Subrata Pradhan vs State Of West Bengal & Anr
2022 Latest Caselaw 1117 Cal

Form J(2)       IN THE HIGH COURT AT CALCUTTA
                   Criminal Appellate Jurisdiction
                           Appellate Side

Present :
The Hon'ble Justice Bibek Chaudhuri


                          C.R.A. 269 of 2019

                        Subrata Pradhan
                               Vs.
                      State of West Bengal & Anr.

                                  With

                      C.R.A. 270 of 2019

                      Prasanta Das & Anr.
                              Vs.
                    State of West Bengal & Anr.


For the Appellant             : Mr. Phiroze Edulji
                                Mr. Ajit Kumar Mishra
                                Mr. Abhishek Acharya


For the State         :    Mr. Saswata Gopal Mukherjee, Ld. P.P.
                           Ms. Faria Hossain
                           Mr. Anand Keshari


Heard on                      : 02.03.2022 and 09.03.2022

Judgment on                   :   10.03.2022


Bibek Chaudhuri, J.

These two appeals arose assailing the judgment and order of

conviction and sentence passed by the learned Additional Sessions

Judge, First Court and Special Court under the POCSO Act, Kakdwip in

Special Sessions Trial No.7 of 2018 under Sections 366/376/120B of

the Indian Penal Code (I.P.C. for short) and also under Section 4 of

the POCSO Act.

The appellant in Criminal Appeal No.269 of 2019 was convicted

for committing offence under Section 366/120B/376 of the Indian

Penal Code and also under Section 4 of the POCSO Act. The learned

trial Judge handed down sentence of imprisonment for three years

with fine and default clause for the offence under Section 366 of the

Indian Penal Code. He was also sentenced to suffer rigorous

imprisonment for three years with fine and default clause for the

offence punishable under Section 120B of the Indian Penal Code. The

convict Subrata Pradhan was also sentenced to suffer rigorous

imprisonment for seven years with fine and default clause for the

offence committed under Section 376 of the Indian Penal Code. He

was also sentenced to suffer rigorous imprisonment for seven years

with fine and default clause for the offence committed under Section

4 of the POCSO Act. It was directed that the sentences of

imprisonment shall run concurrently.

In Criminal Appeal No.270 of 2019 the convicts, namely,

Prasanta Das and Sampa Das were sentenced to suffer rigorous

imprisonment for three years with fine and default clause for

committing offence under Section 366 of the Indian Penal Code and

also sentenced to suffer rigorous imprisonment for three years with

fine and default clause for the offence under Section 120B of the

Indian Penal Code.

On 14th December, 2017 a school going girl was kidnapped by

the appellants on her way to school at about 9 A.M. She was taken to

some unknown place by a car. It is also the case of the prosecution

that for a considerable period of time before the incident Subrata

Pradhan used to tease the girl and give her bad proposal whenever he

found her on the road. He also proposed to marry her. The victim girl

informed the matter to her parents and other elderly persons in her

house. The de facto complainant, being the uncle of the victim girl

used to escort her up to the bus stand of their village, commonly

known as 5 No. Bus Stand. On the date of occurrence he could not

accompany the victim girl and taking opportunity of his absence the

said girl was forcibly kidnapped from the bus stand.

On the basis of the said complaint, police registered Gangasagar

Coastal P.S. Case No. 125 of 2017 on 15th December, 2017 under

Section 363/366/34 of the Indian Penal Code.

Since the allegation involves commission of sexual intercourse

with a minor girl, the case was transferred to the Court of the learned

Special Judge at Kakdwip for trial and on completion of the trial the

learned Special Judge has passed the order of conviction and

sentence as narrated hereinabove.

In Rama versus State of Rajasthan reported in (2002) 4

SCC 571 the Hon'ble Supreme Court has expressed about the duty of

the Appellate Court in the following words:-

"It is well-settled that in a criminal appeal, the duty is

enjoined upon the Appellate Court to reapprise the evidence

itself and it cannot proceed to dispose of the appeal upon

apprisal of evidence by the trial Court alone especially when

the appeal has been already admitted and placed for final

hearing. Upholding such a procedure would amount to

negation of valuable right of appeal of an accused, which

cannot be permitted under law."

