Satyajit Mondal @ Kesto vs State Of West Bengal
2021 Latest Caselaw 5845 Cal

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

Present : The Hon'ble Mr. Justice Bibek Chaudhuri

                            CRA 106 of 2018

                    Satyajit Mondal @ Kesto
                              -Vs.-
                     State of West Bengal

For the appellant       :     Mr. Biswajit Manna, Adv.,
                              Ms. Tannistha Bandyopadhyay, Adv.

For the respondent      :     Mr. Saswata Gopal Mukherjee,Ld.P.P.,

Mr. Ranabir Ray Chowdhury, Adv., Ms. Faria Hossain, Adv.

Heard & Judgment on :         26.11.2021.



       Bibek Chaudhuri, J.:

The instant appeal is directed against the judgment and order

of conviction and sentence passed by the learned Additional Sessions

Judge, 2nd Court, Malda in POCSO Case No.15 of 2015 (Sessions Trial

No.59 of 2015) arising out of G.R. Case No.262 of 2014 and Gazole

Police Station Case No.31 of 2014 dated 23rd January, 2014, thereby

convicting and sentencing the accused/appellant under Section 12 of

the Protection of Children from Sexual Offences Act, 2012 (hereinafter

described as the POCSO Act) for committing offence under Section 11

of the POCSO Act.

A short question involved in the appeal is that if the

accused/appellant was identified by the victim girl at the time of trial,

although he was not distinctly identified at the time of commission of

offence and the victim girl made allegation against the accused only on

her assumption, whether subsequent identification in Court sufficiently

connects the accused with the commission of offence.

Prosecution story as revealed from the FIR lodged by the

father of the victim girl on 23rd January, 2014 is that his daughter,

i.e., the victim girl aged about 15 years at the relevant point of time

was a student of Class-X at Bardanga High School. One Prakash

Sammadar of that school and Satyajit Mondal of another school with

others proposed her to establish love relation with them. They also

used to threaten her with dire consequences in case of her refusal to

accept such proposal. The victim girl informed the matter to his

father, the de facto complainant. On 17th January, 2014 at about 6

p.m. when the victim girl was going to the house of her maternal

grandfather, situated in the same village, the accused persons gagged

her mouth with a handkerchief and dragged her to some distance.

The victim became unconscious. When she regained conscious

she found the button of her sweater was open, her wearing apparels

were torn. The de facto complainant and others conducted search for

the said victim girl and found her coming towards the house crying.

She was taken to Gazole Primary Health Centre. The Medical Officer

referred her to Malda District Hospital. She was admitted to the said

hospital as indoor patient. It is also stated by the de facto

complainant in her written complaint that on the date and time of

occurrence his sister, Jharna Ghosh was going towards a nearby pond.

Seeing her, the accused person fled away. It is also stated by the de

facto complainant that as he was busy in medical treatment of his

daughter there was delay in lodging FIR.

On the basis of the said complaint, police registered the

aforesaid case under Sections 341/328/376/511/34 of the Indian

Penal Code read with Sections 12/18 of the POCSO Act. On

completion of investigation, charge-sheet was submitted. The case

was transferred to the Court of the learned Additional Sessions Judge,

2nd Court, Malda. Charge under Sections 328/376/511 of the Indian

Penal Code and Section 12 of the POCSO Act was framed against the

accused as he pleaded not guilty when the charge was read over and

extended to him. Trial of the case commenced. During trial,

prosecution examined as many as 11 witnesses. The incriminating

materials appearing in the evidence of the witnesses on behalf of the

prosecution was confronted with the accused under Section 313 of the

Code of Criminal Procedure where he pleaded his innocence. The

defence, however, did not adduce any evidence.

The learned Trial Judge on consideration of evidence on record

held the accused guilty for committing offence under Section 11 of the

POCSO Act and convicted and sentenced him accordingly under

Section 12 of the said Act.

The said judgement and order of conviction is assailed in the

instant appeal.

