Calcutta High Court (Appellete Side)

Animesh Biswas vs The State Of West Bengal Anr on 5 September, 2023

                                   1




                IN THE HIGH COURT AT CALCUTTA

                   (Criminal Appellate Jurisdiction)

                            Appellate Side
Present:
Justice Bibhas Ranjan De


                       C.R.A. (SB) 167 of 2022
                           Animesh Biswas
                                  Vs.
                    The State of West Bengal Anr.


For the Appellant            :Mr. Mit Guha, Adv.
                             Mr. Sayan Kanjilal, Adv.


For the State                :Mr. Saswata Gopal Mukherjee, Ld. PP
                             Mr. Saryati Datta, Adv.
                             Mr. Sandip Chakrabarty, Adv.


For the de facto            : Ms. Sreyashee Biswas
complainant/victim


Hearing on                     :23.06.2023, 14.08.2023, 17.08.2023,
                               18.08.2023
Judgment on                   :September 05, 2023
                                 2

Bibhas Ranjan De, J.

1. This is an appeal assailing the judgement and order dated

07.05.2022 passed by Learned Additional Sessions Judge, 2nd

Court cum Special Court under POCSO Act, Krishnanagar,

Nadia in connection with POCSO Case No. 105 of 20, whereby

Learned Judge, found the appellant/accused guilty of

committing offence under Section 10 of the Protection of

Children from Sexual Offence Act, 2012 (hereinafter referred to

as POCSO Act) and sentenced him to suffer rigorous

imprisonment for 5 years and to pay a fine of Rs. 5000/- in

default of payment to suffer further simple imprisonment for

six months.

2. Factual matrix of the case is that on 28.02.2020 at about

10.00 a.m. appellant/accused laid the victim, a student of

class 3, on the floor of the school and forcibly committed rape

upon her before the class was started. As a result, victim

started shouting loudly and accused/ appellant slapped her

twice and fled away from this school. After the alleged incident

victim was taken to Mira Bazaar Health Center where from she

was referred to Krishnanagar District Hospital. Her paternal

grant father lodged the complaint before officer in charge

Kaliganj Police Station, Nadia.

3. On receipt of the said written complaint a case was registered

as Kaliganj Police Station Case No. 105/20 dated 28.02.2020

under Section 376AB read with Section 6 of the POCSO Act.

One Mr. Arijit Mohan Roy, then Sub Inspector of Police, took

up investigation of this case. He visited place of occurrence

prepared rough sketch map, examined victim and her

grandfather, complainant and other witnesses and recorded

statement under Section 161 of the Code of Criminal

procedure (hereinafter referred to as CrPC). Victim also gave

statement under Section 164 of the CrPC and also attended

test identification parade. Wearing apparels of victim, birth

certificate of victim and medical report were seized by the

Investigating Officer. After completion of investigation charge

sheet was submitted and cognizance was taken.

4. Ld. Judge, Special Court framed charge under Section 376 AB

of the Indian Penal Code (hereinafter referred to as IPC) read

with Section 6 of the POCSO Act against the accused/

appellant on 07.01.2020.

5. In course of evidence 22 witnesses were examined as follows:-

Victim- PW1

Grandfather of victim -PW2

One Dinesh Ch. Roy -PW3

Golam Mustafa -PW4

Constable Subir Halder -PW5

Jayanta Biswas -PW6

Dr. Paulami Ray Chowdhury -PW7 (Attached to GDMO of

Kaliganj Rural Hospital)

Prosen Biswas -PW8 (GDA staff of kaliganj BPHC)

Himangshu Sekhar Biswas -PW9 (Teacher in-charge of

Primary School)

Mother of the victim -PW10

Lady Constable Indrani Biswas -PW11 (attached to Kaliganj

Police Station)

Lady Constable Sefali Khatun -PW12 (attached to Kaliganj

Police Station)

Father of victim -PW13

Dr. Bhabotosh Bhowmick -PW14 (MO attached to Nadia

District Sadar Hospital)

Sub Inspector Nandita Halder -PW15 (attached to

Krishnanagar Women Police Station)

Ld. Magistrate Sanghamitra Debnath-PW16 (Judicial

Magistrate, 2nd Court, Krishnanagar)

Firoj Hossain -PW17 (Teacher of Primary School)

Anindita Das -PW18 (Staff Nurse of Nadia District Sadar

Hospital)

Md. Ajmat Sekh -PW19 (Para teacher of Primary School)

Samiul Islam -PW20 (Chief Controller of Krishnanagar

Correctional Home)

Sub Inspector Sanjib Karmakar -PW 21(the then Recording

Officer attached to I.C of Mira ROP)

Sub Inspector Arijit Mohan Roy - PW22 (Investigating Officer

of this case)

6. In course of their evidence a good number of documents were

admitted in evidence as exhibit 1 to 10 viz. written complaint,

seizure lists and signatures therein, memo test identification

parade with signatures, formal FIR.