The Hon'ble Apex Court reiterated the same guideline regarding

the duty of the Appellate Court while hearing an appeal subsequently

in Md. Ali @ Guddu versus State of U.P., 2015 AIR SCW 1711.

Bearing the above principle in mind let me now reconsider and

reappreciate the evidence adduced by the witnesses on behalf of the

prosecution in the instant case. It is not in dispute that the victim

was found missing on 14th December, 2017 and on the very next day,

according to the victim she was brought to the local P.S. by the

accused Subrata Pradhan. The Investigating Officer of this case,

however, contradicted the said evidence of the victim girl saying that

the accused Subrata Pradhan was arrested by him from Benuban

within the jurisdiction of the local P.S. and the victim girl was also

recovered from the said place. Whatever may be the truth, the victim

girl was away from the lawful custody of her guardian for about a day.

Learned advocate for the appellants submits before the Court on

the basis of the evidence on record that in the written complaint

(Ext.1) it was stated by the de facto complainant that the victim was

missing from 5 No. Bus Stand. But in the evidence the victim girl as

well as the de facto complainant and the mother of the victim girl

stated that she was allegedly kidnapped from 5 No. Bus Stand. In the

F.I.R. as well as deposition of the victim girl it is stated that the victim

was allegedly kidnapped at about 9 A.M. on her way to school.

However, in examination-in-chief the de facto complainant stated that

the accused Subrata Pradhan picked up her when she was returning

from school and took her away to some place by a vehicle. According

to the learned advocate for the appellant the evidence of P.W.1 and

P.W.2 as well as statement made in the FIR are contradictory and

such contradiction is material contradiction that touches the root of

the case.

It is further submitted by the learned advocate for the appellant

that in the instant case the evidence of the de facto complainant is of

prime importance. If the evidence of the de facto complainant is

found to be unimpeachable and beyond reproach, a conviction can be

based. According to the victim, when she was waiting at 5 No. Bus

Stand for a bus to come to her school, the accused persons came by a

Tata Sumo car. They stopped the car in front of her and got down

from the car and proposed her to give a lift to her school. When the

victim girl refused, they forcibly picked her up in the said car.

Accused Prasanta Das pressed her mouth and Subrata Pradhan

threatened her with dire consequences brandishing a knife. They took

her to the bank of a river by the said car. Then they hired a boat and

crossed the river. She came to know that she was brought to a place,

named Namkhana. Then she was confined in a room. Accused

Sampa Das and her husband Prasanta made her to wear a sari and

accused Subrata put vermilion on her forehead and conch bangles on

her hands. Accused Subrata also committed sexual intercourse with

her. It is submitted by the learned Advocate for the appellant that

Section 4 of the POCSO Act is a penal provision for penetrative sexual

assault. In order to prove penetrative sexual assault medicological

examination is absolutely necessary. The victim girl stated that her

date of birth is on 2 nd April, 2004. So, on the date of occurrence she

was aged about 13 years and few months. If P.W.2 was subjected to

penetrative sexual assault by a grown up young man, there must be

injury in her private part. Prosecution, however, failed to produce

such evidence in course of trial. It is needless to say that when a

minor girl is subjected to penetrative sexual assault and she denies

to be examined medically, the Court is entitled to have adverse

presumption against the victim girl. In her examination-in-chief the

victim girl stated that she declined to undergo medical examination as

there was no female doctor in the hospital. However, from the injury

report this Court does not find such explanation as stated by her in

her deposition. According to the learned advocate for the appellant,

this is improvement or development of the prosecution story and

accordingly, the prosecution story cannot be believed.

Learned advocate for the appellant further submits pointing out

at the cross-examination of the victim girl that she in her cross-

examination admitted that she and Subrata Pradhan developed

acquaintance when Subrata used to visit his elder sister's residence.

