Calcutta High Court (Appellete Side)
Litan Sarkar vs The State Of West Bengal on 6 February, 2020
Author: Sahidullah Munshi
Bench: Sahidullah Munshi
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Before :
The Hon'ble Justice SAHIDULLAH MUNSHI
And
The Hon'ble Justice SUBHASIS DASGUPTA
C.R.A. No. 483 of 2016
Litan Sarkar
... Appellant/Accused
-Versus
The State of West Bengal
... Respondent
Mr. Arindam Jana, Mr. Sumanta Das ... for the appellant Mr. Navonil De ... for the State Heard on : 19.09.2019, 08.11.2019, 03.12.2019 & 04.12.2019. Judgment on : February 6, 2020 Sahidullah Munshi, J.: This appeal is against the judgment and order of conviction dated 12th July, 2016 passed by the learned Additional District & Sessions Judge, 2nd Court, Krishnagar, Nadia in Sessions Trial No. VII(V) of 2016 arising out of Sessions Case No. 2 11(03) of 2016 (Special) sentencing the appellant to suffer imprisonment for five years together with a fine of Rs.10,000/-, in default, to suffer further rigorous imprisonment for six months for the commission of offence punishable under Section 263 of the Indian Penal Code and further sentencing him to suffer imprisonment for 10 years and to pay a fine of Rs.50,000/- in default to suffer rigorous imprisonment for one year for the commission of offence punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012, both sentences being run concurrently.
Appellant committed to stand a trial before the Court of learned Additional District and Sessions Judge, 2nd Court, Krishnagar, Nadia in Sessions Trial No. VII (V) of 2016 arising out of 11(03) of 2016 (Special) to answer the charge framed against him, for commission of offences punishable under Section 363 of Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences Act, 2012. The prosecution examined as many as 12 witnesses and produced document in order to bring home the charge framed against the accused whereas the defence pleaded not guilty and claimed to be tried.
The learned trial Judge upon perusing the materials on record and the evidence adduced by the prosecution and after hearing respective submissions of the parties passed the impugned judgment and order of conviction and sentence as aforesaid. 3
In the appeal the accused/appellant filed an application for suspension of sentence as also prayed for an order directing stay of realization of fine and the said application was allowed. The petitioner is now on bail. Learned trial Court while passing the impugned order of conviction and sentence held that the victim stated that her age is 15 years and the investigating agency seized the birth certificate of the victim wherefrom it was revealed that she was born on 26.12.2000; the incident took place on 14.08.2015 and therefore, there is no hesitation to say that the victim was 15 years old at the time of occurrence. According to the trial Court, question of ossification test does not and cannot arise as there is an authenticate document which goes to show clearly the age of the victim.
According to the trial Court Section 29 of Protection of Children from Sexual Offence Act, 2012, the Court shall presume that the accused person has committed the offence as the case may be unless the contrary is proved by the offender. Learned Court below stated that when it is proved that the victim was minor and kidnapped by taking her to Dum Dum through train and toto (a three wheeler). And cross-examination of the victim showed that out of fear she did not utter anything to anybody, particularly when the victim was cohabited and ravished by the accused at his maternal uncle's house at Dum Dum where they stayed for 4 days together, it should be taken to be proved that the cohabitation took place on many occasion and cohabitation with the minor girl is completely within the definition of 4 rape and penetrative sexual assault within the ambit of POCSO Act and the accused failed to rebut the presumption.
The learned trial Court held, in view of medical evidence, the statement of the victim before the Court and the statement before the learned Magistrate, it is well established that the accused has committed an offence of kidnapping and aggravated penetrative sexual assault punishable under Section 363 of IPC together with Section 6 of the POCSO Act. Learned Court below came to a conclusion that prevailing circumstances as evident from the evidence on record that the accused person had committed an offence of kidnapping and aggravated penetrative sexual assault of the minor girl of 15 years. It held that from the oral testimony of the victim, medical evidence and other supporting evidence, it is clear that there was an intention to commit aggravated penetrative sexual assault by the accused leading to commission of the offence. The Court below observed "the correct approach of the Judge conducting Criminal trial should be that no innocent should be punished and no guilty person should be unpunished. It is not judicial heroism to blindly follow the off- quoted and repeated saying. 'Let hundred guilty man be acquitted but let not one innocent be punished'. It is undesirable to acquit a guilty person and / or punish an innocent. An exaggerated devotion to benefit of doubt is disservice to the society..... Proof beyond reasonable doubt is a guideline not a fetish.
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There is no heroism in acquitting a hundred guilty men. The correct approach of the Court sitting in a Criminal trial has been fully laid down in 1994 Cr.L.J. 2254. The sermon does never enjoin that the Court acquit a hundred guilty persons. It is more than a caution to the Court. It is a caution to the Court as to the approach the Court should adopt in a criminal trial. It never dictates the Court to acquit hundred guilty men, rather it dictates the Court to see that innocent persons is not punished and no guilty persons escapes the punishment."
