Calcutta High Court (Appellete Side)
Prafulla Mura vs The State Of West Bengal on 3 August, 2023
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present:-
HON'BLE JUSTICE CHITTA RANJAN DASH.
AND
HON'BLE JUSTICE PARTHA SARATHI SEN
CRA (DB) 29 of 2022
With
CRAN 2 of 2022
Prafulla Mura
Versus.
The State of West Bengal
For the Appellant : Mr. Amal Krishna Samanta, Adv.
For the State : Mr. Bibaswan Bhattacharya, Adv.
Last Heard on : 25.07.2023
Judgment on : 03.08.2023
PARTHA SARATHI SEN, J. : -
1. In this appeal the judgement of conviction dated 01.12.2021 and
order of sentence dated 02.12.2021 as passed in ST 8 of 2021 arising out of
SC 155 of 2020 by the Learned Additional Sessions Judge, 2nd Court,
Tamluk, Purba Medinipur has been impugned. By the impugned judgement
learned trial court found the present appellant guilty of offence under
Section 6 of POCSO Act and thus sentenced him to suffer R.I for 20 years
and also to pay fine of Rs.25,000/- i.d. to suffer further R.I for six months
with a recommendation to pay Rs. 3 lacs to the victim girl as compensation
by the State Government after adjusting the interim compensation of
Rs.50,000/- . The convict felt aggrieved and thus preferred the instant
appeal.
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2. For effective disposal of the instant appeal the facts leading to
initiation of the aforesaid trial is required to be dealt with in a nutshell.
3. On 29.11.2020 one Shri X (name and other details not disclosed to
avoid identity) the father of the alleged victim girl lodged a written complaint
with the O/C Tamluk P.S, District Purba Medinipur stating inter alia that on
28.11.2020 a Kali Puja was held at his village where his daughter Ms. Y
(name and other details not disclosed to avoid identity) (hereinafter referred
to as the 'victim girl') went to participate along with some of her friends. It
has been alleged further in the said written complaint that the present
appellant who was then aged about 40 years took the victim to a nearby
arum field (Kochu Bon) at about 8:30 pm and thereafter inserted his finger
in the vagina of the victim girl as a result whereof the victim girl suffered
bleeding injury and thereafter the victim girl narrated the entire incident to
the informant and at that time she was crying. It is the further version of the
informant that thereafter she was taken to Tamluk District Hospital where
the victim was admitted for her treatment as her injury was serious. On the
basis of the aforesaid written complaint Tamluk P.S Case no. 678 of 2020
dated 29.11.2020 under Section 376 AB IPC and Section 6 of POCSO Act
was started.
4. Investigation was taken up and after completion of the same charge
sheet was submitted both under Section 376 AB IPC and Section 6 of the
POCSO Act against the appellant.
5. Lower Court Record reveals that on 22.01.2021 learned trial court
being the Special Court under the POCSO Act considered the charges
against the present appellant and accordingly charges under Section 376 AB
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IPC and Section 6 POCSO Act were framed against the present appellant.
Since the present appellant pleaded his innocence before the learned trial
court, the trial proceeded.
6. Trial Court Record reveals further that for bringing home the charges
as framed against the appellant the prosecution has examined 14 witnesses
in all and several documents have been exhibited on their behalf. It is
however pertinent to mention herein that before the learned trial court no
evidence was adduced on behalf of the defence. However, from the trend of
cross-examination and from the answers as given by the present appellant
in course of his examination under Section 313 Cr.P.C, it appears that the
defence case is based on clear denial and false implication.
7. The prosecution witnesses before the learned trial court can be
categorized in the following manner:-
Private witnesses Court Officials Police Officials
PW1-victim girl. PW11- A doctor of PW8- A lady
Tamluk Hospital constable
under whom
treatment of the
victim girl was done.
PW2-informant and PW12- Another doctor PW10- Another lady
father of the victim of Tamluk Hospital constable
girl. who conducted
medico-legal
examination of the
victim girl.
PW3-Grandmother of PW14- The doctor PW8- Another lady
the victim who examined the constable
appellant.
PW4- A co-villager of PW13- I.O.
the informant
PW5 -A co-villager of
the informant
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PW7- A co-villager of
the informant
PW6-A quack doctor
of the locality.
PW9- Driver of the
vehicle by which the
victim was taken to
hospital.
