Sk. Selim @ Selim Sk. & Ors vs The State Of West Bengal & Anr
2023 Latest Caselaw 1966 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

                           C.R.A.59 of 2022
                         IA NO: CRAN/1/2022

                     Sk. Selim @ Selim Sk. & ors.
                                  VS.
                    The State of West Bengal & anr.

For the Appellant        :    Mr. Kamalesh Chandra Saha
                              Ms. Payel Mitra

For the State            :    Mr. Abhra Mukherjee,
                              Mr. Dipankar Mahata

For the Victim           :    Mr. Kallol Mondal,
                              Mr. Krishan Ray,
                              Mr. Souvik Das,
                              Mr. Ayan Mondal

Hearing concluded on :        24.03.2023

Judgement on :                24.03.2023


DEBANGSU BASAK, J.:-

1.

The appeal is directed against judgment of conviction and

order of sentence both dated March 16, 2022, passed by the

Second Additional District & Sessions Judge, Alipore, South

24 Parganas, in Sessions Trial No.05 (04) 2018 arising out of

Sessions Case No.231 of 2017.

2. The victim lodged a written complaint with the police on

October 22, 2017 complaining that she was a minor. Two of

her neighbours insisted her to go to Bangalore with them for

the purpose of earning as a domestic help. She was convinced

by their proposal as she was passing her days in great poverty.

She accepted such proposal. Thereafter, on November 7, 2016,

she went out of her residence in order to travel to Bangalore

with two neighbours. In the evening of that day, she along

with two neighbours went to Howrah Station for boarding a

train of Bangalore. At the station, she found another

neighbour and his brother who accompanied them.

Thereafter, they reached Bangalore and went to a house in

Bangalore, and started residing there for few days. She

realized that she was trapped and brought for illicit purpose.

She stayed in that house with some other girls. She named the

person who was responsible for running the racket. She stated

that, from such house, girls were sent to different places in

Bangalore for sexual exploitation. On completion of work they

were taken back to the house. Such thing continued for a

couple of months. Thereafter, she somehow with the help of a

well-wisher returned to her house. On her return, she was

threatened not to inform anybody. Thereafter, she found two of

the appellants in the locality and became frightened and went

to the police to lodge the complaint.

3. On the basis of the written complaint, police registered

the First Information Report dated October 22, 2017. Police

commenced investigation. Police submitted a charge-sheet.

4. On April 24, 2018, Court framed charges as against the

appellants under Sections 370/ 372 / 373 / 376 / 363/

366A/ 120B of the Indian Penal Code, 1860 and under

Sections 6/17 of the Protection of Children from Sexual

Offences Act, 2012. The appellants pleaded not guilty and

claimed to be tried.

5. At the trial, the prosecution examined six witnesses and

produced various documentary evidences. On the conclusion

of the evidence of the prosecution, the appellants were

examined under Section 313 of the Criminal Procedure Code,

where they claimed to be innocent and falsely implicated.

6. On conclusion of the argument of the parties, learned

Judge pronounced the impugned judgment of conviction

where the learned Judge found the appellants guilty under

Sections 372/ 376(2)(i) /109 of the Indian Penal Code, 1860

and under Sections 4/17 of the POCSO Act, 2012. Learned

Judge acquitted the appellants from the other charges.

7. By the impugned order of sentence, learned Judge

awarded rigorous imprisonment for a term of 10 years and to

pay a fine of Rs.10,000/- each for committing offence

punishable under Sections 376(2)(i)/109 of the Indian Penal

Code, 1860, and in default of payment of fine to undergo

further imprisonment for six months. The appellants were also

awarded the sentence of rigorous imprisonment of six years

and to pay a fine of Rs.10,000/- each for committing the

offence punishable under Section 372 of the Indian Penal

Code, 1860. Both the sentences of the appellants were

directed to run concurrently.

8. Learned advocate appearing for the appellants submits

that, the prosecution was unable to prove the charges beyond

reasonable doubt. He submits that, there was unexplained

delay in the lodgement of the First Information Report. He

submits that, the First Information Report was lodged after a

lapse of a year from the date of the alleged occurrence of the

incident. The incident allegedly occurred on November 7, 2016

while the First Information Report was lodged on October 22,

2017.