7. On completion of evidence accused/ appellant was examined

under Section 313 of the CrPC. He pleaded not guilty and

attributed his false implication in this case.

8. Having heard the Ld. Counsels appearing on behalf of the

parties, Ld. Special Judge, after evaluating the evidence

particularly that of the victim (PW1) returned his findings

holding, inter alia, that sole evidence of victim passed the test

of 'sterling character' leading to prove of the factum of sexual

assault upon the victim by the accused/appellant on

28.02.2020 in a vacant room of the school of the victim. As a

sequel, the accused/appellant was found guilty of committing

offence within the meaning of Section 10 of the POCSO Act,

2012 and sentenced to suffer five years and also to pay a fine

of Rs. 5000/- in default to suffer further imprisonment for six

months. Being aggrieved by and dissatisfied with said order of

conviction the instant appeal has been preferred.

9. Ld. Advocate, Mr. Mit Guha, appearing on behalf of the

accused/ appellant has assailed the evidence on record and

submitted that the offence alleged in this case was not

supported either by any teachers or staff of the school i.e.

alleged place of occurrence. According to Mr. Guha, none of

the students was examined by the Investigating Officer in this

case. Mr. Guha, particularly squinted on the issue of non-

examination of a friend who enter into vacant room after

hearing alarm of victim.

10. Mr. Guha alternatively took the plea of insanity and poor

vision of the accused/appellant and tried to convince this

Court with a cloud of importability of commission of offence by

the accused/appellant as alleged in this case. In support of his

contention, he has referred to the doctors report.

11. Per contra, Mr. Saryati Datta, representing the State has

relied on the evidence of victim (PW1) which was further

corroborated by her statement recorded under Section 164 of

the CrPC. Her evidence was corroborated by the doctor

(PW14). Mr. Dutta has further drawn my attention to replies

given by the accused in course of his examination under

Section 313 CrPC and submitted that accused appellant was

fully alert which was ratified by the doctor (PW7) who

examined him and submitted report (exhibit 4/1). Parting

with his argument Mr. Datta has submitted that prosecution

has succeeded to prove an offence within the meaning the

Section 9 of the POCSO Act.

12. In view of catena of decisions of the Hon'ble Apex Court,

it has become now settled that the sole testimony of the victim

can be relied upon in a case of sexual assault, but at the same

time her evidence must be trustworthy and unblemished as

well as sterling quality i.e. clear consistency among the all

statement given by the victim right from statement before

Police/ Magistrate till the evidence before the Court qua the

accused leaving no doubt as to the alleged incident.

13. The Victim in her initial statement recorded under

Section 164 of CrPC stated that when she was in school one

boy forcibly took her to a room against her will and she was

disrobed and laid there and sexually assaulted. She was

crying. Then one of her friend came over there and rescued

her. Accused/appellant was placed in test identification

parade in the correctional home virtually and victim identified

the accused/appellant.

14. Thereafter, victim (PW1) aged about 9 years, was

examined on 9.12.2020 and 10.12.2020. During her evidence

she specifically testified that on day of occurrence he reached

school when it was vacant almost and no teachers arrived.

Accused took her inside a class room and forced her to lay

down and sexually assaulted her. When she cried out accused

fled away then one of her friends arrived there and on query

she narrated the incident to her and in turn that friend

disclosed to others. Her mother came to school and she

narrated everything to her mother then she was taken to

hospital. Her statement was recorded by Magistrate, she

identified the accused/appellant in the Court room.

15. From her cross examination, it is revealed that her school

usually start from 10.30 a.m. She also stated that local

children used to madden the accused/appellant by saying

'Pagol' and sometimes accused assaulted said children when

he became angry. She sustained swelling injury.

16. Dr. Bhabotosh Bhowmick (PW14), attached to Nadia

Sadar Hospital, examined the victim who also stated before

him that she had been sexually assaulted by the

accused/appellant at around 10.a.m. at school room, though

doctor found no injury on any parts of body including her

private parts. In cross-examination, doctor denied the

suggestion regarding statement of victim before the doctor.

17. On careful scrutiny of the evidence of victim as PW1 and

also the statement recoded under Section 164 of CrPC, I find

hardly any material discrepancies between the evidence

adduced by the victim and the statement recorded under

Section 164 of CrPC with regard to manner of sexual assault.

It is true that one of her friend came to the place of occurrence

either at the time of occurrence or immediately after the

occurrence. It is also evident from the record that Investigation

Officer (PW22) did not examine that particular friend of the

victim. Such latches on the part of the Investigating Officer

cannot disregard entire evidence of victim. In cross-

examination victim admitted that local children used to

madden accused as 'Pagol' and sometimes accused used to

assault children when he became angry. Specific suggestion

was made during her cross-examination that all the evidence

of examination in chief were tutored but she denied the

suggestion. She further testified that lady police accompanied

her and told her to depose before the Ld. Magistrate.

