Raja Ruidas vs The State Of West Bengal
2023 Latest Caselaw 4278 Cal

             In The hIgh CourT AT CAlCuTTA
                 Criminal Appellate Jurisdiction
                           Appellate Side
 Present:
 The Hon'ble Justice Debangsu Basak
                     And
 The Hon'ble Justice Md. Shabbar Rashidi
                      CRA (DB) 70 of 2022
                     IA NO: CRAN/1/2022

                   Raja Ruidas........ Appellant

                                 Versus

                    The State Of West Bengal

 For the Appellant s       : Mr. Sekhar Basu, Ld. Senior Adv.
                           : Mr. Sandipan Ganguly, Ld. Sr. Adv.
                           : Ms. Manaswita Mukherjee, Adv.


 For the State             : Mr. Neguive Ahamed, Ld. A.P.P.
                           : Mrs. Zareen N. Khan, Adv.
                           : Mr. Arup Sarkar, Adv.
 Hearing Concluded On: May 04, 2023

 Judgment On               : July 18, 2023
Md. Shabbar Rashidi, J.

1. The appeal is directed against the judgment of

conviction and order of sentence dated March 30, 2022

passed by learned 2nd Additional Sessions Judge cum

Special Court under POCSO Act, in Sessions Trail No. 03

(02) of 2019 arising out of Special Case No. 10 of 2018.

2. By the impugned judgment and order, the appellant

was convicted for the offence punishable under Section

376 (2) (n) of the Indian Penal Code, 1860 and Section 6

of the Prevention of Children from Sexual Offences Act,

2012. He was sentenced to undergo rigorous

imprisonment for ten (10) years with a fine of Rs.50,000/-

(Rupees Fifty Thousand Only) and in default of payment

of fine, he was sentenced to undergo simple

imprisonment for a further period of one year for the

offence punishable under Section 376 (2)(n) of the Indian

Penal Code.

3. The appellant was also sentenced to undergo

rigorous imprisonment for ten (10) years with a fine of

Rs.50,000/- and in default of payment of the fine, he was

sentence to undergo simple imprisonment for a further

period of two years for the offence punishable under

Section 6 of the Prevention of Children from Sexual

Offences Act, 2012.

4. Both the sentences were directed to run

concurrently.

5. The victim lodged a written complaint with the

Bankura women police station to the effect that the

appellant managed to collect the mobile number of the

victim about a year ago and used to disturb her. He used

to give love proposals to her. She was not agreeable at

first, but later on she agreed to such proposal. She had a

prolonged love affair with the appellant. The victim also

stated that one day she was called by the appellant to his

shop. She went there when she was taken to an empty

room above his shoe store and was forcefully raped. He

asked her not to disclose the incident to anyone. The

appellant, thereafter, went on with repeated physical

relations with the victim on the promise to marry her. He

also threatened the victim to harm her if she disclosed

the incident to anybody. The appellant had a forceful

physical relation with the victim about one month prior

to lodging of the written complaint but thereafter, he kept

no contact with the victim. She later came to know that

the appellant had gone to his native place and married

some other girl. Thereafter, the victim informed the

incident to her parents.

6. On the basis of such written complaint, Bankura

Women Police Station Case No. 29 of 2018 dated June

22, 2018 under Sections 376 (2)(i)(n) of the Indian Penal

Code and Section 4/6 of the Prevention of Children from

Sexual Offences Act was started against the appellant.

7. The police took up investigation and on completion

thereof submitted charge sheet. Accordingly, on the basis

of materials in the Case Diary, charges under Section

376 (2)(n) of the Indian Penal Code and Section 6 of the

POCSO Act were framed against the appellant on

February 12, 2019. The appellant pleaded not guilty and

claimed to be tried.

8. In order to prove the charges, the prosecution

examined as many as 11 witnesses. In addition,

prosecution relied upon documentary and material

evidences as well. On completion of the evidence of the

prosecution, the appellant was examined under Section

313 of the Code of Criminal Procedure where he claimed

innocence having committed no offence at all. He also

alleged to have been falsely implicated in the case.

