Biswajit Sarkar vs The State Of West Bengal
2021 Latest Caselaw 5885 Cal

                 IN THE HIGH COURT AT CALCUTTA
                CRIMINAL APPELLATE JURISDICTION
                          APPELLATE SIDE


The Hon'ble JUSTICE BIBEK CHAUDHURI


          IA No.: CRAN/1/2019 (Old No.: CRAN/1928/2019)
                                In
                         CRA 251 of 2019

                            Biswajit Sarkar
                                  -Vs-
                       The State of West Bengal

      For the appellant:      Mr. Angshuman Chakraborty, Adv.,
                              Mr. Shashanka Sekhar Saha, Adv.

      For the State:          Mr. Saswata Gopal Mukherjee, Adv.,
                              Mr. Saryati Datta, Adv.


Heard on: July 15, 2021.
Judgment on: November 30, 2021.

BIBEK CHAUDHURI, J. : -

1.    On the basis of a written complaint lodged by one Purnima Sarkar

to the Officer-in-Charge, Nakashipara P.S on 23rd July, 2018, alleging,

inter alia, that an accused/appellant being a next door neighbour

attracted her minor daughter showing video games from his mobile then

he took her to their house when the daughter of the defacto complainant

did not return after a long time, she went to the house of the accused to

call her she found the door of the room of the accused was closed from

inside. She knocked at the door when the accused open the door she
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found her daughter lying on a cot inside the room. Seeing her mother, her

daughter alleged that the victim tried to commit rape upon her. Police

register a case under Section 376/511 of the Indian Penal Code read with

Section 8 of the POCSO Act against the accused/appellant and took up

investigation of the case. The investigation ended in filing of the charge

sheet by the Investigating Officer under Section 376/511 of the IPC read

with Section 8 of the POCSO Act.

2.    Since the charge sheet was filed under the provision of the POCSO

Act the case was transferred to the learned Judge, Special Court under

the said Act.

3.    The appellant duly appeared before the trial court to face trial.

Initially charge was framed under Section 376/511 read with Section 8 of

the POCSO Act, but subsequently it was altered and charge was also

framed under Section 10 of the POCSO Act.

4.    During trial prosecution examined 11 witnesses in support of the

charge against the accused. The accused however did not adduce any

evidence in support of his defence. While examined under Section 313 of

the Code of Criminal Procedure he pleaded not guilty.

5.    The learned trial judge on appreciation of evidence, both oral and

documentary convicted the accused/appellant under Section 10 of the

Protection of Children from Sexual Offences Act and sentence him to

suffer rigorous imprisonment for five years and also to pay fine of

Rs.10,000/-, in default rigorous imprisonment for three months.
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6.    The aforesaid judgment and order of conviction and sentence is

assailed in the instant appeal.

7.    It is submitted by the learned Advocate for the appellant that one

Purnima Sarkar, mother of the victim girl lodged the written complaint

against the accused alleging, inter alia, that on the date of occurrence at

about 10 a.m the appellant came to their house and he was paying video

game on his mobile phone with her minor daughter. Subsequently, he

took her daughter to his house. After a long time the daughter of the

defacto complainant did not return then she went to the house of the

appellant to call her daughter. She found the door of the house was

closed from inside. When she called her daughter, the appellant opened

the door she found her minor daughter in naked condition lying on the

bed of the appellant. Subsequently, she came to know from her daughter

that the appellant with bad intention tried to commit rape upon her

daughter putting off her pant.

8.    Then the learned Advocate for the appellant draws my attention to

the evidence of the victim girl who deposed during trial as PW1. On the

date of deposition the age of the victim girl was recorded as five years. In

her examination-in-chief she stated that the accused committed wrong

upon her. She also stated that the accused took her to his house, closed

the door from inside and laid her down on a chowki. Her mother rescued

her from the room of the accused. It is urged by the learned Advocate for

the appellant that PW1 who is the victim of offence never stated on oath
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that the accused tried to commit aggravated sexual assault with her. She

also did not state that the accused/appellant put off her pant.

9.    Learned Advocate for the appellant next refers to the statement of

the defacto complainant recorded under Section 164 of the Code of

Criminal Procedure. From her statement (Exhibit-6) it is ascertained that

she corroborated the incident narrated by her in the written complaint. It

is found from the said statement that when she went to the house of

Biswajit to call her daughter she found that the door of their house was

closed from inside. She knocked at the door and Biswajit opened the door.

At that time she was bare bodied. She entered inside the house and found

her daughter lying on the cot. She did not wear her pant properly. On

being asked her daughter told that the appellant opened her wearing

apparels and tried to insert his penis inside the vagina of her daughter.

