Tripura High Court
Sri Sanjib Deb @ Kalu vs The State Of Tripura on 7 September, 2017
Author: S. Talapatra
Bench: S. Talapatra
THE HIGH COURT OF TRIPURA
AGARTALA
Crl. A (J) 24 of 2017
Sri Sanjib Deb @ Kalu,
S/o Sri Sankar Deb,
pf Milan Chakra, Adarsha Palli,
P.O. & P.S. A.D. Nagar, Agartala,
District: West Tripura
............ Appellant
- Vs -
The State of Tripura,
represented by the Secretary,
Home Department, Government of Tripura,
Agartala, P.O. Agartala, District-West Tripura
.......Respondent
BEFORE
THE HON'BLE MR. JUSTICE S. TALAPATRA
For the appellant : Mr. MK Roy, Advocate
For the respondent : Mr. S Sarkar, PP.
Date of hearing and
delivery of order : 07.09.2017
Whether fit for reporting : Yes.
JUDGMENT AND ORDER (ORAL)
Heard Mr. M.K. Roy, learned counsel appearing for the appellant as well as Mr. S Sarkar, learned PP appearing for the State.
2. This is an appeal from the judgment and order of conviction and sentence dated 28.02.2017 delivered in case No. Spl.(POCSO) 38/2012 by the Special Judge, West Tripura, Agartala. By the said judgment the appellant has been convicted under Section 10 of the Prevention of Children from Sexual Offences Act, 2012 (in short, POCSO Act). Pursuant to the said conviction the appellant has been sentenced Crl. A. (J) 24/2017 Page 1 of 12 to suffer RI for a term of five years with fine of Rs.5,000/-, in default, to suffer SI for another three months.
3. On the basis of the complaint filed by one Purnima Bir (PW2) on 06.06.2015 disclosing that her daughter, the child victim (name withheld for withholding the identity) was sexually assaulted by the appellant, Amtali P.S. case No. 2015/AMT/062 under Section 354 IPC and Section 8 of the POCSO Act was registered and taken up for investigation.
4. In a nutshell, what had been alleged against the appellant in the written ejahar filed by PW2 is that the child victim had disclosed to PW2 that she was taken inside the rented room of the appellant where she was molested or sexually abused by the appellant. The appellant had repeated such act in the proceeding days as well. The child victim tried to cry out but since her mouth was pressed by the appellant she could not do that. The child victim's breasts were grabbed, molested and bitten by the appellant causing apparent injuries on that part of the body. On completion of the investigation the final police report was filed and cognizance was taken by the Special Judge, West Tripura, Agartala against the appellant for committing offence within the meaning of Section 9 of the POCSO Act which defines the aggravated sexual assault and culpable act as punishable under Section 10 of the POCSO Act. The appellant denied the charge, pleaded innocence and claimed to be tried.
5. In order to substantiate the charge prosecution examined as many as 11 witnesses (PW1 to PW11) including the informant, the victim child, the medical officer who examined the victim child, et al. The prosecution introduced the documentary evidence (Exhibit-1 to Exhibit-5) Crl. A. (J) 24/2017 Page 2 of 12 including the medical examination report of the child victim (Exhibit-5). At the instance of the defence, some part of the statement of witnesses such as PW2, PW6 and PW7 were marked for admission in the evidence as Exhibit-A,B and C. Having carried out the examination under Section 313 CrPC for having response of the appellant on the incriminating materials those surfaced, the Special Court has returned the finding of conviction as stated. Being aggrieved, this appeal has been filed by the appellant.
6. Mr. Roy, learned counsel appearing for the appellant has raised fundamentally three grounds of objection against the impugned judgment, viz,
(i) the taking of cognizance by the Chief Judicial Magistrate, West Tripura, Agartala was wholly without jurisdiction and that has vitiated the entire proceeding;
(ii) the recording of the statement under Section 164(5) CrPC by the Judicial Magistrate (PW10) is grossly without sanction of law as Special Judge, did not direct the Investigating Officer that such statement be recorded by the said Judicial Magistrate; and
(iii) the Special Judge has failed to appreciate the recorded evidence following the well delineated methods of appreciation and for such defiance he landed in an inference which is absolutely fanciful and unsustainable in law.
7. Mr. Roy, learned counsel appearing for the appellant has relied on a decision of the Apex Court on medical evidence in C.K. Raveendran Vs. State of Kerala reported in AIR 2000 SC 369. The said decision is hardly relevant in the context of the case. However, that may be relevant in a case where the charge is endeavoured to be proved by circumstantial evidence. But this case, the charge has been sought to be Crl. A. (J) 24/2017 Page 3 of 12 proved and proved by the child victim who has been corroborated on every material point by the other witnesses including the PWs 9,10&11.