9. Learned advocate for the appellant submitted that

the prosecution has failed to bring home the charges

levelled against the appellant. It was contended that the

prosecution has not been able to establish the allegations

as set out in the First Information Report. Referring to

the evidence of the prosecuterix, it was contended that

there are contradictions in her statement with regard to

the identification of the place of occurrence and for this

reason the evidence of the victim is not at all believable.

10. Learned advocate for the appellant further

submitted that PW1 had also alleged that she was

assaulted by the appellant but no such case was made

out at the time of adducing evidence.

11. It was also submitted that the prosecuterix never

averred that she identified the place of occurrence to the

investigating officer; nevertheless, the investigating officer

was able to draw up the sketch map of the place of

occurrence. It was also not disclosed by him as to who

identified him the exact place of occurrence.

12. Learned advocate for the appellant also submitted

that the learned trial court did not take into account the

evidence to the effect that at the relevant time the shop

room of the appellant remained closed for two years on

account of illness of his father which rendered the

commission of the offence alleged improbable, at the

place of occurrence proved by the prosecution.

13. The learned advocate for the appellant also

highlighted the delay in lodging the First Information

Report. It has been contended that the victim did not

make any complaint for a considerable period and it was

lodged only after the appellant got married. She did not

lodge any complaint against the appellant even after May

5, 2018 when the appellant is alleged to have made the

last physical relation with the victim and eloped. It is

alleged that the conduct of the victim goes to show that

she lodged the case with a view to harass the appellant

and is an outcome of an afterthought.

14. Referring to the evidence of the victim learned

advocate for the appellant submits that there are

material contradictions in the deposition of the victim

vis-a-vis her statement recorded under Section 164 of the

Code of Criminal Procedure, specially with reference to

procurement of mobile number of the victim. The

investigating officer did not seize the mobile phone of the

victim or the appellant nor call detail recordings were

procured to establish the allegation.

15. According to learned advocate for the appellant the

testimony of the prosecuterix was not at all reliable,

unimpeachable and of sterling quality. A conviction on

the basis of such evidence cannot be sustained.

16. The learned advocate for the appellant also

contended that the investigating officer failed and

neglected to interrogate independent witnesses who could

shed light on the events leading to alleged commission of

the offence. Moreover, the independent witnesses

examined on behalf of the prosecution went hostile,

nevertheless, the learned trial court went on to convict

the appellant.

17. It was also contended that the medical evidence

collected during investigation does not corroborate the

case of the prosecution. The doctor did not find any

injury on the private parts of the victim. The prosecuterix

or her mother did not disclose the name of the appellant

before the doctor as the perpetrator.

18. Learned advocate for the appellant also submitted

that the learned trial court erred in convicting the

appellant on the basis of the presumption envisaged

under Section 29 and 30 of the Act of 2012. It was

contended that in order to attract the presumptions, the

prosecution was under obligation to prove the basic

foundation facts leading to the commission of the offence

by the appellant. It was only after the foundational facts

were proved, the learned trial court could have proceeded

on the basis of presumptions provided under Sections 29

and 30 of the POCSO Act. It was submitted further that

the prosecution had failed to prove the place of

occurrence and there were material contradictions in the

testimony of the prosecuterix vis-a-vis her statement

recorded under Section 164 of the Code of Criminal

Procedure. In support of such contention, learned

advocate for the appellant has relied upon 2022 SCC

Online Cal 255 (Ganesh Orang V. State of WB and

Anr.), 2017 SCC Online Cal 5023 (Sahid Hossain

Biswas V. State of West Bengal), 2020 SCC Oline Cal

522 (Sitaram Das V, State of West Bengal), SCC 2021

Online Cal 2470 (Ranjit Rajbanshi V. State of West

Bengal & ors.) and 2020 SCC Online Cal 248 (Litan

Sarkar V. State of West Bengal).

