Calcutta High Court (Appellete Side)
Sitaram Das vs The State Of West Bengal on 27 February, 2020
Author: Sahidullah Munshi
Bench: Sahidullah Munshi
In the High Court at Calcutta
Criminal Appellate Jurisdiction
Appellate Side
Present:-
The Hon'ble Justice Sahidullah Munshi.
And
The Hon'ble Justice Subhasis Dasgupta.
CRA No. 567 of 2015
Sitaram Das
Vs.
The State of West Bengal
For the Appellant : Mr. Kallol Basu, adv.
Mr. Anindya Sundar Das, adv.
Ms. Maria Rahaman, adv.
Ms. Sharmistha China, adv.
For the State : Ms. Sreyashi Biswas, adv.
Ms. Puja Goswami, adv.
Heard on : 08.11.2019,11.12.2019
Judgment on : 27.02.2020
Subhasis Dasgupta, J:-
This appeal is against the order of conviction and sentence. Learned
Additional District & Session Judge, 2nd Court, Tamluk Purba Midinipur in
Sessions Trial No. 04(03)2015 arising out of Sessions Case No. 02(01)2015
convicted the appellant under Sections 376(2)(i) of the Indian Penal Code, read
with Section 6 of POCSO Act and sentenced him to suffer ten years rigorous
imprisonment with fine of Rs.10,000/-(ten thousand) in default S.I for another
2½ (two and half) years under Section 376(2) of Indian Penal Code, being of
higher magnitude compared to offence under Section 6 of the POCSO Act, though
established in this case.
Facts established during trial may be mentioned as follows for perfectly
addressing the issues raised in this appeal.
A 7 (seven) year old girl pursuing study in class II of a primary school and addressing accused/appellant, as Dadu, a 55 (fifty five) year old man, suffered aggravated penetrative sexual assault by such accused/appellant. The victim girl, while playing on 14.11.2014 at 11.30 AM in front of her house, was taken away by accused/appellant (a van rickshaw puller) on the pretext of visiting nearby, and thus allured her to ride on his van rickshaw. Ultimately she was taken to a nearby bush, when accused/appellant committed physical violation upon victim leaving biting mark on her cheek. The victim girl returned home crying after the incident, and narrated everything to her mother. Police intervened into the matter after receipt of a complaint from mother/complainant, put up the victim for her medical examination. Statement of victim was recorded under Section 164 Cr.P.C.. Ultimately police submitted charge sheet against the accused person under Section 376(2)(i) of I.P.C read with Section 6 of the POCSO Act.
After framing charge against the accused person, the trial court concluded the trial collecting as many as 12 (twelve) witnesses. The Trial Court held the accused person to be guilty of offence under Section 376(2)(i) of I.P.C and read with Section 6 of the POCSO Act, and sentenced him accordingly mentioned hereinabove.
Precisely Trial Court based conviction relying on the evidence of PW-4 (a lady constable interrogating the victim as per instruction of her superior after the incident), PW-5 (doctor medically examining the victim girl), scribe/PW-10, and the Investigating Officer of this case (PW-12), where not only the mother, near relatives of the victim turned hostile to prosecution, but some other witnesses also being the neighbors of the complainant having transpired nothing favorable to the purpose of prosecution. The victim, however, surprisingly portrayed a case in her evidence not only making strong aberration, departure from her own statement recorded under Section 164 Cr.P.C (Exbt. 1/1), but also building up a new story, contrary to the version depicted in F.I.R.
The prosecution version simpliciter is a case of causing physical violation to victim of seven (7) year old girl by accused/appellant, and consequently leaving hymeneal wound to victim girl. Victim girl (PW-1) in her own testimony stated that she had fallen down from a van rickshaw of accused/appellant, and sustained injury on her person.
Learned advocate for the appellant submitted that when neither victim herself, nor her mother as well as near relatives of victim transpired nothing against the accused/appellant, and when the victim herself made out a case of having sustained injury on her person by reason of falling down from van rickshaw, pulled by accused/appellant, the Trial Court ought not to have held accused/appellant convicted relying only upon the testimony of the doctor read with scribe/PW-10, and lady constable /PW-4. It was contended by the appellant that the Trial Court after being emotionally charged with proceeded to attract the presumption available in POCSO Act under Section 29 of the POCSO Act, adopting an hyper technical approach in the absence of proof of foundational evidence making out a strong case of alleged case of physical violation committed upon victim.
