Calcutta High Court (Appellete Side)
Goutam Ghosh vs State Of West Bengal on 18 September, 2023
Sl. No. 155
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Joymalya Bagchi
And
The Hon'ble Justice Ajoy Kumar Mukherjee
C.R.A. 162 of 2017
Goutam Ghosh
-Vs-
State of West Bengal
For the Appellant : Mr. Prabir Majumder, Adv.
Mr. Debraj Shil, Adv.
For the State : Mr. Saswata Gopal Mukherji, ld. PP
Mr. Partha Pratim Das, Adv.
Mrs. Manasi Roy, Adv.
Heard on : 18.09.2023
Judgment on: 18.09.2023
Joymalya Bagchi, J. :-
1.
The appellant has assailed the judgment and order dated
10.01.2017 and 11.01.2017 passed by the learned Additional District
and Sessions Judge, 2nd Court, Krishnagar, Nadia, in connection with
Sessions Case No. 2(06) of 2016 corresponding to Sessions Trial Case
No. V(XI) of 2016 convicting the appellant for commission of offence
punishable under Section 6 of the POCSO Act and sentencing him to
suffer rigorous imprisonment for ten years and to pay a fine of
Rs.20,000/- only, in default to suffer rigorous imprisonment for six
months more for the offence punishable under Section 6 of the POCSO
Act.
Prosecution case:-
2. The prosecution case as alleged against the appellant is as
follows:
Victim is a 12 year old girl. It is alleged on 02.06.2016 at 9.30 P.M. her
grandmother had gone to the house of a neighbour to hear devotional
songs i.e. kirtan. Appellant dragged the victim away and took her to a
field and raped her. When the victim returned she informed her
grandmother.
3. She lodged written complaint at the police station resulting in
registration of Krishnaganj Police Station Case No. 200 of 2016 dated
03.06.2016 under Section 6 of the POCSO Act against the appellant.
During investigation victim was medically treated and her statement
was recorded before the Magistrate.
4. Appellant was arrested, medically examined and charge-sheeted.
Charge was framed under Section 6 of POCSO Act. To prove the charge
prosecution examined ten witnesses including the minor, PW 1. Defence
of the appellant was to the effect that there was an altercation between
the appellant and the minor over playing of loud speaker during the
soiree. On the next day, he was falsely implicated.
Arguments at the Bar:-
5. Mr. Prabir Majumder, learned Counsel for the appellant submits
during her cross-examination, minor, PW 1 had admitted there was an
altercation over playing of loud speaker. She was tutored by police to
make statement before Magistrate and doctor. Her version is also
admitted by her grandmother, de facto complainant, PW 2. Appellant
has probabilised the circumstances which led to his false implication
and rebutted the presumption under Section 29 of the POCSO Act.
Medical examination was done seven days after the incident. Age of the
injury on the right thigh of the victim has not been proved. Prosecution
has failed to prove its case.
6. Mr. Partha Pratim Das, learned Counsel with Mrs. Manasi Roy,
learned Counsel for the State submits PW 1 is a minor girl. Her
deposition ought to be appreciated bearing in mind her tender age and
nature of crime. In chief she supported the prosecution case of sexual
intercourse. Medical officer, PW 9, found her hymen absent and an
injury on her right thigh. He opined there was possibility of sexual
intercourse.
Evidence on record:-
7. PW 1 is the minor victim. She stated that she had been taken to
a bamboo orchard and raped. She made statement before Magistrate
and doctor. She proved her signature on the statement before
Magistrate. In cross-examination, she admitted there was hot
altercation over playing of loud speaker during 'namkirton' (singing of
devotional songs). Police tutored her to make the statement before
Magistrate and doctor.
8. Evidence of the minor victim must be treated with due care and
sensitivity. While assessing her evidence due latitude, must be given
bearing in mind her tender age and the agony of secondary
victimisation during deposition. Defence plea that the appellant was
falsely implicated over the issue of playing of loud speaker during the
soiree ought to be tested against other evidence on record and attending
circumstances. Similarly, statement of the minor that she was tutored
by police to make the statement before Magistrate should also be
examined against attending circumstances of the case. In order to do
so, let me delve into the other evidence on record.