19. Learned advocate for the appellant also contended

that the learned trial court ignored the evidence led on

behalf of the defence that the alleged place of occurrence

remained closed for two years on account of the illness of

the father of the appellant as such there was no occasion

for the victim to have visited the place of occurrence

responding to the purported call by the appellant. It was

submitted that the prosecution having failed to prove the

charges beyond reasonable doubts and the presumption

attached to Section 29 and 30 of the Act were not

applicable; the learned trial court was not justified in

convicting the appellant. As such the impugned

conviction and sentence is liable to be set aside.

20. As noted, the prosecution examined eleven

witnesses to prove the charges. The victim herself

deposed as PW1. She stated that she knew the appellant

who had a shoe selling shop in her para. The appellant

somehow collected her mobile number from someone and

used to annoy her over phone since one year prior to the

incident. The appellant used to give love proposals to the

victim which she refused at first but ultimately, she

agreed to such proposal.

21. PW1 also stated that one day the appellant called

her to his shop room over mobile phone. She went there.

The appellant took her into a room situated besides the

shop room and expressed his desire to have physical

relationship with PW1 and wanted such physical relation

forcefully. The victim tried to get out of the room but the

appellant caught hold of her and thrown her on the bed

and thereafter, he committed sexual intercourse upon

PW1. She further stated that after committing sexual

intercourse, the appellant assured the victim to marry

her and also threatened her to do harm to her life if she

told about the incident to anyone. Accordingly, PW1 did

not disclose the incident of sexual intercourse to anyone.

22. PW1 also stated that after such sexual intercourse,

the appellant used to commit sexual intercourse upon

her upon assurance to marry her, last of which was

committed on May 22, 2018 in the said room situated

over the shoproom. After that, the appellant stopped

keeping relations with PW1. The victim later came to

know that the appellant left for his native place and

married another girl. Thereafter, PW1 reported the

incident to her parents who visited the house of the

appellant but they were driven out by the appellant and

his parents.

23. Ultimately, PW1 accompanied by her parents and

para people went to women police station and reported

the matter to police. She tendered the written complaint

in evidence which was marked as Exhibit 1. She also

made a statement about the incident before learned

Magistrate and tendered her statement recorded under

Section 164 of the Code of Criminal Procedure (Exhibit

2). She was also medically examined where she narrated

the incident to the doctor. PW1 was cross examined on

behalf of the appellant at length.

24. The aunt of the victim was examined as PW2. She

stated that the victim was the daughter of her sister. PW1

had a love affair with the appellant who had a shoe shop

in the locality. She further stated that in course of love

affair, the appellant committed rape upon the victim. She

was reported about the incident by PW1 after the

appellant married another girl. She identified the

appellant in court.

25. The mother of the victim deposed as PW3. She

stated that her daughter was a student of Class XI at the

time of her deposition. At the time of incident, she was

aged about 16 years. She tendered the birth certificate of

her the victim which was marked as Exhibit 3. She

further stated that the appellant had a shoe selling shop

in her locality. He had a love affair with the victim. He

committed sexual intercourse upon her daughter upon

an assurance to marry her. The appellant, however,

married another girl and then her victim daughter

disclosed the incident to her. Knowing about the

incident, PW3 went to the house of appellant where he

denied everything. She was driven out by the appellant

and his mother.

26. PW3 also stated that the victim told her that she did

not disclose the incident to her earlier as the appellant

had threatened her if she disclosed the incident to

anyone, he would not marry her. After returning from the

house of the appellant, PW3 went to local police station

with the victim and reported the incident. She narrated

the incident before police as well as before learned

Magistrate. Learned Magistrate recorded her statement

which was read over and explained to her and she signed

on such statement. PW3 tendered her statement recorded

under Section 164 of the Code of Criminal Procedure and

signatures thereon which were marked as Exhibit 4

series. She also stated that the victim was medically

examined. She identified the appellant in court.

27. One cousin sister of the victim was examined as

PW4. She stated that the victim was a student of her

school and used to go to school and tuition with her. She

further stated that the victim told her that she had a love

affair with the appellant who used to take her here and

there by his motorbike. She was also reported that the

appellant used to call the victim at his shoproom and

forcibly commit sexual intercourse upon the victim. PW4

was also requested by the victim not to tell anyone about

the matter. She was interrogated by the police in

connection with the case. She identified the appellant in

court.