9. Elaborating on the aspect of the delay in the lodgement of

the First Information Report, learned advocate appearing for

the appellants submits that, the victim, on her own saying

came back to her residence on her own wish and volition. She

was at her residence for a considerable period of time. She

however, did not report to the police station immediately on

return. This is another aspect according to him, which casts

doubts on the case of the prosecution.

10. Learned advocate appearing for the appellants submits

that, the investigation was perfunctory and the benefit of such

perfunctory investigation should be given to the appellants. He

submits that, allegedly, the place of occurrence was at

Andrahalli at Bangalore. No investigation was carried out

there. No person was brought from Bangalore to testify at the

trial. According to the version of the prosecution, there were a

number of other ladies involved at Bangalore. Such ladies were

not produced at the trial. The so-called customers were not

examined. Persons involved at Bangalore were not named.

11. Learned advocate appearing for the appellants submits

that, the victim left voluntarily on her own. Such aspect is

borne out from the contents of the written complaint of the

victim as also from her testimony at trial. Therefore, once it is

established that the victim went voluntarily, it cannot be said

that the victim was forced into the acts as claimed by the

prosecution.

12. Moreover, learned advocate appearing for the appellants

submits that, the age of the victim was not established at the

trial. He refers to the attempts of the prosecution to establish

the age of the victim at the trial. He submits that, the victim

herself, gave out her age at her testimony without producing

any evidence with regard to her age. He submits that, a doctor

who testified on behalf of the prosecution placed the age of the

victim between 14 to 17 years. The victim claimed herself to be

15 years. The teacher who came to testify also did not

establish the age of the victim conclusively. Therefore,

according to him, age of the victim not being established

conclusively, the provisions of the POCSO Act, 2012 were not

attracted. Relying upon Section 35 of the Evidence Act, 1872,

he submits that, the age of the victim was not established at

the trial.

13. Learned advocate appearing for the appellants submits

that, the victim never stated in her testimony that any of the

appellants were involved in the penetrative sexual assault on

her. Therefore, charge of rape as against the appellants were

not proved at the trial.

14. Learned advocate appearing for the appellants relies

upon (1975) 4 Supreme Court Cases 106 (Anne Nageswara

Rao vs. Public Prosecutor, Andhra Pradesh), (1983) 3

Supreme Court Cases 629 (Ramji Surjya Padvi And

Another vs. State of Maharashtra) and (2002) 1 Supreme

Court Cases 487 (Thanedar Singh vs. State of M.P.) on the

proposition that, delay in lodgement of the First Information

Report was fatal to the case of the prosecution.

15. Learned advocate appearing for the appellants rely upon

1958 Supreme Court Report 749 (Sidheswar Ganguly vs.

State of West Bengal) on the aspect of proof of age of the

victim at the trial.

16. Learned advocate appearing for the appellants rely upon

(1978) 4 Supreme Court Cases 90 (Chandran Vs. The State

of Tamil Nadu) on the aspect of Section 164 statement being

correctly recorded.

17. Learned advocate appearing for the State submits that

the prosecution proved the charges against the appellants

beyond reasonable doubt. He submits that, the victim, as

P.W.1 implicated all the appellants in the charge of rape and

abetment. He draws the attention of the Court to the

testimony of P.W.1. He submits that, the evidence of P.W.1

should inspire confidence of the Court. The testimony of P.W.1

was sufficient to convict the appellants.

18. Learned advocate appearing for the State submits that,

P.W.1 was aged about 13 years when the incident occurred.

P.W.1 described the penetrative sexual assault that the victim

underwent from time to time. He submits that the testimony of

P.W.1 with regard to penetrative sexual assault was

corroborated by the testimony of the medical expert being

P.W.4. The medical report of P.W.1 being Exhibit-2/1, coupled

with evidence of the doctor, P.W.4, established that the victim

suffered from multiple old healed tear at 3, 4, 5 and 7 'O' clock

position in the hymen conclusively establishing that the victim

was subjected to penetrative sexual assault.