Argument was raised accordingly that presumption under Section 29 of the POCSO Act would not be straightaway applicable even in a case, where there was absolutely no iota of evidence revealed in the testimony of victim herself implicating the accused/appellant for the offence complained of.
The order of conviction accordingly, was contended to be not sustainable for want of adequate evidence being led against the accused/appellant.
Respondent/State supporting the order of conviction and sentence submitted that most of the witnesses examined by the prosecution having been gained over, the Trial Court rightly made application of Section 29 of the POCSO Act in the instant case, when there was nothing established in proof of previous animosity of victim and her parents with the accused/appellant, suggestive of false implication in the instant case.
Upon perusal of the evidence adduced in this case, it appears that virtually victim had developed a story in her testimony contrary to the version shown in F.I.R.
In such state of affairs, we were urged to address the issue if the Trial Court rightly reached the order of conviction, making appropriate application of statutory presumption available under Section 29 of the POCSO Act, and awarded sentence accordingly.
The version of F.I.R. goes to show that victim was taken away by the accused, van rickshaw puller, while she was playing in front of her house after alluring the victim to ride on van rickshaw of accused/appellant on the pretext of visiting nearby locality, and the victim girl accepted such offer, because of her previous acquaintance with the accused/appellant, to whom the victim would ordinarily address as her "Dadu" and finally taken the victim to a nearby bush, where the accused/appellant satisfied his sexual appetite doing fingering as well as causing penetration in the private parts of victim girl. It was also the case made out in F.I.R. that, while satisfying lust, the accused/appellant also bit on her cheek.
Victim/PW-1 making summersault in her testimony, stated that she herself appealed to accused/appellant for a ride on the van rickshaw of accused/appellant after seeing him coming in course of her playing in the field and while jumping for a ride on the van rickshaw, she had fallen down sustaining injury on her knee. She stated the same to her mother, as to how she sustained injury on her person. In the statement recorded under Section 164 Cr.P.C. (Exhibit- 1/1) victim stated to have suffered penetrative sexual assault in consequence of fingering in her private parts by accused/appellant, resulting in bleeding from her private parts apart from receiving biting mark on her cheek.
The F.I.R. marked as Exhibit-2, lodged by PW-2 (the mother of the victim) left materials to show that besides biting on cheek of victim girl the accused/appellant did fingering as well as caused penetration upon the victim causing the victim to suffer bleeding wound in her private parts.
The story of causing penetration upon the victim, however, went omitted in the statement given by the victim to the learned Magistrate, recorded under Section 164 Cr.P.C., creating a contradiction on material particulars in the version of the prosecution. Upon visualising the special features of prosecution story, such contradiction cannot considered to be minor and accordingly not to be ignored.
The statement of the victim was recorded on 17th November, 2014, in connection with the alleged incident held on 14.11.2014 at about 11.00 A.M. The F.I.R. was lodged on the same date at about 16.15 hrs. The doctor (PW-5) medically examined the victim girl on 15.11.2014 at about 4.30 P.M. i.e. on the following day of incident. Doctor/PW-5 stated in his evidence that he found injury in the thigh, hymen and tearing at 8 O'clock position, which he possibly could not medically see such vaginal injury, and answered in cross-examination that in a very rare case such hymenal injury could be found due to fall.
It was thus, the cause of injury in her private parts including her thigh being sudden fall from a van rickshaw was not completely eliminated by doctor himself.
Besides small abrasion on left knee together with hymenal injury, as aforementioned, the doctor found no other physical injury like biting mark on the cheek of victim, indicative of leaving evidence of putting the victim to physical violence, while satisfying lust of accused/appellant.
Absence of biting mark on the cheek of victim, what was largely focused, not only in the F.I.R. itself, but also in the statement of victim, recorded under Section 164 Cr.P.C. would likely to improbalize the prosecution story throwing suspicion over it.
