Calcutta High Court (Appellete Side)
Sahid Hossain Biswas vs State Of West Bengal on 4 May, 2017
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
Form No. J (1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLTE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Joymalya Bagchi
C.R.A. No.736 of 2016
With
C.R.A.N. No.1035 of 2017
SAHID HOSSAIN BISWAS
. . .APPELLANT
VERSUS
STATE OF WEST BENGAL
. . .RESPONDENT
For the Appellant : Mr. Sandipan Ganguly, Senior Advocate
Dr. Jyotirmoy Adhikari, Advocate
For the State/respondent: Mr. S. G. Mukherjee, Public Prosecutor
Mr. Ayan Basu, Advocate
Heard on : 4th May, 2017
Judgment on : 4th May, 2017
Joymalya Bagchi, J.:
With the consent of the parties, the appeal is disposed of without preparation of paper books.
Judgement and order dated 01.12.2016 and 02.12.2016 passed by learned Additional Sessions Judge, Krishnanagar, Nadia in Sessions Trial No. III (I) of 2016 corresponding to Sessions Case No.10 (09) of 2015 (special) convicting the appellant for commission of offence punishable under Section 8 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as 'POCSO Act') and sentencing him to suffer rigorous imprisonment for five years and to pay a fine of Rs.10,000/-, in default to suffer rigorous imprisonment for six months more has been assailed.
The prosecution case, as alleged, against the appellant is to the effect that on 17.09.2015 at about 12.30 P.M. the victim, a 15 year old girl, was alone at her house. Taking advantage of such situation, the appellant entered the house and after shutting the door, gagged her mouth and ravished her. Thereafter, the appellant threatened the victim and left the place. When her mother returned, the victim narrated the incident to her who then lodged a written complaint with the police station resulting in registration of Dhubulia P.S. Case No.288 of 2015 dated 18.09.2015 under Section 376(2)(i) of the Indian Penal Code. The victim was medically examined by the doctor and in conclusion of investigation, charge sheet was filed under Sections 376/511 of the Indian Penal Code and under Section 4 of the POCSO Act.
Charges were framed under Section 376(2)(i) of the Indian Penal Code and under Section 18 of the POCSO Act. The appellant pleaded not guilty and claimed to be tried. In the course of trial, the prosecution examined ten witnesses. The defence of the appellant as transpiring through the trend of cross-examination was to the effect that there is an enmity between the family of the appellant and the victim and over such issue, the appellant was falsely implicated at the behest of a local political leader, namely, Puchu Ghosh @ Putu. In conclusion of trial, the trial judge by the impugned judgment and order dated 1.12.2016 and 2.12.2016 convicted and sentenced the appellant, as aforesaid.
Mr. Ganguly, learned senior counsel appearing for the appellant submitted that the evidence of the victim (P.W.1) does not inspire confidence. He took me through the cross-examination of the victim wherein she had admitted that there was enmity between her grandfather and the family of the appellant over the issue of illegal hooking of electricity and damage of crops. Other prosecution witnesses also admitted that they had made statements in the case at the behest of one Puchu Ghosh @ Putu, a political leader.
He also argued that the version of the victim as narrated in chief with regard to scuffle with the appellant and injuries on her person is also not supported by the medical evidence. Hence, the appellant is entitled to an order of acquittal.
On the other hand, Mr. Basu, learned counsel appearing for the State submitted that the version of the victim ought to be read in the light of the statutory presumption under Section 29 of the POCSO Act and in view of the fact that her version is corroborated by other witnesses including medical evidence, the appeal is liable to be dismissed.
P.W.1 is the victim. She deposed that she was 15 years old and studying in Class IX at the time of occurrence. She stated that the incident took place about 2/3 months ago at about 12.30 noon. On the occasion of Idd she was rearranging her room. Her mother and grandfather were absent. She was alone in her house. The appellant was catching fish in the pond at that time. The appellant came to the room, closed the door and embraced her after removing her wearing apparels. He proceeded to commit rape against her will and thereafter fled away from the place. In the evening, her mother returned home and she narrated the incident to her mother who lodged a complaint with Dhubulia Police Station. The victim was referred to Krishnagar Hospital for her medical test. Medical test was held at that hospital and she recounted the incident before the doctor. The appellant threatened that he would commit similar activity again. The statement of the victim was recorded before the learned Magistrate who wrote down and put her LTI on the same.
