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Daya Shankar Shaw @ Lal Babu Shaw vs The State Of West Bengal on 5 March, 2020

IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE

Present:

The Hon’ble Justice Shivakant Prasad

C.R.A. No. 6 of 2016

Daya Shankar Shaw @ Lal Babu Shaw
Vs.

The State of West Bengal

For the appellant : Mr. Debasis Kar

For the State Defence : Ms. Trina Mitra

For the state : Mr. Ranabir Roy Chowdhury
Mr. Baisali Basu

Heard on : 05.03.2020

Judgment on : 05.03.2020

Shivakant Prasad, J:-

This is an appeal under Section 374(2) of the Code of Criminal Procedure

directed against the judgment and order dated 15.12.2015 and 16.12.2015

respectively passed by the learned Additional Sessions Judge, 2nd Court-cum-

Special Court under the Protection of Children from Sexual Offences Act,

Barasat, North 24 Parganas and Sessions Trial No. 05(03)2014 (Special Case

No.03 of 2014) convicting and sentencing the appellant for the offence

punishable under Section 8 of the POCSO Act, 2012.

The prosecution case leading to this appeal in brief is that on 27.09.2013

when victim girl was returning from the toilet, Lal Babu Shaw son of

Ghanashyam Shaw caught her forcefully and took her to a godown and raped

her. According to the written complaint when she tried to oppose him she was

beaten up and she received scratch marks on her body. It is alleged that a month

ago, the accused had tried to rape her but she managed to escape. On the

written complaint of the victim, Belgharia PS Case No.419 dated 27.09.2013

under Section 8 was registered and on completion of investigation, charge sheet

under Section 376(2) of the Indian Penal Code and also under Sections 4/6/8 of

the POCSO Act, 2012 against the accused-appellant was submitted. Thereafter,

trial started with framing of charges under Section 376(2)(j)(n) of the Indian Penal

Code and Sections 4/6 and 8 of the POCSO Act, 2012 to which the appellant

abjured the guilt and claimed to be tried. The prosecution examined as many as

15 witnesses to bring home charges against the appellant. P.W. 1, 2 and 7 are

the victim girl, mother of the victim and elder sister of the victim respectively.

P.W. 3, 4 and 6 are the neighbours. P.W. 8 is a witness of seizure list. P.W. 9,

P.W. 10 and 12 are the Doctors who examined the victim child. P.W. 13 is the

Doctor who examined the accused to test his potency. P.W. 11 is the Judicial

Magistrate who recorded the statement of the victim under Section 164 CrPC.

P.W. 14 and 15 are the Sub-Inspector of Police and Investigating Officer. The

prosecution also adduced in evidence some documents being Exhibits 1 to 16

before the trial Court to substantiate the charges levelled against the appellant.

The accused-appellant was examined under Section 313 of the Criminal

Procedure Code to which he inclined to adduce defence evidence and examined

one witness, D.W. 1, Jayanta Bain, Staff of Registry Office who proved the

certified copy of the deed, Exhibit – C as the accused-appellant has taken the

alibi that he was at the A.D.S.R., Cossipore, Dum Dum at the material point of

time for execution and registration of the deed. Two photographs of the place

near place of occurrence marked as material Exhibit-A and B to explain the place

of occurrence.

After hearing both sides, the learned Trial Judge held the appellant guilty

of the offence punishable under Section 8 of the POCSO Act, 2012 and after

giving an opportunity of being heard on the question of sentence, the appellant

was sentenced to undergo rigorous imprisonment to a term of three years for the

offence under Section 8 of the POCSO Act, 2012. The appellant was further

sentenced to undergo rigorous imprisonment to a term of seven years for the

offence under Section 4 of the POCSO Act, 2012 and to pay fine of Rs.10,000/- in

default to suffer simple imprisonment for six months with further direction that

the fine realized be paid to the victim child and also directed that pre-trial

detention undergone by the convict would be set off from the substantive period

of sentence as per the provisions of Section 428 of the Code of Criminal

Procedure.

Being aggrieved by and dissatisfied with the impugned judgment, the

appellant has preferred this appeal, inter alia, on the grounds that the learned

Judge, has illegally found the appellant guilty without proper appreciation of
evidence on record. It is submitted that the P.W.1 victim in her First Information

Report and her statement under Section 164 of the Criminal Procedure Code

made departure and are not in general agreement, therefore, the first information

report not being corroborated by its maker. Yet, the learned Judge illegally

arrived at a finding of guilt against the appellant on surmises and conjectures.

