Calcutta High Court (Appellete Side)
Sandip Das vs State Of West Bengal on 31 August, 2018
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
Item 91
Aloke/AB/RKDandPA
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present:
The Hon'ble Justice Joymalya Bagchi
And
The Hon'ble Justice Ravi Krishan Kapur
C.R.A. 440 of 2015
With
C.R.A.N. 4950 of 2017
Sandip Das
-Vs-
State of West Bengal
For the Appellant : Mr. Deep Chaim Kabir, Advocate
Mr. M. H. Chowdhury, Advocate
For the State : Mr. S. G. Mukhereje, ld. P.P.
Mr. Partha Pratim Das, Advocate
Heard on : : 31.08.2018
Judgment on: : 31.08.2018
Joymalya Bagchi, J. :-
The appeal is directed against the judgment and order dated 14.05.2015 and
15.05.2015passed by the learned Additional Sessions Judge, 2nd Court-cum-Special Court under POCSO Act, Barasat, North 24 Parganas in Special case No. 16/14 arising out of Sessions trial case no. 07(02)2014 convicting the appellant for commission of offence punishable under sections 376(2)(f)(N) of the Indian Penal Code and under sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as 'POCSO Act') and sentencing him to suffer rigorous imprisonment for ten years and to pay a fine of Rs.5,000/-, in default, to suffer simple imprisonment for six months for commission of the offence punishable under section 376(2)(f)(n) of the Indian Penal Code more and also to suffer rigorous imprisonment for seven years and to pay a fine of Rs.5,000/- and in default to suffer simple imprisonment for three months more for commission of the offence punishable under section 4 of the POCSO Act with a further direction that fine amount, if realized, be paid to the victim children, in equal share. Both the sentences to run concurrently.
The prosecution case as alleged against the appellant is to the effect that the appellant used to impart computer lesson to the victims who were aged around nine years. The victims used to go to the residence of the appellant on every Sunday between 10.00 A.M. to 11.30 A.M. for such purpose. Taking advantage of the situation, the appellant took the victims separately inside the room and touched their vaginas with his mouth and also rubbed his penis against their vaginas. He also made the victims put his penis into their mouths. This continued for 7-8 months. Finally, on 26.09.2013 the victims disclosed such fact to their parents whereupon mother of one of the victims lodged complaint with the local police station resulting in registration of Barasat Women P.S. Case No. 86 dated 26.09.2013 under section 376(2)(f)(n) of the Indian Penal Code.
In the course of investigation, the victims were medically examined and charge-sheet was filed. Charges were framed under section 376(2)(f)(n) of the Indian Penal Code and under sections 4 and 6 of the POCSO Act. The appellant pleaded not guilty and claimed to be tried. In the course of trial, prosecution examined 13 witnesses and exhibited a number of documents. The defence of the appellant was one of innocence and false implication and he submitted that he has been falsely implicated due political rivalry with P.W.6, uncle of one of the victims, P.W.2. In support of his defence, the appellant examined his mother as D.W.1.
In conclusion of trial, the trial Judge by judgment and order dated 14.05.2015 and 15.05.2015 convicted and sentenced the appellant, as aforesaid.
Mr. Kabir, learned counsel appearing for the appellant submitted that the evidence of the victims, P.W.s 1 and 2 are inherently improbable. Evidence of D.W.1 that she was always present in the house and the victims never come to their house remained unshaken in cross-examination rendered the prosecution case improbable. He submitted that the victims had not immediately narrated the incident to their parents although it is alleged that such incidents continued for over 7-8 months. This conduct of the victims is most unnatural casting doubt as to the truthfulness of their versions. He further submitted that no independent evidence was placed on record to show that the victims were taking tuitions from the appellant. None of the neighbours have supported the prosecution case. There is a wide variation between the deposition of the victims as to the nature of sexual assault in court and what was stated before the Magistrate under section 164 Cr.P.C. Hence, the prosecution is highly unreliable and had been manufactured in order to falsely implicate the appellant due to political rivalry. Accordingly, he prayed for acquittal of the appellant.