8. On appreciation of the evidence, both oral and documentary as
adduced by the aforementioned prosecution witnesses learned trial court
considered that the evidence of the victim who is a minor is convincing and
trustworthy and is unaffected by any external factors. Learned trial court
also found that the evidence of the doctor who treated the victim i.e. PW11
read with the evidence of PW2 and PW3 are indicative of the offence under
Section 6 of the POCSO Act with which the appellant was charged and the
learned trial court also came to a specific finding that the injuries suffered
by the victim girl at her private parts has been caused on account of
aggravated penetrative sexual assault committed by the appellant and thus
convicted the present appellant in the said case.
9. In course of his argument learned advocate for the appellant submits
before this Court that the learned trial court while passing the impugned
judgement most wrongly considered the evidence of the victim girl i.e. PW1
as gospel truth and learned trial court has equally failed to visualize that
PW1 is basically a tutored witness which is evident from the evidence as
adduced by PW2 (informant) and PW3 (the grandmother of the victim girl). It
is further argued that while passing the impugned judgement learned trial
court failed to visualize that the incident alleged to have occurred with the
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victim girl by the present appellant cannot happen since on the relevant day
and hour the P.O and its surrounding area was thickly populated on
account of village Kali Puja and there cannot be any occasion to commit
crime by the present appellant upon the victim. Drawing attention to the
evidence of PW3 vis-à-vis Exhibit 4/1 being the bed head ticket and
discharge certificate of the victim it is argued that if the aforesaid oral
evidence and documentary evidence are considered together, it would reveal
that PW3 being the grandmother of the victim girl to whom the victim girl
first narrated the incident had stated altogether a different story about the
alleged incident which according to PW3 occurred on account of an accident
but in the FIR an altogether different story has been stated implicating the
present appellant since there lies a village rivalry between the present
appellant and the family members of the victim girl which is also evident
from the cross-examination of PW3. It is further argued on behalf of the
present appellant that in the impugned judgement learned trial court has
misinterpreted the provision of Section 29 of the POCSO Act in a completely
wrong perspective for which the instant appeal may be allowed by setting
aside the impugned judgement.
10. Per contra, learned advocate for the State however contends that the
learned trial court is very much justified in passing the impugned
judgement since he found the evidence of PW1 being the victim girl is not
the outcome of any tutoring or influence and that both PW2 and PW3 being
the father and grandmother of the victim girl also adduced corroborative
evidence which may not be doubted. It is further submitted that the learned
trial court has rightly found that there are sufficient materials on record to
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draw a presumption of guilt under Section 29 of the POCSO Act as against
the accused which cannot be disproved by the accused in the said case and
therefore the learned trial court is very much justified in passing the
impugned judgement. Learned advocate for the State thus submits that it is
a fit case for dismissal of the instant appeal.
11. We have meticulously gone through the entire materials as placed
before us including the evidence as adduced before the learned trial court,
both oral and documentary. We have also gone through the impugned
judgement as passed by the learned trial court. We have given our due
consideration over the submissions of the learned advocates for the rival
parties.
12. In order to come to a logical conclusion of the instant appeal we
propose to deal with the evidence of those prosecution witnesses which in
our considered view are necessary for effective disposal of the instant
appeal. On perusal of the evidence of PW1 being the victim girl it reveals to
us that in her examination-in-chief she has given vivid description as to how
the alleged incident occurred with her at the instance of the present
appellant and thereafter she narrated the entire alleged incident to her
grandmother (PW3) and thereafter her grandmother intimated the alleged
incident to her father (PW2) and thereafter both of them took her to Tamluk
Hospital where she was taken to O.T and in the O.T stitches were given in
her private parts and latter she narrated the entire incident to a lady judicial
magistrate. It thus appears to us that the examination-in-chief of PW1 is
almost similar to the facts as stated by the informant in his written
complaint being Exhibit 3.
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13. At his juncture if we look to the evidence of PW2 i.e. the informant
and the father of the victim it reveals to us that in his examination-in-chief
he testified that on the relevant day and hour the present appellant called
the victim girl to the backside of the temple which was a dark place.
However, if we look to the cross-examination of PW1 it appears that PW1
being the victim in her cross-examination categorically stated that the entire
temple area was illuminated with so many lights on the occasion of Kali Puja
vis-à-vis if we also look to the cross-examination of PW3 we find that on the
relevant day and hour some village people were preparing offerings (bhog) in
the backside of the said temple. Such being the position in our considered
view it is difficult to accept that on the relevant day and hour the backside
of the temple was dark and lying vacant.
