Sariyat Sk vs The State Of West Bengal
2021 Latest Caselaw 4704 Cal

                       In the High Court at Calcutta
                      Criminal Appellate Jurisdiction
                               Appellate Side

The Hon'ble Justice Sabyasachi Bhattacharyya

                           C.R.A. No.598 of 2016

                               Sariyat Sk.
                                    Vs.
                         The State of West Bengal



For the appellant                     :     Mr. D. Mukherjee,
                                            Mr. Manas Kumar Das,
                                            Mr. Asraf Mandal

For the State                         :     Mr. Ranabir Ray Chowdhury,
                                            Mr. Mainak Gupta

Hearing concluded on                  :     07.09.2021

Judgment on                           :     09.09.2021


Sabyasachi Bhattacharyya, J:-



1.

The present appeal has been preferred against a judgment and order

of conviction against the appellant, sentencing the appellant to

rigorous imprisonment for five years for an offence punishable under

Section 8 of the Protection of Children from Sexual Assault Act, 2012

(hereinafter referred to as 'the POCSO Act') as well as to pay fine of Rs.

5,000/-(five thousand), in default of payment, rigorous imprisonment

(R.I.) for six months more.

2. The initial charges levelled against the appellant included Section 376

of the Indian Penal Code (I.P.C.) and the Section 4 of the POCSO Act.

However, the conviction was ultimately on the ground of the offence of

sexual assault, punishable under Section 8 of the POCSO Act. Since

the appellant was held not guilty in respect of Section 376(2)(i) of the

I.P.C. or Section 4 of the POCSO Act, the Additional District and

Sessions Judge acted beyond jurisdiction in convicting the appellant

under Section 8 of the POCSO Act, without affording any opportunity

to the appellant to meet such case.

3. That apart, it is argued that there is patent contradiction between the

deposition of the victim, as PW-1, as borne out by her statement

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

evidence of all the other witnesses for the prosecution, as far as the

place of occurrence is concerned, which vitiates the credibility of the

allegations.

4. It is argued that, although the victim herself constantly stated that the

alleged offence took place in the house of the victim, the grandmother

of the victim, that is, the complainant, categorically stated that the

offence was committed behind a wall by the house of one Chhedan. It

was also mentioned by some of the other witnesses that the offence

took place near a pond. Moreover, there was an admission on the

part of the complainant, in her deposition, that the distance between

the houses of the victim and Chhedan takes about ten minutes to be

covered. Hence, the prosecution failed to make out even a prima facie

case in support of the allegations against the appellant, thus obviating

the presumption under Section 29 of the POCSO Act. In the instant

case, it is argued, the presumption under Section 29 of the POCSO

Act did not arise at all, in view of the prosecution having miserably

failed to substantiate the alleged offences against the appellant. By

placing reliance on a Division Bench judgment of this Court in

Subrata Biswas Vs. State, reported at (2019) SCC Online Cal 1815,

learned counsel for the appellant argues that, on a proper

interpretation of Section 29 of the POCSO Act, in case a person is

prosecuted under Sections 5 and 9 of the said Act, the prosecution is

absolved of the responsibility of proving its case beyond reasonable

doubt. On the contrary, it was held, it is only required to lead

evidence to establish the foundation of its case by leading cogent and

reliable evidence (which does not fall foul of patent absurdities or

inherent probabilities). It was further observed by the Division Bench

that the expression "is prosecuted" under Section 29 of the POCSO

Act does not mean that the prosecution has no role to play in

establishing and/or probablising primary facts constituting the

offence. If that were so, then the prosecution would be absolved of the

responsibility of leading any evidence whatsoever and the court would

be required to call upon the accused to disprove the case without the

prosecution laying firm contours by leading reliable and admissible

evidence.

5. Learned counsel for the appellant next places reliance on an

apparently unreported judgment rendered by a Division Bench of the

Tripura High Court, where it was laid down that if an accused is

convicted only on the basis of presumption as contemplated under

Sections 29 and 30 of the POCSO Act, then it would definitely offend

Articles 20(3) and 21 of the Constitution of India. In the opinion of

the Court, it was not the object of the legislature. Presumption of

innocence is a human right and cannot per se be equated with the

fundamental right under Article 21 of the Constitution of India. The

Supreme court in various decisions has held that, provisions imposing

reverse burden must not only be required to be strictly complied with

but also may be subject to prove of some basic facts as envisaged

under the statute.

6. It is contended by the appellant that in the present case the basic

facts constituting the alleged offence were not proved at all by the

prosecution. On the contrary, it is argued, there were patent

discrepancies between the stands taken by the different witnesses for

the prosecution.

7. That apart, it is argued, the victim, as PW-1, in her cross-

examination, specifically admitted that she was tutored by her 'Nani'

(grandmother) both before her deposition and her statement before the

learned Magistrate.