Mr. Jana, learned advocate appearing for the appellant submitted before us that the Court below has been influenced by his emotion rather by the materials on record and the evidence adduced by the prosecution. He submitted that the trial Court instead of proceeding the evidence on record took shelter under Section 29 of the POCSO Act holding that in every case the accused must adduce independent evidence to disprove the allegation leveled against him. He submitted that reverse burden of proof in every case is mandatory for the accused irrespective of the effort shown by the prosecution to prove its own case. Mr. Jana has further argued that the evidence is totally lacking in so far as it says about the kidnapping of the girl from the lawful custody of the guardian even if it is presumed that she is a minor and the entire circumstances narrated by the complainant as also the victim apart from contradiction, does not disclose even the offence of kidnapping and rape.
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Mr. Jana in support of his case relied on the following decisions:
• State of Gujarat -Vs. - Bharat alias Bhupendra reported in 1991 Cri LJ Court;
• Jay Prakash Singh -Vs. - State of Bihar & Anr.
reported in (2012) 4 SCC 379 and • Rahim Beg & Anr. -Vs. - State of U.P. reported in (1972) 3 SCC 759 • Sadhu W/o Motlal Turra -Vs. - State of Maharashtra reported in 2018 SCC Online Bom 1303.
Contradicting the submission made by Mr. Jana, Mr. De learned advocate appearing for the State submitted that on the day of deposition of the victim, it was revealed that the victim was 16 years of age which shows that on the day of occurrence she was 15 years and since there is no cross-examination on this point nor was there any suggestion given to the witness, the appellant cannot agitate that in absence of ossification test the age of the victim cannot be construed to be of 15 years or that her consent to the offence can at all be construed to be a free consent. Mr. De submitted that although, it was agitated by the defence that the appellant was falsely implicated because of the political rivalry between the landlord (PW10) and the accused but there was a cross-examination and/or 7 suggestion to prove otherwise on the part of the defence. He submitted that it will not be safe to rely on the medical evidence and to acquit the accused inasmuch as the examination was made by the Officer six days after the commission of offence, as a result the doctor could not find any major injury into the private parts. He submitted that victim's evidence is sufficient as the same is not contradictory.
According to Mr. De, the accused has been rightly convicted and sentenced by the trial Court.
In support of his submission Mr. De relied on the following decisions:
• State of Himachal Pradesh -Vs. - Suresh Kumar alias DC reported in (2009) 16 SCC 697 & • Bibhuti Bhusan Roy -Vs. - The State of West Bengal reported in (2019) 1 Cal LT 105 (HC).
We have heard the parties at length. Perused the decisions cited by the learned advocates for the respective parties and we also perused the records and evidence adduced by the parties.
On perusal of the First Information Report we find that the police station received information of occurrence of the offence on 19th August, 2015 at 16.25 hours while the incident occurred on 14th August, 2015 at 06.00 hours. The written complaint was (Exbt.2/1) lodged by Sri Sisir Santra, father of the victim aged 15 years. The complaint initially disclosed the offence under Section 363/366A of 8 the Indian Penal Code stating that the victim left home for taking private tuition to Dakshion Suravistan on 14.08.2015 but as she did not return home within expected time the complaint was lodged as he learnt from local people that the accused took the victim away. The written complaint was scribed by one Dilip Biswas (PW7). The written complaint, was forwarded to the learned Magistrate with delay although it ought to have been sent within 24 hours and such delay has not been explained by the prosecution. Even the prosecution has not explained the delay in lodging the complaint on 19th August, 2015 while the incident occurred on 14th August, 2015. This long delay of 5 days appears not to have been explained by the prosecution. The victim was examined by the learned Magistrate and her statement has been recorded under Section 164 of the Code of Criminal Procedure (Exbt.1). Such statement was recorded on 26.08.2015 when she stated before the learned Magistrate that she knew the accused and used to visit her friend's house and thus she knew him. The accused took her to Dum Dum in the name of travelling and against her will putting vermilion on her parted hair and married her. Then he took her at a house and raped her against her will. She was there for five days and thereafter, on 19.08.2015 (Wednesday) fled away from that place and went to Belgharia station wherefrom availed herself of a train to reach at Krishnagar where she resides. Accused married and raped her against her will. In the deposition of the victim she has stated that she was going to tuition and the accused threatened her with dire consequences and took to Dum Dum by train at Dum Dum 9 at the maternal uncle's house of the accused. The accused got her married at a Kali Temple and she was kept at the maternal uncle's house where she stayed for four days as husband and wife. The accused also cohabitated with her during such stay and the victim managed to flee away from that place to Badkulla to her parental house. She stated everything to her parents and thereafter, complaint was made. In her cross-examination in reply to the suggestion given on behalf of the accused she deposed that the accused is a supporter C.P.I.M and Bipul jethu (PW10) is the landlord and used to help her father and his family and is a supporter of T.M.C. party. She deposed that "I did not shout when I was taken by accused for going to other place out of fear. I did not see any G.R.P., police personnel at Badkulla station area for narrating the fact them. In the train there are so many passengers and I did not tell to passengers that I was forcibly taken by Litan Sarkar. When I reached Dumdum I did not tell about the incident to station master, police personnel of Dumdum. We reached at the house of maternal uncle of the accused from Dumdum station by Toto. There is no passenger in the said Toto. I did not tell to Toto driver about the incident out of the fear. In the Kali Mandir there is a priest. I did not tell to priest about the incident out of fear. Sishir Santra is my father. Swapan Santra is my mother. Ratna Biswas is my maternal aunt. Dilip Biswas is my maternal uncle (Meso). Other public witness are my close family well wishers."