14. At this juncture if we look to the sketch map of the P.O being Exhibit
13 as prepared by the I.O i.e. PW13 it reveals to us that the P.O being the
Arum field (Kochu bon) is situated on the northern side of the kali temple
i.e. backside of the kali temple. From the cross-examination of PW2 it
reveals also that there is a metal road beside the said Kali Temple. It is
pertinent to mention herein that PW1, PW2 and PW3 in their respective
examination-in-chiefs categorically stated that on the relevant day and hour
the victim was taken to P.O from the courtyard of the Kali Temple through
its backside. It is also the deposition of the said PWs that on the relevant
day on account of Kali Puja many people assembled there but from the
cross-examination of PW13 being the I.O it reveals to us that none of the
witnesses stated before him that on the relevant day and hour they found
the accused at the P.O. In view of such contradictory evidence the presence
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of the present appellant at the P.O on the relevant day and hour has become
really doubtful.
15. We have noticed another inconsistency in the evidence of PW2 and
PW3 which the learned advocate for the State could not explain in course of
his argument. As discussed above from the evidence of PW1, PW2 and PW3
it comes out that immediately after the alleged incident PW1 , the victim girl
reported the incident to her grandmother being PW3 and PW3 in turn
reported the said matter to his son PW2 being the informant and father of
the victim and thereafter both PW2 and PW3 took PW1 (victim girl) to
Tamluk District Hospital where PW2 and PW3 stated before the attending
doctor that the incident occurred on account of fall of the victim girl upon a
bamboo stick. In her evidence PW2 made an attempt to explain such
discrepancy by saying that she has been advised to tell such version by one
Gobindo Burman on the pretext it would facilitate quick admission in the
hospital. Astonishingly, the said Govindo Burman has not been cited as a
prosecution witness and therefore the present appellant being the accused
before the learned trial court got no opportunity to cross-examine the said
Gobindo Burman in order to test the veracity of PW3 with regard to her such
testimony. The evidence of PW3 with regard to her statement before the
doctor regarding the accident of PW1 (which was changed while lodging the
FIR) becomes more suspicious in view of the following cross-examination of
PW3.
"i. It is fact that there is a concrete road in front of the said temple.
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ii. It is fact that a dispute was cropped up in between our family and
the other villagers, regarding the construction of the said concrete
pathway.
iii. Prafulla Mura is in the front line among those villagers at the time of
the said dispute.
iv. It is fact that since then I have a dispute with accused Prafulla
Mura."
16. We have also noticed that before the learned trial court PW13 was
contradicted with regard to the deposition of PW3 to which the said PW 13
being I.O testified the following:-
"None of the witnesses stated before me that they saw accused Prafulla
Mura at P.O on the date and time of incident.
PW2 did not state before me that at the relevant point of time accused
Prafulla Mura@ Chuna Mura of their village called his daughter to the
backside of the said temple which was a dark place."
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"She also did not state before me that at that time she was listening
Kirtan song near that temple and after sometime her granddaughter
came to her in an undressed condition and told her that accused Chuna
Mura did something with her and then her granddaughter dragged her
to their house by pulling her sari and showed her wearing apparels,
stained with blood."
17. In view of the aforesaid clinching testimony of PW13 we have no doubt
that the omission on the part of PW3 regarding the actual state of affairs to
PW13 is definitely a material omission which tantamounts to contradiction
as per the provision of proviso clause of Section 162 of Cr.P.C read with
Section 145 of the Evidence Act. In this regard we may safely rely upon the
reported decision of Sunil Kumar Sambhu Dayal vs. State of
Maharashtra reported in (2010) 13 SCC 657: (2011) 1 CCrLR (SC) 373
wherein the Hon'ble Apex Court while dealing with Section 162 Cr.P.C and
Section 145 (c) of the Evidence Act clearly indicates what tantamounts to
material contradiction and/or omission in the following manner:-
"30. While appreciating the evidence, the court has to take into
consideration whether the contradictions/omissions had been of
such magnitude that they may materially affect the trial. Minor
contradictions, inconsistencies, embellishments or improvements
on trivial matters without effecting the core of the prosecution
case should not be made a ground to reject the evidence in its
entirety. The trial court, after going through the entire evidence,
must form an opinion about the credibility of the witnesses and
the appellate court in normal course would not be justified in
reviewing the same again without justifiable reasons.
31. Where the omission(s) amount to a contradiction, creating a
serious doubt about the truthfulness of a witness and the other
witness also makes material improvements before the court in
order to make the evidence acceptable, it cannot be safe to rely
upon such evidence.
32. The discrepancies in the evidence of eyewitnesses, if found to
be not minor in nature, may be a ground for disbelieving and
discrediting their evidence. In such circumstances, witnesses may
not inspire confidence and if their evidence is found to be in
conflict and contradiction with other evidence or with the
statement already recorded, in such a case it cannot be held that
the prosecution proved its case beyond reasonable doubt."