Mr. Das, learned counsel appearing for the State argued that the evidence of P.W.s 1 and 2 are corroborated by their parents. The victims were aged around nine years and had been violated by their teacher. It is all but natural that they took time to muster up courage to narrate the incident to their parents. They had also been threatened by the appellants. Soon after the incident they were medically examined and had narrated the incident to the medical officer. It is absurd to suggest that there would be independent corroboration of rape by outsiders. Evidence of D.W.1 when read as a whole does not rule out the possibility of the appellant sexually predating the minor victims who had come for tuitions in his house. Hence, the appeal is liable to be dismissed.
P.W.s 1 and 2 are the victims in the instant case. P.W.1 deposed that she was a student of Class-IV and was aged around nine years. She used to take tuitions in computer from the appellant who resided in the locality. P.W.2 her friend also took tuition from the appellant. They used to go to the house of the appellant together. The appellant gave tuitions in a covered veranda. There was a bed room adjacent to the veranda and there was another room in the rear with fenced walls. They used to come every Sunday at 10.00 A.M. for lessons which continued upto 11.30 A.M. The appellant took her to the bed room and after removing her garments used to apply his mouth to her vagina. He also touched her vagina with his penis and rubbed his penis, put his hand into her anus and also would tell her to put her mouth to his penis. He did similar things to her friend. The appellant threatened them that he would beat their parents if they narrated the incidents to their mother. Ultimately, she narrated the incident to her mother. She was taken to the police and narrated the incident to police aunty, in Court and also narrated before the doctor. She proved her signatures on her statement under section 164 Cr.P.C. In cross- examination, she stated that the maternal uncle of P.W.2 had beaten up the appellant. The house of the appellant was situated by the side of the road. He used to teach computers in the veranda of his house. The doors and windows of the bed room were not closed. Many other children also used to go to his house on Sunday for computer training. There were other children in their batch but the appellant would release them. There are many houses surrounding the house of the appellant. Appellant's parents and his younger sister used to stay in the house.
P.W.2 is the other victim who has corroborated the version of P.W.1. She stated that she used to go to the house of the appellant at 10.00 A.M. on Sundays for computer lessons. She narrated the sexual assault upon her in similar lines as P.W.1. She also made statement before police, doctor and in court. She proved her signatures on the statement under section 164 Cr.P.C. Parents of the appellant did not stay at home when they used to go for computer lessons. In cross-examination, she stated Ratan Manda, her maternal uncle, along with his friends Sandip Das brought the appellant from school and handed him over to police. Appellant used to give computer lessons to a large number of students at his house. The doors and windows of the room used to remain open but he also closed them.
P.W.3 is the mother of P.W.2. She deposed that her daughter is aged about nine years. On 26.09.2013 her daughter refused to go for computer lessons and disclosed the incident to her. She also disclosed the incident relating to her friend, P.W.1. She stated the incident in presence of Ratan Mandal, her brother. Thereafter, she along with the parents of P.W.1 went to Barasat P.S. and mother of P.W.1, lodged FIR. She took her daughter (P.W.2) to Barasat Hospital where the latter was examined. She gave her consent. She handed over the birth certificate of her daughter to police which was seized under a seizure list. She proved the birth certificate Exbt. 6. In cross-examination, she stated that Ratan Mandal is a carpenter. Her daughter used to go to school regularly and also took tuitions.
P.W.4 is the mother of P.W.1. She is the informant in the instant case. Her daughter informed her of the incident on 26.09.2013. Hearing the incident she went to the house of P.W.2 who was in school. When P.W.2 returned, she also divulged the same incident. Thereafter, all of them went to the police station and she lodged written complaint, which was treated as first information report (Ext.7). She took P.W.1 to hospital and gave consent for medical examination. She produced the original birth certificate (Ext. 10) of her daughter which was seized by Investigating Officer.
In cross-examination, she stated that she had no friendship with the appellant. She admitted that she does not discuss sexual issues with her daughter.
P.W.5 is the father of P.W.1. He has corroborated the evidence of his wife (P.W.4) and daughter (P.W.1).
P.W.6, Ratan Mondal is the uncle of P.W.2. He deposed that his niece used to take computer lessons from the appellant on Sundays. On 26.9.2013 in the afternoon she was present when P.W.2 narrated the incident to her mother. Thereafter, all of them went to police station.
In cross-examination, he stated that from their house, the house of the appellant is not visible. Only verandah of his house is visible. He denied the suggestion that he had threatened the appellant as he had left the political party.
P.W.7, Dr. Subrata Dutta examined the victims at Barasat Hospital. The victims narrated that the appellant had touched their private parts with tongue and hand. He proved the injury reports Exts. 3 and 8.