It is contended that the victim girl was 18 years of age at the alleged date of

occurrence. So the offence under POCSO Act is not attracted. The place of

occurrence has not been proved in the trial. The learned Judge ought to have

discarded the versions of P.W. 6 and 7 as their evidence fall under the category of

hearsay evidence. It is submitted that the prosecution witnesses suffers from

gross contradictions and embellished statement rendering them unreliable.

Lastly, it is submitted that the appellant while being examined under Section 313

of the Criminal Procedure Code took alibi that he was not at the place of

occurrence at the alleged time and the date as he was all along present in the

Registry Office at the ADSR, Cossipore and his alibi has been proved by evidence

of D.W. upper division clerk of Registry Office. He produced the Registry Volume

and the certified copy of the deed. It is submitted that a false case has been

foisted against the appellant due to inimical relationship with the complainant

and the accused appellant. Admittedly, the appellant has a shop room near the

place of occurrence and the complaint party used to spread their cloths in front

of the door of the shop room. For that, there was a quarrel between them. It is

contended that the learned Trial Judge has not mentioned the specific time in the

charge form as framed under Section 376(2) Clause (j) and (n) of the Indian Penal
Code and Sections 4/6 and 8 of the Protection of Children from Sexual Offences

Act, 2012 as the charges with four heads would go to show that there is no

mention of the time of occurrence. The occurrence alleged is on 27.09.2013 at 1

p.m. when the victim girl allegedly went to toilet near her house and while

returning the appellant caught hold of her and took her to a godown which

belongs to a person named, Md. Muslim and when she tried to shout the

appellant put his hand forcibly on her mouth and then he raped her and also

beaten her and inflicted scratch mark on her body.

Mr. Debasis Kar, learned advocate appearing for the appellant submits that

the F.I.R. does not find corroboration while the maker of the F.I.R., P.W. 1 who

has otherwise stated on oath during examination that when she was going to

relief herself to the Chhai maidan toilet of the jute mill the shop keeper held and

dragged her to a room in the line quarter and thus the place of occurrence defers

on evidence of victim girl. The place of occurrence, time of occurrence are not

mentioned in the charge form, inimical relationship between the parties, major

contradictions which appears in the evidence of victim as well as other witnesses

of the prosecution and the alibi taken by the appellant create a doubt in the

prosecution case entitling the appellant an order of acquittal. P.W. 1 has deposed

in cross-examination that she was a student of Sri Babaji Sitaram School

whereas the mother of the victim girl said that her daughter had no schooling.

Admittedly, the victim girl has five sisters and one brother but none of them have

been examined to corroborate the evidence of the victim girl. It is also contended

that the I.O. should have taken steps for collection of certificate from the said
school to ascertain her age. It is submitted that the place of occurrence has not

been proved as Md. Muslim has not been examined to ascertain as to whether he

has any quarter or any room at the place of occurrence. It is further pointed out

that at the time of alleged occurrence the victim was putting on a white kamij

and brown coloured salwar along with dupatta and her kamiz were stained with

blood and were not washed, but, there is no F.S.L. report to prove presence of

sperm or stain in the seized wearing apparel of the victim girl. Thus, it is pointed

out that there are major contradictions in the statement of the prosecution

witnesses which are not in general term and considering the inimical relationship

of the parties and alibi, the appellant should be acquitted of the charges.

Mr. Ranabir Roy Chowdhury, learned advocate appearing for the State

draws my attention to the provisions of Section 215 and Section 464 of the

Criminal Procedure Code to argue that finding in the judgment passed by the

trial Court cannot be considered invalid merely on the ground of any such error,

omission or irregularity in the charge as the contents of the charge was read over

and explained to the accused after framing of charge and the accused-appellant

pleaded not guilty and then only trial started in which the accused-appellant has

participated. So, no prejudice has been occasioned.

In conjoint reading of Section 464 and Section 215, it is concluded that no

error in stating the particulars of time and place of occurrence can be ground of

appeal to challenge the FIR impugned as the accused-appellant was, in fact not

mislead by such error or omission.

In regard to the contradiction raised in respect of the place of occurrence

there is no suggestion put to the witnesses that Md. Muslim was not residing in

the said quarter No.37/20 old line and none examination of Md. Muslim is also

not fatal in the given case as the quality of the evidence is to be taken into

consideration and not the quantity.

