Calcutta High Court (Appellete Side)
Nandan Saha vs State Of West Bengal on 13 December, 2019
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. 664 of 2014
Nandan Saha
Vs.
State of West Bengal
For the Appellant : Mr. Debabrata Roy, Adv.
Mrs. Karabi Roy, Adv
For the State : Mr. Ranabir Roychowdhury, Adv.
Mr. Mainak Gupta, Adv.
Heard on : 20.11.2019, 21.11.2019 & 27.11.2019.
Judgment on : 13.12.2019
Subhasis Dasgupta, J:-
This criminal appeal is directed against the judgment and order of
conviction and sentence dated 04.08.2014 and 05.08.2014, passed by learned
Judge, Special Court, 2nd Court, Suri in Special Case No. 7/14/, {Special Trial
No. 7(2) of 2014} convicting the accused appellant under Section 3(b) of the
Protection of Children from Sexual Offences Act, 2012 and sentencing him
thereunder to suffer rigorous imprisonment for twenty (20) years, and a pay fine
of Rs.10,000/- (rupees ten thousand), in default Simple Imprisonment for one
year.
The factual aspects, as established during trial, is that the complainant
mother went to fetch water outside her house on 6th August, 2013, at about 3.00-
3.30 P.M., taking victim daughter with her, who was following the mother,
intervened by a space of about 8-10 cubits away from the mother.
The accused appellant lives in a house intervened by two houses from the
house of complainant in the self-same locality. The mother/complainant found
the accused appellant taking her daughter, a three year old girl, in his lap and
going away against her wish. The mother then returned home collecting water,
but she did not find her daughter there, even 10-15 minutes after the incident.
The complainant/mother then frantically started searching for her daughter,
when accused appellant left her victim daughter in a crying state on road. She
found the wearing apparels of her daughter with evidence of bleeding from
private parts. On interrogation, the mother could learn from her victim daughter
that at the relevant point of time accused appellant had taken her away to a
deserted place of such locality, and committed aggravated penetrative sexual
assault upon victim daughter. The victim daughter was thereafter, taken to
hospital at Sian, Bolpur, and from there the victim daughter was referred to
Burdwan Medical College and Hospital for her medical examination.
On the basis of such complaint, received on 11.08.2013, for an occurrence
held on 06.08.2013, police took up investigation seized the wearing apparels of
the victim and sent the same to F.S.L. for report. The victim girl was put up for
medical examination, apart from medical examination of accused appellant.
Upon consideration of the injuries sustained by the victim girl on her
private parts together with statement of the witnesses already collected, charge
sheet was submitted concluding the investigation.
Accused was put to trial after framing charge under Section 4, 8 and
Section 12 of the Protection of Children from Sexual Offences Act, 2012.
The Trial Court after collection of as many as seventeen (17) witnesses,
held the accused to be guilty of offence, and convicted under Section 3(b) of the
Protection of Children from Sexual Offences Act, 2012, and sentenced him to
suffer imprisonment, as mentioned hereinabove.
Learned advocate Mr. Debabrata Roy for the appellant at the first blush of
his argument challenged the order of conviction and sentence thereunder
contending that the learned Trial Court not only improperly held the accused
appellant to be guilty of offence under Section 3(b) of the Protection of Children
from Sexual Offences Act, 2012, but also whimsically awarded sentence without
adhering to the provision of law incorporated in Section 4 of the Protection of
Children from Sexual Offences Act, 2012, and in order to embolden such
submission, learned advocate Mr. Roy brought to our attention to the several
latches, discrepancies, inconsistencies in the evidence putting a principal thrust
against the two medical examination reports of victim girl held on two different
dates i.e. on 07.08.2013 and 13.08.2013, which according to appellant, should
not be relied upon for the apparent discrepancies and absurdities contained
therein.
The challenge against the conviction and sentence was thus manyfold, with
objective purpose of snatching an order of acquittal after rendering the
prosecution story to be a product of doubtful episode.
