Chitta Biswas vs The State Of West Bengal & Anr
2022 Latest Caselaw 2820 Cal

                 IN THE HIGH COURT AT CALCUTTA
                CRIMINAL APPELLATE JURISDICTION
                          APPELLATE SIDE


The Hon'ble JUSTICE BIBEK CHAUDHURI

                             C.R.A 550 of 2019

                               Chitta Biswas
                                     Vs.
                       The State of West Bengal & Anr.

      For the appellant:              Mr. Prabir Majudmer, Adv.,
                                      Mr. Snehansu Majumder, Adv.

      For the State:                  Ms. Sreyashee Biswas, Adv.,

Heard on: 16 March, 2022
Judgment on: 13 May, 2022

BIBEK CHAUDHURI, J. : -

1.

The appellant faced conviction under the charge of Section 10 of the

Protection of Children from Sexual Offences Act (hereafter described as

the POCSO Act) and sentenced to suffer rigorous imprisonment for six

years with fine of Rs.20,000/-, in default rigorous imprisonment for six

months for the aforesaid offence passed in Sessions Trial No.III (X) of

2018 arising out Sessions Case No.7(08) of 2018 passed by the learned

Additional Sessions Judge, 2nd Court at Krishnagar, Nadia. In the instant

appeal, the convict/appellant has challenged the legality and correctness

of the aforesaid judgment and order of conviction and sentence.

2. On the basis of a written complaint submitted by one Parimal

Biswas alleging, inter alia, that on 18th August, 2018, his minor daughter

aged about nine years went to the house of his brother Rahul Biswas to

defecate as they had no toilet in their house at the relevant point of time.

On her way to the house of her uncle, accused Chitta Biswas forcibly took

her, behind the latrine situated beside the house of one Manoka @

Mannoda Patwary and pulled down her pant. The accused then opened

his pant, touched the breast of the daughter of the defacto complainant

and also touched her private part with finger. When he tried to commit

rape upon her, the said minor girl cried out attracting local villagers. The

villagers apprehended the accused in such condition and manhandled

him. Then he was sent to Saktinagar Hospital for medical treatment.

3. On the basis of the said complaint police registered Kotawali P.S

Case No.374 dated 18th August, 2018 under Sections 4/6/8 of the

POCSO Act and also under Section 376(2)(i) of the IPC.

4. After charge-sheet being filed, the accused appeared before the trial

court to face trial. Charge under Section 376(2)(i) of the IPC and Section 6

of the POCSO Act were framed against the accused. He pleaded not guilty.

Accordingly trial of the case commenced. During trial, prosecution

examined ten witnesses. The accused was also examined under Section

313 of the Code of Criminal Procedure.

5. Defence case as disclosed from the trend of cross examination of

the witnesses on behalf of the prosecution and examination of the

accused under Section 313 of the Cr.P.C appears to be complete denial of

the prosecution case.

6. The learned trial judge on careful perusal of the evidence on record,

both oral and documentary convicted and sentenced the accused in the

manner aforesaid. Hence the instant appeal assailing the impugned

judgment and order of conviction and sentence.

7. Out of the ten witnesses, the victim girl deposed before the trial

court as PW1. It appears from her evidence that at the relevant point of

time she was student of class-IV. She stated in her evidence that on 18th

August, 2018 at about 8 am when she was going to the house of his uncle

Rahul Biswas to use their lavatory, accused came from behind, covered

her mouth by his hand and took her to the house of Mannoda Patwary @

Manoka who is the aunt of the victim girl. Then the accused pulled down

her pant, touched her breast and inserted his finger into her vagina. In

the mean time, her aunt came to the spot. Seeing the accused and the

victim in such condition she raised hue and cry. The victim also cried out.

Then the accused tried to flee away but the local villagers apprehended

and assaulted him. She also stated that she narrated the incident to the

learned Magistrate when she was produced before him. She identified her

signature on her statement recorded under Section 164 of the Cr.P.C. she

further stated that she was medically examined by the doctor. Her

signature on the Medico Legal Examination Report is marked as Exhibit-

2/1. In cross examination, PW1 stated that their house is situated in

front of the road by the side of their uncle's house. The houses of his

uncle's are situated and at the last on the row, there is a house of her

uncle Rahul Biswas. She also stated that there was no lavatory and

latrine in their house at the relevant point of time and they used the

lavatory and latrine of Rahul Biswas. From her evidence it is also

ascertained that the incident took place on the varanda of Manoka

Patwary. The accused forcibly laid her down on the ground.

8. PW2 Parimal Biswas is the father of the victim girl. He corroborated

the evidence of the victim girl that on the date of occurrence at about 8

am her daughter went to the house of his youngest brother to defecate. At

that time the appellant gagged her mouth and took her to his cousin

brother's house. At that time the sister-in-law of the defacto complainant

was not present in the house. The accused tried to commit rape upon his

daughter. At that point of time his sister-in-law (boudi) entered into the

room and seeing the accused and victim in such condition she raised hue

and cry which attracted local people they apprehended the accused and

assaulted him. PW2 further stated in his evidence that at the time of

occurrence he was plying Toto in their village. His brother informed him

about the incident over phone and he rushed to his house. PW2 lodged an

FIR against the accused in the police station. One Ramen Bapari wrote

the complaint as per his instruction. Thereafter he put his signature on

the said written complaint. The signature of the PW2 on the written

complaint was marked as Exhibit-3/1. During investigation police seized

the wearing apparel of the victim under a seizure list and he put the

signature on the said seizure list which was marked as Exhibit-4/1.