P.W.8, Dr. Supriti Ghorai examined the appellant and deposed that the appellant was capable of sexual intercourse.
P.W.9 is an employee of P.W.2. He deposed that the victims used to take computer lessons from the appellant and he came to know from P.W.2 that they had been subjected to bad touch.
P.W.s 10 and 12, are the Judicial Magistrates recorded the statement of P.W.2 (Ext.2) and P.W.1 (Ext.14) respectively.
P.W.11, Malati Dey, S. I. of Police received the written complaint from P.W.4 and drew up the formal first information report (Ext.13) and P.W.13 who was in charge of Barasat Police Station endorsed the investigation of the case to her. She examined the victims as well as other witnesses. She went to the place of occurrence, prepared rough sketch map with index (Ext.15). She arrested the appellant and forwarded the appellant and victims for medical examination. She seized the birth certificates of the victims. She sent the victims for recording their statements under section 164 Cr.P.C. and submitted charge sheet against the appellant.
The mother of the appellant was examined as D.W.1. She deposed that the appellant is her son and her husband is a mason. She is a housewife and does stitching work at home. Her son imparts computer lessons in the morning and evening from their house. There is one bedroom in her house. That apart, there is a kitchen and verandah. Appellant used to impart computer lessons in the bedroom. She also does stitching work in the bedroom. She came to know of the victims after the case. They had never come to their house. Appellant does not take computer lessons on Sundays. P.W.6 is the leader of a political party. 15 days prior to the registration of first information report, he had threatened her son with dire consequences as he had quit the said political party.
In cross-examination, she stated that there are roads of both sides of her house. They have a pucca house. There is a tiled shed room with bamboo fencing. House of P.W.2 is visible from their house. Her husband goes to work at 6.00 A.M. and returned by 2.00 P.M. There is a grill in their verandah. She cooks in the kitchen adjacent to the bedroom.
In a case involving sexual assault upon minors and that too by their private tutor, the court is required to look into the evidence of the minor victims with utmost sensitivity. It is neither absurd nor improbable when minor victims are subjected to sexual assault by a person in trust, they become so perplexed that they take time to come out even to their closest ones including parents. The instant case as narrated through the mouths of P.W.s 1 to 2, minor girls aged around 8 and 9 years, depicts such a state of affairs. They had been taking tuitions in computer in the house of the appellant on every Sunday between 10.00 A.M. to 11.30 A.M. Other students also joined them in the class. However, after the other students left, the appellant used to call the victims respectively inside the bedroom and subjected them to sexual assault by putting his mouth on their vaginas and by performing other acts of sexual predation involving penetrative sexual assault.
Evidence of P.W.s 1 and 2 have been severely criticized by the learned counsel appearing for the appellant on the ground that the circumstances in which the incidents occurred are highly improbable and would not inspire confidence. It is argued that the parents and the younger sister of the appellant used to stay in the same house and it is most improbable if not absurd for the appellant to perpetrate sexual assault on the victims, as alleged, in their presence.
I have considered the evidence of the prosecution witnesses particularly the victims from that angle. Appellant used to teach the victims in the verandah of his house. When other students left, the appellant used to call the victims separately inside his bedroom and sexually assaulted them. They were silenced by threats held out by the appellant. The appellant was the teacher of the minor victims and hence, it was most likely that other family members did not interfere by entering the room when the appellant chose to interact with his students separately. Evidence has also come on record that the appellant used to close the windows of the room on such occasions. In view of the relationship of trust and confidence between the teacher and the taught, it is not unlikely that the appellant could have exclusive access to the victims in the privacy of the room and commit the crime. It has also come out from the mouth of D.W.1 that apart from the bedroom there was a tiled shed room as well as kitchen in the said premises. Furthermore, D.W.1 claimed that she used to go to the kitchen for cooking. Hence, it would be patently absurd to infer that the mother of the appellant or other family members would always be present in the bedroom when the appellant took his minor students into the room under the ruse of better interactions with them and committed sexual assault upon them.
In the facts and circumstances of the instant case, I do not consider that the evidence of P.W.s 1 and 2 are so patently absurd and inherently improbable that their versions of sexual assault ought to be thrown out as mere fairy tales narrated with the evil motive of falsely implicating the appellant on political considerations.