According to appellant, there was delay caused in lodging F.I.R. and the
delay not being explained satisfactorily, there left room for concoction and
embellishment in the version of prosecution story.
Per contra, Mr. Roychowdhury, learned advocate appearing for
State/Respondent submitted that mere delay caused in lodging the F.I.R.
containing a satisfactory explanation would not render prosecution version brittle.
Let us first address the point surfacing delay caused in lodging the F.I.R. In the F.I.R., marked as Exhibit-1, there was an explanation offered regarding the delay caused in its institution by stating to the effect that since the husband of the de-facto complainant resides away from the complainant/mother in connection with his occupation and the family members remaining busy in connection with treatment of victim girl, there was unintentional delay caused in lodging the F.I.R.
PW-3 is the husband of PW-1 (complainant wife and mother of the victim girl), who stated in his evidence that receiving a phone call from his wife at about 5.00 P.M. on the relevant date of incident, he left his work place and reached his home on the same day. PW-3 works for gain in a plastic company situated at Birshibpur, Howrah. The mother-in-law of complainant (PW-5) stays in Calcutta. On the relevant date she came returned to complainant's house, but temporarily remained absent from the house of the complainant, going away for some personal purpose.
Evidence is there in the testimony of PW-1 that after the incident, she took her victim daughter to Sian Hospital, Bolpur for medical examination and then to Burdwan Medical College and Hospital for repairing vaginal wound sustained by the victim girl, consequent upon penetrative sexual assault. The victim had to be admitted in hospital for one day before being discharged. PW-9, the doctor of Burdwan Medical College and Hospital, who examined the victim girl on 7th August, 2013, stated in his evidence that victim had been admitted to hospital in the Gynae Building, bearing Annual Serial No. 19203 of Unit 3. The mother/complainant further stated in her evidence that her daughter was referred by Bolpur Hospital to Burdwan Medical College and Hospital and in process, the victim girl was accompanied by a lady constable. The complainant/mother admitted her signature appearing on a medical document, marked as Exhibit-3, corresponding to a medical treatment given to victim on 07.08.2013 by a doctor of Burdwan Medical College and Hospital.
The significant aspect that surfaced in evidence, to be considered, is that the complainant family members had to be busy in search of treatment of their victim daughter simply to get her wound redressed, inflicted in her private parts.
The events so reflected in evidence, if considered sequentially, the delay said to have been occasioned in this case, giving rise scope for embellishment and concoction in the prosecution story, would not matter much so as to improbalise the prosecution story. Delay as such would not be treated as fatal for the prosecution.
It would be appropriate here to place reliance on a decision delivered in the case of Tulshidas Kanolkar vs. The State of Goa reported in 2003 (8) SCC 590, wherein it was propounded that the delay in lodging the F.I.R. should not be used as a realistic formula for discarding prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider, if any explanation has been offered for the delay or not. Once it is offered, the court is to only see whether it is satisfactory or not. In case, if the prosecution fails to offer satisfactory explanation of delay, there is possibility of embellishment or exaggeration in the prosecution version on account of such delay. On the other hand, satisfactory explanation of delay is weighty enough to reject the plea of false implication or vulnerability of the prosecution case.
According to appellant, the complainant mother (PW-1) caused strong improvement doing unnecessary exaggeration in her testimony, so as to render her testimony to be unworthy of any credit.
The version of F.I.R. is that the victim daughter of the complainant was forcibly taken to an old deserted place by accused appellant in the locality, and did sex upon her over there. It was then, 3.00- 3.30 P.M. on 06.08.2013, when complainant went to fetch water from outside taking daughter with her. The charge was framed against the appellant reiterating the time mentioned in F.I.R., while in evidence, PW-1/mother gave out that it was 4.00-4.30 P.M. on the relevant date.