19. Learned advocate appearing for the de facto complainant

submits that the victim was taken to Bangalore and was

sexually abused there. He submits that, the age of the victim

stood adequately proved at the trial. He refers to Exhibit-5

being the document produced by the teacher as well as the

deposition of the teacher being P.W.6. He submits that, the

victim was a minor at the time when the victim was subjected

to sexual abuse and penetrative sexual assault at the behest

of the appellants.

20. Learned advocate appearing for the de facto complainant

refers to the definition of rape appearing in Section 375 of the

Indian Penal Code, 1860 as well as the provisions of the Act of

2012. He submits that, the oral testimony of the victim, the

P.W.1, adequately implicates all the appellants in penetrative

sexual assault.

21. Learned advocate appearing for the de facto complainant

also relies on the medical evidence on record. He refers to

Exhibit-2 and notings in Exhibit-2 as also the oral testimony

of the doctor being P.W.4. He submits that, oral testimony of

P.W.1, P.W.4 and the medical examination report of P.W.1

being Exhibit-2 conclusively establish that P.W.1 was

subjected to sexual abuse and penetrative sexual assault.

22. Referring to Section 29 of the Act of 2012, learned

advocate appearing for the de facto complainant submits that,

the appellants did not discharge their onus and failed to rebut

the statutory presumption drawn as against them. He submits

that in the conspectus of the facts and circumstances of the

present case, the conviction and the sentences should be

upheld.

23. As noted above, six prosecution witnesses were examined

by the prosecution at the trial. The victim girl deposed as

P.W.1. She stated that, she was taken to Bangalore instead of

Mumbai. She identified the appellants who took her to

Bangalore. She stated that, she was taken to the house of one

of the appellants. She was kept along with other girls. All the

appellants stayed in such house. After about two days of her

arrival at Bangalore, as per instruction of two of the

appellants, she and the other girls were asked to extend

sexual favours to male persons. At the instruction of one of the

appellants, the auto driver used to take her and the other girls

in plain dress to different places with bag containing short

dresses. They were usually kept for five days. There the room

owners used to call the male persons for them. She stated that

as per instruction, she along with other girls were required to

disrobe in front of customers. The customers abused the girls

by indulging in penetrative sexual assault on them. As she

refused, two of the appellants threatened her with murder.

Being afraid, she complied with such work. She stated that

such state of affairs continued for about two months. P.W.1

stated that her mother informed one of the appellant that she

would not spare the mother of such appellant if she did not

release her. Being afraid, two of the appellants brought her

back. It was winter at the time she came back. She was not in

a position to state the exact date of return. Thereafter, she

stayed in her house. She did not go to the police station

immediately on her return. She informed the matter to her

mother only. She went to the police station when she became

afraid and saw two of the accused persons. Her mother

accompanied her to the police station. She lodged the written

complaint which was typed by a person as per her instruction.

She signed the same. The written complaint was tendered in

evidence and marked as Exhibit-1. She could not state the

name of the persons who typed the complaint. She stated that

the person writing the complaint read out the complaint and

explained the contents of the written complaint to her and on

being satisfied she signed the same.

24. P.W.1 stated that she was sent to the doctor for medical

examination where she was examined. She tendered the

medical examination report which was marked as Exhibit-2.

She went to the learned Magistrate to record her statement.

She recorded her statement and put her left thumb impression

on such statement.

25. P.W.1 was cross-examined at length on behalf of the

defence. However, the defence was not in a position to extract

anything favourable from such cross-examination.

26. A social worker of the locality deposed as P.W.2. She

stated that, P.W.1 came to her crying on October 22, 2017

with her mother. On that date, she saw two of the appellants

on the road. On being asked, P.W.1 stated to her about the

incident involving two of the appellants. P.W.1 named all the

appellants as the perpetrators to her. P.W. 2 advised P.W.1 to

inform the matter to the police. Then, P.W.1 along with her

mother went to the police station. P.W.2 accompanied them.

She identified four of the appellants in Court with one of the

appellants not being present in Court.