The Trial Court capitalised the testimony of scribe (PW-10) in going ahead with the conviction. It would be relevant here to take notice of the evidence of this scribe for our present purpose. The scribe (PW-10) himself stated that he had noted down the FIR as per statement of police, but not as per statement either of victim or her mother (PW-02). He only found an assembly of villagers near police station, while he was returning back after hawking. On the next day of evening, he learnt about occurrence after meeting PW-1 and PW-2. Thus the moment when the FIR was lodged in P.S, the scribe had no personal knowledge about the incident, complained of. Though scribe (PW-10) claimed to have gathered knowledge of the occurrence on the date following the incident from victim and her mother, but the I.O. himself contradicted with such version of scribe testifying to the effect that scribe (PW-10) did not make any such statement to him. Therefore, the evidence of the scribe claiming to have gathered knowledge subsequently on the next day following the incident from victim and her mother, suffered contradiction resulting in discrepancy in the version of prosecution, the consequent impact on which is supposed to be capitalized by accused/appellant on this issue claiming benefit of doubt.
Evidence of lady constable (PW-4) making interrogation of victim girl after the incident as per instruction of her superior found relevance in the judgment of the Trial Court, while convicting the accused/appellant. When victim herself had given a go-by to her own version, recorded in the form of statement under Section 164 Cr.P.C., the evidence of lady constable, being not above a corroborative evidence, would be without any consequence.
This is a case where the Trial Court did not place any reliance upon the victim prosecutrix presuming to have been gained over, but proceeded to gather confidence from the evidence of the scribe, lady constable and the Doctor. The evidence of the scribe and the lady constable is not beyond contradiction, as discussed hereinbefore. The doctor not having eliminated the possibility of sustaining hymeneal injury in very rare case, as a consequence of fall from a van rickshaw, his medical evidence cannot be taken to be conclusive, because there was no other evidence indicative of commissioning physical violence inflected upon the person of victim, like the biting mark on the cheek of victim.
In criminal jurisprudence of trial, defence is supposed to build/develop a version in support of his defence either during cross-examination or after being called upon to explain the incriminatory circumstances brought against him in the evidence, in a case where foundational evidence, supportive of making out a strong prosecution case, is made out during trial. When the victim herself has built up a story in her testimony contrary to the story made out in FIR, and the same received corroboration from her grandfather (PW-3) and grandmother (PW-
7), the defence in such circumstances cannot be taken to be obliged to raise a strong version, supportive of his defence of false implication. The probability of false implication, in the given set of facts, cannot be a mere possibility. And failure to develop a version in cross-examination, suggestive of false implication, as considered by trial Court, will not itself falsify the version of victim girl, when accused/appellant has denied everything taking plea of innocence.
The most pertinent question still left to be answered, if the evidence of doctor together with statement of the victim under Section 164 Cr.P.C. in such circumstances can be made basis of conviction, where the victim herself and her mother did not show any respect to their own version lying with the case record.
The settled proposition of law is that testimony of doctor and the medical papers proved by the doctor are corroborative piece of evidence. Neither statement recorded under Section 164 Cr.P.C., nor the evidence of the doctor is substantive piece of evidence. In the given set of facts, the evidence of the doctor cannot be taken to be conclusive for the discussion made herein above. There may be several probabilities of sustaining hymeneal injury to a girl of 7 years age, becoming a victim of alleged aggravated sexual penetrative assault, which however, cannot be straight jacketed, but one of such probabilities being fall from a van rickshaw, though in rare case, there must have been some strong, cogent, convincing evidence available in the testimony of victim girl, suggestive of making out a rare case ex facie, compared to ordinary circumstances, for making a perfect co-relation of medical evidence with victim girl, without which it is not safe alone to be acted upon. A duty is thus cast upon the prosecution to adduce positive evidence to prove the charge framed.
Unless there is positive evidence led by victim herself claiming to have been either ravished or suffered aggravated penetrative sexual assault, there is hardly any scope for corroborative piece of evidence to come into play for giving support/assurance to the version of prosecution. The mother of the victim girl though proved the FIR in evidence, but omitted to state anything in proof of the veracity of the statement contained in F.I.R.
The very substratum of the prosecution case thus not being unfolded by the informant during the trial before a court of law, the corroborative piece of evidence alone would be insufficient to base conviction, and more so in the given set of fact, the medical evidence cannot be taken to be conclusive in nature in proof of physical violence committed upon the victim girl.
Let us now address the applicability of Section 29 of the POCSO Act dealing with availability of presumption to be attracted to against the accused/appellant, in the given set of facts.