It is well-settled law in appreciation of evidence of witnesses that it is not

the number of witnesses, but the quality of their evidence which is important. It

is a time honoured principle that evidence must be weighed and not counted. The

test is whether the evidence has a ring of truth, is cogent, credible and

trustworthy. Therefore, the ocular testimony of the victim alone can be taken

into consideration to base conviction in a case like this if the victim statement is

convincing to the judicial mind. It is also the principles of law as a general rule, a

Court may act on the testimony of a single witness though uncorroborated. One

credible evidence outways the testimony of a number of other witnesses of

indifferent character.

The victim was sent to the Doctor on the day the information was reported

and was examined by the Doctor and medical evidence supports the victim

versions. Dr. Sarodindu Das, P.W. 10 examined the victim girl aged about 16

years on 27.09.2013 as produced by Belghoria Police Station through A.S.I.

identified by Maya Saha in connection with Belgharia P.S. Case No.419/13. On

examination the Doctor found scratch over right side of the face on the outer

canthus of eye, left side for internal examination he referred her to Gynecologist

which is evident from the injury report Exhibit-8 with the L.T.I. of mother of the
victim girl Exhibit 8/1. Doctor has also proved the report in respect of the

accused bearing the signature of the accused as Exhibit 9/1. Dr. Sunanda

Ghosh, P.W. 9 then examined the victim girl on the same day and found nail

scratch over the face and tear in the hymen and the tear in the hymen was

repaired and prescribed medicine as per her report Exhibit-6. She also collected

the vaginal swab of the victim girl. The victim girl narrated so to this Doctor

about rape on her by the appellant-accused.

It is argued on behalf of the appellant that the nail mark was self inflicted

to falsely implicate the appellant but such submission has no leg to stand as the

conviction is not only based on the sole testimony of the victim girl but her

testimony finds corroboration by medical evidence and also her statement earlier

made before the Judicial Magistrate vide Exhibit-10 proved by Tshering

Yangchen Lepcha, learned Judicial Magistrate, 2nd Court Barrackpore who

recorded statement of the victim under Section 164 of the Criminal Procedure

Code which reflects that the victim was raped by the appellant.

As regards the age of the victim girl, since there was no birth certificate

collected, there was ossification test in respect of victim held by Dr. Swarup

Mondal, PW 12 who has proved the report as Ext.12, which depicts the opinion

of doctor that the age of victim girl was more than 17 years but less than 18

years on the date of examination on 03.10.2013.

Dr. Subrata Biswas, PW 13 has examined the accused to test his potency

who was found capable of sexual intercourse as per report Ext.13.

In the context above, in this case the testimony of the victim girl is not only

corroborated by her mother and other witnesses but also by the medical evidence

that the victim girl was raped by the appellant, the evidence that the victim aged

17+ years well corroborated by the other circumstances convincing the judicial

mind, so the evidence of the victim cannot be discarded especially when she has

sufficient understanding.

PW14 is the ASI of Police, at Belgharia Police Station drew up a formal FIR

by registering specific case at Belgharia P.S. being no. 419 dated 27.09.2013

under Section 376(2) of the IPC read with Section 4/6 of the POCSO Act and

proved the formal FIR as Ext.14 on the basis of written complaint as Ext.15.

PW15, Anupam Mondal, SI of Police, took up investigation and examined

the witnesses including the victim girl and arranged for sending the victim girl

for medical examination. He conducted raid and arrested the accused as named

in the FIR. The I.O. has further deposed that the wearing apparels of the victim

girl were seized but the same were not sent for forensic test since the clothes

were already mixed up with mud and dust. This is the reason as to why the

wearing apparels were not sent for FSL report. The I.O. has visited the place of

occurrence as displayed in the sketch map. The place of occurrence has been

mentioned as Quarter No.37/20, Old Line, Quarter of Chowdhury Rama Rao.

But the victim girl has stated about the name of one Md. Muslim that he stayed

in that room.

It is argued on behalf of the State that said quarter was known in the

name of Chhai Maidan and that the I.O. deposed about the said fact. Further, in
Quarter No. B, C, D and E there are residents, namely, Sahajada, Jogindar, Isha

and Loddan, but they have not been examined but in my view non-examination

of the said neighbouring residents is not fatal to the prosecution case in anxious

consideration of the evidence of the victim taken together with the medical

evidence and that of the statement of the victim under Section 164 of the Cr.P.C.

