Calcutta High Court (Appellete Side)
Santu Biswas @ Sujit vs The State Of West Bengal on 3 September, 2019
Author: Asha Arora
Bench: Asha Arora
Form No.J(1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present:
The Hon'ble Justice Asha Arora
C.R.A. 308 of 2015
Santu Biswas @ Sujit ..... Appellant
versus
The State of West Bengal ..... Respondent
For the Appellant : Mr. Prabir Majumder, learned advocate.
For the State : Ms. Sukanya Bhattacharya, learned advocate,
Ms. Manasi Roy, learned advocate.
Hearing concluded On: 03.09.2019.
Judgement On : 03.09.2019.
Asha Arora, J. :
1. Challenge in this appeal is to the judgement and order of conviction and sentence dated 22.04.2015 and 23.04.2015 passed by the Additional Sessions Judge, 2nd Court, Krishnagar in Sessions Trial No. XIII(I) of 2015 arising out of Sessions Case No. 2(11) of 2014 (Special) whereby the appellant/accused was convicted for the offence punishable under Section 8 of Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as POCSO Act) and sentenced to suffer imprisonment for three years and to pay fine of Rs.5,000/- in default of which to suffer rigorous imprisonment for three months for the aforesaid offence.
2. The facts in brief leading to the present appeal may be summarized as follows :
3. On 10.11.2014 at 20.05 hours one Barun Mondal (PW-3) lodged a written complaint at Dhubulia P.S. alleging that on the aforesaid date at about 4 p.m. when his daughter (hereinafter referred to as the victim) aged about six years was playing in the courtyard of their house with two neighbouring children, his neighbour Santu Biswas took her to his room on the pretext of giving her lozenge and raped her. Hearing the cries of the victim, when her mother Kakali Mondal (PW-2) came near the house of the accused/appellant, he drove the victim out. It is further alleged that the victim informed her mother about the incident and the accused fled away when the neighbouring people came. On the basis of the aforesaid written complaint, Dhubulia P.S. Case No. 341 of 2014 dated 10.11.2014 under Section 376(2)(f) IPC and under Section 4/8 of POCSO Act was initiated against the accused/appellant. Investigation culminated in the submission of the charge-sheet under Section 376(2)(f) IPC and under Section 4/8 of POCSO Act against the accused/appellant.
4. The trial court framed charge for the offence punishable under Section 4 of POCSO Act against the accused/appellant who pleaded not guilty to the arraignment in consequence of which trial commenced. In course of trial prosecution examined nine witnesses namely, PW-1 is the victim, PW-2 is the mother of the victim, PW-3 is the father of the victim, PW-4 is a neighbour, PW-5 is the grandmother of the victim, PW-6 is another neighbour, PW-7 is the medical officer who examined the victim medically on the following day that is, on 11.11.2014. PW-8 is the police officer who drew up the formal FIR on the basis of the written complaint of the defacto complainant and PW-9 is the Investigating Officer. Apart from the witnesses referred, prosecution relied upon several documents which were tendered in evidence and marked as exhibits.
5. Defence version as projected from the trend of cross-examination of the prosecution witnesses as well as from the answers given by the accused during his examination under Section 313 CrPC is innocence, denial of the prosecution case and false implication. No evidence was led on behalf of the accused.
6. On the basis of the evidence on record the trial court convicted the accused/appellant for the offence punishable under Section 8 of POCSO Act and sentenced him as aforesaid.
7. Assailing the prosecution case on multifarious counts, learned advocate for the appellant strenuously argued that the charge framed against the accused/appellant is vague and defective since the exact place of occurrence as alleged in the FIR (exhibit-3) has not been mentioned therein. It is pointed out that even the time of incident has been stated incorrectly in the formal charge framed by the trial court. It is submitted that the time has erroneously been mentioned as "about 20.05 hours"
instead of 16.00 hours. According to the learned counsel, non-compliance of the provision of Section 212 CrPC is an illegality and not a mere irregularity. In support of such submission reliance has been placed on the case of Rebati Baidya and Others Versus The State of West Bengal reported in 2014 (1) CLJ (CAL) 67. Referring to the testimony of the victim (PW-1), it is argued that nowhere in her evidence did the victim speak about sexual assault upon her by the accused/appellant. It is pointed out that the victim merely stated in her evidence that the accused assaulted her. It is contended that mere "assault" does not fall within the meaning of "sexual assault" as defined in Section 7 of POCSO Act. It is further contended that there are discrepancies in the evidence of PW-2, PW-3 and PW-5 in relation to the evidence of the victim (PW-1). Learned counsel pointed out that PW-1 nowhere stated in her evidence that she narrated the incident to her mother (PW-2) and grandmother (PW-5) whereas these two witnesses have categorically testified in their evidence that the victim narrated the incident to them. It is argued that PW-2 the mother of the victim mentioned the names of two children namely, Chhotka and Ria who informed her that the accused had detained the victim but these two witnesses have not been examined by the prosecution. According to the learned counsel, non-examination of these two witnesses gives rise to adverse inference in terms of Section 114(g) of the Evidence Act. It is canvassed that the post-occurrence conduct of the victim was unnatural.