She further deposed "It is true that there is a conversation in between police and our family regarding this case while I was 10 accompanied by the police to Ranaghat Court. Out side of the chamber of Ld. Magistrate police and my mother were present. The cohabitation was taken place against my will and I raised objection. I received injury for forcible intercourse. I have stated the fact to doctor babu. I also stated about the injury after the incident to Darogababu." While it is stated by the victim aged 15years in her cross-examination by the defence that she was followed by the accused and sustained injury for forcible intercourse, the doctor treating the victim on 25.08.2019 deposed "On examination I found there is no sign of injury to the external genitalia but the hymen was raptured." While perusing the report (Exbt.4) of the doctor (PW5) shows "Her labia minora and majora apparently looking healthy. No sign of injury in her private part... Vaginal swab & semen taken and leveled for examination."
In this context the evidence of PW8 who is the maternal aunt of the victim. During cross-examination she deposed "...I knew the fact of incident from Swapna that Sarmistha was raped by Litan. Sarmistha Santra used to go here and there by bicycle. Swapna came with me today." While the evidence of PW3, mother of the victim was examined it appears that mother told that he date of occurrence was 15.08.2012 not 14.08.2015 and she further deposed that "After 3 days from 15th August 2015 she returned to our house and I asked to my daughter where she was and she disclose me that she was at the house of maternal uncle of Litan Sarkar at Dumdum." In cross-examination this witness (PW3) also reiterated that "...after 3 days from 15th August 2015 she returned to our house and I asked to my daughter where she 11 was and she disclosed me that she was at the house of maternal uncle of Litan Sarkar at Dumdum..."
The evidence of PW2 the father of the victim discloses that his daughter aged 15 years was missing since 14th August, 2015 and he submitted written complaint on 16th/17th August, 2015. He deposed that "I heard that my daughter left with Litan Sarkar, thereafter, I submitted written complaint... After one week I saw my daughter at Badkulla station and thereafter I asked my daughter actually where she went. My daughter did not disclose anything to me. Litan Sarkar is present today (Identified on dock)." In cross-examination this witness further deposed "...I saw that my daughter was loitering at Badkulla station, thereafter I took her from that place. Besides this I have no personal knowledge about the incident."
If the quality of the evidence of the victim (PW1), father of the victim (PW2), mother of the victim (PW3), maternal uncle of victim (PW6), the scribe (PW7) and maternal aunt (PW8) are taken into consideration it appears firstly, that complaint filed by the father after a delay of at least 5 days has not been explained at all; no justification appears to have been given as to why the inmates of the victim could file at least a missing diary either on the day of the incident or on the following day, although, nature of complaint as has been drafted and filed before the police is not in the nature of a missing diary. It cannot reasonably be believed that the parents who knew that their daughter went for tuition and did not return home kept silent for 5 / 6 days 12 without bringing it to the notice either to the neighbour or to the police. In their entire evidences they did not also disclose that any attempt was made to find out the victim at their relative's house or any other known place where the victim had a possibility of going. The private tutor where the victim had to go, has also not been examined by the prosecution; the prosecution has not examined the maternal uncle of the accused where the victim was taken by the accused and allegedly cohabitated for long 5 days; police did not make any investigation about such place where the victim was taken and the offence of rape allegedly committed upon the victim by the accused;
no reason is forthcoming as to why the victim who is admittedly aged about 15 years did not confront with the accused in any manner possible.