In cross-examination, she stated that her room was east facing and there is a verandah covered by bamboo sticks. There are two gates in the room, one towards the verandah and another facing towards the room. After closing both the doors, she was inside the room. In the evening she told her mother about the incident. On the eastern side of her room there is the house of her grandfather Akher Ali. When the appellant entered her house, scuffling took place for one hour. As a result, she suffered pain and blood was oozing out. She had shown the injuries to the doctor. Her wearing apparels were torn. She handed over the torn wearing apparels to the Investigating Officer. She knew Puchu Ghosh, a political leader of TMC. Puchu Ghosh came to their house. All of them went to Dhubulia Police Station where she described the incident to the Investigating Officer. On the next day, she went to Krishnagar Hospital. Her mother accompanied her to Court for recording her statement. Her statement was recorded in the presence of the learned Magistrate on the dictation of Puchu Ghosh. Her mother narrated the incident before the Magistrate. Thereafter they returned to their house. The appellant is a rich person owning a pond and cultivated land. Prior to the incident, her grandfather tried to hook electricity through the back of the pond and dispute started between the appellant and her grandfather. Their hens and cocks damaged the crops of the appellant. Elder brother of the appellant lodged a diary against her grandfather at Dhubulia Police Station. The appellant stated that they were committing theft of fish from his pond. The appellant did not allow them to use the road. Thereafter they settled that a case may be lodged against the appellant and the present case was lodged.
P.W.2, Chutni Bibi is the mother of the victim and the defacto complainant in the instant case. She deposed that the incident occurred six months ago at 12 noon while she was absent. When she returned home, she saw her daughter crying. She asked her daughter why she was crying and in reply her daughter stated that the appellant had raped her. They went to Puchu Ghosh who brought them to Dhubulia Police Station. Complaint was written as per her dictation. She put her LTI thereon. She identified the appellant. She narrated the facts before the Magistrate and put her LTI thereon.
In cross-examination, she stated that the pond of the appellant is used by local public from 6.00 A.M. to 6.00 P.M. They came to the pond for bathing, washing cloths etc. On the north-eastern side of the house, there are houses of Jijar, Kader and others. Jijar and Kader are the brothers of his father-in-law. On the eastern side of the pond the house of Hanif Sk. is situated. On the south- eastern corner of their house, houses of Anar Sk., Jener Sk. and Jamsed Sk. are situated. The appellant is the supporter of CPIM.
P.W.3, Salinas Bibi is the grandmother of the victim. She stated that the incident took place on 27th last Vhadra at about 12.30 noon at the room of her granddaughter. At that time she was not present in the house. She returned home in the evening and found her granddaughter crying and on questioning she disclosed that the appellant had raped her.
P.W.4, Akher Ali Sk. is the grandfather of the victim. He stated that at the time of the incident he was not present and heard the incident from P.W.5, Rejea Bibi.
P.W.5, Rejea Bibi is another grandmother of the victim. She stated that she came to know from the members of the public that the victim had been raped by the appellant. In cross-examination, she stated that she is the sister-in-law of the victim. The victim used to be kept in her custody when Akher Ali Sk. (P.W.4) went away in connection with business. She admitted that there was a family dispute between the appellant and Akher Ali for electric connection, catching of fish and litigation on these issues is pending. Puchu @ Putu is a leader of TMC. She admitted that she deposed as per the instruction of Puchu. Family of the appellant is a reputed one.
P.W.6 is the scribe of the first information report. He proved the first information report. He deposed that he scribed the written complaint as per the dictation of Buddha Babu and Chutni Bibi and Chutni Bibi put her signature (Exhibit 1). In cross-examination, he stated that Buddhadeb Ghosh @ Puchu @ Putu is the same person and is a leader of TMC. As per the dictation of Puchu, the written complaint was scribed.