18. De facto complainant/grandfather of victim testified in

his evidence that his grand daughter went to the school at

10.a.m. when teacher did not arrive and in the mean time

accused took his granddaughter inside a class room and

committed sexual assault. A suggestion was put to the de

facto complainant (PW2) that his grand daughter and her

friends maddened accused and as a result accused became

angry and slapped his granddaughter. The suggestion was

denied.

19. PW3, grandfather by relation, also stated that he heard

about rape of his daughter at her school.

20. PW4, could not say anything about incident alleged. PW5

pronounced accused before Medical Officer at Kaliganj BPHC

for examination and identified. PW6 testified that accused

slapped the victim girl.

21. PW7, Doctor Poulami Roy Chowdhury, examined accused

at Kaliganj Rural Hospital and after examination doctor opined

as follows:-

" On examination I found his eye sight was poor but

he has no cerebral problem he suffers from pain on his

lower abdomen. He told that he had been assaulted

by his brother".

PW8 being a staff of Kaliganj BPHC was present at the

time of examination of accused by the doctor (PW7).

22. PW9, Teacher in charge of school, testified that after

attending school he heard that accused slapped the victim at

school. Her evidence is totally hearsay and she even could not

say who disclosed the incident of slap to her.

23. PW10, mother of the victim, has stated that at about 12

noon one of her aunt by village relation informed the incident

of rape of her daughter at school and asked her to take her

daughter back. There was a big gathering at school. She rush

to the school. Her daughter was found weeping in distress

condition and she told that accused disrobed her and sexually

assaulted. Her father in law lodged complaint with the police.

Her daughter was examined by doctor at Krishnanagar

Hospital. Police seized wearing apparels of her daughter by a

seizure list where she put signature. But, her evidence

regarding sexual assault narrated by her daughter was not

ratified by the Investigating Officer (PW22) who has stated that

PW10, mother of the victim, never disclosed about any sexual

assault narrated by his daughter like disrobing her or putting

his finger in her private parts. Such missing link is not at all

fatal to the prosecution case as she might not disclose the

actual manner of sexual assault to the Investigating Officer.

PW10 further stated in her evidence that at the relevant point

of time i.e. at 10.a.m. there were 20/25 students in the class

room, but, Investigating Officer never took any effort to

examine any of those students particularly the students.

Again, that latches cannot lead to a go-by to the entire

prosecution case.

24. PW11, took the victim to Nadia District Hospital for

medical examination. PW12 produce the victim before the

Magistrate for recording her statement of under Section 164 of

CrPC.

25. PW13, father of the victim, who testified as follows:-

" The incident took place at about 10.00 a.m. in the

morning. On the date of incident I was not at home. I

had gone to a poultry farm near Kaliganj as I used to

work there. At about 11.00/11.30 A.M. I got an

information over phone that my daughter was sexually

assaulted at her school. That phone was received from

my wife and she asked me to return home. I then and

there came back home. After about an hour I returned

home and found that there was a big gathering in

front of my house as well as inside of my house. There

local people narrated about the incident. Then I took

my daughter inside of a room. My daughter was then

crying. My daughter stated to me that she had been

sexually assaulted by Animesh. Thereafter, I took my

daughter to PHC at Mira. There doctor examined her

and asked me to take my daughter to Krishnanagar

Sadar Hospital. Thereafter, we went to Mira ROP,

under P.S. Kaliganj. There my uncle (Jethamasoy)

lodged a written complaint and thereafter, the police

asked us to go to Sadar Hospital. Accordingly, I came

to Sadar Hospital, where my daughter was examined

medically."

His evidence was also not ratified by the Investigation

Officer (PW22). PW13, never stated before the Investigation

Officer that accused took his daughter inside a room and

sexually assaulted. This omission cannot be looked into

because of the background of this case where a nine year old

girl was sexually assaulted and father of that girl narrated the

incident before the Investigating Officer who committed so

many serious latches in investigation of such sensitive case.

26. PW14, Doctor Bhabotosh Bhowmick, examined victim

who stated before him that she was sexually assaulted by the

accused at around 10.a.m. The doctor (PW14) did not find any

sort of injury on any parts of body including her private parts.

Doctor in his cross-examination volunteered that patient was

admitted in the hospital and everything is written in the bed

head ticket. From the evidence of Investigation Officer, I find

that no such bed head ticket was ever seized by the IO.

Therefore, cause of admission of the victim remained

unknown.