8. Laying stress on such admission, it is argued that, admittedly, the

evidence led by the victim herself was not spontaneous, but the victim

was tutored by her grandmother, the latter being the complainant

herself. The scope of personal enmity between the grandmother and

the accused cannot be ruled out in the present case.

9. That apart, it is contended by learned Counsel for the appellant that

the medical report of a gynaecologist was also exhibited in the case,

which clearly indicated that there was no bruise or abrasion in the

genitalia of the victim. The report further suggested that there was no

injury in the private parts of the victim, although it was stated in the

report that her hymen was partially ruptured. The doctor, during his

cross-examination, categorically stated that the hymen may be

partially ruptured due to various causes. The gynaecologist further

stated in his cross-examination that, if there were reddish or bruise

marks seen on the body of the victim, he would have written the same

in his report. However, any such mention is missing in the exhibited

medical report. Thus, it is submitted that the allegations made against

the appellant were not substantiated at all by material evidence.

10. Learned counsel appearing for the State contends that, although no

specific charge might have been framed under Section 8 of the POCSO

Act, Section 216 of the Cr.P.C. clearly provides that the Court may

alter or add to any charge at any time before the judgment is

pronounced. That apart, it is argued that Section 215 of the Cr.P.C.

clearly provides that no error in stating the offence or the particulars

required to be stated in the charge, and no omission to state the

offence or those particulars, shall be regarded at any stage of the case

as material, unless the accused was in fact misled by such error or

omission, and it has occasioned a failure of justice.

11. In the present case, the offence on which the appellant was convicted

was punishable with a lesser term than that of the initial charges

against him.

12. By placing reliance on Section 222 of the Cr.P.C., learned counsel for

the State argues that when a person is charged with an offence

consisting of several particulars, a combination of some only of which

constitutes a complete minor offence, and such combination is

proved, but the remaining particulars are not proved, he may be

convicted of the minor offence although he was not charged with it.

13. Moreover, learned counsel argues, Section 464 of the Cr.P.C. clearly

provides the effect of omission to frame, or absence of, or error in,

charge. Sub-section (1) of the said Section clearly indicates that no

finding, sentence or order by a Court of competent jurisdiction shall

be deemed invalid merely on the ground that no charge was framed or

on the ground of any error, omission or irregularity in the charge,

including any misjoinder of charges, unless, in the opinion of the

Court of appeal, confirmation or revision, a failure of justice has in

fact been occasioned thereby.

14. Learned counsel next submits that the alleged discrepancies in the

deposition were of a minor nature and could not vitiate the conviction

and sentence.

15. Moreover, the victim gave the statement under Section 164 of the

Cr.P.C. at least one year before appearing in the witness box as PW-1.

Hence, minor differences in her testimony and original statement fall

within the normal margin of error befitting a minor girl of tender

years.

16. It is further pointed out from the medical report of the gynaecologist

that partial rupture of hymen is indicated in the said report, thereby

bringing the offence committed by the appellant within the purview of

Section 8 of the POCSO Act, justifying the conviction and sentence on

the said provision.

17. Section 29 of the POCSO Act, it is argued by the State, is applicable

in full force and, in view of the appellant having failed to rebut the

presumption of commission of offence, was rightly convicted.

18. Upon considering the submissions of learned counsel for both the

parties as well as the materials-on-record, it is evident that the first

argument of the appellant cannot stand in the eye of law, on a

composite reading of Sections 215, 216, 222 and 464 of the Cr.P.C.

Not only were the components of the sexual assault proved in the

present case, the offence on which the appellant was convicted was

the minor offence as compared to Section 376 of the IPC and/or

Section 4 of the POCSO Act.

19. Section 4 speaks of punishment for penetrative sexual assault.

However, Section 8 provides for punishment for 'sexual assault'. The

expression "sexual assault" has been defined in Section 7 of the

POCSO Act as follows:-

"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."

20. Hence, even in the absence of total rupture of the victim's hymen, the

evidence of the prosecution, together with the medical report, were

sufficient to lay a strong foundation for the allegation of sexual

assault, making the appellant liable for punishment of sexual assault

under Section 8 of the POCSO Act.

21. Hence, the presumption under Section 29 of the POCSO Act is clearly

applicable. The accused/appellant miserably failed to rebut such

presumption. Although an enmity between the complainant and the

accused has been hinted from the Bar during arguments, there is no

mention of such enmity anywhere in the records or in the depositions.

22. Read in conjunction, it is clearly seen that the victim girl, in her

statement under Section 164, Cr.P.C., clearly stated that after the

accused came to the victim's home, he took her away and perpetrated

the alleged offence. Such statement was given soon after the alleged

incident and has to be relied upon in preference to her deposition,

which was given about one year thereafter. Even from the deposition,

it is seen that the conjunction "thereafter" has been used in several

places to punctuate the relevant chain of events, which leaves ample

scope of a strong presumption being raised of the offence having taken

place elsewhere than the house of the victim.