Coming to the motive of false implication as suggested by the defence, I do not find any evidence on record apart from mere suggestions which were denied by prosecution witnesses that there was political enmity between him and P.W.6, maternal uncle of P.W.1. D.W.1 claimed that 15 days prior to the incident, P.W.6 had threatened her son with dire consequences, but no complaint was lodged with the police authorities or with any leader of the political party to that effect. No independent witness has also come forward to depose with regard to alleged enmity between P.W.6 and the appellant. Hence, the motive of false implication of the appellant for political reasons appears to be a desperate and futile attempt, which was cooked up by the appellant in order to cover his heinous misdeeds perpetrated on innocent victims who had come to take tuition classes from him.
I am also not in agreement with the learned counsel for the appellant that the evidence of relation witnesses ought not to be believed as there is no documentary record or independent evidence to show that the victims used to go to the residence of the appellant to take tuitions on every Sunday. P.W.9 deposed that the said victims used to take tuitions from the appellant. It is common knowledge that no official records are ordinarily maintained with regard to informal tuitions imparted to children by private tutors. Hence, the version of the prosecution witnesses in this regard cannot be disbelieved due to absence of contemporaneous documentary evidence.
On the other hand, versions of P.W.s 1 and 2 are not only corroborated by their parents but also by P.W.7, the doctor who recorded the history of assault in the injury reports exhibited in the instant case. It appears from the history of assault recorded by the Medical Officer that the victims had succinctly narrated the history of sexual predation by the appellant to him at that time of their medical examination.
Finally, it has been argued that there is variation between the nature of sexual assault as stated by the victims before the Magistrate and their depositions in court. I have gone through the evidence of the prosecution witnesses vis-à-vis their earlier statements before the Magistrate. Gist of the allegations which are the subject matter of the charge have been consistently narrated although there may be some minor omissions and/or variations in their depositions. As discussed earlier, versions of the minor victims of sexual assault are to be examined with due sensitivity and care bearing in mind their tender age and the trauma suffered by such victims due to acts of sexual predation by a pedophile, particularly when such offender is also one held in trust and respect by the victim.
It is apposite to recount that a victim of sexual assault is akin to an injured witness and her deposition ought not to be lightly thrown out due to the minor variations and/or omissions. It is also pertinent to note that the prosecution evidence is further reinforced of the statutory presumption under section 29 of the POCSO Act and such presumption is not rebutted by the desperate attempt of a mother (D.W.1) to save her undeserving son from legal punishment. Accordingly, I have no hesitation to uphold the conviction and the sentence imposed on the appellant.
Postscript, I note that the minor victims aged around 9/10 years had been subjected to penetrative sexual assault and/or rape by their teacher that is the appellant. A horrible crime of abhorrent proportions befell on their young lives causing severe trauma and agony. Under such circumstances, I consider it fit to award compensation to the minor victims at the instance of the State in discharge of its sovereign duty to protect and preserve bodily integrity and dignity of every citizen particularly minor girls. Such compensation shall be payable in addition to meager compensation directed by the trial court under section 357(3) Cr.P.C.
Accordingly, I direct the State of West Bengal to pay a compensation to the tune of Rs.3 lakhs to each of the victims for the agony and trauma suffered by them due to the perpetration of such horrible crime and the said money shall be paid to the legal guardians of the victims through the State Legal Services Authority within 30 days from date. State shall also provide for free psychiatric and psychological counseling to the victims, if necessary, by specialized consultants attached to any teaching hospital or private medical institution of repute in terms of section 357C Cr.P.C so that the invisible marks of trauma be erased from their psyche.
In the light of the aforesaid discussion, I am of the view that the conviction and sentence imposed on the appellant are upheld.
Period of detention suffered by the appellant during investigation, enquiry and trial shall be set off from the substantive sentence imposed upon him in terms of section 428 of the Code of Criminal Procedure.
Accordingly, the appeal is dismissed. As a consequence, the application for suspension of sentence being C.R.A.N. 4950 of 2017 is also dismissed.
Copy of the judgment along with L.C.R. be sent down to the trial court at once. Copy of this order be sent to Principal Secretary, Home, Principal Secretary, Health and Family Welfare, Government of West Bengal and Member-Secretary, State Legal Affairs Authority for due compliance.
Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.
(Joymalya Bagchi, J.) I agree.
(Ravi Krishan Kapur, J.)