Evidence of the victim in Court also does not corroborate the complaint and also her statement recorded under Section 164 of The Code of Criminal Procedure. In her 164 statement she stated that on 19th August, 2015 she fled away from the place where she was kept by the accused and catching a train from Belgharia station she came home. Whereas, the evidence of PW2 the complainant shows that she met her father at Badkulla station and came home with her father. These contradictions are not minor contradictions because such an incident if at all happened with the victim it is not natural that she would forget everything within a span of few months. Her statement under Section 164 Cr.P.C. recorded on 16.08.2015 whereas she deposed before the Court on 21st June, 2016. That apart the victim 13 has stated before the Court that before recording of 164 statement her family members talked to the police personnel outside the Court of the learned Magistrate. This raises a doubt of tutoring by the parents. Therefore, to rely on the 164 statement is risky in this case.
It is pertinent to note that mother (PW3) says 3 days after 15th August and father says the commission of offence was 14th August when she left house. 15th August being a memorable day it can be presumed that the mother spoke the truth but if it becomes the truth the evidence of PW2 / complainant appears to be untrue that she was missing from 14th August, 2015. If mother is to be believed that she returned home on 18th August then why the complaint was made on 19th August, that too at about 4.25 hours. The father PW2 in his deposition stated that after one week he saw her daughter at Badkulla station. Again PW3 the mother in her cross-examination stated "Grandmother of Litan Sarkar left my daughter at Badkulla station." For all such contradictions it is difficult to believe which one of the witnesses speaks the truth. Even the deposition of PW1 does not inspire confidence at all that she is speaking the truth.
Another serious infraction of law is apparent from the evidence of PW3 where she deposed in chief "In my presence Ld. Magistrate recorded the statement." Which is contrary to the provision of law for recording statement under Section 164 of The Code of Criminal Procedure. Therefore, the evidence of these witnesses cannot be relied on at all.
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So far the medical evidence is concerned the doctor examining the victim on 25.08.2015 stated in chief that he did not find any injury but hymen was ruptured. The report (Exbt.4) shows that specimen was collected for chemical examination but from the examination of the IO it appears that the chemical examination report has not been brought on record.
In her examination the victim (PW1) stated "After reaching to my house I have stated all these things to my parents. At Ranaghat S.D. hospital I was examined by lady doctor..." This lady doctor (PW5) while examining the victim has not stated anything about the incident happened with the victim as claimed to have been narrated by her to the doctor. The history has also been noted down by the doctor in the report. Report (Exbt.4) contains only the observations as aforesaid. Doctor's report does not support the allegation made by the victim narrated by her in the complaint or deposed before the Court by her mother or other relative witnesses. On top of it the doctor has stated in cross-examination that "Hymen may be ruptured other than sexual intercourse." Keeping this opinion of the doctor that rupturing of hymen may be caused other than of sexual intercourse find support in this case when PW8 another maternal aunt of the victim deposed "...Sarmistha Santra used to go here and there by bicycle..." The evidence of PW8 raises possible circumstances through which the victim could have sustained injury of the nature in the hymen indicated by the doctor in his report other than sexual intercourse and this possibility gets confirmation when the doctor said she found 15 no sign of injury to the external genitalia. Trustworthiness of the witnesses related to the victim and her parents raises a doubt and more so, when maternal uncle of the victim in his cross-examination pointed out "...there is no good relation in between the family of accused and the family of my elder sister Swapna as well as our family. It is true that Sarmistha Santra is always in the habit of fleeing away with the boys and previously she fled away with 6/7 boys and they are the inhabitant of outside of Badkulla. Sarmistha Santra fled away with the son of Mukul Sikder. After 6/7 days she returned back and we recovered her from Badkulla station. It is true that there is no good relation in between accused and Bipul Ghosh due to political reason." The evidence of this witness not only does not support the prosecution case but it goes against the prosecution. This evidence also raises doubt about the truthfulness of the victim's statement before the Court and also creates doubt about impartiality of the landlord of the victim's parents, Bipul Ghosh (PW10), in his deposition stated "...Sarmistha Santra left home with one person namely Litan." But his evidence is again not admissible inasmuch as it was deposed "I was not examined by the police." Therefore, he deposed for the first time before the Court and thus his evidence cannot be relied on. On an analysis of the evidence adduced by the witnesses for the prosecution it is not apparent that the victim was kidnapped by the accused from the lawful custody of the guardian. The charge under Section 363/366A of Indian Penal Code could not be proved beyond reasonable doubt.
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Record reveals that the Investigating Officer seized the certificate of the victim.
