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Sri Shyama Mondal vs The State Of West Bengal on 9 August, 2019

Form No.J(1)

IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION

Present:

The Hon’ble Justice Asha Arora

C.R.A. 676 of 2016

Sri Shyama Mondal ….. Appellant
versus
The State of West Bengal ….. Respondent

For the Appellant : Mr. Dipanjan Chatterjee, learned advocate,
Mr. Asit Nayek, learned advocate.

For the State : Ms. Sukanya Bhattacharya, learned advocate,
Ms. Baisali Basu, learned advocate.

Hearing concluded On: 09.08.2019.

Judgement On : 09.08.2019.

Asha Arora, J. :

1. This appeal has been preferred against the judgement and order of

conviction and sentence dated 19.10.2016 and 20.10.2016 passed by the

Additional Sessions Judge, 2nd Court-cum-Special Judge under POCSO

Act, Darjeeling in Sessions Trial No. 72(12) of 2014 arising out of Sessions

Case No. 37 of 2014 whereby the appellant was convicted for the offence

punishable under Section 12 of Protection of Children from Sexual

Offences Act, 2012 (hereinafter referred to as POCSO Act) and sentenced to
suffer rigorous imprisonment for three years and to pay fine of Rs.2,000/-

in default of which to suffer rigorous imprisonment for six months for the

aforesaid offence.

2. The facts leading to the instant appeal may be summarized as follows :

3. On 23.08.2014 at 16.45 hours one Kumar Chettri lodged a written

complaint at Panighatta Police Post, Mirik, Darjeeling alleging that on the

aforesaid date at about 6.40 a.m. when his minor daughter was going to

her school (Army Public School) as usual by a vehicle (Maximo Mini Van)

which was driven by the accused/appellant (driver of the said vehicle), on

the way the accused touched her body and tried to outrage her modesty.

When the victim protested, the accused threatened her. On the basis of the

aforesaid written complaint, Mirik P.S. Case No. 81 of 2014 dated

23.08.2014 was initiated under Section 354 IPC and under Section 12 of

POCSO Act. Investigation culminated in the submission of the charge-

sheet against the accused/appellant under Section 354 IPC and under

Section 12 of POCSO Act.

4. The trial court framed charge for the offences punishable under Section

354 IPC and under Section 12 of POCSO Act against the

accused/appellant. Being so arraigned, the accused/appellant pleaded not

guilty in consequence of which trial commenced. In course of trial

prosecution examined seven witnesses namely, PW-1 is the father of the

victim and the defacto complainant, PW-2 is the victim, PW-3 is the uncle
of the victim who produced the original birth certificate of the victim which

has been tendered in evidence and marked as exhibit-4. PW-4 and PW-5

are the co-villagers who heard about the incident from the victim’s mother.

PW-6 is another co-villager whose evidence is hearsay and PW-7 is the

police officer who held investigation. This apart, prosecution relied upon

some documents which have been tendered in evidence and marked as

exhibits.

5. Defence version in brief as is evident from the trend of cross-examination

of the prosecution witnesses as well as from the examination of the

accused under Section 313 CrPC is innocence and complete denial of the

prosecution case. It is the specific case of the defence that the accused has

been falsely implicated since he had rebuked the complainant’s daughter

when she tried to drive the vehicle on her way to school. No evidence has,

however, been led by the accused in support of such plea.

6. On the basis of the evidence on record the trial court convicted the

accused for the offence punishable under Section 12 of POCSO Act and

sentenced him as aforesaid.

7. Assailing the conviction of the accused, Mr. Chatterjee, learned counsel

appearing for the appellant/accused argued that the ingredients of the

offence of sexual harassment as defined in Section 11 of POCSO Act are

conspicuously absent in the present case. It is pointed out that though

charge has been framed under Section 354 IPC as well as under Section
12 of POCSO Act, there is no finding regarding the first mentioned charge

under Section 354 IPC nor does the operative portion of the impugned

judgement mention whether the accused/appellant has been convicted or

acquitted of the aforesaid charge. Referring to the statement of the victim

recorded under Section 164 CrPC it is canvassed that there is no

conformity between the evidence of the victim in court and her statement

under Section 164 CrPC. It is argued that in her evidence in court the

victim stated that “the accused tried to molest and kiss her” whereas in

her statement under Section 164 CrPC the victim stated that the

accused/driver touched and held her hands with ill motive. On the basis of

such evidence conviction under Section 12 of POCSO Act is not justified.