9. PW3 Manoka @ Mannoda Patwary claimed herself to be the

eyewitness of the occurrence. From her evidence it is ascertained that the

incident took place on the verandah of her house. At the relevant point of

time she was not present in her house. When she returned, she saw the

victim girl lying on her verandah in naked condition and the accused was

sitting behind the victim girl. Seeing PW3, the victim girl cried out and the

accused tried to flee away. However hearing cry of the victim, relatives

staying adjacent to the house of PW3 rushed to the place of occurrence

and apprehended the accused. Statement of PW3 was also recorded

during investigation under Section 164 of the Cr.P.C.

10. PW4 Ramen Bapari, PW5 Rinku Biswas and PW7 Jyotirmoy Biswas

came to know about the incident after it happened from local people.

Therefore, the evidence of the above named witnesses are not of much

importance being hearsay in nature.

11. PW6 Dr. Swadesh Garai is the Medical Officer attached to Nadia

District Hospital on 18th August, 2018. He medically examined the victim

girl on examination, he did not find any injury in the private part of the

victim or any other part of her body. PW8 Dr. Anirban Pal is the Medical

Officer who conducted examination of the accused to ascertain as to

whether he was sexually capable or not and on examination he submitted

a report informing, inter alia, that there is nothing to suggest that the

accused was incapable of performing sexual act in normal circumstances.

12. PW10 is the Investigating Officer of this case.

13. Learned Advocate for the appellant submits that the appellant was

falsely implicated by the defacto complainant because of a landed dispute.

He did not commit any offence as alleged. From the cross examination of

PW3 Manoka Patwary it is found that she saw the victim lying on her

varanda in naked condition and the accused was sitting by her side. The

accused did not commit any offence of sexual assault or aggravated

sexual assault. PW3 did not see the accused touching the private part of

the child or made the child to touch the private part of the accused.

Therefore, the accused cannot be held guilty for committing offence under

Section 9 of the POCSO Act, punishable under Section 10 of the said Act.

14. Learned P.P-in-Charge, on the other hand, submits that in an

offence of sexual violence or sexual assault, the evidence of the victim girl

is of utmost importance. In her evidence the victim girl stated that the

accused forcibly took her to the house of PW3, pulled down her pant,

touched her breast and vagina. When PW3 appeared at the spot she

found the victim lying on her varanda in naked condition and the accused

was sitting beside her. If the evidence of PW1 and PW3 are taken together

there would be no ground to raise any doubt in the evidence of the victim

girl.

15. The appellant/accused is prosecuted for the charge aggravated

penetrative sexual assault. During trial the learned judge found that the

accused did not commit any offence of penetrative sexual assault and

therefore he held that the accused is liable to be convicted for the charge

of aggravated sexual assault within the meaning of Clause (m) of Section 9

of the POCSO Act. As per the definition of sexual assault, "physical

contact with sexual intent without penetration" is the essential ingredient

for the offence. The definition of Sexual Assault starts with the words:

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.

The words 'any other act' encompasses with itself, the nature of the

acts which are similar to the acts which have been specifically

mentioned in the definition on the premise of the principle of

"Ejusdem-generis". The act should be of the same nature or close to

that.

16. In the instant case it is found from the evidence of the victim girl

that when she was going to her uncle's house to defecate, the accused

caught hold of her from behind, gagged her mouth and forcibly took her

to the house of PW3. Then he pulled down the pant of the said minor girl,

touched her breast and vagina. PW3 saw the victim lying on the varanda

in naked condition and the accused was sitting by her side. The

surrounding circumstances like the accused having taken the victim to

the house of PW3 when she was not present, pulling down her pant,

making her naked amply prove culpable mental state of the accused and

in such a case, the court is entitled to raise statutory presumption about

the culpable mental state of the accused as permitted under Section 30 of

the POCSO Act. The said presumption has not been rebutted by the

accused by proving that he has no such mental state. Therefore, sexual

intent of the accused is established beyond any shadow of doubt.

17. Learned Advocate for the appellant submits that nobody saw the

accused touching private part of the victim and from the evidence of PW3

it is found that the accused was sitting by the side of the victim girl who

was lying on the varanda of PW3 in naked condition, the accused ought to

have been convicted under Section 11 of the POCSO Act for the offence of

sexual harassment. I am not in a position to accept such submission

made by the learned Advocate for the appellant because there was no

reason for not to treat the specific acts by the appellant as the acts of

sexual assault within the meaning of Section 7 of the POCSO Act.

18. For the reasons stated above, I do not find any ground to interfere

with the judgment and order of conviction and sentence passed by the

learned court below. For the reasons stated above the instant appeal is

dismissed on contest.

19. The judgment and order of conviction and sentence passed by the

learned Additional Sessions Judge, 2nd Court at Krishnagar in Sessions

Trial III(X) of 2018 arising out of Sessions Case No.07(08) of 2018 (Special)

is affirmed.

20. Let a copy of this judgment be sent along with the lower court

record.

(Bibek Chaudhuri, J.)