8. From the other side, Mr. S Sarkar, learned PP has submitted that the prosecution has proved the case beyond all reasonable doubt and the appellant has failed to repel the presumption of culpable mental state as provided under Section 30 of the POCSO Act. Section 30 of the POCSO Act provides that in any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. For purposes of this section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability.
9. In the wake of the submission advanced by the learned counsel for the parties, so far the objection as raised regarding the competence of the Chief Judicial Magistrate in respect of taking cognizance of the police report and thereafter committing the same, this Court is of the view that there is no express provision in the POCSO Act prohibiting taking of cognizance by the Magistrate, rather Section 31 of the POCSO Act has clearly provided that for purpose of the provisions under the POCSO Act, the Special Court shall be deemed to be a Court of Sessions and for that reason the provisions of the Code of Criminal Procedure, 1973 including the provisions as to the bail and bonds shall apply to the proceedings before a Special Court.
Crl. A. (J) 24/2017 Page 4 of 12
10. Section 33 of the POCSO act provides that a Special Court may take cognizance of any offence without accused being committed to it for trial upon receiving a complaint on facts which constitute such offence or upon a police report of such facts. What Mr. Roy, learned counsel has objected to regarding taking cognizance by the Chief Judicial Magistrate or by any other Magistrate is based on this provision. The pertinent question in-built in this objection is that except the Special Court no other Court can take cognizance or the Magistrates are not authorized to commit the case for trial to the Special Court. On a keen reading, this Court is of the view that the provisions of Section 33 of the POCSO Act is supplemental in nature not in exclusion of Section 209 of the Code of Criminal Procedure, 1973 (in short, CrPC). Section 209 CrPC provides that when in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that offence is triable exclusively by the Court of Sessions he shall:
a) commit, after complying with the provisions of section 207 or section 208, as the case may be , the case to the Court of Sessions, and subject to the provisions of this Code relating to bail, remand the accused to custody until such commitment has been made;
b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial;
c) send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence;
d) notify the Public Prosecutor of the commitment of the case to the Court of Sessions.Crl. A. (J) 24/2017 Page 5 of 12
11. Section 193 of the CrPC provides a very strict procedure by postulating that except as otherwise expressly provided by the CrPC or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code. In the POCSO Act, the said rigid procedure has been greatly relaxed for two manifest purposes: (i) the Special Court may take cognizance of any complaint disclosing facts relating to the sexual offences against children; and (ii) also take cognizance of the offence as disclosed by the police report without the procedure of commitment. That does not exclude the committal procedure as a whole. If the Magistrate commits the case to the Special Court it cannot be treated as incompetent or illegal or irregular by any stretch of interpretation of Section 33 of the POCSO Act.
12. Another limb of objection as recorded above, is that the recording of the statement of the child victim by the Judicial Magistrate. What Mr. Roy, learned counsel has submitted, is completely in contrast to the provision as provided under Chapter VI of the POCSO Act. The said Chapter deals with recording of the statement of a child by the police officer following certain strict conditions and the recording of the statement of the child by the Magistrate [Section 25 of the POCSO Act]. Section 25 deals with the recording of the statement of the child by a Magistrate. It provides that if the statement of the child is recorded under Section 164 CrPC, the Magistrate recording such statement shall notwithstanding anything contained therein, record the statement as spoken by the child, provided that the provisions contained in the first proviso to sub-section (1) of Section 164 of the Code shall, so far it permits Crl. A. (J) 24/2017 Page 6 of 12 the presence of the advocate of the accused shall not apply in the case. However, certain other provisions have been made to make the child comfortable before making the statement. Therefore, there is no restriction in respect of the recording of the statement by the Magistrate in the course of the investigation.
13. The objection as raised in respect of the appreciation of the evidence is that the appreciation has not been followed in terms of the canons as already established by development of law. For appreciating this objection, let us take a short recourse to the evidence as recorded by the Special Court.
14. PW1, Shri Nirmal Majumder has written the Ejahar (Exhibit-1) on dictation of PW2. He has stated that while writing the said ejahar he had wrongly written the house of Gopal Das in place of Dayal Das as the place of residence of PW2 and he forgot to correct the said mistake. That apart he has stated nothing of material importance.