27. P.W.3 is a police personnel who received the written

complaint. He tendered his endorsement on the written

complaint which was marked as Exhibit-1/1. He started the

police case. He tendered the formal First Information Report

which was marked as Exhibit-3. He was the first Investigating

Officer. He stated that, during investigations, he interrogated

P.W.1 and produced her before the Child Welfare Committee.

By the order of the Child Welfare Committee, he handed over

the victim to her mother. He held a raid and arrested two of

the appellants. He interrogated the accused persons.

Thereafter, he handed over the case diary to the Officer-in-

Charge. He identified one of the appellants in Court.

28. The Doctor who examined the victim on November 9,

2017 deposed as P.W.4. She stated that, the victim was

brought to her by the police personnel. She took the consent

of the victim which the victim granted. On examination, she

noted two identification marks on her. She opined that the

age of the victim was between 14 to 17 years. She stated

about the various injuries she found on the victim. She

tendered the medical examination report of the victim in

evidence and the same was marked as Exhibit-2. She

identified the various signatures on such Exhibit-2.

29. The second Investigating Officer deposed as P.W.5. He

narrated the course of investigations. He stated that, in order

to verify the age of the victim, he went to the primary school

where the victim studied. He stated that, he perused the

Admission Register of the school and found that, the date of

birth of the victim was recorded to be of the year 2015. He

arrested some of the appellants and produced them before

Court. He collected the medical examination report of the

victim. He sent the victim for recording her statement under

Section 164 of the Code of Criminal Procedure. He submitted

the charge sheet against the appellants. He identified the

appellants in Court.

30. A teacher of the school where the victim studied deposed

as P.W.6. Such teacher produced the original Admission

Register of pupils of the school for the period of 2015/2016.

He stated, that as per the Admission Register, the date of birth

of P.W.1 was June 14, 2004. He tendered one attested copy of

the relevant page of the Admission Register in evidence which

was marked as Exhibit-5.

31. On conclusion of the evidence of the prosecution, all the

appellants were examined under Section 313 of the Code of

Criminal Procedure, where the appellants claimed to be

innocent and falsely implicated. They declined to examine any

defence witness.

32. Exhibit-5 is the Admission Register of pupils of the

school where P.W.1 studied. The date of birth given in

Exhibit-5 so far as P.W.1 is concerned is June 14, 2004.

P.W.1 consistently described her age to be within the time-

frame as of the date of birth appearing in Exhibit-5. Medical

opinion of P.W.4 with regard to the age of P.W.1 is between 14

to 17 years. Date of birth of P.W.1 appearing in Exhibit-5 falls

within the bracket of time opined by the medical expert. Child

Welfare Committee exercising jurisdiction under the provisions

of the Juvenile Justice Act assumed jurisdiction over P.W.1

when P.W.1 was produced before them.

33. In such circumstances, we are of the view that the age of

the victim stood conclusively proved at the trial. Taking the

date of birth of the victim as appearing from the Admission

Register of the school where the victim studied, being Exhibit-

5, the victim was about 13 years of age at the time of the

occurrence of the incident. According to the victim, the

incident occurred on November 7, 2016.

34. In Sidheswar Ganguly (supra) an unanimous verdict of

guilt returned by the Jury holding the accused guilty under

Section 376 of the Indian Penal Code, 1860, for committing

rape on a girl aged about 14-15 years of age was upheld by the

High Court and on an appeal on a certificate under Article

134(1)(c) of the Constitution of India was upheld.

35. In the facts of that case, the Hon'ble Supreme Court

noted that, conclusive piece of evidence for the date of birth,

that is, the birth certificate, unfortunately in a country such

as ours, was not ordinarily available. A Court is required to

base its conclusion upon all facts and circumstances disclosed

on examining all the physical features of the person whose age

was in question, in conjunction with such oral testimony as

may be available. It noted that the father of the girl was dead.

Her mother apparently left the girl to her own fate and the

mother's whereabouts was not traceable. It was also noted

that, according to the medical evidence available, the girl was

between 13 to 14 years on the relevant date. In such factual

matrix, the Hon'ble Supreme Court did not find any error in

the two Courts finding the victim to be a minor even in

absence of a birth certificate of the victim or the parents of the

victim deposing at the trial on the aspect of the age of the

victim.