According to the learned Advocate for the appellant that the statement

made by the defacto complainant under Section 164 of the Code of

Criminal Procedure is exaggerated because the Medical Officer did not

find any injury mark on the private part of the victim. It is further

submitted by her that the victim girl was aged about two and half years at

the time of the alleged incident. If a grown up man tries to insert his

private part inside the vagina of a little girl of two and half years, there

will certainly be some injury but the Medical Officer (PW9) did not find

any mark of injury on the private part of the victim girl.

10.   The learned Advocate for the appellant further submits that all

other witnesses except PW1 and PW2 are in the nature of heresy and in
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the instant case their evidence is of no importance. It is also submitted by

the learned Advocate for the appellant that the defacto complainant in her

statement under Section 164 of the Code of Criminal Procedure stated

that the accused discharged his semen on the body of the victim girl.

Police seized the wearing apparel of the victim girl. It was sent to forensic

Science Laboratory for scientific examination but the report was not

collected and produced by the Investigating Authority to prove the

prosecution case. Had it been produced the prosecution case might have

been proved as to whether there was any mark of semen in the wearing

apparel of the victim or not. It is further submitted by the learned

Advocate for the appellant that the learned trial judge did not consider

such circumstances and wrongly held the accused guilty for committing

offence under Section 10 of the POCSO Act.

11.   The learned Advocate for the respondent- State of West Bengal has

supported the judgment delivered by the learned trial judge and submits

that under Section 7 of the POCSO Act even mere touching of the vagina

of a child is an offence and such offence takes grievous form under

Section 9 of the POCSO, Act when the accused commits sexual assault on

a child below 12 years. It is also submitted by him that the victim girl was

playing with the accused with the mobile phone of the accused. Then he

took her to his house and committed the offence of sexual assault upon

her. Therefore, there is no reason to interfere with the judgment passed

by the learned court below.

12. Sexual valance apart from being a dehumanizing act is an unlawful

intrusion on the right of privacy and sanctity of the victim. It is a serious

blow to her supreme, honour and offends her self-esteem and dignity. It

degrades and humiliates the victim and where the victim is a helpless

innocent child or a minor, it leaves behind a traumatic experience. Such

an offence not only causes physical injuries, but more indelibly leaves a

scar on the most cherished possession of a woman i.e., her dignity,

honour, reputation and last but not the least her chastity. In the instant

case the victim girl was aged about two and half years when the incident

took place. She even did not know the implication of the specific act

committed upon her. In her statement recorded under Section 164 of the

Code of Criminal Procedure it was stated by her that the accused was

playing with her by rubbing his penis around her private part.

13. I have carefully perused the evidence of victim girl (PW1) and her

mother (PW2). Detection of the offence was made in natural course of

human conduct. A mother saw her two and half aged minor girl playing

with the appellant in her house with the mobile phone of the accused.

Subsequently, the accused took her to his house situated adjacent to the

house of the defacto complainant. She had no doubt in her mind and

allowed her daughter to go with the accused to his house. When she was

not returning after a long time, the mother went to the house of the

accused and called her. She found the door of the house closed from

inside. She knocked at the door. The accused opened the door. She went

inside the house of the accused while calling her daughter by her name

then. She found that her daughter was lying on the bed in disarray

condition. On being asked, her daughter told the incident to her. The

learned trial judge rightly held in his judgment that there was no

animosity between the defacto complainant and appellant. The appellant

also did not plead that relation between him and the family members of

the victim girl was inimical. Therefore, there is no reason to lodge a false

complaint against the accused/appellant by the defacto complainant.

14. It is already recorded that during trial the prosecution was able to

prove beyond any shadow of doubt that the accused with sexual intent

touched the vagina of the victim girl. He also rubbed his penis against the

vagina of the victim girl who was aged about two and half years at the

relevant point of time.

15. In view of above such evidence on record this Court can safely

conclude that the learned trial judge on proper appreciation of evidence

adduced by the witnesses on behalf of the prosecution and the law on the

subject correctly convicted the appellant for committing offence under

Section 10 of the POCSO Act. Accordingly, I do not find any ground to

interfere with the findings of the instant appeal.

16. The appeal is therefore dismissed on contest.

17. The judgment and order of conviction and sentence passed by the

learned Additional District and Sessions Judge, 2nd Court, Krishnagar,

Nadia in connection with Session Case No.02(07) of 2018 arising out of

Session Trial No.(IV(VIII) of 2018 is affirmed.

18. The appellant is directed to surrender before the learned trial court

to serve out sentence within three weeks from the date of delivery of this

judgment, failing which the learned court below is at liberty to issue

warrant of arrest against the appellant.

19. Let a copy of this judgment be sent to the court below along with

the lower court record.

(Bibek Chaudhuri, J.)