are at liberty to act on the server copy of the

judgment.

(Bibek Chaudhuri, J.)

Srimanta/Mithun A.Rs. (Court)