Ganesh Orang vs State Of West Bengal & Anr
2022 Latest Caselaw 256 Cal

Item No.18




                 IN THE HIGH COURT AT CALCUTTA
                   CRIMINAL APPELLATE JURISDICTION
                           APPELLATE SIDE
Present:
The Hon'ble Justice Joymalya Bagchi
               And
The Hon'ble Justice Bivas Pattanayak


                                C.R.A. 248 of 2019
                                       With
                      CRAN 2 of 2021 (Old CRAN 2848 of 2019)


                                   Ganesh Orang
                                      -Vs-
                          State of West Bengal & Anr.



For the Appellant         :    Mr. Anjan Bhattacharyya, Advocate
                               Ms. Amita Shaw, Advocate

For the State
(In CRA 248 of 2019)      :    Ms. Anasua Sinha, Advocate
                               Mr. Pinak Kr. Mitra, Advocate

For the State
(In CRAN 2 of 2019)
(Old CRAN 2848 of 2019):       Mr. Abhra Mukherjee, Advocate
                               Mr. Dipankar Mahata, Advocate


Heard on                  :    February 02, 2022

Judgment on               :    February 02, 2022


Joymalya Bagchi, J. :-

        With the consent of the parties, the appeal is taken up for hearing.

        The appeal is directed against the judgment and order dated

05.03.2019

and 08.03.2019 passed by learned Additional Sessions Judge,

1st Court, Bongaon, North 24-Paraganas and Judge, Special Court,

Bongaon, North 24-Paraganas in Special (POCSO) No.95 of 2017 convicting

the appellant for commission of offence punishable under Section

376(2)(i)(n) of the Indian Penal Code and under Section 6 of the POCSO Act

and sentencing him to suffer rigorous imprisonment for seven years and to

pay a fine of Rs.15,000/- and in default to suffer rigorous imprisonment for

six months more for the offence punishable under Section 376(2)(i)(n) of the

Indian Penal Code and to suffer rigorous imprisonment for a term of 10

years and to pay fine of Rs.15,000/- and in default to suffer rigorous

imprisonment for six months more for the offence punishable under Section

6 of the POCSO Act, both the sentences to run concurrently.

Prosecution case as levelled against the appellant in the first

information report lodged by P.W.1, mother of the victim girl is to the effect

that the victim girl was a student of class IX and aged about 14 years.

Appellant was her private tutor. Appellant had raped her daughter on a

number of times in the house where he gave tuition. On 08.08.2017 at 7.30

P.M. appellant came to her residence and forcibly raped her daughter. He

also threatened her daughter with dire consequences. After few days, her

daughter started behaving strangely and upon persuasion on 14.09.2017,

she disclosed the incident to her. On the self-same day, she lodged a written

complaint resulting in registration of Bagdah P. S. Case No.666 dated

14.09.2017 against the appellant.

In the course of investigation statement of the victim girl was

recorded under Section 164 of the Code of Criminal Procedure. She was

medically examined. Appellant was arrested and charge sheet was filed.

Charges were framed against the appellant under Section 376(2)(i)(n) of the

Indian Penal Code and under Section 6 of the POCSO Act. To prove the case,

the prosecution examined ten witnesses. Defence of the appellant was one of

innocence and false implication.

In conclusion of trial, the Trial Judge by the impugned judgement and

order dated 05.03.2019 and 08.03.2019 convicted and sentenced the

appellant, as aforesaid.

Mr. Bhattacharyya, learned Advocate appearing for the appellant

argues that the evidence of the victim girl (P.W.2) is squarely at variance not

only with the deposition of her mother (P.W.1) but also vis-a-vis her earlier

statement before Magistrate. While in her statement before the Magistrate

under section 164 of the Code of Criminal Procedure, P.W.2 stated that she

had been forcibly raped by the appellant on an earlier occasion and

thereafter on 9th August, 2017 at 8.30 P.M. at her residence, in Court she

claimed that a singular act of forcible rape had been perpetrated at the house

of the appellant on 08.08.2017 in the afternoon around 1.30 P.M. Moreover,

the time, place and circumstances relating to forcible rape as narrated by the

victim girl (P.W.2) is also at variance with the case alleged in first information

report as well as the deposition of her mother (P.W.1). While in the first

information report as well as the deposition of her mother (P.W.1) in Court, it

is alleged that the victim had been repeatedly raped on a number of times in

the tuition room and thereafter at the residence of the complainant in the

evening of 08.08.2017, the victim is silent with regard to the charge of

multiple rape and alleged she had been raped in the afternoon of 08.08.2017

at the residence of the appellant.

