Sk. Dilkhus Alam @ Sk. Dilkhush ... vs The State Of West Bengal
2021 Latest Caselaw 4950 Cal

                        In the High Court at Calcutta
                       Criminal Appellate Jurisdiction
                                Appellate Side

                The Hon'ble Justice Sabyasachi Bhattacharyya

                           C.R.A. No.457 of 2019

                    Sk. Dilkhus Alam @ Sk. Dilkhush Alam
                                      Vs.
                           The State of West Bengal



For the appellant                   :     Mr. Kallol Mondal,
                                          Mr. Sanjib Dan,
                                          Mr. Krishan Ray,
                                          Ms. Amrita Chel,
                                          Mr. Souvik Das,
                                          Mr. Anamitra Banerjee

For the State                       :     Mr. Tanmoy Kumar Ghosh,
                                          Mr. Arindam Sen

Hearing concluded on                :     17.09.2021

Judgment on                         :     21.09.2021


Sabyasachi Bhattacharyya, J:-



1.

The present appeal arises out of a conviction of the appellant under

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

(herein after referred to as "the POCSO Act"). Initially, charges were

framed under Section 354B of the Indian Penal Code (IPC) as well

under Sections 8 and 12 of the POCSO Act.

2. However, ultimately the appellant was convicted only under Section 8

of the POCSO Act.

3. Learned counsel for the appellant contends that there is no credible

evidence, sufficient to make out a plausible case against the appellant,

even for the purpose of attracting the presumption under Section 29

and/or Section 30 of the POCSO Act. By taking the court through the

depositions, learned counsel argues that it was not credible that the

victim girl of ten years was left alone by the complainant, merely to

fetch the AADHAR Cards of the victim's parents.

4. Moreover, learned counsel contends that the complainant allegedly

returned within half an hour of leaving the victim. However, from the

deposition of the witnesses, it is evident that a journey from the place

of occurrence to the residence of the victim's parents takes about 45

minutes each way on a bus.

5. Moreover, the complainant alleged himself to be a maternal uncle of

the victim, but admitted in his cross-examination that he did not

know the name of the victim's father.

6. Although CCTV camera footage was available, the same was not seized

and was not exhibited or sent for forensic examination by the police

authorities. That apart, none present at the place of occurrence,

which is admittedly an extremely congested place, came forward to

adduce evidence in support of the prosecution case. None of the

employees of the Bank, where the incident allegedly occurred, was

also produced as witness for the prosecution.

7. Moreover, all the prosecution witnesses, who are allegedly

independent witnesses, hail from the same village as the complainant.

The entire evidence is based on hearsay. It is contended, by placing

reliance on the answer of the accused to question no.19 put to the

accused in his statement under Section 313 of the Code of Criminal

Procedure (CrPC), that the accused clearly stated that he was working

at the AADHAR Card centre-in-question and saw the PW 8 (Jhuma)

and her husband standing in the queue. It has further been stated by

the accused that he also saw them on a second day and some people

complained against them to the effect that Jhuma and her husband

were selling forms for AADHAR Card at a price of Rs. 200/- (Two

Hundred). The accused further stated that he raised objection but the

couple repeated the same offence, which he reported to one Anjan

Babu.

8. It is, thus, clear, according to learned counsel for the appellant, that

the case was concocted against the accused, in order to screen out

and malign him, since the accused had protested against the illegal

sale of AADHAR Card forms privately at the rate of Rs. 200/- (Two

Hundred) each by the said Jhuma and her husband.

9. Learned counsel for the State, controverting the submissions of the

appellant, argues that the statement of the victim girl, which was

clearly corroborated by other evidences of the prosecution witnesses,

is, by itself, sufficient to convict the accused. It is well-settled, learned

counsel for the State argues, that the sole testimony/statement of the

victim girl itself may be sufficient to clinch the issue against the

accused.

10. Upon hearing learned counsel for the parties and going through the

materials on record, it becomes clear that the entire evidence of the

prosecution witnesses was not only hearsay, but the knowledge of the

alleged incident was derived by all such witnesses from the

complainant Raju Mal. Thus, the source of the information of all the

witnesses was the complainant himself.

11. PW 8, Jhuma Let, admitted in her cross-examination that the place of

occurrence is a congested place having traffic police, many people and

shops, fruit stalls, meat-chicken shop, doctor's chamber, utensil shop,

sweet shop etc. in front of the State Bank, Bolpur branch, within

which the AADHAR Card office (place of occurrence) is located. PW 8

admitted that she and her husband run their business of selling

lottery tickets on the Government road, but failed to show any

document in that regard on the pretext that their business was

temporary in nature.

12. Moreover, there is patent discrepancy in the evidence of the

prosecution witnesses. At least three of the prosecution witnesses

mentioned a lady being present at the spot of occurrence at the

relevant time, who was never produced as witness.

13. Surprisingly, no hue and cry was raised immediately after the

discovery of the alleged incident, nor was any official of the Bank

approached by the complainant with the allegation against the

accused, although the accused worked in the AADHAR Card office

which is situated within the precincts of the SBI, Bolpur Branch.

Admittedly, the locale is a congested one having several shops and the

hour of the alleged occurrence was during full office hours, when the

place is supposed to be crowded. Yet, for some unknown reason,

neither the complainant approached the bank officials or any security

personnel of the bank, nor was anybody present at the place of

occurrence produced as prosecution witness to make out a positive

case, at least regarding the accused having taken the victim girl inside

the AADHAR Card office.