9. PW 2 is the grandmother of the victim. Though she admitted her
signature on the written complaint during cross-examination she
deposed the contents had not been explained to her and she had put
the signature in the presence of the police. She also admitted there was
hot exchange between the appellant and the minor during 'namkirton'.
She clarified apart from hot exchange nothing had occurred. Her
evidence corroborates defence version that there was a dispute with the
appellant over playing of loud speaker during the devotional soiree.
10. Devotional soiree had been organised in the house of PW 3 and
PW 4. They admitted the victim was present in their house.
Findings of the Court:-
11. Analysis of the evidence of the witnesses shows in the evening of
02.06.2016 a programme of devotional songs were organised in the
house of PW 4. Victim was present there. Over the issue of playing of
loud speaker hot exchange took place between the appellant and the
victim. On the next day FIR came to be registered. PW 2 who lodged the
FIR, while admitting her signature, stated that she was not aware of its
contents. She reiterated apart from hot exchange nothing had occurred.
Prosecution case in the FIR is that the victim had been abducted from
the road beside the house of PW 4 where singing of devotional songs
had been organized organised. But evidence on record shows during the
programme appellant was present in the house of PW 4 and there was
hot exchange between the appellant and the victim. This improbabilises
the manner and circumstance in which the victim is alleged to have
been abducted from the road and raped. On the other hand, it
probabilises the defence plea that there was a hot altercation in the
evening prior to the registration of FIR.
12. Mr. Das, learned Counsel argues version of the victim finds
corroboration from the medical evidence.
13. PW 9 (Dr. Suprotim Mitra) examined the victim on 09.06.2016.
He found her hymen absent. During cross-examination he admitted
absence of hymen may be due to various reasons. He also noted an
injury on the right thigh. Victim had been examined by the medical
officer more than seven days after the incident. Age of the injury on the
right thigh of the victim has not been stated. Findings in the injury
report (Exbt.-4) as well as the evidence of the medical officer are
ambivalent and do not probabilise a case of forcible intercourse.
Opinion of the medical officer with regard to forcible sexual intercourse
appears to have been prompted by the statement of the victim that she
had been forcibly raped. It is important to recount, the victim in Court
stated that she made such statement on the tutoring of the police.
Under such circumstances, I am not inclined to give credence to the
medical opinion as corroborative evidence to prove the prosecution case
of rape.
14. Evidence of the victim in Court is also contradictory. While in
chief she supported the prosecution case, during cross-examination she
stated she had been tutored by police and there was hot altercation
with the appellant on the previous night. As discussed earlier defence
plea of hot altercation between the parties finds corroboration from her
grandmother, the de facto complainant. In the FIR, PW 2 alleged victim
was dragged from the road and raped but the said witness as well as
PWs. 3 and 4 stated in Court the victim was present in the house where
the musical programme was organised. This improbabilises the manner
and circumstance in which the prosecution alleges the incident
occurred. These circumstances not only improbabilise the prosecution
case but also lend credence to the possibility of false implication owing
to hot altercation with the appellant on the previous night over playing
loud speaker during the musical programme.
15. Prosecution has failed to lay the fundamental facts with
credibility to implicate the appellant. On the other hand, appellant has
been able to rebut the statutory presumption under Section 29 of the
POCSO Act and is entitled to an order of acquittal.
Conclusion:-
16. Appellant is accordingly acquitted. Appeal is allowed.
17. Appellant shall be released from custody, if not wanted in any
other case, upon execution of a bond to the satisfaction of the learned
trial court which shall remain in force for a period of six months in
terms of Section 437A of the Code of Criminal Procedure.
18. Copy of the judgment along with Lower Court Records be sent
down to the trial Court at once for necessary compliance.
19. Urgent Photostat Certified copy of this judgment, if applied for,
be supplied expeditiously after complying with all necessary legal
formalities.
I agree.
(Ajoy Kumar Mukherjee) (Joymalya Bagchi, J.)
sdas/PA