Learned advocate Mr. Roy for the appellant referring such version of PW- 1/mother submitted that there had been serious time contradiction found in the testimony of PW-1 with reference to F.I.R., and for such time contradiction, the occurrence was shrouded with doubt.
There was no cross-examination directed towards eliciting the educational background and the status of the complainant/mother which she had at the relevant point of time in the locality, without which, such contradiction of time for thirty minutes only would not help appellant in any manner, favourable to the purpose of the appellant, because rural, rustic people in the absence of adequate education always carry chronometric sense of time, and it will not be proper to expect from them any precise account of time of an incident, held suddenly, not even contemplated at any point of time previously.
Regarding the improvement and exaggeration, contended to have been made by PW-1/mother in her testimony, it appears that PW-1/complainant mother clarified the entire incident while making narration of incident, as to how the occurrence was held, being incidental to the occurrence. While clarifying such incident most graphically, PW-1/mother stated in her evidence that it was then 4.00-4.30 P.M. on the relevant date when she went for fetching water from outside being accompanied by her daughter (victim girl). The victim daughter was then following the mother intervened by a distance of 8-10 cubits away from her. The mother found accused taking the victim girl in his lap against her wish and going away thereafter. Complainant/mother then collected water and returned home without finding her daughter. She anxiously searched for her daughter, when about 10-15 minutes later, accused appeared there, taking her daughter in his lap, and left the victim daughter on road in front of a club.
On being interrogated, the victim daughter narrated her mother/complainant that she had been taken to a deserted place by accused appellant, where accused tore her wearing apparels and put his hand inside her urinal passage. This is all about the events being clarified by PW-1 in context with the statement depicted in F.I.R.
It is the settled proposition of law that the F.I.R. could not be taken to be an encyclopedia.
Learned advocate for the State challenged appellant's stand on this issue submitting that the F.I.R. could not be considered to be containing all minute details. It is thus according to State/respondent, the statement found in the F.I.R. must have to be clarified in evidence, and in doing such clarification whatever is stated being incidental to the statement contained in the F.I.R. cannot be held to be an improvement of version of F.I.R.
Upon hearing both parties, we are of the considered opinion that there is strong force in the submission advanced by the State/respondent that the F.I.R. need not become an encyclopedia. The statement made in the F.I.R. being clarified in evidence by PW-1 for the perfect appreciation of facts in issue being incidental to the statement in F.I.R. can hardly be regarded to be exaggeration or deliberate improvement caused in the prosecution story.
The time contradiction and alleged exaggeration or improvement of F.I.R., as sought to be capitalized by appellant, discussed hereinabove, not being patent and vital, would not develop any suspicion in the prosecution story, and further such discrepancy will not upset the entire edifice of prosecution case in any manner whatsoever, being minor in nature.
The Trial Court appears to have based conviction relying much upon the testimony of PW-1/mother, PW-2/victim girl, PW-9 (doctor examining the victim girl at Burdwan Medical College and Hospital on 07.08.2013, vide Exhibit-4), PW- 17 (doctor medically examining the victim at Burdwan Medical College and Hospital on 13.08.2013, vide Exhibit-3) and the learned Magistrate/PW-15 recording the statement of the victim girl (marked as Exhibit-9).
Referring testimony of the victim girl, and that of the evidence of PW-15, learned advocate fore the appellant argued with much emphasis that the Trial Court unnecessarily placed much reliance upon the statement of the victim girl, recorded under Section 164 Cr.P.C. (marked as Exhibit-9) without the same having proved in evidence by the maker of the statement i.e. victim girl in her evidence.
It was also contended by the appellant that learned Magistrate while recording the statement under Section 164 Cr.P.C. did nothing to ascertain, if such statement was made voluntarily or not, without which no credibility could be attached on it.
Respondent/State countered the submission, advanced by the appellant, submitting that the learned Magistrate was satisfied with the statement made before him by victim girl that it was voluntarily made, and accordingly a certificate was given in the form of memorandum by learned Magistrate to the effect, which would be sufficient for our purpose to ascertain the voluntary nature of the statement of the victim girl.