Referring to the evidence of PW-2 it is pointed out that according to this witness (PW-2) the victim was found coming out from the back side of the house of the accused. She did not appear to be shocked or traumatized.
Her behaviour was normal which makes the prosecution case doubtful.
Further submission is that prosecution case is rendered untrustworthy due to non-seizure of the wearing apparels particularly the pant of the victim and non-examination of the two neighbouring children with whom the victim was playing when the accused allegedly took her to his room.
8. Per contra, learned advocate for the State strenuously argued that the evidence of the victim corroborated by the medical evidence of PW-7 proves the prosecution case of sexual assault and the conviction of the appellant is justified. Placing reliance on the case of Sahid Hossain Biswas Versus State of West Bengal reported in 2017 SCC OnLine Cal 5023 : (2017) 180 AIC 294 it is argued that the accused/appellant failed to rebut the statutory presumption under Section 29 of POCSO Act. It has further been argued that the error or defect pointed out in the charge framed against the accused/appellant is not an illegality since no prejudice has been caused thereby to the accused/appellant. To fortify such submission reference has been made to Chittaranjan Das Versus State of West Bengal reported in (1964) 3 SCR 237 : AIR 1963 Supreme Court 1696 (paragraphs 7 and 8). Referring to the case of State of Rajasthan Versus Sri Chand reported in (2015) 11 Supreme Court Cases 229 (paragraphs 10 to 13) it is argued that the case in hand is not a fit case for releasing the offender/appellant on probation in view of the serious nature of the offence and the fact that the victim was a child of tender age at the time of the incident.
9. A bare perusal of the FIR (exhibit-3) reveals that the place of occurrence is the room of the accused at Sarat Pally within P.S. Dhubulia. In the charge framed against the accused the place of occurrence has been mentioned as "at Sarat Pally, Dhubulia P.S.". Non-mention of the exact place of occurrence in the formal charge does not affect the prosecution case unless it is shown that the accused was misled by such error or omission and it has occasioned a failure of justice. Similarly, from the FIR it appears that the time of the incident has been mentioned therein as "at about 4 p.m." whereas in the formal charge framed against the accused, the time has erroneously been mentioned as 20.05 hours. It is significant to mention that in her evidence the victim has categorically stated that the accused took her to his room, opened her pant and assaulted her. The time of the incident as well as the exact place of occurrence have specifically been spelt out in the evidence of PW-2 as well as PW-3. The relevant provisions in the Code of Criminal Procedure dealing with the effect of such an omission or error in the charge are Section 215 and Section 464 CrPC. Section 215 CrPC reads as follows :
"215. Effect of errors. - No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice."
Section 464 CrPC provides as follows :
"464. Effect of omission to frame, or absence of, or error in, charge.-- (1) No finding sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby.
(2) If the Court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may -
(a) in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommenced from the point immediately after the framing of the charge.
(b) in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit:
Provided that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction."
In the case in hand, there is nothing on record to show that the accused/appellant was in fact misled or prejudiced on account of the omission to mention the exact place of occurrence or on account of erroneous mention of time of occurrence in the charge framed by the trial court. The prosecution witnesses were cross-examined extensively which shows that the accused clearly understood the details of the charge against him. The fact that the accused defended himself by cross- examining the prosecution witnesses goes to show that he was fully aware of the details of the charge against him including the actual place and time of the incident. Simply put, the accused/appellant could not show that a failure of justice has in fact been occasioned due to such error or omission in the charge. Therefore, the argument in this regard is devoid of merit. Rebati's case (supra) referred on behalf of the appellant is not apposite for the purpose of the present case and is distinguishable on facts from the case in hand.
10. It is settled law that the evidence of a victim of sexual assault is entitled to great weight absence of corroboration notwithstanding. In the present case, the victim is a six year old child. There is no dispute regarding the age of the victim. Needless it is to say that the evidence of a child witness can form the basis of conviction if it is found to be credible and trustworthy. The testimony of a child witness can be relied upon if the court is satisfied that the child understands the questions put to her and is capable of giving rational answers. In the case in hand, the manner in which the victim (PW-1) testified in court showed her competency to depose. It is clear from the answers given by PW-1 in response to the cross-examination on behalf of the accused that she had sufficient understanding and adequate intellectual capacity to narrate the incident. The relevant portion of the evidence of the victim is quoted hereinbelow :
"I am a resident of Sarat Pally under Dhubulia P.S. I know Santu who is residing besides the house of Chatka. Santu took me in his room by alluring lozenge. At first, he opened my pant and assaulted me.
