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Penetration is not sine qua non to constitute sexual assault under Section 8 POCSO Act

IN THE HIGH COURT AT CALCUTTA

(Criminal Appellate Jurisdiction)

Present: The Hon’ble Justice Shivakant Prasad

CRA 743 of 2016

Niranjan Pramanik @ Telya
-Vs-
The State of West Bengal

For the Appellant : Mr. Prabir Majumder
For the State : Mr. Rana Mukherjee Mr. Saryati Dutta

Heard on : 18.06.2018

Judgment on : 03.7.2018

Shivakant Prasad, J.
The instant appeal is directed against the judgment and order of conviction and sentence dated 28.09.2016 passed by the Additional Sessions Judge, 2nd Court, Krishnanagar, District- Nadia in Sessions Trial No. VIII (II) of 2016 arising out of Sessions Case No. 2(11) of 2015 (Special) convicting the appellant under Section 8 of Protection Of Children from Sexual Offences Act, 2012 and sentenced to suffer Rigorous Imprisonment for three years and to pay a fine of Rs. 5,000/- in default to suffer Rigorous Imprisonment for three months inter-alia, on the grounds that the Learned Trial Judge ought to have considered that version of the victim girl P.W. 1 is not at all trustworthy because her oral testimony before the Court does not match with the evidence of Dr. Swadesh Garai P.W. 7 who examined her immediately after the alleged incident and she herself admitted that there was a preexisting enmity in between two community i.e. Mahiswa and Ghosh.

It is submitted that evidence of P.W. 2 Parthana Ghosh the mother of P.W. 1 is also not admissible because she never stated to anything to any person at the earliest point of point and for the first time she deposed before the Court. Similarly, evidence of P.W. 3 Mahadeb Ghosh, father of victim girl is not trustworthy.

It is further submitted that the alleged incident took place on 30.10.2015 and the victim girl was taken to doctor immediately but said Dr. Swadesh Garai P.W. 7 did not find any mark of injury on her private part.

That apart, the Learned Trial Judge has not dealt with by any curative provision of law i.e. under Section 360 and Section 361 of the Code of Criminal Procedure and/or under the provision of Section 4 (1) of the Probation of Offenders Act. Accordingly, conviction and sentence has been assailed as bad in law and in fact liable to be set aside.

Pith and marred of the prosecution case is that on 30.10.2015 at about 9.50 P.M. the accused Niranjan Pramanick (herein after called as the appellant) took youngest daughter of complainant Mahadeb Ghosh out on the pretext of giving music tuition, dragged her to a bush by the side of main road at Ghosh Para at Bhandar Khola village and removed her under pant and committed sexual assault. Local people rescued the victim girl from the prey of lust of accused and she was taken to Krishnagar Women P.S. and on the basis of a complaint Krishnagar Women P.S. Case No. 147/15 dated 30.10.2015 under Section 4 of the Protection of Children from Sexual Offence Act, 2012 was registered. On usual investigation, L.S.I. Aparajita Banerjee (Sarkar), I.O. submitted Charge-sheet against the appellant under Section 4 of Protection of Children from Sexual Offence Act, 2012. After framing of charge under Section 4 of said Act against the appellant trial started. On closure of the prosecution evidence, the appellant was examined under Section 313 Cr.P.C. to which he declined to adduce any defence witness.

Defence is one of denial of charge levelled against the appellant as emerged from the trend of the cross-examination of the prosecution witnesses and the statement of the appellant recorded during examination under Section 313 Cr.P.C.

The point for decision before the trial Court was whether prosecution has been able to substantiate the charge beyond reasonable doubt.

In the context of the submission as made on behalf of the learned Advocate for the appellant, evidence laid by the prosecution are required to be appraised. In this case, the victim girl aged 13 years deposed as P.W. 1 after preliminary examination to test her capacity to understand and give rational answers and after the learned Judge formed his opinion as to the competence of the witness to depose as per the requirement of Section 118 of the Evidence Act.

At the trial, oral testimony of P.W. 1 is the direct legal evidence about the incident besides evidence of her father P.W. 3. She deposed in unequivocal term that she was taken to bush and her face was gagged and her under pant was removed by the appellant who then pushed his finger into her vagina. It is evident from her testimony that passers by public rescued her from the clutches of the appellants and the appellant was beaten by them. This fact has been well corroborated by the other prosecution witnesses. Information of the incident was given to the Women Police Station by the public themselves.

It is submitted by the learned Advocate for the appellant that victim version is not supported by medical evidence because in case of pushing a finger into the vagina it would cause vaginal injury.

In my considered view the medical evidence does not itself prove the prosecution case. It can only be used as a corroborating of the charge. The victim girl is the first eye witness who she has stated about pushing of the finger by the appellant into her private part but not about the penetration. Pushing of the finger may not cause vaginal injury. The evidence of the victim girl is inconsonance with probabilities and consistent with other witnesses.

Prosecution case as narrated by the P.W. 1 finds corroboration by her statement under Section 164 of the Code of Criminal Procedure. The FIR also finds corroboration by its maker P.W. 3 the father of the victim girl. It is evident from the evidence of Dr. Krishna Chandra Nurkami P.W. 6 that the appellant was medical examined and found to be potent and had suffered collarbone fracture with pain in his chest and body. It was caused due to assault by the people who found the accused/appellant committing sexual assault on the victim P.W. 1. Although, no external injury on the private part or the breast of the victim girl was observed medically but from the direct evidence of the P.W. 1, her statement under Section 164 Cr.P.C. and other evidence are pointing to the guilt of the appellant for having committed sexual assault unerringly even by touching and pushing finger into the private part of P.W. 1.

Having given an anxious consideration to the facts and circumstances of the case, the learned Trial Judge has rightly held the appellant guilty of the offence under Section 8 of POCSO Act, 2012, awarding conviction and sentence by the impugned judgment.

As regards sentence, learned Advocate for the appellant submitted for reduction and/or modification of term of sentence already undergone by the appellant. The question of sentence is a matter of discretion primarily resting with the trial Court. I am of the considered view that the discretion has been properly exercised.

In the context above I do not find any strong reason and mitigating circumstance to interfere into the findings on the question of sentence inflicted on the appellant.

In the result, the appeal fails, accordingly, the appeal being CRA 743 of 2016 is dismissed.

A copy of this judgment be supplied to the appellant free of cost through his Advocate on record. Send a copy to the Superintendent Correctional Home.

LCR be sent to the learned Court below along with a copy of this judgment forthwith.

Urgent copies of this judgment be supplied to the State free of cost at once.

(Shivakant Prasad, J.)

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