Most of the witnesses during trial either being declared hostile to prosecution, or not having rendered desired support to the prosecution version, shown in FIR, for the reasons ascribed in the judgment, learned Trial Judge thought it prudent to make the presumption applicable against the accused person, available under Section 29 of the POCSO Act. The principal thrust of this appeal was the imperfect application of Section 29 of the POCSO Act dealing with presumption in a case, where victim herself had given a go-by to the persecution story developing a separate story in her own version, contrary to the case set up in F.I.R, and subsequently in her 164 statement. The evidence adduced by the prosecution irresistibly indicates one and only important feature that the foundational evidence with respect to the offence charged has not been led in the instant case. It would be most improper, if the presumption available in Section 29 of the POCSO Act is straightway made applicable in a case even in absence of foundational evidence being led by prosecution. As has already discussed that besides medical evidence, there was no other evidence in making out a case, either of rape or aggravated sexual penetrative assault, and that medical evidence cannot be considered to be conclusive in sense in the given set of facts, so in the absence of proof of foundational evidence corresponding to the charges framed in this case against the accused person, there hardly left any circumstances for making any application of presumption available under Section 29 of the POCSO Act. The words appearing in Section 29 of the POCSO Act "Where a person is prosecuted" embraces a complete exercise on the part of the prosecution to prove the prime allegation set out in F.I.R. corresponding to the charge framed against the accused person during the course of trial, which is of course rebuttable subject to developing a strong case, contrary to that established by prosecution during cross-examination by defence. When a different story is developed during trial by the victim prosecutrix, contrary to the story of prosecution, and that developed story received ratification from the near relatives of the victim prosecutrix, in the given facts situation, it stands to reasons that despite having been provided with sufficient opportunity to prove the case, prosecution failed to probalise the incident complained of in the F.I.R.
The concept of reverse burden of proof can only be made applicable in a case, where prosecution has already led substantial evidence, as regards the offence complained of. There is hardly any scope for direct application of Section 29 of the POCSO Act, even in a case where there is no foundational evidence being led by the prosecution.
The issue under reference was addressed by Division Bench of this court in the case of Subrata Biswas & Anr. Vs. The State reported in (2019) 3 C Cr. LR (Cal) 331 , where the ratio decided was that proof of penetrative sexual assault is sine-qua-non prior to making application of the presumption available under Section 29 of the POCSO Act.
Learned advocate for the appellant thus rightly proposed that before making adherence to Section 29 of the POCSO Act, so as to make the presumption applicable in the instant case, the prosecution ought to have led foundational evidence revealing the ingredients of the offence on preponderance of probability, and only upon laying such foundation by leading cogent and reliable evidence. It is only on proof of foundational evidence being led, the onus gets shifted to accused to prove the contrary in order to discharge the reverse burden of proof, as contemplated in Section 29 of the POCSO Act. We would sincerely accept the interpretation, offered by the Division Bench of this in the case shown herein above, so as to make the presumption available in connection with trial under POCSO Act.
It has got no direct and automatic application irrespective of the standard of evidence adduced in a particular case. Thus without proof of foundational evidence in a case of this nature, either of rape or penetrative sexual assault, the onus to prove the reverse burden of proof does not come into operation. The statutory presumption thus cannot be taken to be absolute.
Since the prosecution reasonably failed to establish its case taking aid of victim, her mother, near relatives and her para people, mere proof of medical evidence, which is nothing more than a corroborative piece of evidence, would not by itself pave the way for application of presumption available under Section 29 of the POCSO Act.
The version of the prosecution story as regards the rape or penetrative sexual assault cannot be taken to have satisfactorily established for inconsistencies, infirmities and absurdities in the evidence already discussed.
Resultantly the accuse/appellant deserves to be favoured with an order of acquittal.
The order of conviction and sentence as such cannot go unaltered and accordingly the order of conviction and sentence are set aside. The accused/appellant be set free accordingly.
The criminal appeal succeeds and disposed of.
Department is directed to send a copy of this order to the concerned Superintendent of Correctional Home, where the convict/appellant is detained.
Department is further directed to send a copy of this judgment along with Lower Court Record to the concerned Trial Court without causing any delay through the concerned District Judge.
Urgent certified copy of this order, if applied for, be given to the appearing parties as expeditiously as possible upon compliance with the all necessary formalities.
I agree.
(Sahidullah Munshi, J.) (Subhasis Dasgupta, J.)