18. Since in the impugned judgement learned trial court has come to a
finding that there are sufficient materials on record to raise a presumption
under Section 29 of the POCSO Act as against the accused which the
accused could not rebut, we think it prudent to have a look to Section 29 of
the POCSO Act which reads as under:-
"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
section 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."
19. In the celebrated book 'R.P. Kataria commentary on the Protection of
Children From Sexual Offences Act, 2012' , the author has analyzed the
provision of Section 29 in the following manner:-
" A perusal of the provision of the Section 29 of the POCSO Act,
2012(32 of the 2012), does show that it is for the accused to
prove the contrary and in case he fails to do so, the presumption
would operate against him leading to his conviction under the
provisions of the POCSO Act. It cannot be disputed that no
presumption is absolute and every presumption is rebuttable. It
cannot be countenanced that the presumption under Section 29 of
the POCSO Act is absolute. It would come into operation only
when the prosecution is first above to establish facts that would
form the foundation for the presumption under Section 29 of the
POCSO Act to operate. Otherwise, all that the prosecution would
be required to do is to file a charge sheet against the accused
under the provisions of the said Act and then claim that the
evidence of the prosecution witnesses would have to be accepted
as gospel truth and further that the entire burden would be on the
accused to prove to the contrary. Such a proposition of law or
interpretation of the presumption under Section 29 of the POCSO
Act cannot be accepted as it would clearly violate the
constitutional mandate that no person shall be deprived of liberty
except in accordance with procedure established by law."
20. Keeping in mind the proposition of law as enunciated in Section 29 of
the POCSO Act and its authoritative analysis and on overall consideration of
the entire materials as gathered from the LCR it reveals to us that before the
learned trial court the prosecution has miserably failed to establish the facts
beyond reasonable doubt to form the foundation for presumption against
the accused on account of the aforementioned inconsistency and therefore
in our considered view, no occasion arrises on the part of the present
appellant to rebut such presumption. Thus we are constrained to hold that
the learned trial court while passing the impugned judgement has failed to
consider the true implication of Section 29 of the POCSO Act in its proper
perspective for which our interference are very much warranted.
21. At this juncture we propose to refer a reported decision of State of
Rajasthan vs. Raja Ram reported in (2003) 8 SCC 180 where the Hon'ble
Apex Court expressed the following view:-
" The golden thread which runs through the web of administration of
justice in criminal cases is that if two views are possible on the
evidence adduced in the case , one pointing to the guilt of the accused
and the other to his innocence , the view which is favourable to the
accused should be adopted."
22. In view of the discussion made hereinabove we thus find sufficient
merit in the instant appeal and accordingly the instant appeal is hereby
allowed.
23. Consequently the impugned judgement of conviction dated
01.12.2021 and order of sentence dated 02.12.2021 as passed in ST 8 of
2021 arising out of SC 155 of 2020 by the learned Additional Sessions
Judge, 2nd Court, Tamluk, Purba Medinipur is hereby set aside.
24. The present appellant being Prafulla Mura is thus found not guilty
under Section 6 of the POCSO Act and is thus acquitted from ST 8 of 2021
arising out of SC 155 of 2020 as disposed of by the learned Additional
Sessions Judge, 2nd Court, Tamluk, Purba Medinipur.
25. The present appellant be set at liberty at once if not wanted in
connection with any other case.
26. So far as the order of the learned Trial Court regarding compensation
is concerned, that is also waived in view of the acquittal of the appellant.
We, however, confirm the interim compensation if already given to the victim
as any order for refund of that amount shall cause harassment to the victim
whose family is otherwise stated to be impoverished.
27. Department is hereby directed to forward a copy of this judgement
along with LCR to the learned trial court who in turn shall transmit the copy
of this judgement to the superintendent of the correctional home where the
present appellant is detained now for his immediate release.
28. Department is further directed to forward a copy of this order to the
Secretary, District Legal Service Authority, Purba Medinipur with a direction
to the Secretary, District Legal Service Authority, Purba Medinipur to
forward a copy of this judgment to the Superintendent of Correctional Home
where the present appellant is detained now to expedite his release, if he is
not wanted in connection with any other case.
29. Urgent Photostat Certified copy of this judgment, if applied for, be
supplied to the parties expeditiously after complying with all necessary legal
formalities.
I agree.
(Chitta Ranjan Dash, J.) (Partha Sarathi Sen, J.)
