Paban Kumar Tarafdar vs The State Of West Bengal
2021 Latest Caselaw 4504 Cal

                      In the High Court at Calcutta
                     Criminal Appellate Jurisdiction
                              Appellate Side

The Hon'ble Justice Sabyasachi Bhattacharyya

                            C.R.A. No.407 of 2016

                          Paban Kumar Tarafdar
                                    Vs.
                         The State of West Bengal



For the appellant                    :         Mr. Devojyoti Barman

For the State-respondents            :         Mr. Imran Ali,

Mr. Mirza Firoj Ahmed Begg

Hearing concluded on : 01.09.2021

Judgment on : 06.09.2021

Sabyasachi Bhattacharyya, J:-

1. The instant appeal has been preferred against a judgment and order

of conviction against the appellant under Section 8 of the Protection of

Children from Sexual Offences Act, 2012 (hereinafter referred to as

'the POCSO Act'), whereby the appellant was sentenced to

imprisonment for three years and a fine of Rupees Ten Thousand

(Rs.10,000/-), in default of payment, rigorous imprisonment (R.I.) for

three months more.

2. Learned counsel for the appellant argues that there were several

discrepancies in the prosecution case. Whereas Mamata Saha, the

mother of the alleged victim stated in her complaint lodged with the

police that the victim went to the house of the accused with one

Unnati Tarafdar at 7:30 p.m., she stated in her statement recorded

under Section 164 of the Code of Criminal Procedure (Cr.P.C.) that the

victim went with Mala Saha, which she corroborated in her deposition.

3. On the other hand, the victim was silent about such incident in her

statement under Section 164, Cr.P.C. but deposed in evidence that

she had gone with Pritanshu Tarafdar to the house of the accused.

4. Further, Mamata Saha (mother of the victim) made contradictory

statements, by complaining before the police that Unnati Tarafdar had

told the victim to return home and study, whereas in her statement

under Section 164, Cr.P.C., she stated that the mother of the child

Pritanshu asked the accused to drop her home. The victim, in her

statement under Section 164, Cr.P.C., was silent on such aspect, but

stated in her deposition that her aunt, Unnati told her to return to her

house with the accused, whereas Mamata Saha contradicted such

statement in her deposition by saying that it was Mala Saha who

asked her daughter to return home.

5. That apart, Mamata, in her police complaint, stated that the victim

told Paban (the accused) to take her home, whereas, in her statement

under Section 164, Cr.P.C., Mamata Saha said that Unnati Tarafdar

asked Paban to take the victim home.

6. It is next contended that, whereas the consistent statement of Mamata

Saha in her complaint and statement under Section 164, Cr.P.C.,

corroborated the stand taken by the victim in her statement under

Section 164, Cr.P.C., and her deposition, Mamata added in her

deposition that the accused 'forcibly' took the victim to his room.

7. Even regarding the factual details, it is submitted that there are

several discrepancies between the statements made by the victim

child and her mother in their statements made in deposition as well

as in their statements under Section 164, Cr.P.C.

8. Learned counsel further argues that the reason for the delay of more

than 24 hours in lodging the complaint after the alleged incident was

never explained either by the witnesses or discovered during

investigation.

9. Although the immediate neighbours or persons mentioned in the

sketch map were never arrayed as charge-sheet witnesses, the Trial

Court convicted the appellant without any material evidence.

10. Mamata allegedly rushed on the night of the incident to talk to the

accused. While doing so, she was admittedly not accompanied by any

member of her family, including her husband, or any person from the

neighbourhood. That apart, none of the several family members of the

accused witnessed the alleged incident, which is unusual since, at

7:30 p.m. in the evening, at least some of the family members of the

accused ought to have been present in the house of the accused,

particularly in view of the incident having taken place in a rural area.

11. The husband of the de facto complainant, who is admittedly the head

of the family, was neither examined by the police nor produced as a

witness in court. Despite there being seven rooms in the house of the

accused, as extracted in evidence, the exact room where the alleged

incident occurred was not identified by the police or the witnesses.

12. Above all, it is argued that the medical examination of the victim girl

by two doctors ruled out any case of the assault on the victim's private

parts or anywhere else in her body. The medical examination of the

accused described him to be devoid of normal erectile function.

13. Moreover, there was no eye-witness to the alleged incident and the

evidence of all the prosecution witnesses were at best hearsay and

could not be said to be supportive or corroborative evidence in favour

of the prosecution case.

14. Mala Saha, PW 6, with whom the victim girl allegedly went to the

house of the accused, denied the incident.

15. The said Mala Saha also stated about a family feud between the

families of the accused and the victim. It has also come out in

evidence that the illegal activities of the de facto complainant led to

the neighbourhood people having strained relationship with the

mother of the victim, which could have led, as an aftermath, to the

complaint. Learned counsel highlights the fact that the victim

admitted in her cross-examination that she had been 'tutored' by her

mother to give her statements under Section 164, Cr. P.C.