During that time they had formal conversation. According to the

learned counsel for the appellant, Subrata was previously known to

the victim girl. It is the defence case that Subrata used to work as a

compounder under a doctor. The victim admittedly was suffering

from appendicitis and tumour. The defence had taken a specific plea

that Subrata extended help for medical treatment of the victim but

the father of the victim refused to pay money for medical treatment of

the victim. When Subrata demanded the said money, the uncle of the

victim filed a false case against them. In order to prove his

contention, the accused produced series of medical documents of the

victim from his custody. The said documents were marked 'X' for

identification though the victim herself admitted authenticity of the

said documents stating that the said medical reports were genuine,

the trial Court refused to mark the said documents as exhibits.

learned advocate for the appellant has called upon this Court to take

judicial notice of the said documents.

Even if, judicial notice is taken over the said documents, it only

proves that the accused Subrata Pradhan had some medical

documents of the victim girl in his custody. This alone does not

absolve the accused persons from the charge labelled against them.

However, the learned advocate for the appellant has pointed out

series of contradictions in the evidence of the witnesses. As for

example, P.W.1 did not state to the police that on 14 th December,

2017 he returned late from the market. On that date the victim girl

had a computer examination in her school. So, the victim girl left

home at about 9 A.M. She did not return from school at usual hour.

Then P.W.1 conducted a search for her and came to know that the

accused persons had kidnapped his minor niece.

P.W.1, however, did not tell in his evidence from whom he came

to know about the alleged incident on 14 th December, 2017. It is

stated by the de facto complainant and P.W.2 in their evidence that

there are few shops at No.5 Bus Stand. If the prosecution case is

believed, the victim girl was kidnapped any time after 9 A.M. from

No.5 Bus Stand. The shop owners and local inhabitants were not

examined by the Investigating Officer to get a clear and independent

picture of the incident. The investigation of the case was absolutely

perfunctory because of the fact that the Investigating Officer believed

the statement of the victim girl as gospel truth.

It is further pointed out by the learned advocate for the

appellant that P.W.4 Sk. Hossain and P.W.5 Dhiraj Maity were

declared hostile by the prosecution. P.W.8 Sk. Bapi was tendered for

cross-examination. The evidence of Malati Goswami (P.W.6) and

P.W.7 Gopinath Goswami are of little importance because their

evidence is hearsay in nature.

Having heard the learned Advocate for the appellants, I like to

record at the outset that the aforesaid criminal case was initiated on

the basis of a written complaint submitted by one Gour Gobinda

Goswami, who happens to be the uncle of the victim girl.

The statement made in the F.I.R. itself is in the nature of

hearsay. From the evidence of the de facto complainant this Court

finds serious infirmity with regard to time when the alleged offence

took place. In the F.I.R., it is alleged by the de facto complainant

that the victim girl was kidnapped on her way to school. However,

she stated on oath that the accused, Subrata Pradhan, picked her up

when she was returning home from school and took her somewhere

by a vehicle. In view of such contradiction a reasonable question

always arises in the mind of the Court as to whether the prosecution

tried to rope in the appellants merely on assumptions, surmises and

conjectures.

On a careful scrutiny of the evidence of P.W.2, who is the victim

girl herself, it appears that she tried to cover up lacuna in the

prosecution case and went on improving the case of the prosecution.

To illustrate, let me jot down the following circumstances:

The victim girl refused to get examined medically after she was

produced before the medical officer. In the medical examination

report she clearly stated that she was not willing to get herself

medically examined. But in her examination-in-chief, she stated on

oath that she declined to get herself medically examined as there was

no female doctor in the hospital. Assigning a reason for her refusal to

get herself examined medically as an instant of improvement, which

amounts to material contradiction in the case. This Court may further

knock down that the victim girl would not even state the registration

number of the vehicle on which she was allegedly taken to a place by

the side of a river to reach Namkhana. In her evidence, the victim

girl further stated that the accused had taken away her medical

documents from her school bag. The said fact was not stated by her

before the investigating officer. This is the important omission,

amounting to material contradiction in view of the fact that the

specific case of the accused is that the accused and the victim girl had

developed a relationship and the accused helped the victim girl in her

medical examination. Production of medical examination report by

the accused proves the defence case more believable and reliable.

The Hon'ble Apex Court in State of Madhya Pradesh Vs.