From the record it is revealed that the Investigating Officer seized a birth certificate of the victim under the seizure list. Carbon copy of the seizure list prepared and signed by the Investigating Officer mechanically through carbon process. Seizure list has been marked as Exbt.7. The seized birth certificate was handed over to the father of the victim on execution of his jimmanama. Carbon copy of the said jimmanama has been marked as Exbt.8. Exbt.8 appears to be the receipt against the jimmanama whereby the original birth certificate was returned to the father of the victim. It is surprising that although birth certificate was seized, the same was returned to the father but during examination of the witnesses particularly, PW2 (father) or PW3 (mother) it was not even tendered through the investigating officer during his examination before the Court. The learned trial Court has not seriously considered this document and he has allowed the receipt to be marked as an exhibit and treated the same as proof of the date of birth which is not permissible under the law. Exbt.7, the seizure list dated 19.08.2015 seized in connection with Taherpur P.S. case no. 145/15 dated 19.08.2015 shows that the document being a certificate of original birth certificate, was produced by Sisir Santra. In column 5 of the seizure list the article seized has been described to be "one original birth certificate of Sarmistha Santra, D/o Shisir Santra SL No- 0330970 issued from K.M.C. Health 17 Department. S-SN Banerjee Road Kolkata 700013. Date of birth is 26/12/2000."
Law of evidence requires that documents must be proved by primary evidence except in cases enumerated under Section 65(a)(2)(g) of Indian Evidence Act. Section 65(e) says when the original is a public document within the meaning of Section 74 or when the original is a document of which a certified copy is permitted by the evidence Act, or by any other law in force in India to be given in evidence; certified copy of the document but no other kind of secondary evidence is admissible. As per Section 74 of the Evidence Act following are the public documents:
(1) Documents forming the acts, or records of the acts -
(i) of the sovereign authority,
(ii) of official bodies and tribunals, and
(iii) of public officers, legislative, judicial and executive, of any part of India or of the Commonwealth, or of a foreign country;
(2) Public records kept in any State of private documents.
How the public documents can be proved has also been mentioned in Section 78 of the Evidence Act. Sub-section which says, Acts, orders or notifications of the Central Government in any of its departments or of the Crown Representative or of any State 18 Government, - by the records of the departments, certified by the head of those departments respectively, "78. Proof of other official documents.--The following public documents may be proved as follows:--
(1) Acts, orders or notifications of [the Central Government] in any of its departments, [or of the Crown Representative] or of any State Government or any department of any State Government,--
by the records of the departments, certified by the head of those departments respectively, or by any document purporting to be printed by order of any such Government [or, as the case may be, of the Crown Representative];
(2) The proceedings of the Legislatures,--
by the journals of those bodies respectively, or by published Acts or abstracts, or by copies purporting to be printed [by order of the Government concerned]; [by order of the Government concerned];
(3) Proclamations, orders or regulations issued by [Her Majesty] or by the Privy Council, or by any department of [Her Majesty's] Government,--
by copies or extracts contained in the London Gazette, or purporting to be printed by the Queen's printer; (4) The acts of the Executive or the proceedings of the Legislature of a foreign country,--
by journals published by their authority, or commonly received in that country as such, or by a copy certified under the seal of the country or sovereign, or by a recognition thereof in some [Central Act];1[Central Act];
(5) The proceedings of a municipal body in 6[a State],[a State], 19 by a copy of such proceedings, certified by the legal keeper thereof, or by a printed book purporting to be published by the authority of such body;
(6) Public documents of any other class in a foreign country,--
by the original, or by a copy certified by the legal keeper thereof, with a certificate under the seal of a Notary Public, or of [an Indian Consul] or diplomatic agent, that the copy is duly certified by the officer having the legal custody of the original, and upon proof of the character of the document according to the law of the foreign country."
Therefore, the document (birth certificate) which was part of Exbt.7 (seizure list) ought to have been proved either by producing the records of the department concerned or by the certified copy of the said document issued by official bodies authorized by the department. Said procedure being not adhered to, the prosecution could not be said to have successfully proved that the victim was born on 26.12.2000 and that she was minor on the date of occurrence (14.08.2015) meaning thereby the victim was aged 15 years 8 months 19 days. Firstly, the age of the victim has not been proved by the prosecution and no attempt has also been made to prove. The age otherwise than by birth certificate can be proved by way of ossification test because in a given case which is on the border line, that is say, the victim was about to be of the age of consent by only four months, it is difficult for the Court to rely on the statement of the mother of the victim that the victim was aged about 15 years on the date of occurrence. In absence of ossification test report and in absence of the proof of birth the Court holds that there are two possibilities 20 either the victim has attained majority and that is why the birth certificate although, seized was not tendered in evidence by the Investigating Officer or by the parents. The other possibility could be that the accused was sought to be trapped because of the strain relationship as indicated earlier and in such circumstances the possibility which would lead acquittal should be considered and definitely the benefit of doubt should be made available for the accused leading to acquittal. In view of this situation it is very difficult to hold that the prosecution has successfully proved the offence under Protection of Children from Sexual Offences Act.