Suffice it to say that at the time of commission of alleged

offence there was no person other than the victim girl on the village

road. Therefore, there is no eyewitness to the occurrence. According

to the victim girl, on 17th January, 2014 at about 6 p.m. when she was

going to her grandfather's house at Bardanga, the appellant gagged

her with a handkerchief from behind, she fell unconscious. When she

regained conscious she found that she was lying by the side of a pond

at Bardanga, the button of her sweater was opened and her wearing

apparel (Kurti) was torn at places. The victim was of the view that the

accused persons attempted to commit rape upon her. On the same

day, she was taken to Gazole Hospital. P.W. 8, Dr. Brindabon Roy

examined her at Gazole Rural Hospital. Before Dr. Brindabon Roy

neither she nor the patient party did make any statement regarding

history of the incident. She was referred to Malda Medical College &

Hospital on the same day and was examined by Dr. Mita Halder, RMO,

Malda Medical College & Hospital. The Medical Officer examined the

victim girl. At the time of examination, the Medical Officer elaborately

recorded her statement as to the history of incident. Let me record

the statement made by the victim girl before the Medical Officer from

the medical examination report itself (exhibit - 1) :-

"According to victim girl's statement, she was kidnapped by

two persons with handkerchief in her mouth, whom she assumes to

be Satyajit Mondal and Prokash Samaddar (student in her

school) and she became senseless and could not comment what had

happened to her and when she regained conscious, she was left alone

4-5 houses away. She came to home herself".

On examination the Medical Officer, however, did not find any

injury on her private part or other part of the body. The victim was

also found to be conscious.

The FIR was lodged after five days of the occurrence. In the

FIR, the father of the victim girl took the name of the appellant and

another person. The statement of the victim girl was recorded under

Section 164 of the Code of Criminal Procedure on 27 th January, 2014,

i.e., 10 days after the occurrence. There the victim girl narrated the

incident involving the appellant.

It is important to note that the victim girl got the opportunity

to state the names of the appellant as the perpetrator of offence on

the date of occurrence itself when the Medical Officer at Malda Medical

College & Hospital recorded her statement. There is no explanation as

to why the victim girl specifically did not take the name of the

appellant as perpetrator of offence. On the other hand, she stated

that she assumed that the appellant and another person sexually

harassed her. It is needless to say that assumption as to the identity

of the accused cannot take place of proof of identification. The

incident took place during dusk. It is not the case of the prosecution

that under the darkness of a winter evening, the victim could not

identify the accused and he came to know about the involvement of

accused subsequently. Except the victim girl, all other witnesses are

her relatives and their evidence is hearsay in nature. Therefore, no

relevance can be placed with regard to identification of the accused by

other witnesses. When it is not proved beyond the shadow of doubt

that the appellant was involved in committing the offence no

presumption can be drawn against him with regard to culpable state of

mind under Section 30 of the POCSO Act.

The learned Trial Judge did not consider the said fact at all.

He proceeded with delivery of judgment on the basis of the evidence

adduced by the victim girl and other witnesses and on the basis of

their identification of the accused on dock. However, he failed to

consider that the victim could not state in unequivocal term that it was

Satyajit Mondal who was involved in committing the offence before the

Medical Officer in front of whom he got chance to make her statement

within few hours after the incident.

For the reasons stated above, this Court is of the view that the

accused is entitled to get benefit of doubt and the judgment and order

of conviction and sentence passed by the learned Additional Sessions

Judge, 2nd Court, Malda in Sessions Trial No. 59 of 2015 (Regn. No.

8/2015) cannot stand.

For the reasons stated above, the instant appeal is allowed

on contest. The judgment and order of conviction and sentence is set

aside. The appellant be discharged from the bail bond.

Let a copy of this order be sent to the learned Trial Court

along with the Lower Court Records at the earliest.

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

judgement.

Urgent photostat certified copy of this order, if applied for,

be given to the learned advocates for the parties on usual

undertakings.

(Bibek Chaudhuri, J.)

Mithun/Srimanta A.Rs. (Court)