Arun Kumar Mondal vs State Of West Bengal
2022 Latest Caselaw 6330 Cal

Sl. No. 214




                IN THE HIGH COURT AT CALCUTTA
                  CRIMINAL APPELLATE JURISDICTION
                          APPELLATE SIDE

Present:
The Hon'ble Justice Joymalya Bagchi
                   And
The Hon'ble Justice Ajay Kumar Gupta



                             C.R.A. 266 of 2019

                           Arun Kumar Mondal
                                   -Vs-
                            State of West Bengal



For the Appellant :     Mr. Satadru Lahiri
                        Mr. Safdar Azam
                        Mr. Syed Wasim Faruque

For the State       :   Mr. Saibal Bapuli, learned APP
                        Mr. Bibaswan Bhattacharya


Heard on :              07.09.2022


Judgment on:            07.09.2022


Joymalya Bagchi, J. :-

        A "Me too" moment occurred in a village school when one of the

victims (PW 2), a student of Class-II reported to her mother that one of

the teachers of the school had on 17.09.2015 subjected her to

penetrative sexual assault by inserting his finger in her private parts.

Her mother took her to a local medical shop and bought medicines to
                                    2




treat her discomfort. As the school was closed for a couple of days, on

21.09.2015

the child was taken to the school when she identified the

appellant, a teacher of the school, as the offender. She was taken to

Labpur Sub Divisional Hospital and treated. When the matter was

discussed amongst the villagers six other minor children, all of whom

were students of the school, came out with similar versions of sexual

assault by the said teacher. Written complaint was lodged by the PW 3

(mother of PW 2) resulting in registration of Labpur Police Station Case

No. 224 of 2015 dated 21.09.2015 under Section 4 of the POCSO Act.

In the course of investigation statements of the victims were

recorded under Section 164 of the Code of Criminal Procedure.

Appellant was arrested and charge-sheet was filed.

Charge was framed under Section 4 of the POCSO Act against the

appellant. Prosecution examined 20 witnesses including the victim s

and their mothers.

Defence of the appellant was one of innocence and false

implication. It was his specific defence that the victims belong to the

Kora Community. They used to demand fake Birth Certificates and on

16.09.2015 there was an altercation over demand of additional

subscription regarding Boga Panchami Puja. Out of grudge he was

physically assaulted and falsely implicated in the case. His wife lodged

F.I.R. which was exhibited as "Exbt.-A".

Upon consideration of the evidence on record including the

defence evidence learned trial Judge by the impugned judgment and

order dated 07.03.2019 and 08.03.2019 convicted the appellant for

commission of offence punishable under Section 4 of the POCSO Act

and sentenced him to suffer rigorous imprisonment for ten years with a

fine of Rs.10,000/-, in default to suffer rigorous imprisonment for three

months more.

Mr. Lahiri, learned Counsel appearing for the appellant has

assailed the conviction of the appellant on various grounds. He submits

prosecution case is a manufactured one. Incident occurred on the day

of Biswakarma Puja i.e. on 17.09.2015 which was a school holiday.

Incident of rape of PW 2 could not have occurred on that day. Other

victims did not report the incident of penetrative sexual assault earlier.

Their deposition is bereft of material particulars and does not specify

the dates when they were sexually assaulted. Conviction ought not to

be recorded on such vague and generic evidence. No injuries were found

on the victims. Evidence has come on record, there was dispute over

demand of subscription for Boga Panchami. The appellant was

physically assaulted and falsely implicated in the case. Apart from

victims and their parents, no other school children belonging to another

community viz. Santhal Community was examined. He further

submitted natural guardians/mothers of the victims used to work in

the school as part of the mid-day meal service. None of the victims

reported the incident to them. Statements of the victims recorded

under Section 164 of the Code of Criminal Procedure have not been

exhibited in accordance with law. Accordingly, appellant is entitled to

an order of acquittal.

Mr. Bhattacharya, learned Counsel for the State submits

appellant was a teacher in the school. All the victims were school going

children. As their teacher appellant had overwhelming control over

them. Due to fear and shame, none of the families of other victims

apart from PW 2 came out with the incident. Thereafter, other victims

also came out with similar incidents of penetrative sexual assault and

FIR came to be registered. Nothing is placed on record to show there

was enmity between Kora and Santhal Communities. Assault of the

appellant was by the enraged parents who came to know of his

misdeeds. The prosecution case is proved beyond doubt. Appeal is liable

to be dismissed.

PW2 is one of the victims. She was a student of Class-II. She

stated appellant was her teacher. Appellant took her upstairs in the

school and inserted his finger in her private parts. She made statement

before the learned Magistrate. She remained unshaken during her

cross-examination.