28. A neighbour of the victim was examined as PW5.

She stated that she knew the victim and her parents. She

however did not know anything about the incident. She

identified the appellant in court. PW5 was declared

hostile by the prosecution and in her cross-examination

on behalf of the prosecution, she denied having made any

statement before police. The defence declined to cross-

examine the witness.

29. The medical officer who examined the victim

deposed as PW6. He stated that on June 29, 2018, he

examined the victim in presence of her mother being

identified by a lady constable of police. Upon such

examination he found the hymen of the victim ruptured

with no history of bleeding. He further stated that the

victim stated before him about a history of physical

relationship about a month prior to the date of

examination. PW5 tendered the report prepared under

his pen and signature which was marked as Exhibit 5. In

his cross-examination, PW5 stated that the victim or her

mother never disclosed at the time of examination, the

name of the person with whom the victim had physical

relation.

30. The father of the victim deposed as PW7. He stated

that the victim was aged about 17 years studying in class

XI. At the time of incident she was studying in class X.

PW7 also stated that the appellant had a love affair with

the victim. He used to follow the victim on her way to

school. The appellant committed sexual intercourse upon

the victim after calling her to his shop room upon an

assurance to marry her. He also stated that he was

reported about the incident by the victim and her

mother. The victim lodged a police complaint against the

appellant. He identified the appellant in court.

31. Another neighbour of the victim's family was

examined as PW8. She stated in her deposition that she

knew the victim and the appellant. The appellant had a

shoe selling shop in her locality. She however stated that

she did not know anything as to what happened to the

victim. She identified the appellant in court. This witness

was also declared hostile and in her cross-examination

on behalf of the prosecution, she denied having made any

statement before the police.

32. The Judicial Magistrate who recorded the statement

of the victim and her mother under Section 164 of the

Code of Criminal Procedure, deposed as PW9. She

testified the recording of the statement given by the

victim and her mother in terms of the provisions of

Section 164 of the Code of Criminal Procedure which was

duly read over and explained to the departments.

33. The investigating officer deposed as PW 10. She

stated that on June 22, 2018 she received the written

complaint from the victim and started a specific case

under Section 376 (2) (i) (n) of the Indian Penal Code,

1860 and Section 4/6 of the Protection of Children from

Sexual Offences Act, 2012. She proved her endorsement

of receipt in the written complaint (Exhibit 1/2) and the

Formal First Information Report (Exhibit 6).

34. PW 10 also stated that she took up the investigation

of the case and in course of investigation, she examined

the victim and the available witnesses under Section 161

of the Code of Criminal Procedure. She also arranged for

medical examination of the victim. She visited the place

of occurrence and prepared rough sketch map with index

of the place of occurrence (Exhibit 7). PW10 arrested the

appellant, arranged for recording the statement of the

victim and her mother under Section 164 of the Code of

Criminal Procedure. She also seized the birth certificate

of the victim under a seizure list (Exhibit 8) and sent the

vaginal Swab of the victim for chemical examination.

35. On completion of the investigation, she submitted

charge sheet against the appellant under Section376 (2)

(i) (n) of the Indian Penal Code and Section 4/6 of the

Protection of Children from Sexual Offences Act, 2012.

PW10 also stated that she PW5 had stated before her

that there was love affair between the appellant and the

victim and that she came to know that the appellant

committed sexual intercourse upon the victim on the

assurance to marry her. PW10 also stated that PW8

stated before her that she came to know from the mother

of the victim that the appellant called the victim to a

room and committed sexual intercourse upon her on the

pretext of love affair. PW10 also stated that PW8 made a

statement to the effect that the appellant sexual

intercourse upon the victim on several occasions. PW10

was cross examined on behalf of the appellant at length.

36. The medical officer who examined the appellant was

examined as PW 11. He stated that on June 27, 2018 he

examined the appellant in connection with the specific

case being identified by one lady sub- inspector of the

women police station. He further stated that on such

examination he found the appellant to be capable of

performing sexual intercourse. PW 11 tendered the report

prepared under his pen and signature in evidence which

was marked as Exhibit 9.