Shriram and anr., reported in (2019) 14 S.C.C. 430 observed that

where a case of the prosecution suffers from material contradiction,

the accused is entitled to get benefit of doubt.

The victim girl further stated in her evidence that the accused,

Subrata Pradhan, brought her to the local police station. On the other

hand, the investigating officer stated that he arrested the accused,

Subrata Pradhan and the victim girl on 16 th December, 2017 from a

place, called, Benuban within the jurisdiction of Gangasagar Coastal

Police Station.

The contradiction between the evidence of P.W.2 and the

investigating officer with regard to apprehension of accused Subrata

Pradhan cannot be considered as trivial. The contradiction ought to

be held to be vital one and the accused persons are entitled to be

acquitted in the instant appeal.

In support of his contention, learned Advocate for the appellants

has placed reliance on the decision of the Hon'ble Supreme Court in

the case of Parvat Singh and ors. Vs. State of Madhya Pradesh,

reported in (2020) 4 S.C.C. 33.

The learned Advocate for the appellants rightly submits that

hearsay evidence is excluded on the ground that it is always not

desirable in the interest of justice, to get the person whose statement

is relied upon, into Court for his examination in the regular way, in

order that many possible sources of inaccuracy and untrustworthiness

can be brought to light and exposed, if they exist by the test of cross-

examination. The hearsay is discarded because it is inaccurate and

vague. Except no certain circumstances, hearsay evidence is not

admissible, exception being Section 32 of the Evidence Act.

In the instant case, except the victim girl, all the witnesses

stated about the incident on the basis of what they had learnt or

heard from the victim girl. The evidence of the said witnesses suffers

from various contradictions which were recorded hereinabove.

A pertinent point was raised by the learned Advocate for the

appellants by placing reliance on the judgement passed by the

Hon'ble Supreme Court in State of Madhya Pradesh Vs. Anoop

Singh, reported in 2015 AIR SCW 3985. It is held by the Hon'ble

Supreme Court in the above report that Rule 12(3) of the Juvenile

Justice (Care and Protection of Children) Rules, 2007 is applicable in

determining the age of the victim of rape.

In the instant case, the victim stated on oath that on the date of

committing offence she was aged about 13 years. The investigating

officer of this case did not seize any birth certificate, school leaving

certificate or any other documents to show that the victim girl was

aged about 13 years at the relevant time of commission of offence.

According to the learned Advocate for the appellants, in the absence

of any documents regarding proof of age of the victim, her oral

testimony cannot be taken into consideration.

Learned Public Prosecutor in-charge submits on this issue that

the victim was not cross-examined by the defence on the question of

her age or date of birth. Only suggestion was put to the victim that

she was more than 13 years of age, which the victim denied.

Rule 12(3) of the Juvenile Justice (Case and Protection of

Children) Rules, 2007 states :-

"In every case concerning a child or juvenile in conflict with

law, the age determination inquiry shall be conducted by the

court or the Board or, as the case may be, the Committee by

seeking evidence by obtaining -

(a)(i) the matriculation or equivalent certificates, if available;

and in the absence whereof;

(ii) the date of birth certificate from the school (other than a

play school) first attended; and in the absence whereof;

(iii) the birth certificate given by a corporation or a municipal

authority or a panchayat;

(b) and only in the absence of either (i), (ii) or (iii) of clause

(a) above, the medical opinion will be sought from a duly

constituted Medical Board, which will declare the age of the

juvenile or child. In case exact assessment of the age cannot

be done, the Court or the Board or, as the case may be, the

Committee, for the reasons to be recorded by them, may, if

considered necessary, give benefit to the child or juvenile by

considering his/her age on lower side within the margin of

one year and, while passing orders in such case shall, after

taking into consideration such evidence as may be available,

or the medical opinion, as the case may be, record a finding

in respect of his age and either of the evidence specified in

any of the clauses (a)(i), (ii), (iii) or in the absence whereof,

clause (b) shall be the conclusive proof of the age as regards

such child or the juvenile in conflict with law."