Upon perusal of the "Exhibit-9", being the statement of victim under Section 164 Cr.P.C., it appears that in eleven (11) page recorded statement under Section 164 Cr.P.C., the learned Magistrate consciously tested many things adhering to the formalities prior to recording the statement of victim girl by putting several questions, and obtaining answers from the victim girl. Though no solitary question was put in so many words, meant for ascertaining the voluntary character of statement, but from answers to questions, particularly as to why the victim appeared before the learned Magistrate on the relevant date, it appears that she (victim girl) replied most specifically and conspicuously narrating the incident happened to her on the relevant date by the accused appellant, and in such circumstances mere error to put such a question would be of no significance, while considering the same in its entirety.
The learned Magistrate also allowed the mother of the victim to be present at the time of recording her statement, while making adherence to Section 26 of POCSO Act. Upon recording such eleven (11) page statement of the victim girl under Section 164 Cr.P.C., it appears that in the concluding part, learned Magistrate certified in the form of memorandum that he was satisfied with the statement made before him by the victim girl that it was voluntarily made. Therefore, mere absence of a solitary question for ascertaining the voluntary nature of the statement, what could be easily gathered from the entire recording of the statement under Section 164 Cr.P.C. by necessary implication, the credibility of such statement should not be doubted taking a hypertechnical plea that it was not voluntarily made by victim girl.
Upon visualising the evidence collected in this case, it appears that the statement of the victim girl could not be proved in evidence by the maker of the statement i.e. victim girl. The statement of victim girl was, however, proved in evidence by the learned Magistrate, who recorded the statement of the victim girl doing necessary adherence to the provisions of law.
According to appellant unless maker of such statement proves the same to be one reduced into writing correctly, as stated by her, contained therein, can not be used for any purpose against the appellant.
Shelter was taken on this issue by the appellant on a decision of the Apex Court rendered in the Case of Baij Nath Sah Vs. State of Bihar reported in 2010(6) SCC 736 and another decision delivered by Division Bench of this Court in the case of Saroj Kumar Das Vs. State of West Bengal reported in 2016(4) Cr. Lr. (Cal) 14.
Learned advocate for the State, while supporting the judgement of the Trial Court submitted that proof of statement under Section 164 Cr.P.C., not being made by the maker herself in the instant case, would not make the document to be a trash, fall short of its credibility. Thus according to respondent/State, it was a mere error or inadvertent mistake, and should not be taken to be an illegality in the process of appreciation of such document under the provisions of the law.
The judgment referred by the appellant in the case Baij Nath Sah (supra) delivered by Apex Court dealt with a case, where the judgement of the Court below made extreme reliance on the statement of the victim under Section 164 Cr.P.C. being the only material evidence of case. The victim in connection with an offence under Section 366A/363 could not be examined during trial for she being married in Nepal and her husband did not allow her to return India for adducing evidence. In such context, the Apex Court held that the statement of the victim girl in the absence of maker being proved, the same cannot be used as evidence against the appellant. The judgment is distinguishable from the case under reference on the ground that in the case at hand the victim girl was examined, the recording magistrate proved the recorded statement, but the victim girl herself omitted to prove the same for her L.T.I. put in the recorded statement, and it was due to an error on the part of prosecuting agency, the same could not be otherwise proved.
The settled proposition is that the statement under Section 164 Cr.P.C. is not substantive evidence, and can be used only to corroborate and contradict the witness vis a vis, the statement made in Court.
It is thus as good as previous statement and nothing more. It is true that due to the mistake, rather for an error on the part of the prosecuting agency, the statement of the victim girl could not be proved in evidence, but there is hardly any material available in the evidence that the victim being the maker of such statement disputed with the correctness of the recording made by the learned Magistrate. In the memorandum set forth in the recorded statement, learned Magistrate certified in a most conspicuous manner that victim as well as her mother was present at the time of recording, who expressed their satisfaction with regard to the correctness of the statement being perfectly recorded by the learned Magistrate.