15. PW2, Smt. Purnima Bir, the mother of the victim child has clearly stated that on 06.06.2015 while she was changing the dress of the victim child, she noticed marks of biting on her left breast. She asked her how that happened. The victim child stated that it was caused by the appellant who was staying as tenant in the house of their neighbour, Gopal Das. She had further revealed that she was called by the appellant frequently and he used to kiss her and bite on her breast. Sexual assault of this nature occurred in the preceding last five days preceding from 06.06.2015. PW2 informed this to PW4, Smt. Snehalata Das, PW5, Smt. Ashima Das, PW6, Sri Sanjib Majumder, and one Badal Chowdhury. PW2 had also informed one Madhabi Das, daughter in law of Dayal Das. Badal Crl. A. (J) 24/2017 Page 7 of 12 Chowdhury and Madhabi Das were not examined but the other persons were examined as witnesses in the trial.
16. PW2 has stated that PW1 wrote the written ejahar at her dictation and he identified the said written ejahar in the trial. Then she narrated the entire incidence again to the police officer at Amatali police station. From the police station, they were taken to the Hapania Hospital and the victim child was examined by the doctor (PW11). PW2 has further stated that the appellant had been staying alone in the house of Gopal Das. His wife left him with their son.
17. In the cross-examination, the defence tried to emphasize that in the written ejahar the informant stated that they were staying in the house of Gopal Das but later on in trial it has been stated that they were staying in the house of Dayal Das.
18. PW3 is the victim child. She had clearly stated in examination- in-chief, after her intelligence and duty to state the truth were examined by the trial court, as follows:
"The incident took place about four months back and it happened for five days. Sanjib Deb alias Kalu who used to stay in the house of Gopal Das near our house caused this. He used to take me in his hut between 2 and 3 pm and used to kiss in my face and bite in my breast pressing my mouth. He did this in my left breast. Due to the biting there was a mark on my left breast.
After five days, one morning, when my mother was changing my dress for going to school noticed themark and asked me when I informed the whole incident. I did not disclose the incident tomy mother as Kalu threatened that he would assault my brother.
On the day on which my mother came to know the incident, she took me to the Amtali Police Station. From there I along with my mother were taken to the Hapania Hospital and the doctor examined me."
19. In cross-examination she has further stated as under:
"I stated to the Magistrate at Bishalgarh that I was being taken my Kalu for five days between 2 and 3 pm. Crl. A. (J) 24/2017 Page 8 of 12 Attention of the witness being drawn to the recorded statement, witness admits that these are not there."
20. PW4, Snehalata Das has stated that one day about four months back she heard cries of the victim child and when she inquired PW2 had shown to her the spot on the left breast of Puja and informed that that was caused by the appellant in the preceding five days. Her statement could not be dented by the defence.
21. PW5, Smt. Ashima Das has almost replicated the statement of PW4 and her statement in the examination-in-chief could not be dented in cross-examination.
22. PW6, Sanjib Majumder has stated that about four months back one morning PW2 went to the local club and informed that the appellant had sexually abused her daughter by kissing her and biting her brest. He advised her to take the recourse of law.
23. PW7, Rabi Chowdhury has stated in the trial that PW2 stated to him about the sexual abuse by the appellant to her child. He went there and he was shown the biting marks on the breast of her daughter.
24. PW8, Smt. Tumpa Dey, who was a tenant of the same premise where the appellant was staying at the time of occurrence, narrated what she had heard from PW2.
25. PW9, Smt. Bidyalaxmi Debbarma, women Sub-Inspector of Police who was entrusted with the investigation has stated briefly how she had conducted the investigation by visiting the place of occurrence, examining the witnesses, getting the child victim examined by the medical officer and finally being satisfied that a prima facie case had Crl. A. (J) 24/2017 Page 9 of 12 been made out from the investigation under sections 354/506 IPC and under Section 8 of the POCSO Act, she filed the charge sheet.
26. PW10, Smt. Jumeli Debbarma is the Judicial Magistrate who recorded the statement of the child victim under Section 164 of the CrPC and identified in the trial, the said recorded statement of the victim child (Exhibit-2).
27. PW11, Dr. Shyamal Ch Sarkar examined the victim child when she was produced by the police. In the trial PW11 has stated as under:
"Since the year 2005 I have been working as Tutor Doctor in the Deptt of Forensic Medicine of TMC and Dr. BRAM Hospital Agartala. Dr. Payel Saha worked with me for about a year. Presently she has gone outside the state for her higher studies. I am acquainted with her hand writing and signature. The medical examination report of Puja Bir shows that in c/w Amtali PS Case No. 62 of 2015 Dr. Payel Saha examined Puja on 06.06.2015 in TMC & Dr. BRAM Hospital Agartala. There was one 3cm x 0.2 cm /above downwards direction lateral to medial position upper end 8 cm below left clavicle and 7 cm lateral to mid line place medial side of nipple over the developing breast on left side; 3 small bruises arranged in a semi lunar fashion 1 cm below areola of left nipple of which medial one was 3 mm x 1 mm, oval in shape, gap between each 1 mm; another injury 1.5 cm x 1 cm and 6 cm from id line, 9 cm from mid clavicular line and 6 cm lateral to mid line. Direction-lateral to medial and vertically; another injury 2 cm x 5 mm and 11 cm below mid clavicular line, 5 cm lateral to mid line vertically/lateral to medial; another injury 1 cm x 2 mm and 12 cm below midclavicular line, 6 cm from mid line lateral to medial. Another injury 1 cm x 2 mm and 12 cm below midclavicular line 7 cm from mid line lateral to medial vertical direction.