Serious discrepancies and contradictions are apparent from on the face of the record of this case, namely (i) the Investigating Officer admitted in his cross-examination that "There is no whisper by any witness that they saw Litan forcefully took the victim to other place." Therefore, the offence under Section 363/366A becomes doubtful and other evidences on record does not support the commission of such offence, secondly, the charge so framed under Section 363/366A cannot be sustained. The first charge, therefore, cannot be sustained.
(ii) The victim as we have seen said that she was subjected to cohabitation by the accused for 5/6 days at a place of the accused's maternal uncle. Police neither went for investigation at the said spot where the allegation of rape commenced and which is the foundation for the offence under Section 6 of the POCSO Act nor police examined the maternal uncle during trial. No evidence from the inmates of the 21 house where the victim was allegedly confined and subjected to rape is forthcoming which could have been the material evidence in support of the 2nd charge framed under Section 6 of the POCSO Act but those are absent. That apart in the cross-examination the Investigation Officer deposed that "I have recorded the statement of the V.G U/S 161 Cr.P.C. V.G disclosed me that she was introduced with Litan by her friend and I did not cite the said friend as charge-sheeted witness. V.G stated to me that she was taken to a temple where marriage was solemnized." Despite such fact neither the said friend was examined nor even the priest of the temple where allegedly marriage took place has been examined. Therefore, the prosecution has withheld the best possible witness before the Court to reveal the truth. And this should be considered fatal for the prosecution case. The learned Court below on a total non-application of mind ignored this fact and has simply relied on the deposition of the prosecutrix alone which in our opinion does not inspire confidence of the Court as regards its quality. It is true, conviction can be imposed simply on the basis of the evidence of the prosecutrix but the same should be of good quality and trustworthy and its quality should be so high that it would inspire confidence to the Court to rely on it. This is not the case here. We have already discussed the deposition of other witnesses.
With regard to the medical report so far as rupture of hymen is concerned it is not conclusive proof of sexual assault on a lady. To that extent we may refer to a few paragraphs from Modi's Medical Jurisprudence and Toxicology (24th Edition) (page 625) 22 "Normally, the hymen is ruptured by the first act of coitus, though it may persist even after frequent acts of coitus if it happens to be loose, folded and elastic; or thick, though and fleshy. Cases have been recorded in which the hymen had to be incised at the time of delivery, while even prostitutes have been known to possess an intact hymen.
Besides the act of coitus, the hymen may be ruptured in the following cases.
1. An accident, for example, a fall on a projecting substance, fence, or while playing on a see-saw. The plea that is usually brought forward by the defence pleader in the case of alleged rape in mofussil courts is that the hymen was ruptured by an accidental fall on the sharp and obliquely cut remnant of a stem of an arhar plant projecting 5 or 8 cm above the ground n field. Modi had known of it lacerating the sole of the foot after penetrating through a shoe, but rupture of the hymen alone in this manner is highly improbable. Again, forcible separation of the thighs will not rupture the hymen, especially in children, unless the perineum is ruptured. Because of the situation of the hymen, its rupture is not possible by riding, jumping or dancing.
2. Masturbation, especially if practiced with some large foreign body, may rupture the hymen. However, the hymen is not destroyed in most cases, as the auto- manipulation is generally limited to parts anterior to the hymen. In such cases, the nymphae are elongated and the clitoris is enlarged by the continued practice of masturbation. The hymen is, however, liable to be ruptured by the forcible introduction of a stick or finger constituting indecent assault on small girls.
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3. Introduction of instrument by medical practitioners during examination or a surgical operation.
4. The insertion of sanitary tampons, particularly if the hymen is a thin elastic membrane.
5. A foreign body, such as sola pith, introduced purposely with a view to rendering very young girls fit for sexual intercourse (aptoe viris). This is sometimes resorted to by prostitutes. The usual procedure is to insert a piece of sola pith as large as the vagina can contain and then to make the unfortunate girl sit in a tub of water. The pith acts as a sponge tent and dilates the vagina. The size of the pith is increased gradually for further dilation. Thus, the hymen is often lacerated.
6. Ulceration from diphtheria, coma, or other diseases. In such cases, the whole hymen is destroyed leaving only a scar.
Persistent pruritis due to worm infestation in children is likely to lead to injury of the hymen.
Medico-Legal Aspects.- A virgin is a woman who has had no sexual connection whatsoever, at any time. The question of virginity is assuming importance in cases of marriage suits like divorce, and nullity of marriages. Certain signs in the genitals, particularly the intactness of the hymen, were always held to signify the physical virginity of a woman. However, in reality, it is seen that this particular anatomical structure has limited value, since it happens that a single coitus is not necessarily sufficient to rupture the membrane. There are cases on record of women having regular marital relations, of pregnant women, and even prostitutes, in whom the hymen appeared untouched." 24
As regards Section 29 of the POCSO Act it is no more res integra that in each and every case the defence has to take a plea and to prove that he is innocent. Mr. Jana has rightly pointed out that the prosecution unless proves its case and unless it can successfully show the Court the foundational fact on which they proceeded to punish the accused under Section 6 of the POCSO Act, the accused is not under any compulsion to place reverse burden of proof that he is innocent. The judgment relied on by Mr. Jana in Bibhuti Bhusan Roy (supra) is conclusive on this point.