Now coming to the point of alibi, it is submitted that the accused-appellant

has specifically answered to question no.30 during examination under Section

313 of the Cr.P.C., that he was present at the registry office at Cossipore, Dum

Dum in between 12 noon to 6 p.m. on 27.09.2013 for registration of a shop room

which he purchased and the case has been falsely filed against him.

In respect of the alibi taken on behalf of the appellant, the learned Trial

Judge has categorically observed that DW 1 had failed to establish conclusively

that Daya Shankar Shaw @ Lal Babu Shaw, the appellant, was present at the

registry office at that hour. No one has said that the appellant was present at the

registry office at that hour. The certified copy of the sale deed (Ext. D) does not

conclusively prove that the purchaser of the said land was present throughout

the day as argued on behalf of the accused/appellant.

Accordingly, the learned Judge did not accept the contention advanced on

behalf of the defence that the accused had to remain present in the ADSR,

Cossipore, Dum Dum on 27.09.2013 throughout the day but such contention

cannot be accepted because the process of registration of sale deed, he was not

required to be present throughout the day, or during the period between 12.30
p.m. to 1 p.m. in the afternoon. He could have gone to the office some time later

and put his signature on the deed.

Apart from certified copy of deed (Ext.D) and the DW 1, no other evidence

had been placed in Court even there were other purchasers in the deed being the

brothers of the accused-appellant who were not examined in support of plea of

alibi. I am of the view that the Trial Judge has rightly held that the alibi has not

been proved satisfactorily.

It has also been urged that in order to harass the accused, the victim girl

has been set up and tutored to speak lies and no importance should be given to

her deposition.

In this context, the decision of the Supreme Court of India in the case of

Panchhi vs. State of U.P. reported in (1998) 7 SCC 177 was quoted to argue

that the evidence of a child witness must be evaluated more carefully with

greater circumspection because a child is susceptible to be swayed by what

others tell him/her and thus a child witness is an easy prey to tutoring.

This may not be the same in the present case here as the victim girl is no

doubt a child but she had full understanding of what had happened to her to

narrate the incident.

Mr. Kar, learned advocate appearing for the appellant, has pointed out that

Hon’ble Supreme Court has observed in a catena of decisions that ordinarily the

evidence of a prosecutrix should be believed, more so as her statement has to be

evaluated with that of an injured witness. If the evidence of the prosecutrix is

reliable and trustworthy, the Court should not search for corroboration. At the
same time, there is no presumption or any basis for assuming that the statement

of such a witness is always correct or without any embellishment or

exaggeration. If the evidence of the prosecutrix suffers from glaring

contradiction, embellishment and exaggeration, her evidence cannot be treated

as solitary basis of conviction.

There was no quarrel to such proposition of law held by the Hon’ble

Supreme Court. It is settled principle of law that the victim would not implicate

falsely an innocent person and leave out culprit. I have considered that alibi has

not been well-proved on behalf of the appellant, the logical conclusion is that

presumption as per the provision Section 29 POCSO Act is attracted which

provides that where a person is prosecuted for committing or abetting or

attempting to commit any offence under Section 3, 5, 7 and Section 9 of the 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.

It is true that contrary is not required to be proved on behalf of the

appellant/accused, since in this case I have found that prosecution has proved

its case on the basis of the ocular testimony of the victim girl being corroborated

by the medical evidence and the statement recorded under Section 164 of the

Cr.P.C., I find no plausible ground to interfere into the findings as to the

conviction of the accused/appellant.

It is submitted that the appellant has already undergone sentence for a

period of 6 years 9 months approximately and the remission period taken
together he has served out the sentence. Therefore, the Superintendent of the

concerned Correctional Home will look into the matter.

In the context above, the appeal being CRA 6 of 2016 is dismissed.

Let a copy of the judgment along with the lower court records be sent down

to the trial court at once for necessary note in the Sessions Trial Register and

doing the needful.

An extract of this order be sent to the Superintendent of the concerned

Correctional Home for information and necessary action.

Urgent Photostat certified copy of this order, if applied for, be supplied to

the parties on completion of all necessary formalities.

(Shivakant Prasad, J.)
K.S/ s.biswas

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