Her parents were examined as PWs. 1 and 3. PW 1 is her

mother and de-facto complainant. She stated that the incident occurred

in the month of Bhadra. Her daughter expressed unwillingness to go to

the school. When she confronted her, she narrated the incident to her.

PW 1 took the victim to Labpur BPHC for medical treatment. She lodged

complaint.

PW3, father of the victim, corroborated the aforesaid version.

Referring to the cross-examination of PW1(mother of the victim

no. 1), Mr. Lahiri contends school was closed on the day of Biswakarma

Puja i.e. on 17.9.2015.

I have assessed the evidence of PW 1 in the light of the aforesaid

submission. PW 1 stated that the incident occurred on Biswakarma

Puja and school was closed on the previous day for Baga Panchami.

Even if one assumes that the school was closed for Biswakarma Puja, it

is common knowledge that children and teaching personnel come to

the school for celebrations. Thus, presence of PW 2 at the school on

17.9.2015 cannot be said to be wholly improbable. On the other hand,

version of PW 2 finds corroboration from the depositions of other

victims namely PWs 4, 6, 8, 10, 13 and 14. All the children were

students in the school. They have unequivocally stated that the

appellant had subjected them similar acts of penetrative sexual

assault.

Learned counsel for the defence counsel argues that the

evidence of the minor victims are vague and they do not refer to the

date of assault. While appreciating the evidence of minor victims of

sexual assault, it is important to bear in mind their tender age and

their relationship with the accused. Victims are school going children

studying in Class-II. Appellant was their school master and had

continuous access to them during school hours. Taking advantage of

such situation, the appellant had committed acts of penetrative sexual

assault on them. In this backdrop it is not possible for the victim to

state the exact dates on which they were sexually exploited. Their

versions must be seen in the backdrop of the depositions of their

parents namely PWs 5, 7, 9, 11 and 15. They are the mothers of the

aforesaid victims. These witnesses stated that their daughters were

sexually assaulted by the teacher in the month of Bhadra i.e August

2015. Out of shame and fear they kept mum till PW 1, mother of PW 2

brought out the matter for public discussion in the Samity. At the

Samity, a decision was taken to report the matter to the police and the

matter came to be reported. All the families of the victims are members

of Scheduled Tribe. They are illiterate or semi-literate people and look

up with reverence to the educated gentry particularly school teachers.

In view of the superior status of the appellant, a school teacher in the

village community, families of the victims could not muster courage to

report the matter either to the school administration or the police

earlier. This conduct by no means would improbabilises the

truthfulness of the prosecution case. On the other hand, it

demonstrates the overwhelming and supervening impact of the

appellant as an educated school teacher over the families of the minor

victims.

Judged from this backdrop it is clear why the minor victims in

spite of being violated in the school kept mum and did not inform the

matter either to the headmaster or to their mothers who may have been

present as members of the midday meal teams. Only in the comfort and

security of their homes could the children narrate the incident to their

parents. Even then, out of fear and shame their parents kept mum

until PW 1 brought up the matter in the Mohila Samity, as aforesaid.

Finally, it is argued that the appellant is a victim of false

implication. Defence counsel referred to the cross-examination of PW 9,

mother of one of the victims, who stated there was dispute over

demand of extra subscription. Evidence had also come on record that

the appellant had been assaulted by family members of the victim after

the incident. Appellant exhibited the FIR registered by his wife (Ext A)

in that regard.

I am unable to subscribe to this submission of the appellant

also. Assault on the appellant after the incident was nothing but an

expression of outrage towards the abominable act of the appellant.

Being enraged the parents of the victims appear to have assaulted the

appellant. The other allegations in the FIR lodged by wife of the

appellant Ext A namely, demand of fake certificate by family members

of the children is an afterthought and not borne out from the evidence

on record. There may have been some dispute over demand of

subscription during Baga Panchami but such issue cannot be a ground

to implicate the appellant in a case of serial sexual assault on seven

minor students. It is highly improbable that the parents of seven minor

children would conjointly agree to falsely implicate the appellant in

connection with a dispute over demand of subscription in Baga

Panchami.

In the light of the aforesaid discussion, I hold that the

conviction and sentence of the appellant does not call for interference.

Appeal is accordingly dismissed.

Period of detention suffered by the appellant during

investigation, enquiry and trial shall be set off against the substantive

sentence imposed upon him in terms of Section 428 of the Code of

Criminal Procedure.

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 appellants upon completion of all formalities.

I agree.

(Ajay Kumar Gupta, J.)                               (Joymalya Bagchi, J.)



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