23. As regards the adjudication of the "admission" of the victim girl

regarding her being tutored by her grandmother, it is unfortunate

that, in the prevalent system of recording evidence, most of the

nuances of the exact expressions used by the witnesses are lost in

translation. Although the English translation of the cross-examination

of the victim girl, which was originally in Bengali vernacular, shows

that she was 'tutored' by her 'Nani' (grandmother). The expression

"tutored", during translation, might have entirely missed out the

actual connotation of the expression used by the victim.

24. That, taken in conjunction with the tender years of the victim, who

was between 8 to 10 years old at the time of the alleged incident,

leaves sufficient scope of presuming that the expression 'tutored' need

not necessarily have meant that the exact words she uttered in her

statement before the Magistrate and/or her deposition were taught to

her by her grandmother. It is but natural that a minor of such a

young age, prior to facing the gruelling and traumatic experience of

undergoing examination-in-chief and cross-examination, would be

given minimum guidelines for conducting herself by her local

guardian (in the present case, the victim's grandmother, with whom

the victim has been living at the time of the offence). Hence, the mere

use of the expression 'tutored' by the minor in her cross-examination

does not, ipso facto, demolish the veracity of the victim's statement

and/or deposition.

25. As far as the place of occurrence is concerned, the sketch map

provided by the Investigating Officer clearly lends credibility to the

allegations against the accused. The victim's house is only 150

meters away from a football field, the boundary of which continues

towards the area adjacent to the house of Chhedan. Hence, the

deposition of the prosecution witnesses, read as a whole, unerringly

indicates that the victim was offered a biscuit and Rs.10/- (Rupees

Ten), which was lucrative enough to an innocent minor girl of 8 to 10

years in order to lure her to the place of occurrence. The statement of

the complainant in her deposition regarding the distance between the

house of Chhedan and the victim's house being 10 minutes becomes

irrelevant in view of the specific statement given under Section 164,

Cr.P.C., by the victim that she was taken away from her home by the

accused. The time taken between the commission of the offence and

the luring out of the victim from her home by the accused is not as

material as sought to be made out by the appellant.

26. In the present case, no case of animosity between the family of the

victim and the accused was ever made out at any stage of the

proceeding. Rather, the medical report authored by the gynaecologist

clearly shows that the hymen of the child was partially ruptured. In

cross-examination, the doctor merely expressed a doubt as regards

the probability of such rupture being restricted only to penetration.

However, the scope of sexual assault, as defined under Section 7 of

the POCSO Act, is of wide amplitude and could easily be presumed

from such medical report. The undue stress placed by the appellant

on the factum of absence of any mention of bruise or abrasion in the

genitalia of the victim and/or injury in her private parts, does not

vitiate the veracity of the prosecution evidence at all, keeping in view

the tender age of the victim at the time of the alleged incident. A

minor girl of about 8 to 10 years of age is not expected to put up

sufficient resistance to leave any bruise or abrasion on her person or

any injury to her private parts, particularly if inflicted by a previous

acquaintance. Thus, the absence of any bruise or abrasion mark on

the victim's person is not enough to rebut the presumption of sexual

assault under Section 7 of the POCSO Act.

27. The fact that the child could be lured out merely by showing a biscuit

and/or a note of Rs.10/- (Rupees Ten) is sufficient to prove the

innocence of the minor at the time of commission of the offence.

Hence, such an innocent victim might very well have suffered sexual

assault as defined under the POCSO Act without any serious bruise or

abrasion on any part of her person. In any event, the hymen was

partially ruptured, which, seen with the other materials on record,

was sufficient to raise a presumption under Section 29 of the POCSO

Act.

28. The accused/appellant miserably failed to rebut such presumption by

any cogent evidence and/or to demolish the foundation of the case

made out by the prosecution.

29. In view of a composite reading of Sections 215, 216, 222 and 464 of

the Cr.P.C., the Additional Sessions Judge was perfectly within his

jurisdiction to convict and sentence the petitioner under Section 8 of

the POCSO Act.

30. As such, there is no merit in the appeal.

31. Accordingly, CRA No.598 of 2016 is dismissed on contest, thereby

affirming the conviction and sentence awarded against the appellant

by the Additional District and Sessions Judge, Second Court at

Krishnanagar, District-Nadia by his Judgment and Orders dated July

25, 2016 and July 26, 2016 in Sessions Trial No.X(11) of 2016 (Spl).

32. The victim girl will be at liberty to claim victim compensation from the

West Bengal State Legal Services Authorities in accordance with law

in view of the affirmation of the conviction and sentence by this Court.

( Sabyasachi Bhattacharyya, J. )