I narrated the fact of incident to learned Magistrate who recorded my statement and I put my signature on the statement after its understanding."
PW-1 categorically denied the suggestion on behalf of the accused that she damaged the household articles of Santu and for that reason Santu assaulted her. She also specifically denied the suggestion that no such incident as stated by her took place. The evidence of PW-1 remained unscathed in cross-examination. Nothing could be elicited in the cross- examination of the PW-1 to demolish her evidence or to render the same as incredible or untrustworthy. Regarding the discrepancies in the evidence of PW-2, PW-3 and PW-5 in relation to the evidence of PW-1, it is a well settled proposition of law that as long as the core of the evidence has a ring of truth, court should ignore minor discrepancies in the evidence. The test is whether the evidence of a witness inspires confidence. If an omission or discrepancy goes to the root of the matter, the defence can take advantage of the same. While appreciating the evidence of a witness, the approach must be whether the evidence read as a whole appears to have a ring of truth. Minor discrepancies on trivial matters not affecting the core of the prosecution case ought not to prompt the court to reject evidence in its entirety. It is the totality of the situation that has to be taken note of. In the case in hand, the victim has categorically stated in her evidence that the accused opened her pant and assaulted her. There is no substance in the argument that the testimony of PW-1 stating that she was "assaulted" does not fall within the meaning of sexual assault as defined in Section 7 of POCSO Act which is quoted hereinbelow :
"7. Sexual assault. - Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault."
The evidence of PW-1 stating that "at first, he opened my pant and assaulted me" clearly falls within the meaning of "sexual assault" as defined in Section 7 of POCSO Act punishable under Section 8 of the said Act. The evidence of PW-1 is corroborated by the medical evidence of PW-7 Dr. Sudhir Ranjan Sarkar whose testimony is quoted hereinbelow :
"I am now posted at Krishnagar Sadar Hospital as Medical Officer (gynecologist). On 11-11-2014 I was posted in the same hospital in the same capacity. On that day, I examined one Purnima Mondal daughter of Barun Mondal who was brought and identified by Lady constable bearing No.2033 Pratima Ghosh in connection with Dhubulia P.S. Case No. 314/2014 dated 10-11-2014.
The mother of the victim stated to me that the victim girl was assaulted sexually on 10-11-2014 at 3-30 P.M. by Santu Biswas, a neighbour.
On examination, I found vulva inflamed and reddish. Hymen was intact. Vaginal swab was taken and handed over to escort party. This is the medical report prepared and signed by me. The medical report is marked Ext.5."
It is evident that the testimony of PW-1 is in conformity with the medical evidence of PW-7.
11. Nothing could be elicited in the cross-examination of PW-1, PW-2 or PW-3 to show that the accused/appellant has been falsely implicated due to enmity. No suggestion of animus or strained relationship between the defacto complainant and the accused was given to the witnesses in cross- examination. Nothing could be brought on record to show that the evidence of the child victim was a tutored impact. No motive could be attributed to any of these witnesses for falsely implicating the accused in this case. Even the presence of the accused at the time of the incident could not be disputed. This fact is evident from the suggestions given to PW-1 in cross-examination which are quoted hereinbelow :
"Not a fact that Santu did not assault me and I entered the house of Santu while playing and Santu drove me out from his house.
Not a fact that I damaged the household articles of Santu and for that reason, Santu assaulted me."
The plea of alibi sought to be taken by the accused during his examination under Section 313 CrPC that he was "not present at that time" is completely demolished by the aforesaid suggestions given to PW-1 in cross-examination. At this juncture it is significant to mention that no evidence has been led by the accused in support of such plea. Above all, it is incredible and improbable that the parents and relatives of a child of tender age would bring dishonour to their family and put their reputation at stake by inventing a false charge of sexual assault against an innocent person. In the case in hand, there is no suggestion on behalf of the accused that there was enmity or inimical relation between the accused and the defacto complainant so the question of false implication is completely ruled out.
12. Equally untenable is the submission that the post-occurrence conduct of the victim was unnatural. There is no legal principle of universal application as to how a person will react in a given situation. The same set of reaction cannot be expected from different people. At this juncture it may be useful to refer to paragraph 22 of the decision of the Supreme Court in the case of Shivasharanappa and Others Versus State of Karnataka reported in (2013) 5 Supreme Court Cases 705 which is quoted hereinbelow:
"22. Thus, the behaviour of the witnesses or their reactions would differ from situation to situation and individual to individual. Expectation of uniformity in the reaction of witnesses would be unrealistic but the court cannot be oblivious of the fact that even taking into account the unpredictability of human conduct and lack of uniformity in human reaction, whether in the circumstances of the case, the behaviour is acceptably natural allowing the variations. If the behaviour is absolutely unnatural, the testimony of the witness may not deserve credence and acceptance."