Mr. Bhattacharyya further argues that the age of the victim has not

been proved by way of ossification test or production of relevant documents

from the school records. Even P.W.1 is silent regarding the age of the victim

in Court. Hence, the fact that the victim was a minor at the time of

occurrence has not been established beyond doubt. It is also argued that the

explanation with regard to delay in lodging the first information report is

fraught with contradictions. In her deposition, P.W.1 claimed that her

daughter narrated the incident of rape to her on 08.08.2017 itself. However,

in the first information report, she stated that such fact was divulged to her

belatedly on 14.09.2017. On the other hand, her daughter claimed that she

had divulged the incident to her mother 4/5 days after the incident. All these

inconsistencies go to the root of the prosecution case and renders the case

untenable both in fact and law. Hence, the appellant is entitled to an order of

acquittal.

Ms. Sinha, learned advocate appearing for the State submits that the

victim was a minor and had spoken of rape by her private tutor on

08.08.2017 at his residence. Version of the victim is credible in view of the

fact that the victim was a student and the appellant had fiduciary control

over her as a tutor. Since she had been threatened by the latter, delay in

lodging FIR does not affect the credibility of the prosecution case. Minor

variations with regard to the time and place of occurrence should not affect

credibility of the case and the appeal is liable to be dismissed.

Mr. Mukherjee appearing with Mr. Mahato in CRAN 2 of 2021

supports the submissions of Ms Sinha and submits that in the FIR it is

stated that the victim was aged around 14 years and a student of class IX.

Ordinarily, in a case involving penetrative sexual assault on a minor

victim, sufficient latitude is to be given in the assessment of the evidence of

such a victim. However, in the present case where the deposition of the

victim is squarely at variance with her earlier statement before the

Magistrate under Section 164 of the Code of Criminal Procedure and that of

her mother (P.W.1), both in the first information report as well as in Court,

an onerous duty is cast on the Court to evaluate the intrinsic value of her

evidence in the backdrop of such contradictions and/or inconsistencies

before recording a finding of guilt against the appellant.

In the backdrop of the submissions made on behalf of the parties, let

me analyse the evidence of the victim, P.W.2 vis-a-vis other earlier statement

before Magistrate, FIR and the deposition of her mother. PW 2 in her

deposition stated that the incident occurred at 1.30 P.M. in the house of the

appellant. The appellant had called her to his house for giving tuition and

when she went to his house she was forcibly raped. She had been taking

tuition from the appellant for last two years and was presently a student of

class IX. She narrated the incident to her mother 4/5 days after the

occurrence. As the appellant had threatened her of dire consequences, she

initially did not inform anyone. She was medically treated in the hospital.

She also made statement before the magistrate. She further deposed she

took private tuition along with other girls. On the date of the incident

accused called her for the first time to his residence and subsequently

thereafter had called her to his house on a number of times. When she went

to the house of the appellant her friends were taking tuition there. There was

scuffling at the time of rape.

Mother of the victim was examined as P.W.1. She in her deposition

claimed that the incident had occurred on 08.08.2017 between 8 P.M. to

8.30 P.M. at her residence. After she returned home she found her daughter

in morose condition and upon query her daughter stated that she was raped

on that day and on previous 8/10 occasions. She lodged complaint at Bagda

P.S which was subscribed by one Dipak Mondal. She proved her signature

on the complaint (Exhibit 1/1). Her daughter was examined in the hospital.

Police seized undergarments of the daughter under a seizure list. She put

her signature on the seizure list.

