Gour Dutta vs Unknown
2023 Latest Caselaw 3012 Cal

28.04.2023

Ct. No. 236 CRA 237 of 2019

In the matter of: Gour Dutta

Mr. Uttam Kumar Ghosh .... for the Appellant

Mr. Bibaswan Bhattacharyya ... for the State

Mr. Bibaswan Bhattacharyya, learned Counsel

representing the State submits a report where from it appears

that Gour Dutta, the appellant has served out sentenced and

released on 1st June, 2021.

This criminal appeal challenges the judgement and order

of conviction passed by the learned Additional Sessions Judge,

1st Court at Sealdah 24 Pgs. (South) cum Special Judge under

the POCSO Act, 2012 in Special Case No.39 of 2018.

By the impugned judgment, learned trial court was

pleased to record an order of conviction against the appellant

for committing an offence within the meaning of Section 8 of the

POCSO Act and directed him to suffer imprisonment for three

years and to pay fine of Rs. 20,000/- with a default clause,

subject to the provision of Section 428 of the Code of Criminal

Procedure.

Briefly stated, Smt. Anita Devi set the criminal proceeding

in motion by informing the Officer-in-Charge of Beliaghata

Police Station in writing that on 7th August, 2018 her minor

daughter, is a student of Class- IX, was sexually assaulted by

the accused person while she was on her way to attend tuition

class. Earlier also the accused person sexually harassed the

victim girl and the matter was brought to the notice of

jurisdictional Police Station and Narkel Danga Police Station

Case No.11 dated 11th January, 2018 under Section 354D of

the IPC was registered. The information since disclosed offence

cognizable in nature the Officer-in-Charge of Beliaghata Police

Station Case No. 172 of 2018 dated 7th August, 2018 was also

registered under Section 354D of the IPC and Section 12 of the

POCSO Act. Police took up the investigation which culminated

into submission of charge sheet against the accused person.

Trial commenced on 14th September, 2018 and the

accused person stood the trial pleading his innocence to the

charge under Section 8 of the POCSO Act. In order to crown

success prosecution examined 7 witnesses and learned trial

court after considering the evidence, both oral and

documentary was pleased to pass the impugned judgement.

Mr. Uttam Kumar Ghosh, learned counsel representing

the appellant submits that the learned trial court passed the

impugned judgement without appreciating properly the

evidence on record. Drawing my attention to the testimony of

the victim girl, Mr. Ghosh submits that the accused person is a

driver of auto-rickshaw. The incident allegedly took place at

about 11-30 a.m. while the victim girl admittedly was on her

way back from school by a bus, as disclosed by PW1 during

cross-examination. This statement of the victim is sufficient

destroy the prosecution case. As admittedly she was

undertaking a journey by bus, there was no room for the

accused person to restrain her or to assault her sexually. It is

further contended that testimony of the victim girl is not getting

support from any other witnesses including the doctor.

The attending medical officer, PW-5 in her testimony

stated that though she examined the victim girl on 19th

August, 2018 at NRS Medical College and Hospital, she did not

find any injury on her genital organ.

It is contended by Mr. Ghosh, learned counsel for the

appellant that the investigation was not conducted properly.

The I.O. did not draw the sketch map, did not visit the tuition

centre, did not examine the students or the teacher of that

coaching centre. Even the prosecution fails to produce any

extract of the GD entry which is mandatory on the part of the

I.O. to record before leaving the Police Station for the

investigation and after returning to the Police Station. There is

unexplained delay in sending the vaginal swab for chemical

examination. Cumulative effect of all such omissions is bound

to have a fatal impact by learned Trial Court failed to appreciate

the same.

Refuting such contention, Mr. Bibaswan Bhattacharyya,

learned counsel representing the State submits that the victim

while adducing evidence as PW-1 narrated the incident that

happened while she was going to attend her tuition class and

not on her way back from the school. That apart, the manner of

sexual assault committed by the accused person is not

expected to cause a mark of injury on the genital organ of the

victim, which is why the attending doctor did not find any

injury on the person of the victim. According to Mr.

Bhattacharyya, there is nothing to impeach the credibility of the

victim girl or to disbelieve her testimony. She rather stood the

test of cross-examination. The testimony of the victim girl alone

is sufficient to justify the order of conviction. Although the

testimony of Laltu Singh P.W.6 is lending support to the

testimony of victim girl, with all fairness Mr. Bhattacharya

further indicates that Mr. Laltu Singh was not cited as witness

in the charge sheet.

Upon perusal of testimony of victim girl, P.W. 1, 1 find

that she has stated clearly that while she was going to attend

her tuition class on 6th August, 2018 at about 11-30 a.m., on

the way the accused appeared. She was restrained and sexually

harassed by the accused. There was no cross-examination on

that material point. It is the settled principle of law that

absence of cross-examination on material particular amounts

to admission.

Under such circumstances, the testimony of victim girl

inspires confidence in the mind of Court and I do not find any

reason to look for any corroborative piece of evidence as that

would amount to adding salt to her injury to the dignity of the

victim girl as well. After all, she is not an accomplice.

Under such circumstances, I do not find any reason to be

in agreement with the view expressed by Mr. Uttam Kumar

Ghosh, learned counsel for the appellant. The appeal is devoid

of merit and is dismissed.

Since the victim girl was sexually assaulted by the

accused person, learned trial court ought to have followed the

statutory mandate as laid down under Section 33(8) of the

POCSO Act read with Rule 9 of the POCSO Rules, 2020 and

should have awarded compensation. Before parting with the

case, I direct the State Legal Services Authority to grant a sum

of Rs.1 lakh towards compensation to the victim.

Let a copy of the judgment be sent down to the learned

trial court for information and necessary action.

Urgent certified photostat copy of this order, if applied

therefor, should be made available to the parties upon

compliance with the requisite formalities.

(Siddhartha Roy Chowdhury, J.)