36. Absence of or failure of the prosecution to produce the

birth certificate of the victim at the trial does not ipso facto is

not catastrophic to the case of the prosecution.

Notwithstanding the birth certificate of the victim not being

produced at the trial, the age of the victim can be established

by the prosecution by leading cogent and reliable evidence

with regard thereto.

37. Anne Nageswara Rao (supra) deals with a case where,

there was delay in filing of the First Information Report. In the

facts and circumstances of that case, the Hon'ble Supreme

Court found that the delay in lodgment of the First

Information Report and its non-explanation seriously affected

the credibility of the case of the prosecution. Moreover, benefit

of doubt was extended to the accused on the premise that

where two views are possible the view which favours the

accused should be accepted.

38. Ramji Surjya Padvi & Anr. (supra) is a case which was

based on the testimony of the sole eye-witness. The delay in

the lodgment of the First Information Report was found not be

explained properly. The Court also found that there were

other inherent inconsistencies in the evidence of the sole eye-

witness and that such evidence could not be considered to be

sufficient to hold the accused guilty.

39. Thanedar Singh (supra) found that, the learned Sessions

Judge put the prosecution on notice that, adverse inference

would be drawn if the records were not produced to explain

why the certified copy of the First Information Report was

produced before the learned Magistrate on a particular date.

The prosecution failed to produce the original record.

Consequently, the Supreme Court found that the prosecution

failed to clear the doubt regarding the date and time of

recording of the First Information Report.

40. The facts and circumstances of the present case are

entirely different than the three authorities noted above. In the

facts and circumstances of the present case, the victim was

lured to go to Bangalore on November 7, 2016. She was

sexually abused and subjected to penetrative sexual assault

for a period of two months, as appearing from her testimony,

till her return to her house at Kolkata. She returned to her

house and did not approach police immediately, which she

explained as due to the threat held out to her. Upon seeing

two of the appellants in and around her house, she went to

P.W.-2 along with her mother and, thereafter, went to the

police. P.W.2 is a social worker. P.W.-2 corroborated the

conduct of P.W-1 and her mother with regard to P.W.-1

coming to P.W-2 and confiding to her about the trauma.

41. The victim being a minor and being subjected to serious

penetrative sexual assault and sexually abused, did not lodge

the police complaint immediately on her return. She explained

the circumstances under which, she could not go to the police

at the first instance. She also explained the circumstances

under which, she approached the police. She approached the

police on seeing two of the appellants and fearing for her life.

Therefore, the delay in the lodgment of the First Information

Report, taking the date of the first occurrence to be November

7, 2016 and the F.I.R. being lodged on October 22, 2017,

stood adequately explained by the victim and her testimony as

also in the contents in the written compliant.

42. It is the contention of the appellants that, the victim left

her home voluntarily. Learned trial Judge, acquitted the

appellants from the charge under Sections 363/366A of the

Indian Penal Code, 1860. The victim was a minor, when she

was taken to Bangalore. She was not capable of giving consent

to her movement. However, since there are no appeals at the

behest of either the victim or the State on such aspect, we

refrain from commenting on the same. We, however, hasten to

add that, acquittal from a charge of kidnapping does not

necessarily mean an acquittal from other charges including

those of penetrative sexual assault on a minor.

43. It is the contention of the appellants that, the

prosecution did not produce any evidence from Bangalore and

that no investigation was carried on at Bangalore, quantity of

evidence adduced at the trial is more important than the

quantity. Here, the oral testimony of the victim, P.W-1, is

cogent, reliable and trustworthy. Her testimony of sexual

abuse and penetrative sexual assault stand corroborated by

medical evidence, being Exhibit-2, as well as the oral

testimony of the Doctor examining her, P.W.-4. Exhibit-2

discloses that she suffered from old heal injuries on her

private parts. Such injuries permit an interference of

penetrative sexual assault being committed on her.