For a better appreciation of the time, place and circumstances in

which the alleged offence had taken place, a tabular chart with regard to the

aforesaid circumstances as narrated in the depositions of the aforesaid

witnesses, P.W.1 and 2 vis-à-vis the first information report and the

statement of the victim girl recorded under Section 164 of the Code of

Criminal Procedure is set out hereinbelow :-

                    FIR          Deposition of        Statement of          Deposition of
                                     PW1               PW2 before               PW2
                                                       Magistrate
  Time and    08.08.2017 at      08.08.2017 at      09.08.2017     at     8-9 months ago at
   Date of    7:30 P.M.          about 8 P.M.       1:30 P.M.             1.30 P.M.
 occurrence                      to 8:30 P.M.

  Place of    House of PW1       House of PW1       House     of   the    House     of   the
 occurrence                                         appellant             appellant

 Manner of    Forcible rape      Forcible rape      She had been          She    had   been
commission    on that day as     on that day as     forcibly raped on     raped only once at
   of the     well as on a       well as on a       a earlier occasion    the house of the
  offence     number        of   number        of   at the residence      appellant at 1.30
              times earlier in   times earlier in   of the appellant      P.M.
              the     tuition    the     tuition    and      thereafter
              class              class              again           on
                                                    09.08.2017       in
                                                    their house at
                                                    about 8.30 P.M.

 Reason for   Due to threats     Incident  was      She had been          She           was
 the delay    by         the     disclosed   to     threatened by the     threatened    and
              appellant,         her        on      appellant             divulged      the
              incident   was     08.08.2017                               incident 4-5 days
              disclosed   on     itself                                   after the date of
              14.09.2017                                                  occurrence

From the aforesaid tabular chart it appears that P.W.2 is completely

silent in her deposition with regard to any previous forcible sexual assault

upon her apart from the alleged sexual assault which occurred on

08.08.2017. Even with regard to the incident of 08.08.2017, her deposition

in court is that the incident occurred in the afternoon around 1.30 P.M. in

the house of the appellant whereas before the magistrate she claimed that

she had been raped in her own house at 8.30 P.M. Therefore, there is a clear

departure with regard to time and place when the alleged rape occurred on

08.08.2017.

Place, time and circumstance under which the offence is committed

are the essential parameters which are required to be established in order to

prove the prosecution case. In the instant case, there are inherent

contradictions in the version of the victim with regard to the time and place

where the alleged rape occurred. Moreover, her deposition in court with

regard to rape in the afternoon in the house of the appellant does not find

support either from her earlier statement before the Magistrate under section

164 Cr.P.C or in the narration of the incident in the FIR or deposition of her

mother P.W.1 in court.

In the light of the aforesaid contradictions and/or inconsistencies in

the prosecution case, I am constrained to observe the allegation of repeated

forcible rape prior to 08.08.2017 has not been proved as the victim herself is

completely silent in that regard in her deposition. Even the allegation of

forcible rape on 08.08.2017 as narrated by her, is on shaky foundation. Time

and place where the incident of rape occurred on 08.08.2017 does not

appear to be established beyond reasonable doubt. Even if one ignores the

contradictions between the deposition of the victim and that of her mother

P.W.1, I find it difficult to rely on her version with regard to the alleged rape

on 08.08.2017 as it is not only at variance with her statement before the

Magistrate under section 164 Cr.P.C. but is highly unlikely in the attending

facts and circumstance of the case. She claimed that she had been raped in

the house of the appellant on 08.08.2017 at 1.30 P.M. There was scuffling at

the time of the incident. However, in her deposition, she admits that her

friends were also present on that day in the house of the appellant. None of

these girls have been examined to establish whether the victim girl had come

to the house of the appellant on that day and had been raped as claimed by

her.

P.W.2 also admitted that even after the incident she went to the house

of the appellant without informing her mother. This conduct on her part is

unnatural as a girl who has been subjected to forcible rape would be loathe

to visit the house of the perpetrator.

Even the delay in lodging F.I.R. in the instant case is not adequately

explained. Though in the F.I.R., P.W.4 stated her daughter disclosed the

incident after a month that is on 14.09.2017, in Court she deposed that her

daughter had narrated the incident on 08.08.2017 itself. P.W.2 stated she

disclosed the incident within 4/5 days. Explanation regarding delay is,

therefore, founded on contradictory evidence which is patently inconsistent

and does not inspire confidence.