In the case of Rana Pratap Versus State of Haryana reported in (1983) 3 Supreme Court Cases 327 the Supreme Court observed that to discard the evidence of a witness on the ground that the witness did not react in any particular manner is to appreciate the evidence in a wholly unrealistic and unimaginative way. In the case in hand, we cannot lose sight of the fact that the victim is a child aged about six years who behaved quite naturally by narrating the incident to her mother immediately after the incident. The testimony of the victim cannot be discarded or disbelieved merely because this fact was not stated by her in her evidence. It is pertinent to mention that no contradiction could be pointed out in the evidence of PW-1 in relation to her statement under Section 161 CrPC. It is also significant that the evidence of the victim is in conformity with the medical evidence of PW-7.
13. There is no essence in the argument that prosecution case is rendered doubtful due to non-seizure of the wearing apparels particularly the pant of the victim. On the face of cogent, credible and trustworthy evidence hereinabove discussed the contention raised on behalf of the appellant is devoid of merit. As regards non-examination of the two children or any other public witness, I am of the view that on this count prosecution case is not even remotely affected. There is no provision of law which necessitates examination of all the witnesses by the prosecution. If prosecution does not examine a witness, it is always open to the accused to cite and examine him as a defence witness. Learned counsel for the appellant could not show how the accused has been prejudiced due to non-examination of the aforesaid witnesses. In a case of sexual assault it is the victim who is the best witness and her evidence is entitled to great weight absence of corroboration notwithstanding. A victim of sexual assault is least likely to exculpate the real offender and falsely implicate an innocent person. In the present case, as already discussed hereinabove, the evidence of the child victim corroborated by the medical evidence of PW-7 inspires complete confidence. At this juncture it may be useful to refer to Section 29 of POCSO Act which reads as follows :
"29. Presumption as to certain offences. - Where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3, 5, 7 and Section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved."
Needless it is to say that the accused/appellant could not rebut the statutory presumption and demonstrate that the prosecution version as narrated by the victim (PW-1) and corroborated by the medical evidence of PW-7 and the other witnesses does not inspire confidence.
14. Lastly, learned counsel for the appellant urged that the appellant/accused should be given the benefit of probation considering the fact that at the time of the incident he was below 21 years of age. In this context, it may be beneficial to refer to paragraph 11 of the decision of the Supreme Court in State of Rajasthan Versus Sri Chand which is quoted hereinbelow :
"11. In State of H.P. v. Dharam Pal this Court was dealing with probation of offenders in case of offence of attempt to commit rape. The finding of this Court in the said judgement is relevant for all the offences against women, which is as follows: (SCC p.682, para 6) "6. According to us, the offence of an attempt to commit rape is a serious offence, as ultimately if translated into the act leads to an assault on the most valuable possession of a woman i.e. character, reputation, dignity and honour. In a traditional and conservative country like India, any attempt to misbehave or sexually assault a woman is one of the most depraved acts. The Act [Probation of Offenders Act, 1958] is intended to reform the persons who can be reformed and would cease to be a nuisance in the society. But the discretion to exercise the jurisdiction under Section 4 [of the Probation of Offenders Act, 1958] is hedged with a condition about the nature of the offence and the character of the offender.
In the above case although this Court did not interfere with the benefit of probation granted by the High Court due to peculiar facts of the case however it did not approve the reasoning given by the High Court."
In the case in hand, at the time of the incident the accused was certainly not a minor, rather he has committed an offence of sexual assault against a helpless child of tender age. Considering the grave nature of the offence and the circumstances of its commission as well as the helpless and pitiable plight of the victim who suffered ignominy in the hands of the accused/appellant, I am of the firm view that it would be a travesty of justice to extend to the accused/appellant the benefit of probation.
15. For the reasons aforestated, I am unhesitant in concluding that the appellant failed to make out any case for interference with the impugned judgement and order of conviction and sentence passed by the trial court.
16. Consequently the appeal is dismissed.
17. The appellant who is on bail shall surrender before the trial court within one month from this date to serve out the sentence failing which the trial court shall take appropriate steps against the appellant for execution of the sentence in accordance with law.
18. A copy of this judgement along with the lower court records be sent forthwith to the trial court for information and necessary action.
19. Urgent photostat certified copy of this judgement, if applied for, be given to the applicant upon compliance of requisite formalities.
( ASHA ARORA, J. ) dc.