14. The Investigating Officer, with surprising alacrity, reached the spot

allegedly within 10 minutes from the incident; however, a formal

complaint and First Information Report (FIR) was lodged as late at

about 4:25 p.m. on the said date.

15. Footage of the CCTV cameras installed in the bank, although

available, was not obtained by the investigating officer on the mere

pretext that the bank officials refused to hand over the same. The

police, despite having ample power, showed utter callousness in

failing to requisition and/or seize the relevant CCTV footage of the

time of occurrence, which could have been vital to prove the

prosecution case.

16. Withholding such witnesses and the CCTV camera footage of the bank

gives rise to adverse inference against the prosecution under Section

114, illustration (g) of the Evidence Act, 1872.

17. Event apart from such peculiar features of the case, the complainant

stated in evidence that he had returned to the place of occurrence,

after leaving the victim girl alone, within 30 minutes, which is well

nigh impossible in view of the admission of the complainant himself

that it took about 45 minutes each way to reach the house of the

victim, which he allegedly did for procuring the AADHAR Cards of the

victim's parent form the place of occurrence.

18. The complainant, allegedly the maternal uncle of the victim, admitted

in his cross-examination that he does not have a sister. To explain

away such admission, a case was sought to be made out that the

complainant is a distant relative of the victim. However, the

complainant admits not to know even the name of the father of the

victim child, which creates a cloud of suspicion on the prosecution

case.

19. It has not been explained at all, by the standard of a person of normal

prudence, as to why the complainant left the victim girl alone in the

AADHAR Card office, despite the tender years of the said minor, that

too to fetch the AADHAR Cards of the parents of the victim, which did

not require further presence of the victim in the place of occurrence

when the complainant left her. The need to obtain the AADHAR Cards

of the parents did not require the victim girl of 10 years to be left

alone at the AADHAR Card office at all. The normal course of action

for any prudent person would have been to take the victim girl back

along with the complainant and leave her at her home while coming

back with the AADHAR Cards of her parents, which the complainant

alone could have done.

20. The fact that almost all the witnesses were from the same village as

the complainant, including some of his relatives, being produced as

prosecution witnesses is peculiar, more so, since the source of

information of all of them regarding the alleged incident was none

other than the complainant himself.

21. It remains unexplained as to why none saw the victim girl being taken

by the accused inside the room where the incident allegedly occurred,

even if the offence itself might not have been seen, in such a

congested place as the main road where the place of occurrence was

situated, during busy hours. The alleged presence of a lady/three

ladies at the locale at about the time of occurrence would have made

such lady/ladies, prime witness/witnesses for the prosecution.

However, no such lady was ever produced as prosecution witness,

leaving scope of doubt as to whether the entire incident was merely a

figment of imagination of the complainant.

22. As rightly contended by the learned counsel for the appellant, the

clear statement of the accused in his statement under Section 313 of

the CrPC as regards the illegalities committed by PW 8 Jhuma Let and

her husband, against which the accused protested, was never

rebutted by cogent evident. Rather, PW8 clearly admitted in her cross-

examination that she and her husband sell lottery tickets at the place

of occurrence without any license, on a temporary basis. The

question of the nexus between the complainant and Jhuma Let and

her family, although remained unexplained, it is apparent that the

removal and/or maligning of the accused would definitely help PW 8,

Jhuma, to continue her business which was fishy in view of PW 8

being not in possession of any permit/license to sell lottery tickets.

Hence, PW 8, the only prosecution witness said to be at the locale at

the relevant juncture, was clearly a witness interested in the accused

being removed out of the way of such business of hers.

23. Seen in conjunction, we cannot place reliance merely on the

statement/evidence of the victim girl in the instant case, although

under certain circumstances such sole testimony can be sufficient to

incriminate the accused. It is so, because the incidents leading up to

the alleged offence and/or the chain of events immediately preceding

and succeeding the said offence leave huge gaps, which clearly

indicates that the prosecution failed to make out a prima facie credible

or plausible case for the burden to be shifted under Section 29 of the

POCSO Act to the accused to prove his innocence. Even if such

presumption is assumed to have been raised in the present case,

there was sufficient rebuttal in the contradictions of the prosecution

case itself, as discussed in detail above, to demolish the prosecution

case.

24. It appears from the impugned judgment that the learned Trial Judge

proceeded more on gut feeling and vague legal principles than

assessing the materials on record objectively, thereby convicting the

accused and depriving him of his liberty and freedom.

25. In the light of the above considerations, the impugned judgment and

order of conviction were bad in law as well as on facts and ought to be

set aside. Accordingly, the appeal succeeds.

26. CRA 457 of 2019 is allowed, thereby setting aside the judgment and

order of conviction dated July 17, 2019 passed by the Additional

District and Sessions Judge-cum-Judge, Special Court (POCSO Act) at

Bolpur, Birbhum in Sessions Trial No.18 (June) of 2019 arising out of

Special (POCSO) Case no.12 of 2019 and the consequential sentence

awarded against the appellant.

27. The appellant is hereby acquitted honourably and shall be discharged

from custody, if at present in incarceration, and stands discharged of

all conditions and bail bonds, if furnished by the appellant for

obtaining bail at any point of time.

28. The parties and all concerned shall act on the server copy of this order

without insisting upon prior production of a certified copy thereof.

( Sabyasachi Bhattacharyya, J. )