In the instant case, the prosecution did not try to collect the

birth certificate of the victim girl or the school leaving certificate

where she used to read at the time of occurrence or any other

documents. The prosecution also failed to place her before the

medical board for ascertaining of her age. In the absence of such

evidence, she cannot be held to be a minor and charge under Section

POCSO Act cannot stand.

Undoubtedly, the victim in a case of sexual violence is the best

evidence and conviction can be based on the basis of sole testimony

of the victim girl, provided the evidence of the victim is held to be

trustworthy, cogent, believable and unblemished.

In Rai Sandeep alias Deepu Vs. State of NCT of Delhi,

reported in AIR 2012 S.C. 3157, the Hon'ble Supreme Court was

pleased to hold that the victim witness must have 'sterling quality'.

In paragraph 15 of the said report the Hon'ble Supreme Court

described the qualities of a sterling witness in the following words :-

"15. In our considered opinion, the 'sterling witness' should be

of a very high quality and caliber whose version should,

therefore, be unassailable. The Court considering the version

of such witness should be in a position to accept it for its face

value without any hesitation. To test the quality of such a

witness, the status of the witness would be immaterial and

what would be relevant is the truthfulness of the statement

made by such a witness. What would be more relevant would

be the consistency of the statement right from the starting

point till the end, namely, at the time when the witness makes

the initial statement and ultimately before the Court. It should

be natural and consistent with the case of the prosecution qua

the accused. There should not be any prevarication in the

version of such a witness. The witness should be in a position

to withstand the cross-examination of any length and

strenuous it may be and under no circumstance should give

room for any doubt as to the factum of the occurrence, the

persons involved, as well as, the sequence of it. Such a

version should have co-relation with each and everyone of

other supporting material such as the recoveries made, the

weapons used, the manner of offence committed, the scientific

evidence and the expert opinion. The said version should

consistently match with the version of every other witness. It

can even be stated that it should be akin to the test applied in

the case of circumstantial evidence where there should not be

any missing link in the chain of circumstances to hold the

accused guilty of the offence alleged against him. Only if the

version of such a witness qualifies the above test as well as all

other similar such tests to be applied, it can be held that such

a witness can be called as a 'sterling witness' whose version

can be accepted by the Court without any corroboration and

based on which the guilty can be punished. To be more

precise, the version of the said witness on the core spectrum

of the crime should remain intact while all other attendant

materials, namely, oral, documentary and material objects

should match the said version in material particulars in order

to enable the Court trying the offence to rely on the core

version to sieve the other supporting materials for holding the

offender guilty of the charge alleged."

In the touchstone of the principles laid down by the Hon'ble

Supreme Court on the question of acceptance of the sole testimony

of the prosecution, if the evidence of the victim girl (P.W.2) is

assessed, it would be found that the victim by her own conduct

during investigation of the case falsify the case of the prosecution

with regard to charge under Section 376 of the I.P.C. and Section 4

of the POCSO Act. It is needless to say that Section 4 of the POCSO

Act is a penal provision for penetrative sexual assault. Therefore, it

is the duty of the prosecution to prove that there was penetration at

the time of causing sexual violence upon the victim girl. According

to the victim, she was a minor of about 13 years of age. If a girl of

13 years is violated by a grownup person like the accused, Subrata

Pradhan, there must be marks of violence and injury on her private

part. The said mark of injury would be visible at the time of medical

examination of the victim. However, the victim denied to have

examined medically. Thus, the absence of any report of medical

examination of the victim would go in favour of the accused and he

is entitled to get benefit of doubt.

With regard to the charge under Section 366 of I.P.C., it is the

case of the prosecution that principal accused, Subrata Pradhan,

with the help of Sampa Das nee Pradhan and her husband Prasanta

Das kidnapped the victim girl from No.5 bus-stand with the

intention or knowledge that the said victim girl would be compelled

to marry Subrata against her own will or that she would be forced

or seduced illicit intercourse.

In support of the said charge, the material witness is the

victim girl alone. She stated in her evidence that the accused,

Subrata Pradhan, Prasanta Das and Sampa Das nee Pradhan

kidnapped her and took her to a house. Prasanta and Sampa

compelled her to wear a saree and Subrata put vermilion on her

forehead and conch bangles on her hands. In order to prove the

charge under Section 366, the investigating officer did not seize the

saree which the victim girl wore on the date of occurrence. He also

failed to seize the conch bangles.