It is argued on behalf of the State that the version of the victim ought

to be relied upon in view of the statutory presumption under Section 29 of

the POCSO Act.

Section 29 of the POCSO Act reads as follows :

"29. Presumption as to certain offences. - Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3,5,7 and 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved."

In order to attract the statutory presumption under Section 29 of the

POCSO Act the factual foundations with regard to the ingredients of the

offence under Section 6 of the said Act require to be established in the first

place. In the present case, nothing has been placed on record on behalf of

the prosecution to show that the victim was a minor at the time of

occurrence. In her deposition PW 1 has not stated the age of the victim

though the same is disclosed in the FIR. It is trite law that the FIR is not

substantive evidence and may at its best to use to corroborate or contradict

the maker. The only piece of evidence which is relied upon by the

prosecution with regard to age of the victim is that she is a student.

However, neither birth certificate nor the school records endorsing the age of

the victim has been proved in the present case. No ossification test was also

conducted with regard to the age of the victim in order to establish that she

is a minor. If it is presumed that the victim was a minor, the inherent

weakness and/or patent contradictions in the prosecution case itself render

the statutory presumption inapplicable. In Sahid Hossain Biswas vs. State

of West Bengal1 interpreting the aforesaid presumption, this Court held as

follows:

"....... 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 trite law that negative cannot be proved [see Sait Tarajee Khimchand vs. Yelamarti Satyam, (1972) 4 SCC, Para-15]. In order to prove a contrary fact, the fact whose opposite is sought to be established must be proposed first. It is, therefore, an essential prerequisite that the foundational facts of the prosecution case must be established by leading evidence

2017 SCC OnLine Cal 5023

before the aforesaid statutory presumption is triggered in to shift the onus on the accused to prove the contrary.

Once the foundation of the prosecution case is laid by leading legally admissible evidence, it becomes incumbent on the accused to establish from the evidence on record that he has not committed the offence or to show from the circumstances of a particular case that a man of ordinary prudence would most probably draw an inference of innocence in his favour. The accused may achieve such an end by leading defence evidence or by discrediting prosecution witnesses through effective cross-examination or by exposing the patent absurdities or inherent infirmities in their version by an analysis of the special features of the case. However, the aforesaid statutory presumption cannot be read to mean that the prosecution version is to be treated as gospel truth in every case. The presumption does not take away the essential duty of the Court to analyse the evidence on record in the light of the special features of a particular case eg. patent absurdities or inherent infirmities in the prosecution version or existence of entrenched enmity between the accused and the 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. To hold otherwise, would compel the Court to mechanically accept mere ipse dixit of the prosecution and give a stamp of judicial approval to every prosecution, however, patently absurd or inherently improbable it may be."

As discussed earlier, evidence of the minor suffers from patent

contradictions with regard to her earlier statement to the magistrate vis-a-vis

the time and place of occurrence as well as other inherent weaknesses.

Glaring lacunae in the prosecution case undermines the credibility of the

factual foundations which require to be prima facie established to attract the

statutory presumption. When the primary facts relating to time, place and

circumstances constituting the offence are not prima facie established due to

patent contradictions or inherent improbabilities, such lacuane cannot be

cured by resorting to statutory presumptions in law.

Hence, I am of the opinion in the light of the contradictory and

inconsistent versions with regard to the allegation of rape levelled against the

appellant, the factual foundations of the prosecution case has not been laid

on the basis of preponderance of probabilities so as to attract the statutory

presumption and the appellant is therefore entitled to an order of acquittal.

In the light of the aforesaid discussion, I set aside the conviction and

sentence recorded against the appellant.

Appellant Ganesh Orang shall be forthwith released from custody, if

not wanted in any other case, upon executing a bond to the satisfaction of

the trial court for a period of six months in terms of section 437A of the Code

of Criminal Procedure.

The appeal is, accordingly, allowed.

In view of the disposal of the appeal, all connected applications are

also disposed of.

Let a copy of this judgment along with the lower court records be

forthwith sent down to the trial court at once.

Photostat certified copy of this judgment, if applied for, shall be made

available to the parties upon completion of all formalities.

I agree.

(Bivas Pattanayak, J.)                                  (Joymalya Bagchi, J.)




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