P.W.7 ASI of Police, Prabir Kr. Halder was attached to Dhubulia Police Station in that capacity. He received written complaint from P.W.2 and registered the first information report. He filled up the formal FIR (Exhibit 2).
P.W.8, Dr. Bhavatosh Bhowmick was the Medical Officer attached to Sadar Hospital, Krishnanagar. He examined the victim. He did not find any external injury. Vagina admitted tip of finger. Hymen was un-ruptured. There was no vaginal discharge. He proved his report. He stated that the victim narrated the incident. She was attempted to be raped by the appellant.
In cross-examination, he stated that he does not have any independent recollection of the incident. During examination he did not find any mark of violence on the victim.
P.W. 9 Dr. Sandip Mitra examined the appellant and found that he was capable of sexual intercourse. He proved potency test report (exhibit-4).
P.W. 10 is the Investigating Officer. He prepared a draft sketch map of the place of occurrence along with index (exhibit-5). He examined available witnesses recorded and their statements. He sent the victim girl for recording her statement under Section 164 Cr.P.C. He arrested the appellant and his potency test report was prepared by the doctor. He collected the said report. He collected the medical report. He seized the birth certificate of the victim under seizure list marked as exhibit 6 and filed the charge-sheet.
In the light of the aforesaid evidence it is to be assessed whether the version of the victim as to the sexual assault upon her on the fateful day, that is, 17th September, 2015 at 12.30 p.m. at her residence is reliable or not. Ordinarily the version of a victim is to be given due credence and assessed with due care and sensitivity similar to that of an injured witness. Minor contradictions and/or inconsistencies in her version of sexual assault ought not to be a ground to discard her evidence. However, when a case of long standing enmity between the family of the victim and that of the appellant is evident from the evidence on record it is prudent to examine the evidence of the victim with a higher degree of scrutiny and circumspection. I am not unmindful of the statutory presumption available to the prosecution in a case under the POCSO Act, 2012. Section 29 of the said Act 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 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."
The law, therefore, provides for a reverse burden upon the accused in a prosecution under sections 3, 5, 7 and 9 of the aforesaid Act. The statutory presumption creates an exception to the ordinary rule of presumption of innocence available to an accused in a criminal trial and puts the onus on the accused to rebut such presumption and establish his innocence. Presumption of innocence is a basic human right which is a vital facet of fair trial rights enshrined in various international covenants like the Universal Declaration of Human Rights and the International Covenant of Civil and Political Rights (to which India is a signatory) but is not a fundamental right under Part III of the Constitution. [See Noor Aga vs. State of Punjab, (2008) 16 SCC 417]. The concept of presumption of innocence has, in recent times, been reversed in many situations by creating statutory presumptions like under sections 113A, 113B or 114A of the Evidence Act shifting the burden on the accused to prove his innocence. Section 29 of the POCSO is, therefore, a species of such exception to the ordinary rule of presumption of innocence and must be borne in mind while appreciating the evidence of prosecution witnesses in a trial under the POCSO Act. The expressions "shall presume" and "unless contrary is proved" in the aforesaid provision creates a reverse burden on an accused to prove his innocence to earn an order of acquittal and absolves the burden of the prosecution to prove his guilt beyond reasonable doubt. How is the accused to discharge such burden? Sections 3 and 4 of the Evidence Act define the words 'proved', 'shall presume' and 'disproved' as follows:-
Section 3:-
"Proved" - A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.
"Disproved"- A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist.
Section 4:-
"Shall presume".--Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved."
A conjoint reading of the statutory provision in the light of the definitions, as aforesaid, would show 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 vs. Yelamarti 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.
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 in 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 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 analyse 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, howsoever, patently absurd or inherently improbable it may be.
I, therefore, proceed to test the evidence of the prosecution witnesses on the aforesaid parameters to see whether the appellant has been able to show in the facts of the instant case that he is innocent of the charges levelled against him.