37. On conclusion of the evidence on behalf of the

prosecution, the appellant was examined under Section

313 of the Code of Criminal Procedure where he denied

the allegations and pleaded his innocence. In such

examination, the appellant proposed to adduce defence

witness.

38. The appellant himself deposed as DW 1. He stated

in his the position that he had submitted certain

documents relating to the treatment of his father. The

aforesaid documents were admitted in evidence and

marked as exhibit A series. He also proved photocopies of

certain medical documents duly countersigned by the

authorities which were marked as exhibit B series.

39. The appellant has been convicted for the offence

punishable under Section 376 (2)(i)(n) of the Indian Penal

Code and Section 6 of the Prevention of Children from

Sexual Offences Act. It is the allegation against the

appellant that the appellant had developed a love affair

with the victim and taking advantage of such

relationship, he called upon the victim to his shoproom,

took her to a lonely room and committed sexual

intercourse upon the victim on a promise to marry her.

He is also alleged to have had repeated sexual

intercourse on such promise and threatened the victim

that if she disclosed the relationship to any one he would

not marry her. The victim kept the sexual relationship

with the appellant clandestine until the appellant broke

up with the victim and actually married some other lady.

40. The evidence on record goes to show that at the

time of incident, the victim was studying in Class X and

was aged about 16 years. The parents of the victim PW3

and PW7 have stated that the victim was studying in

Class X at the relevant time and was aged 16 years.

Besides, the birth certificate of the victim was seized by

the police, which was marked as Exhibit 3. Such birth

certificate shows that the victim was born on January 16,

2002 which seems to be consistent with the statement of

the aforesaid witnesses. One of the cousin sisters of the

victim PW4 has also testified that at the material point of

time, the victim was a student of her school and both of

them used to go to school as well as for tuition together.

Therefore, the testimony of the aforesaid witnesses

together with Exhibit 3 goes to establish that at the time

of incident, the victim was aged about 16 years and was

a child as contemplated under Section 2 (1)(d) of the Act

of 2012.

41. The appellant is alleged to have had repeated sexual

intercourse upon the victim taking advantage of a love

affair between the victim and the appellant and that too,

on a promise to marry.

42. The victim PW1 in her deposition stated that the

appellant used to disturb the victim over phone. He used

to give love proposals to her for a considerable period.

She ultimately, succumbed to such proposal and a love

affair was developed between them. The existence of a

love affair between the appellant and the victim has been

testified by PW2, PW3, PW4 and PW7. PW4 has stated

that the appellant had a love affair with the victim and he

used to take her here and there by his motorbike. In his

examination the appellant denied the allegations but

inspite of adducing defence witness, the appellant did not

specifically denied his affair with the victim.

43. PW1, the victim further stated that the appellant

used to run a shoe selling shop in the locality and on one

day she was called upon by the appellant. She went to

the shop room of the appellant. The appellant took her to

a vacant room situated over the shop room and

committed sexual intercourse upon her. In fact,

according to the prosecution case, the appellant used to

have repeated sexual intercourse upon the victim since

they developed the love affair between them the last of

such intercourse was done on May 22, 2018. The

evidence of the medical officer PW6 together with the

medical report Exhibit 5 shows that the hymen of the

victim was found ruptured with no history of bleeding,

indicating thereby, that the victim was habituated to

sexual intercourse.

44. The prosecution has come up with a specific

allegation that taking advantage of his love affair with the

victim, the appellant committed sexual intercourse upon

the appellant upon a promise to marry her. The

prosecution witnesses have deposed that the appellant

had a prolonged love affair with the victim. In fact, PW4

had actually witnessed a part of such relationship while

she stated that the appellant used to roam here and

there with the victim on his motorbike. The victim herself

deposed to the effect that she had a relationship with the

appellant and continuance of such relationship, she was

called upon by the appellant to his shop room where the

appellant committed sexual intercourse upon her on

promise to marry her. He even threatened her not to

disclose such facts to anyone else the appellant would

not marry her. Accordingly, she did not disclose the fact

of repeated sexual intercourse to any one until the

appellant married some other lady. Later, the matter was

disclosed by the victim to her parents and relatives when

she came to know that the appellant has married some

other lady. There appear some plausible explanation for

not disclosing about the sexual relations before the

parents and relatives of the victim.