On the issue of seizure list and the receipt against birth certificate Mr. Jana submitted that photographic evidence cannot be relied upon as proof in itself of the dimensions of the depicted object or objects. These photographs if to be relied on, have to be admitted in evidence. Without examining the person who took the photographs and negatives being produced on record, it cannot be stated that the photographs have been admitted into evidence. Thus the decision cited by Mr. Jana in State of Gujarat (supra) supports the contention that date of birth could not have been satisfactorily proved by the prosecution. On the issue of delay in making complaint by the complainant remained unexplained. Deficiency in explanation results in suspicious circumstances in lodging the complaint as to the correct happening of the incident because more delay in lodging complaint there is a chance to the complainant to commit exaggeration and to give rise a concocted story. Undoubtedly, it is more logical that promptness in lodging FIR is an assurance regarding truth of the 25 informant's version. The decision cited by Mr. Jana, in this respect in Jay Prakash (supra) supports the case.
On the contention of the prosecution case that even after few days of the occurrence victim's hymen was found to be ruptured as per the report of the doctor examining the victim. Mr. Jana submitted that rupture of hymen cannot be a conclusive proof of sexual assault as pointed out by Mr. Navneil De, appearing for the State. In this regard the decision cited by Mr. Jana in Rahim Beg (supra) is opt on the issue and paragraph 26 thereof is relevant for our purpose which is set out below:
"26. According to Dr. Katiyar, Medical Officer of District Jail Rae Bareli, if a girl of 10 or 12 years who is virgin and whose hymen is intact is subjected to rape by a fully developed man, there are likely to be injuries on the male organ of the man. No injury was, however, detected by the doctor on the male organ of any of the two accused. The absence of such injuries on the male organs of the accused would thus point to their innocence. The examination of the two accused by Dr. Katiyar was on August 5, 1969. The two accused, however, had been arrested, according to the prosecution, on the morning of August 4, 1969. No cogent explanation has been furnished as to why they were not seen thereafter got medically examined by the police."
So far, the issue of reverse burden of proof, we have already pointed out earlier that this is not a case and the prosecution has not shown sufficient materials constituting foundational facts so as to attract the offence under Section 6 of the POCSO Act. Therefore, the 26 judgment cited in Sadhu W/o Motilal Turra (supra) a decision by the Bombay High Court has got some bearing in the present case and paragraphs 12, 13, 14 & 16 of the decision are relevant for our purpose which are set out below:
"12. In the judgment of the Calcutta High Court relied upon by the Counsel appearing on behalf of the appellant in the case of Sahid (supra), it has been held as follows:-
"23. A conjoint reading of the statutory provision in the light of the definitions, as aforesaid, would shows that in a prosecution under the POCSO Act an accused is to prove 'the contrary', that is, he has to prove that he has not committed the offence and he is innocent. It is trite law that negative cannot be proved [see Sait Tarajee Khimchand v. Yalamarti Satyam, (1972) 4 SCC 562, Para-15]. In order to prove a contrary fact, the fact whose opposite is sought to be established must be proposed first. It is, therefore, an essential prerequisite that the foundational facts of the prosecution case must be established by leading evidence before the aforesaid statutory presumption is triggered in to shift the onus on the accused to prove the contrary.
24. Once the foundation of the prosecution case is laid by leading legally admissible evidence, it becomes incumbent on the accused to establish from the evidence on record that he has not committed the offence or to show from the circumstances of a particular case that a man of ordinary prudence would most probably draw an inference of innocence of his favour. The accused may achieve such an end by leading defence evidence or by discrediting prosecution witnesses through effective cross-examination or by exposing the patent absurdities or inherent infirmities in their version by an analysis of the special features of the 27 case. However, the aforesaid statutory presumption cannot be read to mean that the prosecution version is to be treated as gospel truth in every case. The presumption does not take away the essential duty of the Court to analyze the evidence on record in the light of the special features of a particular case, eg. patent absurdities or inherent infirmities in the prosecution version or existence of entrenched enmity between the accused and the victim giving rise to an irresistible inference of falsehood in the prosecution case while determining whether the accused has discharged his onus and established his innocence in the given facts of a case. To hold otherwise, would compel the Court to mechanically accept the mere ipse dixit of the prosecution and give a stamp of judicial approval to every prosecution, however, patently absurd or inherently improbable it may be."