27. PW16, Ld. Magistrate, held Test Identification Parade at

Krishnanagar District Correctional Home. Test Identification

Parade of victim is of no consequence as accused is well-

known to the victim and other witnesses examined in this

case. PW20, Chief controller of the correctional home ratified

the test identification parade held on 18.03.2020.

28. PW17, Teacher of the school, was present at the time of

seizure of birth certificate of victim. PW18, a staff attached to

Nadia District Hospital, was present at the time of examination

of victim by the doctor PW14. PW19, para teacher of the

school, witnessed the seizure of the birth certificate of the

victim only.

29. PW21, Recording Officer, received the written complaint

and registered the same as kaliganj PS case no. 105/20 he

prepared formal FIR.

30. Investigating Officer (PW22) visited Place of occurrence

examined witnesses under section 161 CrPC, talked with

victim, prepared sketch map with index, seized wearing

apparels of victim, collected school certificate of victim.

Investigating Officer also referred the victim for medical

examination and got her statement recorded under Section

164 of the CrPC. On completion of investigation he submitted

charge sheet.

31. There is nothing on record to suggest that the victim did

not understand the question put to her. Rather, she was found

to have answered rationally. And to add to that, her

competency was tested by the Learned Special Judge, at the

time of examination by putting few questions.

32. In catena of decisions Hon'ble Apex Court held that the

evaluation of the evidence of child witnesses, especially where

the child is the victim herself/himself, is always a tricky affair.

Combating, and, at times, conflicting, considerations come

into play in such cases. On the one hand, there exists a

presumption that a child of tender years would not, ordinarily,

lie. The applicability, or otherwise, of this presumption, would

necessarily depend, to a large extent, on the age of the child.

No dividing line can be drawn in such cases; however, one

may reasonably presume that a child of the age of four, or

thereabouts, would be of an age at which, to questions

spontaneously put to the child, the answer would ordinarily be

the truth. As against this, the Court is also required to be alive

to the fact that children are impressionable individuals,

especially when they are younger in age, and are, therefore,

more easily tutored. The possibility of a small child, whose

cognitive and intellectual faculties are yet not fully developed,

being compelled to testify in a particular manner, cannot be

easily gainsaid. Even so, the prevalent jurisprudential

approach proscribes courts from readily treating the evidence

of child witnesses as tutored and, ordinarily, where a child is

subjected to sexual assault, her, or his, statement possesses

considerable probative value.

33. On the other hand, Hon'ble Apex Court reiterated that

one of the cardinal principles to be borne in mind, while

assessing the acceptability of the evidence of a child witness,

is that due respect has to be accorded to the sensibility and

sensitivity of the Trial Court, on the issue of reliability of the

child, as a witness in the case, as such decision essentially

turns on the observation, by the Trial Court itself, regarding

the demeanour and maturity of the concerned child witness.

An appellate court would interfere, on this issue, only where

the records make it apparent that the Trial Court erred in

regarding the child as a reliable witness. Where no such

indication is present, the appellate court witness, where the

Trial Court has found it to be credible, convincing and reliable.

It went onto note that in the present case it is not disputed

that the victim (Child witness) was not competent to depose to

the facts and was not a reliable witness. Once a child witness,

if found competent to depose to the facts and reliable one such

evidence could be the basis of conviction. In other words

evening he absence of oath, the evidence of a child witness can

be considered under Section 118 of the Indian Evidence Act,

1872 provided that such witness is able to understand the

answers thereof. (Dattu Ramrao Sakhare & Ors Vs. State of

Maharashtra, 1997 Latest Caselaw 447 SC).

34. Overall evaluation of the evidence, I find that consistent

evidence of victim was supported by her parents (PW10 & PW

13) and also by the Doctor of Nadia Sadar Hospital (PW14).

35. I cannot disbelieve the evidence of victim, a nine year old

girl only on the plea of defence that accused was called as

'Pagol' in the locality ignoring he evidence of Dr. Poulami Ray

Chowdhury (PW7) as well as a report of Medical Board quoted

below:-

"Clinical examination,mental status examination

(MSE), past history suggestive of mild anxiety Neurocis

with behavioral abnormality. Although, patient is on

psychotropic drugs & he is mentally completely stable

as on date."

36. From the evidence of doctor (PW7) and medical report,

called for at the instance of this Court, cannot, in any manner,

suggest that at the time of incident accused was insane or

abnormal. To show such abnormality/insanity defence did not

adduce any evidence in spite of having enough opportunity to

rebut the presumption under Section 29 of the POCSO Act.

37. This Court thus upheld the conviction and dismissed the

appeal.

38. In view of the above observations, Criminal Appeal Being

NO. CRA (SB) 167 of 2022 stands disposed of. Bail bond, if

furnished, stands cancelled. Appellant/ accused is directed to

surrender before the Trial Court to serve sentence.