P.W. 1 the victim is the most vital witness in the instant case. She has deposed of forcible rape on her which continued for about an hour and she has further deposed that she suffered bleeding injuries on her person due to such assault. It has also been deposed that the incident occurred while she was alone in the house and the appellant had taken advantage of the absence of other family members and ravished her. However, such version of forcible rape on the victim causing bleeding injuries on her person is not borne out by the medical evidence of P.W. 8. The doctor (P.W.8) unequivocally stated that he did not find any external injury on the person of the victim far less any bleeding injury as deposed by the victim. The trial Court noted such exaggeration in the version of the victim and convicted the appellant for the offence of sexual assault under section 8 of the POCSO Act instead of aggravated penetrative sexual assault under section 4 of the aforesaid Act. It is true that the Court has the power to separate "the grain from the chaff" and may rely on the version of a witness, particularly a victim of sexual violence, if there is a ring of truth in her version notwithstanding the exaggerations and/or embellishments in her deposition. More so, when the onus of improbabilising her version and establishing his innocence is on the accused owing to the statutory presumption under section 29, as aforesaid. However, if the version of the victim suffers from inherent weaknesses and patent improbabilities rendering the very genesis of the incident as fictitious and most improbable, the prosecution case cannot be saved by separating the 'grain' of truth from the 'chaff' of embellishments and exaggerations but has to be jettisoned as a whole in favour of the innocence of the accused. In the instant case, the existence of enmity between the family of the appellant and that of the victim is established beyond doubt. P.W.1, in cross-examination, deposed that there were quarrels between the appellant and her grandfather, Akher Ali Sk. (P.W.3) over hooking of electricity and damage of crops of the appellant. Tushar, the elder brother of the appellant, had lodged general diary against her grandfather at the police station, the appellant had accused them of stealing fish and prevented them from using the pathway leading to their house. In the fact of such enmity, P.W.1 and her family members in consultation with a local political leader, namely, Puchu Ghosh decided to lodge this case against the appellant. Another prosecution witness, namely, P.W.5, a relation of P.W.1, also admitted the inimical relationship between the appellant and the family members of the victim. All the witnesses unequivocally stated that the contents of the First Information Report and their statements to police were recorded as per the dictation of the said Puchu Ghosh, a political leader of the locality and that the appellant belonged to a different political party. The evidence on record overwhelmingly and unerringly points to the probability of the appellant being falsely implicated by P.W.1 and her family members over previous enmity with the assistance of the local political leader, as aforesaid.
That apart, evidence of P.W.1 with regard to the genesis of the incident also suffers from patent improbabilities. P.W.1 deposed that the incident occurred on the fateful day in the noon around 12.30 p.m. Taking advantage of the absence of her mother, the appellant entered the room, closed the door and sexually assaulted her. However, in cross-examination she admitted that the room had two doors and she was inside the room after closing both the doors. If that were so, how did the appellant enter the room when both the doors were closed? It is nobody's case that the appellant forcibly opened the door and entered the room. On the other hand, P.W.1 in chief stated that the appellant after entering the room closed the door giving rise to an inference that the door was already open at the time of his entry. Moreover, if the appellant had forcibly entered the room of the victim, keeping in mind their inimical relationship, the victim would have surely raised a hue and cry attracting the attention of her neighbours and relations whose houses are situated adjacent to that of the victim. These patent infirmities in the genesis of the prosecution case strike at its very root and improbabilise the prosecution version as to the commission of the offence by the appellant.
In the light of the aforesaid discussion, I am of the opinion that the appellant has been able to rebut the statutory presumption and demonstrate that the version narrated by the prosecution witnesses does not inspire confidence and that a man of ordinary prudence would arrive at a conclusion that he is innocent of the charges levelled against him in the facts of the present case.
The appeal is, accordingly, allowed.
The appellant shall be released forthwith from custody if he is not wanted in any other case. He, however, shall furnish a bail bond to the satisfaction of the trial Court which shall continue for six months from this date in terms of Section 437A of the Code of Criminal Procedure.
In view of disposal of the appeal the connected application being CRAN 1035 of 2017 is also disposed of.
Copy of the judgment along with the Lower Court Records be sent down to the Court below at once.
Photostat certified copy of this order, if applied for, shall be given to the parties as expeditiously as possible on compliance of all necessary formalities.
(JOYMALYA BAGCHI, J.) AB/Alok/SD/ PA to J. Bagchi, J.