45. It is after such disclosure, that the parents of the

victim visited the residence of the appellant and after

being driven out there from, a police complaint was

lodged. There appears no delay in making the complaint.

46. It is trite law that there may be numerous reasons

for rupture of hymen of a lady and it does not

conclusively proves rape. But at the time same, the

prosecution has been able to establish the foundational

facts of the appellant being in love relationship with the

victim which occasioned him being in a position to

commit sexual assault upon the victim cannot be

ignored.

47. At the same time, we do agree with the views of the

learned trial court that in our society, a lady especially a

minor girl would feel shy in publicly disclosing a sexual

assault upon her in order to avoid a future social stigma.

48. In that view of the facts, the presumption enshrined

in Section 29 of the Act of 2012 would surely come into

play. The foundational facts having been proved by the

prosecution, it was incumbent upon the appellant to

establish the allegations were false and as to why he was

chosen from amongst the people in the town, to be falsely

implicated for the offence complained of. We are afraid;

the appellant has failed to discharge his onus.

49. In Ganesh Orang (Supra), the Hon'ble Coordinate

Bench noted material contradictions in the statement of

the prosecuterix with regard to the date, time and

manner of occurrence, and was pleased to hold that,

21. In order to attract the statutory presumption under Section 29 of the POCSO Act the factual foundations with regard to the ingredients of the offence under Section 6 of the said Act require to be established in the first place. In the present case, nothing has been placed on record on behalf of the prosecution to show that the victim was a minor at the time of occurrence. In her deposition PW 1 has not stated the age of the victim though the same is disclosed in the FIR. It is trite law that the FIR is not substantive evidence and may at its best to use to corroborate or contradict the maker. The only piece of evidence which is relied upon by the prosecution with regard to age of the victim is that she is a student. However, neither birth certificate nor the school records endorsing the age of the victim has been proved in the present case. No ossification test was also conducted with regard to the age of the victim in order to establish that she is a minor. If it is presumed that the victim was a minor, the inherent weakness and/or patent contradictions in the prosecution case itself render the statutory presumption inapplicable.

In Sahid Hossain Biswas v. State of West Bengal1 interpreting the aforesaid presumption, this Court held as follows:

"....... in a prosecution under the POCSO Act an accused is to prove 'the contrary', that is, he has to prove that he has not committed the offence and he is innocent.

It is trite law that negative cannot be proved [see Sait Tarajee Khimchand v. Yelamarti Satyam, (1972) 4 SCC 562]. In order to prove a contrary fact, the fact whose opposite is sought to be established must be proposed first. It is, therefore, an essential prerequisite that

the foundational facts of the prosecution case must be established by leading evidence before the aforesaid statutory presumption is triggered in to shift the onus on the accused to prove the contrary.

Once the foundation of the prosecution case is laid by leading legally admissible evidence, it becomes incumbent on the accused to establish from the evidence on record that he has not committed the offence or to show from the circumstances of a particular case that a man of ordinary prudence would most probably draw an inference of innocence in his favour. The accused may achieve such an end by leading defence evidence or by discrediting prosecution witnesses through effective cross-examination or by exposing the patent absurdities or inherent infirmities in their version by an analysis of the special features of the case. However, the aforesaid statutory presumption cannot be read to mean that the prosecution version is to be treated as gospel truth in every case. The presumption does not take away the essential duty of the Court to analyse the evidence on record in the light of the special features of a particular case eg. patent absurdities or inherent infirmities in the prosecution version or existence of entrenched enmity between the accused and the victim giving rise to an irresistible inference of falsehood in the prosecution case while determining whether the accused has discharged his onus and established his innocence in the given facts of a case. To hold otherwise, would compel the Court to mechanically accept mere ipse dixit of the prosecution and give a stamp of judicial approval to every prosecution, however,

patently absurd or inherently improbable it may be."