Since it was an error merely in the due discharge of performance entrusted upon the prosecuting advocate for the State, the veracity or genuineness of such statement, not being doubted anywhere in the evidence, would not be appropriate to describe such recorded statement under Section 164 Cr.P.C. to be without any probative value, at least for our present purpose. The judgements thus referred above by the appellant would thus be without any useful assistance.
Multiple versions being available in evidence as regards police station being first approached to, and the medical attention given to the victim in hospital on two different dates i.e. on 07.08.2013 and 13.08.2013, according to Mr. Roy, learned advocate for the appellant, there developed substantial confusion as to the occurrence, if at all held.
Respondent/State proceeded to counter such submission replying to the effect that the testimony of the witness to be considered as a whole in its entirety and if the testimony of the witnesses, if viewed as a whole, the emphasis made on such score by the appellant would become automatically diluted.
The version of Investigating Officer/PW-13 was that after registering the case on 11.08.2013, he forwarded the victim to Bolpur Sub-Divisional Hospital on 12.08.2013, for her medical examination. PW-10, the doctor of Sub-Divisional Hospital, ratifying the evidence of I.O./PW-13, stated that for the failure of victim girl to provide proper exposure for medical examination, she had been referred to Burdwan Medical College and Hospital. PW-11, the lady constable supporting the prosecution story testified that she accompanied the victim girl to Burdwan Medical College and Hospital from Bolpur Sub-Divisional Hospital for being so forwarded. PW-17, the doctor of Burdwan Medical College and Hospital examined the victim girl on 13.08.2013 on the requisition of I.O./PW-13, who took up lion's part in the investigation, while PW-14 was the last I.O. submitting charge sheet after the collection of medical report of the victim girl from the Burdwan Medical College and Hospital, but without collecting F.S.L. report.
True it is that there are two versions available with regard to securing medical attention of the victim girl twice.
Upon viewing the medical examination report of victim girl, revealed from "Exhibit-3" as proved PW-17, and another medical examination report held on 07.08.2013 vide Exhibit-4, as proved by PW-9 in context with the testimony of PW-1 (mother) and the father of the victim PW-3, two things are very conspicuous. PW-9 examined the victim girl at Burdwan Hospital on 07.08.2013 after the victim was brought by the mother of the victim girl, not at the instance of the police, and on local examination of the victim girl, the doctor found small abrasion in the right side of the labia of the victim girl without any marks of bleeding, while PW-17 (a doctor), examined the victim girl on 13.08.2013 at Burdwan Hospital found slight brownish tender being vulva injury, and 0.2" into 0.1" recent scar mark over the labia majora together with some circumferential tear at the labia minora of the victim girl.
Drawing our attention to Exhibit-4, being the medical examination report of the victim girl, held on 07.08.2013 by Doctor of Burdwan Hospital (PW-9), learned advocate for the appellant persuaded us to believe that prosecution case was highly improbalised for victim having received treatment at Burdwan Hospital on 07.08.2013, i.e. long before the initiation of this case, and both the medical examination reports, if taken as a whole in context with evidence of victim girl (PW-2), there left substantial contradiction in the prosecution story, the benefit of which, according to appellant, would go in favour of the appellant.
The prosecution story cannot be held to be doubtful in the manner, as contended by the appellant, on the ground that it might so happen that victim daughter had to be put up for medical attention more than once, irrespective of medical attention held earlier at the instance of her mother/complainant, on 07.08.2013, at Burdwan Hospital, where the victim girl had to be admitted in the Gynaecology Department of Hospital. Simply by reason of medical examination of victim girl twice, and that too on different dates, one of which was earlier than the date of initiation of the present case, the prosecution contour cannot be taken to be fragile enough so as to favour the accused/appellant benefit of doubt, as proposed by the appellant. The multiple versions though found available, but the same being principally directed to an irresistible conclusion that victim received medical attention twice, one on 07.08.2013 at the instance of her mother being an indoor patient after being admitted to Burdwan Hospital, and another on 13.08.2013 at the instance of the police soon after the registration of F.I.R. in police station, and as such apparent inconsistency on such ground would not result in any turbidity in the prosecution evidence, as established. The argument thus advanced by the appellant on such score is not an acceptable stand.