I have already recorded that the evidence of the victim girl

suffers from various infirmities. Considering such aspect of the

matter, this Court is of the view that the learned Trial Judge

committed an error in convicting the appellants under Section 366

of I.P.C.

It is, however, found from the record that the victim girl was

found in association with Subrata Pradhan on the following date of

alleging F.I.R. by her uncle. If the evidence of de facto complainant

is accepted to be true, Subrata brought her to the police station on

the next date of occurrence. If, on the other hand, the evidence of

the investigating office is believed, Subrata was arrested in

association with the victim girl on the next date of lodging F.I.R.

Thus, it is proved that the accused, Subrata had kept the victim

away from the lawful custody of her natural guardian. It is not the

case of the prosecution that the victim herself on her accord went

away with the accused. It is also the case of the defence that the

victim was not a minor on the date of commission of offence.

Thus, it is proved convincingly that the accused, Subrata

kidnapped the victim girl on 14 th December, 2017. The victim girl

was under his custody till he brought the victim to the police

station or he was arrested along with the victim by the

investigating officer.

I have also recorded that the victim stated in her evidence

that she was aged about 13 years at the relevant point of time

and there was no cross-examination suggesting the victim that

she was above 18 years of age on the date of commission of

offence.

In view of the above discussion, though I hold that the

learned Trial Judge committed error in convicting the accused,

Subrata Pradhan, Prasanta Das and Sampa Das nee Pradhan

under Section 366 of I.P.C. and accused Subrata Pradhan under

Section 376 of I.P.C. and Section 4 of the POCSO Act, the

evidence on record sufficiently proves a charge under Section

363 of I.P.C. against the appellant, Subrata Pradhan. Since the

charge under Section 363 of I.P.C. is a lesser offence than that of

Section 366 of I.P.C., this Court can pass an order of conviction

and sentence in terms of Section 222 of the Code of Criminal

Procedure.

For the reasons stated above, the accused Subrata Pradhan,

Prasanta Das and Sampa Das nee Pradhan are found not guilty in

committing offence under Section 366 of I.P.C. The accused, Subrata

Pradhan is also found not guilty in committing offence under Section

376 of I.P.C. and Section 4 of POCSO Act and the judgement and

order of conviction and sentence passed by the learned Trial Judge is

liable to be set aside. However, the appellant Subrata Pradhan is

convicted under Section 363 of I.P.C.

So far as the offence under Section 363 of I.P.C., the

appellants may be sentenced to suffer imprisonment of either

description for a term which may extend to 7 years and shall also be

liable to fine.

Now comes the question of sentence. It is found from the

record that the alleged incident took place in the year 2017. The

appellant is facing trial for last 7 years. He is a young man working

as compounder under a medical practitioner. The prosecution has

failed to establish any criminal antecedent of Subrata Pradhan.

Therefore, I am of the view that incarceration in the correctional

home in association with the seasoned criminals may turn him to a

hardcore criminal.

For the reasons recorded above, I am inclined to take a lenient

view with regard to sentence.

The appellant, Subrata Pradhan is sentenced to suffer rigorous

imprisonment of one year with fine of Rs.10,000/-, in default,

imprisonment for further three months for committing offence under

Section 363 of I.P.C. The period of incarceration already undergone

by the abovenamed appellant shall be set off against the actual

period of substantive sentence of imprisonment. However, the

imprisonment for non-payment of fine shall run separately.

The appellants Prasanta Das and Sampa Das nee Pradhan are

acquitted from the charge and discharged from their respective bail

bonds.

Both the appeals are, thus, disposed of on contest.

Let a copy of this judgement be sent to the Court below along

with lower court records.

Let photostat plain copy of this order duly countersigned by

the Assistant Court Officer of this Court be handed over to the

learned Advocate for the appellants free of costs.

(Bibek Chaudhuri, J.)

Suman/Sujit Srimani, A.R.s (Court)