16. It is further argued that the circumstances of the case do not lead to

any presumption that the offence was committed by the accused, who

is a 74 years old retired school teacher. The wearing apparel of the

victim girl was handed over to police only after being washed. There is

no mention of the accused person being sexually potent in Exhibit

No.8. Vital witnesses like the child Pritanshu or his mother were

never produced as witnesses, thereby giving rise to an adverse

inference against the victim.

17. Learned counsel for the appellant next relied on certain judgments in

support of his contentions.

18. The first of such judgment is Narender Kumar Vs. State (NCT of Delhi),

reported at (2012) 7 SCC 171, for the proposition that suspicion,

however strong, cannot be the basis of conviction. The prosecution

has to establish its case beyond reasonable doubt and if the story of

the prosecution is improbable and not corroborated, the accused is

entitled to benefit of doubt.

19. Learned counsel next places reliance on Harbeer Singh and another

Vs. Sheeshpal and others, reported at AIR 2016 SC 4958, for the

proposition that the burden of proving the case beyond all reasonable

doubt lies on the prosecution and it never shifts. If two views are

possible, one pointing to the guilt of the accused and the other to his

innocence, the view favourable to the accused should be adopted.

20. Learned counsel next relies upon Upendra Pradhan Vs. State of

Orissa, reported at AIR 2015 (Supp.) SC 1265, in support of the same

proposition, that the view favouring the accused should be accepted.

21. Learned counsel then relies on Gulu Santra @ Ghunu Santra Vs. The

State of West Bengal, reported at 2020 Supreme (Cal) 491, to

strengthen his argument that the oral testimony of the victim,

claiming to have been violated, not being supported by the two doctors

upon their medical examination, would render her testimony

improbable. The credibility of such witness, being thus tainted with

doubt in view of the medical evidence of two doctors, will hardly pave

the way for attracting the presumption available under Section 29 of

the POCSO Act.

22. Learned counsel for the appellant then cites Litan Sarkar Vs. State of

West Bengal, reported at 2020 Supreme (Cal) 97, where a Division

Bench of this Court had recorded the findings of the same Trial Judge,

against whose judgment the present appeal has been preferred. By

placing particular reliance on portions of the Paragraph Nos.6 and 7 of

the report, where the findings of the Trial Judge were quoted, learned

counsel submits that the language therein was exactly similar to the

language used in the present judgment. It is argued that the Learned

Trial Judge is in the habit of relying on such clichés and pre-

conceived notions, without any objective consideration of the

materials on record. The said case also involved an offence under the

POCSO Act.

23. Learned counsel next relies on Amol Vs. State of Maharashtra,

reported at (2018) Supreme (Mah) 2023, wherein the Nagpur Bench of

the Bombay High Court held that the statutory presumption under

Section 29 of the POCSO Act must be understood and tested on the

anvil of the golden thread which runs through the web of the criminal

jurisprudence system in this country that an accused is presumed to

be innocent till the guilt is conclusively established beyond reasonable

doubt. It was held that it is trite law that suspicion is not a substitute

of proof.

24. Learned counsel next cites the judgment rendered in Sahid Hossain

Biswas Vs. State of west Bengal, reported at (2017) 3 CalLT 243,

wherein it was observed by the learned Single Judge that a conjoint

reading of the statutory provisions in the light of the definitions of

certain expressions as mentioned therein would show that in a

prosecution under the POCSO Act an accused is to prove 'the

contrary', that is, he has to prove that he has not committed the

offence and he is innocent. It is, therefore, an essential pre-requisite

that the foundational facts of the prosecution case must be

established by leading evidence before the aforesaid statutory

presumption is triggered in to shift the onus on the accused to prove

the contrary. The presumption does not take away the essential duty

of the court, it was held, to analyse the evidence on record in the light

of the special features of a particular case, e.g. patent absurdities or

inherent infirmities in the prosecution version or existence of

entrenched enmity between the accused and victim giving rise to an

irresistible inference of falsehood in the prosecution case while

determining whether the accused has discharged his onus and

established his innocence in the given facts of a case.

25. Next relying on an unreported judgment of the Nagpur Bench of

Bombay High Court, in the case of Sadhu S/O Motilal Turra (In Jail) vs.

State of Maharashtra Thr. Police, delivered on June 27, 2018 learned

counsel for the appellant argues that, although a presumption under

Section 29 of the POCSO Act arises, such a presumption cannot be

absolute. There can be no doubt about the proposition that no

presumption is absolute and that every presumption is rebuttable, it

was held in the report.

26. While controverting such submissions, learned counsel for the State

contends that it was held in Harbeer Singh and another (supra), itself

that Section 161 of the Cr.P.C. provides that delay in recording the

statement of a witnesses is not fatal if duly explained, although delay

would cast a doubt upon the prosecution case if witnesses were

available but statements were not recorded.

27. Learned counsel for the State next places reliance on the judgment of

Yogesh Singh vs. Mahabeer Singh & Ors., reported at (2017) 11 SCC

195, in support of his submission that it is well-settled law that

evidence of a child witness must find adequate corroboration before it

is relied upon, as the rule of corroboration is of practical wisdom than

of law. However, it is not the law that if a witness is a child, his

evidence shall be rejected, even if it is found reliable. The law is that

the evidence of a child witness must be evaluated more carefully and

with greater circumspection because a child is susceptible to be

swayed by what others tell him and thus a child witness is an easy

prey to tutoring.