13. The above quoted vies of the Courts elucidate the position of law in respect of presumption that arises under Section 29 of the POCSO Act. It becomes clear that such a presumption would be triggered only upon the prosecution first proving foundational facts of its case against the appellant. In the absence of cogent evidence to prove such foundational facts, the presumption under Section 29 of the POCSO Act would not operate against the appellant. Even if such presumption arises, the accused under the provisions of POCSO Act would be entitled to rebut the presumption on preponderance of probabilities, either by discrediting the prosecution witnesses through effective cross examination or by adducing evidence/witnesses in support of its defence. With this position of law in mind, the evidence placed on record by the prosecution in the present case needs to be examined.
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14. the complainant (PW-1) in the present case in her oral report to the Police on the date of incident i.e. on 08.05.2013 claimed that her daughter came to her house after shouting, as the appellant had called her to his house on the pretext of offering bread and that he had done the act that has been described above. The complainant (PW-1) specifically stated in the oral report before the Police that when her daughter (victim) shouted, one Padma Gajjawar came there, upon which the appellant gave bread to the victim (PW-2) and she rushed back to her house. It is significant that the prosecution has not examined the said Padma Gajjawar, who could have been a material witness in support of the prosecution case. In fact, the complainant (PW-1) claimed that it was Padma Gajjawar who had first informed her about shouting and crying of the victim (PW-2). Thus, the complainant (PW-1) herself did not see any part of the incident. A perusal of the deposition of the complainant (PW-1) shows that in cross examination she has stated about having told the Police regarding the appellant having done something else to the private part off the victim (PW-2) upon which she was shivering when she came home. This indicates that there were improvements made by the complainant (PW-1) in her deposition before the Court. In any case her evidence was in the nature of hearsay.
16. A perusal of the above portion of cross examination of the victim (PW-2) shows that she has given details of the incident in a manner which cannot implicate the appellant for any of the offences for which he has been charged. It appears that the victim (PW-2) has stated in her examination-in-chief what she was tutored to say, but in her cross examination she has come out with a version materially different from that of the prosecution story. This completely demolishes the prosecution case, which the trial Court has failed to appreciate in the correct perspective." 29
Relying Bibhuti Bhusan Rai (supra) Mr. De, learned advocate appearing for the State submitted that injury complained of by the victim if gets corroboration from the medical report Court can safely rely on the same and this may be a ground for conviction. As we have already discussed earlier that medical evidence which is on record does not support at all the prosecution case. Simply because there appears rupture in the hymen of the victim it cannot conclusively prove that sexual intercourse was committed by the accused upon the victim girl. Rupture of hymen may be for different causes apart from the act of sexual violence. The decision cited by Mr. De is on those cases where injury of the victim was proved. Mr. De has also relied on this decision to convince this Court that the victim is minor having regard to the fact that Exbt.7 contained noting with regard to the date of birth of the victim, although, birth certificate has not been admitted into evidence. In the cited decision birth certificate was on record before the Court and there date of birth was proved by cogent evidence. Therefore, the ratio of the decision cited is not applicable in the present case, both in respect of the proof of age and as regards corroboration of medical evidence as sought to be argued. However, the cited decision shows that imprisonment for 10 years rigorous imprisonment with fine for commission of offence under Section 376(2)(f) IPC and under Section 6 of the POCSO Act was, ultimately, reduced.
Next decision in Suresh Kumar alias DC (supra) cited by Mr. De to argue that apart from all other evidence if it is found that the 30 prosecutrix has given clear picture of the commission of offence her statement alone would be sufficient to convict the accused. In the cited decision it appears that even in the cross-examination the victim could not be shaken. Her stand so far as the accused is concerned and the commission of offence by him remained the same even at the extensive cross-examination made on behalf of the defence which is not the case here. We have already pointed out that statement made by the victim under Section 164 does not get corroboration from her evidence before the Court and the evidence adduced by her in Court does not inspire confidence. If other evidences on record are also compared with that of the deposition of the victim, serious contradiction is apparent on the face of the record which nullifies the prosecution case to a great extent. Consequently, the conviction and sentence imposed upon the accused is rendered unsustainable.
Accordingly, it is difficult for this Court to uphold the contention of the prosecution and to affirm the judgment and order of conviction and sentence passed by the trial Court. This Court thus set aside the order of conviction and sentence.
The accused is set free. The bail bond stands discharged. Criminal Section is directed to send down the records to the learned Court below together with a copy of the judgment forthwith to the concerned learned trial Court.
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Urgent Photostat certified copy, if applied for, be delivered to the learned counsel for the parties, upon compliance with all usual formalities.
I agree.
(Subhasis Dasgupta, J.) (Sahidullah Munshi, J.)