The next question requiring consideration of us is whether those two medical examination reports were safe to be relied upon in establishing a case of penetrative sexual assault or not.
Entire effort of the appellant was to render two medical examination reports, held twice i.e. on 7.08.13 and 13.08.2013 vide Exhinti-4 and Exhibit-3 respectively to be most unreliable documents on the ground that the testimony of victim (PW-2) instead of receiving substantial corroboration from either of the two medical documents, it was falsified rather.
Learned advocate for the appellant strenuously argued that the Trial Court most illegally held the accused/appellant to be guilty under Section 3(b) of the POCSO Act placing much reliance upon the testimony of the victim girl recorded under Section 164 Cr.P.C., and further attracting the presumption available under Section 29 of the POCSO Act. It was argued by the appellant that the prosecution version claiming the victim to have suffered penetrative sexual assault at the instance of accused/appellant found no substantial ratification from either of the two medical documents, referred hereinabove.
The prosecution story as testified by PW-1 is that her daughter was taken away by accused/appellant to a deserted place against her wish, and where the accused/appellant put his hand inside the urinal passage of her daughter. The complainant/mother found scratch mark in the private parts of her daughter. PW-1, mother could learn about the incident from victim daughter after her return. PW-3, father of the victim girl knew about the incident subsequent to the occurrence, and after returning to home on the relevant date from his place of work, he found swelling on the private parts of her daughter. PW- 4, being scribe of FIR found accused taking the victim in his lap and going away at the relevant point of time, when he was returning home. PW-5 (grandmother), found injuries on the private parts of victim grand-daughter. PW-6 and PW-7 had the occasion to find the injuries sustained by victim girl on her private parts, being 'para' people, after the injury of victim was shown to such witnesses by the mother of victim girl. PW-8, another 'para' people, also found accused taking away the victim girl at the relevant point of time. The appellant/accused challenged the testimony of PW-6 and PW-7 putting suggestion to the effect that those two witnesses had no occasion to find the injuries, if at all sustained by the victim, which was denied by such witnesses. But the credibility of PW-8 another 'para' people having had the occasion to witness accused/appellant taking away the victim girl from her mother at the relevant point of time could not be shaken to doubt in cross-examination, even after putting suggestion to him in the form of denial. The situation is thus clear that both PW-1/mother taking support of PW- 8 at least proceeded to establish one most crucial fact that they found the accused/appellant going away the victim girl with victim taking the victim girl in his lap. When there is specific evidence that accused/appellant had taken away the victim girl on the relevant date from the mother of victim girl against her wish, in the circumstances, it is for the accused/appellant to explain as to how the victim girl sustained injury on her private parts. Neither in the cross- examination of witnesses, nor during examination under Section 313 Cr.P.C., accused/ appellant did offer any explanation stating the circumstances, as to how the victim girl sustained injury, after the victim girl was taken away by accused. There is further evidence adduced by the mother/complainant that the victim girl was found then weeping, after the victim girl was left by accused/appellant on road on the relevant date 10 to 15 minutes after she collected water from outside her home.
The most pertinent question next, required to be addressed by us, is how the medical examination reports, marked as Exhibit-3 and Exhibit-4, could be correlated with the testimony of two witnesses, principally like PW-1 and PW-2. The statement recorded under Section 164 Cr. P.C. of the victim girl talked about a case of fingering, while the mother/complainant testified in her evidence that accused had put his hand inside the urinal passage of her daughter, for which she found scratch mark on the private parts of her daughter. For the special feature of this case, the testimony of victim girl (PW-2) would be of highest significance, who stated that accused had touched her private parts with his hand.