Age of the injuries was within 24 hours from the time of examination. There were some more injuries over the back side of the chest and arm as follows:
Multiple parallel bruises over the back of chest crossing over the T10-T12 left and riches 4 cm above right. Anterior superior iliac side and right end 5 cm below from the lower end of left scapula.
Bruises - one upper 11.5 cm having one thick and thin parallel bruises at a distance of 3 mm.
Two bruises 11.5 cm on left side 2 parallel signs are distinct for 4 cm each having 2 mm gap in between 5 mm onwards towards the right side.
These injuries formed one thicker bruise from 7.5 cm x 1 cm to 0.5 cm at places.
Another injury 6 cm x 0.5 cm from 9 cm away from left iliac chest and 5 cm away from mid line and right lower end touches right iliac chest at back and it is 2.5 cm away Crl. A. (J) 24/2017 Page 10 of 12 from mid line. Another injury two parallel bruises 2 cm x 2mm and 1 cm x 5mm with a gap of 5 mm medial end was 18 cm from external occipital protuberance and 3 cm from mid line on back of chest upper part. Another semi circular bruises 3.5 mm x 0.3 cm in the upper end over the mid line of back of chest 17 cm below external occipital protuberance and lower end 2.5 cm right to mid line.
Another parallel bruise 3.2 cm x 1 mm each with gap of 5 mm placed horizontally touching the lower end and left scapula and middle end is 10 cm away from the mid line and back of the chest. One bruise 5cm x5mm horizontally placed over spinous crosses of scapula on left side and medial end was 4 cm away from mid line. Another bruise over arm 2.5 cm x 5 mm horizontal over left deltoid, 1 cm below left acromian crosses. Another bruise over end 2 cm x 0.5 cm dorsal surface into 7 cm above the right elbow crease."
28. When the Court asked PW11 about the nature of injuries and how those could happen, PW11 had stated as under:
"These injuries could be sustained to the victim on being repeatedly molested. The injuries on the front side of the chest could be sustained because of biting by teeth or because of nail marks and the injuries on the back side of the chest could be sustained because of fraction with ground or any hard substance. The injuries detected on the arm could be sustained because of struggling by the victim."
[Emphasis added]
29. As Mr. Roy, learned counsel for the appellant insisted this Court that there is discrepancy in the statements as recorded under Section 164(5) of the CrPC by PW10 and what has been stated by the child victim in the trial this Court has compared the statements made by PW3 in the trial and what has been recorded under Section 164(5) CrPC. The victim child has stated while her statement was being recorded under Section 164(5) CrPC that the appellant finding her alone beckoned her and out of apprehension if I did not go inside his house he pulled her inside. Thereafter, he pressed her mouth and had bitten her breast. He did it for five days. He had also prohibited her from disclosing that act to anyone. In the trial the victim child has stated that she stated to the Crl. A. (J) 24/2017 Page 11 of 12 Magistrate at Bishalgarh that she was being taken by Kalu, the nickname of the appellant for five days between 2 and 3 pm. There is hardly any discrepancy and for merely not mentioning the time in the statement recorded under Section 164(5) it cannot be stated to be omission of that nature which would debase the very substratum of the statement made by the victim child.
30. Except some insignificant and minor deviation which are bound to happen when someone making a statement after a considerable time and making the statement by recollecting the course of happening from his or her memory. If these are taken seriously it would be an uphill task to prove any fact by way of oral evidence. Else, the witnesses will be tutored before production in the witness box either by the prosecution or by the interested persons.
31. Spontaneity always extends assurance. Insignificant variation here and there, if the core of the matter is found not changed by improvisation, improvement or omission should not persuade the Court to brush aside the whole statement, what has exactly been done by the trial court in this case.
32. On appreciation of the evidence afresh, this Court does not find any material to interfere with the finding of conviction as returned by the trial court. The cumulative result therefore is that there is no merit in the appeal and as consequence thereof, the appeal stands dismissed. The appellant shall serve out the sentence as awarded by the Special Court.
Send back the LC records forthwith.
JUDGE Crl. A. (J) 24/2017 Page 12 of 12