22. As discussed earlier, evidence of the minor suffers from patent contradictions with regard to her earlier statement to the magistrate vis-a- vis the time and place of occurrence as well as other inherent weaknesses. Glaring lacunae in the prosecution case undermines the credibility of the factual foundations which require to be prima facie established to attract the statutory presumption. When the primary facts relating to time, place and circumstances constituting the offence are not prima facie established due to patent contradictions or inherent improbabilities, such lacunae cannot be cured by resorting to statutory presumptions in law.

23. Hence, I am of the opinion in the light of the contradictory and inconsistent versions with regard to the allegation of rape levelled against the appellant, the factual foundations of the prosecution case has not been laid on the basis of preponderance of probabilities so as to attract the statutory presumption and the appellant is therefore entitled to an order of acquittal.

.

50. In the instant case, however, no such inconsistency

or contradiction was noted in the testimony of PW1. Her

age was established with the help of Birth Certificate. The

prosecuterix consistently stated that the appellant was in

a relationship with the victim for a considerable period

and taking advantage of such relationship, the appellant

committed the offence, repeatedly, over a period. The

prolonged relationship between the appellant with the

victim was corroborated by at least by PW4, the cousin

sister of the victim. Coupled with the factum of

relationship, on medical examination, the hymen of the

victim was found to be ruptured with no sign of bleeding.

Prolonged sexual activity may be a cause of rupture of

hymen. In that view of the facts, in the given set of facts

it would not be proper to say that foundational facts to

rope in the presumptions under Section 29 and 30 of the

Act of 2012, were not established.

51. In the case of Sahid Hossain Biswas (Supra) the

allegation against the accused was of forceful intercourse

on a solitary occasions resulting in bleeding injuries

whereas, such injuries could not be found on medical

examination of the victim. In the facts of the case at

hand, the sexual violation of the victim was not confined

to single occasion. It was also not forceful rather

consensual on apparently, false promise to marry spread

over a period of time. The medical evidence also conforms

to such proposition having regard to the relationship

between the appellant and the victim. In the given facts,

a prudent man cannot draw an inference of innocence of

the appellant.

52. In the case of Sitaram Das (Supra) inconsistencies

were found in the version of the prosecuterix rendering

the applicability of the presumptions attached to Section

29 & 30 of the POCSO Act doubtful. However, in the facts

of the present case the proscuterix, with the help of her

own testimony as well as that of her parents, aunt and

cousin sister was consistent in bringing home that the

appellant enjoyed prolonged love affair with the victim

which occasioned the commission of the offence by the

appellant followed by the medical evidence.

53. The case of Ranjit Rajbanshi (Supra) and Litan

Sarkar (Supra) also, noted that there were notable

discrepancies in the testimony of the prosecution

witnesses to establish the chain of events leading to the

alleged offence that could have brought in the

presumption under Section 29 of the Act of 2012.

54. However, in the case at hand, the prosecution

sufficiently established the prolonged love affair between

the appellant and the victim who was a minor which

provided the opportunity to the appellant to commit the

offence which was duly corroborated by medical evidence.

As such, considering the evidence on record it cannot be

said that foundational facts were not proved to attract

the presumptions under Section 29 of the POCSO Act.

55. Therefore, on the basis of the discussions made

hereinbefore, we find no reason to interfere with the

impugned judgment of conviction and order of sentence.

The same are hereby affirmed.

56. Accordingly, the appeal being CRA (DB) 70 of 2022

is hereby dismissed.

57. In view of the disposal of the appeal, no

interlocutory application survives. Consequently,

connected applications, if any, shall stand dismissed.

58. Trial Court records along with a copy of this

judgment and order be sent/transmitted, at once, to the

learned Trial Court for necessary action.

59. Period of detention already undergone by the

appellants shall be set of against the substantive

punishment in terms of the provisions contained in

Section 428 of the Code of Criminal Procedure.

60. Urgent Photostat certified copy of this order, if

applied for, be supplied to the parties on priority basis

upon compliance of all formalities.

[MD. SHABBAR RASHIDI, J.]

61. I agree.

[DEBANGSU BASAK, J.]