If we consider the testimony of victim girl and her mother in the perspective of medical examination report, vide Exhibit-3 and Exhibit-4, the allegation of subjecting the victim girl to a penetrative sexual assault gets diluted to a separate strata of offence under same species, on the ground that besides small abrasion on the right side of labia of the victim girl, no other injury like bleeding could be detected, in course of medical examination by doctor of Burdwan Medical College & Hospital on 07.08.2013, while slight brownish tenderness found in the vulva, 0.2'' to 0.1'' recent scar mark on other labia majora with swelling and few circumferential tear could be identified in the labia minora of the victim girl during the examination of the victim girl, held almost six days after the first medical examination of victim girl by the doctor of Burdwan Medical College and Hospital.
Learned advocate for the appellant rightly argued on such issue that the injuries, what could not be detected on 07.08.2013 in respect of private parts of the victim girl, how aggravated form of such injury in respect of the self-same victim girl could be detected on 13.08.2013 by the doctor of Burdwan Medical College and Hospital. It was thus proposed by the appellant that such injury of the victim was highly suspicious, and against which no explanation was there in the testimony of the witnesses examined by the prosecution.
So far as commission of penetrative sexual assault is concerned, the submission advanced by the learned advocate for the appellant has strong force, and bearing in mind the potentiality of such submission, it would be not wise to place implicit reliance upon any of these two medical examination reports (marked as Exhibit-3 and Exhibit-4 respectively).
According to appellant proof of penetrative sexual assault is sine qua non prior to making application of the presumption available under Section 29 of the POCSO Act. On this issue, reliance was placed by the learned advocate for the appellant on a decision delivered by Division Bench of this court while holding Circuit Bench at Port Blair, rendered in the case of Subrata Biswas and Anr. Vs. The State reported in (2019) 3 C Cr. LR (Cal) 331, in order to establish that the proper interpretation of Section 29 of the POCSO Act in a case of this nature, where a person is prosecuted under Section 3(b) of the POCSO Act, should be that the prosecution is not absolved from its liability to prove its case beyond all reasonable doubts. It was thus proposed by the learned advocate for the appellant taking shelter to such decision that for due application of Section 29 of the POCSO Act, the prosecution has to lead evidence to establish the ingredients of the offence on preponderance of probability, and only upon laying such foundation by leading cogent and reliable evidence, the onus shifts upon the accused appellant to prove the contrary.
The presumption available under Section 29 of the POCSO Act, cannot be treated to be absolute. It has got no automatic application, irrespective of the standard of evidence adduced in a particular case. With respect to interpretation of Section 29 of the POCSO Act, as regards scope and applicability of presumption available thereunder, we respect to such interpretation subscribing the same view, as already offered by Division Bench of this Court in the case of Subrata Biswas and Anr.(supra). Proof of foundation in a case of penetrative sexual assault is must by adducing relevant evidence, and upon proof of such foundation making out a case of penetrative sexual assault, the onus to prove reverse burden of proof comes into operation, and failure to discharge the same by accused/appellant reasonably, will pave the way for application of presumption available under Section 29 of the POCSO Act. The version of prosecuting story as regards penetrative sexual assault cannot be taken to have satisfactorily established for the inconsistencies, infirmities and absurdities in the evidence, particularly while making critical analysis of the evidence of the victim girl, in context with two medical examination reports, conspicuously available in this case. When there is anomaly and discrepancy in the two medical examination reports, bearing in mind the special feature of this case, no credibility should be attached on either of the two medical examination reports, in view of evidence of the victim girl and complainant/mother.
