Sahajan Ali @ Sahajahan Ali vs Unknown
2021 Latest Caselaw 4761 Cal

13.09.2021.

AK

CRA 747 of 2017 IA No: CRAN 1 of 2018 (Old No: CRAN 1927 of 2018)

In the matter of: Sahajan Ali @ Sahajahan Ali ... Appellant

Ms. Sreyashee Biswas ....for the appellant.

Mr. Narayan Prasad Agarwal Ms. Subhasree Patel Mr. Pratick Bose ....for the state.

Heard learned counsel for both the parties.

The conviction and sentence were awarded respectively

under Section 6 of the Protection of Children from Sexual

Offences (POCSO) Act, 2012 and Section 376(2)(i) of the

Indian Penal Code (IPC).

It appears from the evidence-on-record that, as rightly

submitted by learned counsel for the appellant, there is no

convincing evidence to prove, even prima facie, that the

victim girl was a minor at the time of the alleged incident.

The incident allegedly occurred on July 2, 2015.

However, it is clearly seen that the only 'proof' of the date of

birth of the victim girl was the photocopy of a birth

certificate.

However, it is axiomatic in the law of evidence that

secondary evidence can only be looked into by the court after

it is explained as to why primary evidence could not be

produced. That apart, even the photocopy of the birth

certificate was not proved by the issuing authority or any

other competent witness. Hence, the court below could not

look into the birth certificate as evidence at all.

Rather, although the mother of the victim girl, as PW-8,

stated in her examination-in-chief that, at the time of

incident, the victim girl was thirteen years of age, the very

first few sentences of her cross-examination squarely

demolishes such statement.

In her cross-examination, Saleha Khatun, the mother

of the alleged victim, stated that one Jamsed married her

about twenty years back from that date (the deposition was

taken on February 6, 2017).

She next admitted that one Muslim married her ten

years back "from the date of marriage of mine with Jamsed".

She specifically admitted that, after one year of her marriage

with Muslim, her daughter Bilkis Khatun (the Victim Girl)

was born.

The victim, in her evidence, admits that her father was

the said Muslim.

In such view of the matter, the birth of the victim girl

goes back to thirty years prior to the date of deposition, that

is, approximately twenty-eight years prior to the alleged

incident.

Hence, the natural corollary thereof is that the victim

girl was about twenty-eight years old at the time of the

alleged offence, as per her mother's own admission in cross-

examination.

In view of such admission, no further proof was

necessary to disprove the fact that the victim girl was not a

minor at the relevant juncture, thereby precluding the

presumption under Section 29 of the POCSO Act.

Although learned counsel appearing for the State seeks

to contend that as the mother of the victim hails from a rural

area, she might have had certain problems with calculations.

However, the different time-intervals, as discussed above,

were vividly stated by the PW-8.

That apart, such line of argument would vitiate the

statement of the PW-8 in her examination-in-chief as well,

where she states that her daughter was thirteen years of age.

As such, since Section 29 of the POCSO Act was not

available, it was for the prosecution to prove the offence

being committed beyond reasonable doubt. In the present

case, the victim girl admitted that she had repeated sexual

union with the accused previously.

It is evident from the statements of the victim girl

herself that she was not only willing to marry the accused if

the latter was agreeable, but also that the previous alleged

incidents of sexual intercourse, if any, were entirely

consensual.

Taken in conjunction, the factum of failure of the

prosecution to prove the victim being minor at the relevant

point of time, coupled with the fact that the consent of the

victim girl on the previous occasions of her union with the

accused was admitted, there is no scope of attracting

Sections 5 or 6 of the POCSO Act to incriminate the accused.

That apart, the other count on which punishment was

awarded was under Section 376(2)(i) of the IPC, which

contemplates rape on a woman when she is under sixteen

years of age. In the present case, as already discussed above,

the age of the victim at the relevant juncture was not proved

at all.

Hence, the question of the previous alleged instances of

sexual intercourse being against the will of the victim and/or

without her consent is ruled out.

The alleged "promise to marry" is not found within the

four corners of Section 375 of the IPC to qualify penetration

with the consent of the alleged victim as 'rape'. That apart, it

was never proved by any cogent evidence whatsoever, let

alone beyond reasonable doubt, that the accused was the

perpetrator of the previous incidents of sexual intercourse.

Although the medical report indicated that the victim

had sexual intercourse previously, no present injury or mark

came out from the report to indicate the alleged offence

having been committed without the consent of the victim.

In such view of the matter, neither any ingredient of

Section 5 and/or Section 29 of the POCSO Act, nor of

Sections 375 and/or 376 are attracted to the present case.

It must be commented here that the prosecution was

extremely callous in proceeding with the case, since neither

any ossification test was taken of the victim girl, nor was any

proper attempt made to prove the date of birth from the age

certificate of the victim girl.

That apart, the prosecution, instead of ensuring that

the vaginal swab test was taken within a reasonable time,

waited for three days after the alleged incident to have such

test.

Surprisingly, the result of such test, as given by the

doctor, only indicates that the vaginal swabs, upon being

labelled, were handed over to a lady constable, without the

lady constable being ever produced as a witness and/or the

samples of swab test being sent for forensic examination.

It is beyond imagination that the prosecution could

take such an insensitive attitude while conducting a case,

particularly under the POCSO Act.

However, despite such faults on the part of the

prosecution, the evidence of the mother of the victim girl as

well as the other evidence on record, taken in conjunction

with the deposition of the victim girl, clearly failed to prove

the offences alleged against the accused even on the anvil of

preponderance of probability, leave alone beyond reasonable

doubt.

As such, the court below erred in law and in fact in

awarding the conviction and sentence against the accused by

the impugned judgment and orders dated December 7, 2017

and December 8, 2017.

Accordingly, CRA 747 of 2017 is allowed, thereby

setting aside the judgment and orders of conviction and

sentence dated December 7, 2017 and December 8, 2017

passed by the Additional Sessions Judge, Second Court at

Raiganj, Uttar Dinajpur in Sessions Trial No. 03 (04) of 2016

in POCSO Case No. 67 of 2015.

The appellant is hereby honourably acquitted and, if in

custody, shall be released at the earliest upon

communication of a server copy of this order to the

concerned correctional home authorities.

The appellant/accused stands discharged of all

conditions and bail bond, if any, furnished by the appellant

before any court in connection with the present offences.

That apart, the appellant is given the liberty to

approach the appropriate forum for damages/compensation

for the apparent injustice done to him at the instance of the

alleged victim and her family.

The alleged victim is also given liberty to pray for

appropriate compensation before a competent forum for the

lackadaisical attitude exhibited by the prosecution during

the course of investigation and the trial of the case.

It is made clear that all parties, as well as the

superintendent of the concerned correctional home, where

the appellant is in custody, if at all, shall act on the server

copy of this order without insisting upon prior production of

a certified copy.

This direction is peremptory and, in the event of

defiance, the superintendent of the concerned correctional

home shall run the risk of committing contempt of court,

since some such instances have come to the fore recently.

CRAN 1 of 2018 (Old No: CRAN 1927 of 2018) is

accordingly disposed of.

Urgent website certified copies of this order, if applied

for, be given to the parties upon compliance of all necessary

formalities.

(Sabyasachi Bhattacharyya, J.)