44. Chandran (supra) is a case where, the learned Magistrate

recording the statement under Section 164 of the Criminal

Procedure Code certified that the Magistrate hoped that the

statement of the person making the same was made by him

voluntarily. In such context, statement recorded under Section

164 of the Criminal Procedure Code in the facts of that case

was commented upon. Such factual scenario is not obtaining

in the present case.

45. It is the contention of the appellants that since P.W-1

did not identify any of the appellants to sexually abuse her or

committed the offence of penetrative sexual assault, the

charge under Section 376(2)(i) of the Indian Penal Code, 1860

was not proved. Section 376(2)(i) of the Indian Penal Code,

1860 was amended with retrospective effect from July 21,

2018. The date of occurrence is from November 7, 2016.

Therefore, the incident being the subject matter of the police

case is governed by Section 376(2)(i) prior to its omission with

retrospective effect from April 21, 2018.

46. Section 376(2)(i) of the Indian Penal Code, 1860 is

required to be read in conjunction with Section 375 of the

Indian Penal Code, 1860. Relevant portion of the definition of

'rape', in the facts and circumstances of the present case, is as

follows :-

"375. Rape.- A man is said to commit "rape" if he -

(a) ... ... ...

(b) ... ... ...

(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person."

47. P.W.-1 in her evidence stated that, she was forced to

extend sexual favour to different males on the threat held out

by the appellants as to her life. She stated that she was

unwilling to do so and succumbed to such demand at the

behest of the appellants on the threat of her life. Her oral

testimony is corroborated by her medical examination report

being Exhibit-2 and the testimony of the doctor examining her

being P.W.-4.

48. In view of such testimony of P.W.-1, P.W.-4 and the

evidence on record, the learned trial Judge correctly found the

appellants guilty under Sections 109/376(2)(i) of the Indian

Penal Code, 1860 and Section 372 of the Indian Penal Code,

1860.

49. On behalf of the de facto complainant, the quantum of

sentence imposed by the learned trial Judge was commented

upon. However, neither the State nor the de facto complainant

preferred any appeal with regard to quantum of sentence

imposed by the learned trial Judge as against the appellants.

The quantum of sentence imposed by the learned trial Judge

is within the band of punishment prescribed. In such

circumstances, we do not find it necessary to enter into the

quantum of sentence imposed by the learned trial Judge.

50. By the impugned order of sentence, the learned Judge

directed payment of compensation of Rs.6 Lakhs under the

Compensation Scheme for Women Victims/Survivors of Sexual

Assault/other Crimes, 2018. In response to a query of the

Court, learned advocate appearing for the victim submits that

the victim did not receive such compensation.

51. It is a sad state of affairs that a victim of sexual assault is

yet to receive compensation in terms of a judgment of a Court

passed on March 16, 2022. A period in excess of 1 year has

elapsed since the judgment of conviction.

52. It is expected that the appropriate authorities including

the relevant District Legal Services Authorities take

appropriate steps to ensure that the compensation awarded by

the learned trial Judge is made over to the victim

expeditiously. Member Secretary, State Legal Services

Authorities, Kolkata, is requested to take appropriate

measures for ensuring that the order of the Court is complied

with by the appropriate authority.

53. Impugned judgment of conviction is upheld. Impugned

sentences awarded by the learned trial Judge are affirmed.

The sentences will run concurrently. Period of detention of the

appellants, pre and post trial will be set off against the

sentences awarded.

54. Copy of this judgment and order along with trial Court

records be remitted to the appropriate Court, expeditiously. A

copy of this judgment and order be sent to the Member

Secretary, State Legal Services Authority also.

55. CRA (DB) 59 of 2022 is, accordingly, dismissed.

56. With the dismissal of the appeal, nothing survives in the

application being CRAN 1 of 2022, seeking suspension of the

sentence. Accordingly, CRAN 1 of 2022 is also dismissed.

57. Urgent photostat certified copy of this order, if applied

for, be given to the parties on priority basis on compliance of

all formalities.

(Debangsu Basak, J.)

58. I agree.

(Md. Shabbar Rashidi, J.)

CHC/AD/Dd