Mr. Roychowdhury, learned advocate for the State conceded to such point raised by appellant submitting that the so far as penetrative part is concerned, as exposed in the testimony of victim girl and her mother, the medical examination reports of victim, shown in Exhibit-3 and Exhibit-4, could be construed to be not favourable for the prosecution, but argued with much emphasis that the appellant would hardly find an escape from the charge of having committed aggravated sexual assault upon the victim girl, and for which the medical evidence, as testified by two doctors like PW-9 and PW-17, would not matter much.
Mr. Roy, learned advocate for the appellant had no answer to the candid submission, raised by Mr. Roychowdhury, learned advocate for the State, taking recourse to Section 9 read with Section 7 which is punishable under Section 10 of POCSO Act.
Sexual assault has been defined in Section 7 of the POCSO Act, 2012, which is defined as hereunder.
"7. Sexual assault. - Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other Act with sexual intent which involves physical contact without penetration is said to commit sexual assault."
In view of Section 7 of the POCSO Act, a person may even be held convicted for mere touching the vagina of victim girl with sexual intent involving physical contact, but without any penetration. Section 9(m) of POCSO Act, lays down that a person may also be held convicted for the commission of aggravated sexual assault on child below twelve (12) years.
Here in this case, no dispute was raised at any point of time regarding the age of victim girl either during the course of trial, or during the hearing of this appeal. In the absence of medical document like ossification test report of the victim girl, or any age proving document of victim girl, the oral testimony of the mother/complainant mentioning the age of her victim daughter would be of paramount consideration in application of the provision of Section 3 of Evidence Act for ascertainment of age of victim girl.
In that view of the matter, the victim girl can be safely taken to be less than twelve (12) year old, when the occurrence was held.
Since penetration part is not strong enough to be sustained in view of the oral testimony of the witnesses in context with the documentary evidence marked as Exhibits, the prosecution evidence would, however attract Section 9(m) of POCSO Act by reason of sexual act of appellant involving his deliberate touching the vagina of victim girl, a three year old girl, what was exactly testified by the victim herself and her mother, the reference of which is also found in the statement of victim under Section 164 Cr.P.C. The testimony of PW-1 and PW-2 appears to be cogent, reliable and natural also, and it would inspire confidence so as to hold the accused appellant guilty and convicted under Section 9(m) of POCSO Act. The credibility of such witnesses can not be doubted taking recourse to inconsistencies in the medical examination report. Oral evidence of victim girl (PW-2) and her mother (PW-1) transpired nothing that these witnesses maintained inimical relationship with accused person, without which their version will be taken to have gone undemolished in cross-examination. The commission of aggravated sexual assault, not being purely circumscribed by the medical examination report of victim girl, for the peculiarity of the circumstances involved in this case, the same stood satisfactorily established beyond all reasonable doubt.
The conviction thus, recorded by the learned Trial Court under Section 3(b) is not sustainable, and accordingly the same is modified to Section 9(m) of the POCSO Act, punishable under Section 10 of the POCSO Act, which involves imprisonment of either description for a term which shall not be less than five (5) years, but which may be extended to seven (7) years, and also liable to fine.
Before awarding punishment, it appears that the Trial Court had considered the pros and cons of this case including parameters necessary to be applied over here in context with the settled principle of law, even after taking care of the attending circumstances, so as to pass stern and graver sentence, than the minimum sentence statutorily prescribed for the offence, which in our view, is sufficient, adequate and justified to go for maximum sentence. The sentence of twenty (20) years, as already awarded in this case, thus needs to be altered, modified.
Upon consideration of the entire facts and circumstances of the case, we are of considered view that the sentence of twenty (20) years, already awarded by sentencing court be modified and reduced to seven (7) years with a fine of Rs. 10,000/- (rupees ten thousand), in default simple imprisonment for six (6) months, maintaining the conviction. Period already undergone, however, be permitted to be set off under Section 428 Cr.P.C, while calculating the term of sentence.
With this observation and direction, the appeal stands disposed of. Department is directed to send a copy of the 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.)