28. It is submitted by learned counsel for the State that the evidence on

record and the statement of the victim were sufficient, read in

conjunction, to indict the convict.

29. Upon considering the submissions of the parties, it is seen that the

alleged discrepancies in evidence, relied on by the appellant, are

minor in nature and cannot be said to have vitiated the credibility of

the witness of the victim child and her mother.

30. The statements made by the victim and her mother in their respective

statements before the police as well as in their depositions do not

carry contradictions which are mutually destructive. The factum of

the present case, accompanying the victim to the house of the

accused, differed only in respect of the victim having stated that she

visited the house of the accused with her friend, another child, while

her mother said that she had gone with one Mala Saha. At other

places, the name of Unnati was mentioned as one of the persons

accompanying the victim. There could have been minor lapses in

memory of the witnesses, which fall within the normal margin of error,

bringing all the more the credibility of the witnesses, who are but

humans having imperfect memories, and shows that the witnesses

were not tutored to corroborate each other's versions.

31. One of the primary arguments of the accused was that the doctors'

evidence regarding 'sexual assault' having not been established. The

expression 'sexual assault', as used in Section 7 of the POCSO Act, is

wide in nature and includes a touch with sexual intent to the private

parts of a child or making the child touch the private parts of the

accused and also encompasses "any other act with sexual intent

which involves physical contact without penetration". Hence, the

medical practitioners, being laymen in law, might very well have used

the expression 'sexual assault' in the general connotation of the term

and not in the wider sense as envisaged in Section 7 of the POCSO

Act.

32. The mere statement in the doctors' evidence that the reddish hue on

the vagina of the victim could have been the result of an itch does not

absolve the accused from the liability, as cast under Section 29 of the

POCSO Act, to dispel any doubt as regards the probability of such

'itch' having been a result of sexual assault within the purview of

Section 7 of the POCSO Act.

33. In the present case, the evidence of the prosecution witnesses as well

as the initial statement given by the victim child under Section 164 of

the Cr.P.C. substantially corroborate each other and it cannot, by any

stretch of imagination, be said that the prosecution case was

improbable or not credible from the perspective of a prudent person.

34. Considering the tender age of the victim at the relevant juncture, that

is, seven years, it would not be improbable that she could not resist

the indecent attempts of the accused to such an extent so as to leave

serious abrasions or injury on the body of the victim. The veracity of

the prosecution case is further strengthened by the fact that the

victim and her family were well-acquainted with the accused, thereby

preempting the scope of prior suspicion in the mind of the victim or

her parents regarding the accused.

35. The absence of recent nail scratch marks of the accused over any part

of the body of the victim, ipso facto, does not vitiate the probability of

the prosecution case being true, without any specific evidence

regarding the length of the nail of the accused.

36. Moreover, the circumstances alleged, coupled with the tender age of

the minor victim, clearly raise a presumption under Section 29 of the

POCSO Act, so as to cast the burden of proving innocence on the

accused.

37. The mere argument that it was improbable for the other family

members of the accused not to be aware of the alleged offences at 7:30

p.m. is neither here nor there and can only exist in the realm of

conjecture. Hence, in the absence of any cogent rebuttal to such

presumption on the part of the accused, the presumption attains

finality, justifying conviction.

38. The number of rooms being seven in the house of the accused is

totally irrelevant, since the victim child clearly indicated that she went

to the room of the accused, thereby specifically designating a single

room out of the available rooms in the house. Thus, no doubt or

suspicion can be cast on the prosecution case for non-mention of the

exact location of the room to displace the presumption under Section

29 of the POCSO Act.

39. In such view of the matter, the Trial Judge committed no error of law

and or fact in holding the accused person to be guilty of the offences

punishable under Section 8 of the POCSO Act and in convicting the

accused as well as subsequently sentencing the accused to

imprisonment for three years as well as fine of Rupees Ten Thousand

(Rs.10,000/-), in default of payment of which the convict will have to

undergo rigorous imprisonment (R.I.) for three months more. The

Trial Judge, correctly, set off and dove-tailed the period of detention

already undergone by the convict against the sentence of

imprisonment.

40. As such, there is no merit whatsoever in the appeal.

41. Accordingly, C.R.A. No.407 of 2016 is dismissed on contest, thereby

affirming the conviction and sentence handed over to the appellant

vide the impugned judgment and order, respectively dated May 5 and

May 6 of 2016 passed by the Additional District and Sessions Judge,

Second Court at Krishnagar, District- Nadia in Sessions Trial No.

V(XII) of 2015, arising out of Sessions Case No. 02(09) of 2015 (Spl).

( Sabyasachi Bhattacharyya, J. )

LATER

On the prayer of learned counsel for the appellant and keeping in view

the fact that the appellant is an octogenarian and is at present

enlarged on bail, the operation of the judgment and order is stayed till

October 5, 2021.

(Sabyasachi Bhattacharyya, J.)