Mr. Chatterjee submits that at best the evidence of the victim would

attract the offence under Section 354 IPC but the trial court has not

recorded any finding regarding the aforesaid offence. In the same breath

learned counsel sought to impress that the evidence of the victim in court

that the accused tried to molest her does not support even the charge

under Section 354 IPC since she (victim) does not state that the accused

made any physical contact by touching her or had molested her. It is

pointed out that in her testimony in court, the victim clearly deviated from

her statement recorded under Section 164 CrPC. Learned counsel sought

to impress that the defence plea that the victim had insisted that she

should be allowed to drive the vehicle on her way to school is probabilised

by the fact that she was seated on the front side of the vehicle although
the back seat was vacant. It has further been argued that the evidence of

the victim cannot be relied upon in the absence of corroboration. It is

pointed out that from the evidence of the victim it transpires that she

reached her school and informed about the incident to her Principal and

class teacher as well as to her friends but surprisingly neither the

Principal nor the class teacher was cited as a witness or examined in

support of the evidence of the victim. According to the learned counsel,

they were the best witnesses to lend support to the prosecution version.

Absence of such evidence gives rise to an adverse presumption under

Section 114 (g) of the Indian Evidence Act.

8. Per contra, learned advocate appearing for the State submits that though

the offence punishable under Section 12 of POCSO Act could not be made

out against the accused/appellant, he cannot be exonerated of the charge

for the offence under Section 354 IPC.

9. Prosecution case hinges entirely on the evidence of PW-2 who is the victim.

It is not in dispute that at the time of the incident PW-2 was 14 years old.

At this juncture it may be profitable to refer to the evidence of PW-2 which

is quoted hereinbelow :

“I study in Army School at Bongdubi in Class XI. On 23.08.14 I was
travelling in the vehicle of this accused person, who is present on dock and
(identified). I used to travel in this vehicle every day to school from my
residence i.e. at Panighatta.

On that day in the morning hrs., as usual I boarded his vehicle and I
was all along in the vehicle and seated on the front side of the vehicle. On
the way to School between 17 No. there is a reserved forest usually isolated
and on coming to this isolated area the accused taking advantage of
situation tried to molest me and kiss me. I restrained him from such
activities, but accused threatened me and told that if I narrated the
incident to anyone the consequences would not be good. Thereafter, I
reached the school and informed the Principal and also informed the matter
to my father over phone. Then my father came to pick me up.

I narrated the said incident before J.M. at Kurseong Court and my
statement was recorded in English and I put my signature on 4 pages
marked Ext.3 (collectively). Thereafter, I was medically examined.”

It has surfaced in the cross-examination of PW-2 that she had been

travelling in this vehicle to school for the last two months. Being quizzed in

cross-examination PW-2 affirmed that she narrated the incident to her

Principal and class teacher whereafter her Principal informed her parents.

She denied the defence suggestion in cross-examination that she had

asked the accused to give her training of driving in his vehicle and that she

had lodged a false complaint against him since he did not allow her to

drive his vehicle.

10. It is well settled that a victim of molestation and/or sexual assault is the

best witness and is in the same position as an injured witness. The

evidence of such a witness is entitled to great weight absence of

corroboration notwithstanding provided that the evidence of such a

witness is credible and trustworthy. In the case in hand, the appellant has

been convicted by the trial court for the offence punishable under Section
12 of POCSO Act. Section 12 of POCSO Act relates to punishment for

sexual harassment and sexual harassment has been defined under Section

11 of POCSO Act. Section 11 of the aforesaid Act reads as follows :

“11. Sexual harassment. – A person is said to commit sexual harassment
upon a child when such person with sexual intent –

(i) utters any word or makes any sound, or makes any gesture or
exhibits any object or part of body with the intention that such
word or sound shall be heard, or such gesture or object or part
of body shall be seen by the child; or

(ii) makes a child exhibit his body or any part of his body so as it is
seen by such person or any other person; or

(iii) shows any object to a child in any form or media for
pornographic purposes; or

(iv) repeatedly or constantly follows or watches or contacts a child
either directly or through electronic, digital or any other
means; or

(v) threatens to use, in any form of media, a real or fabricated
depiction through electronic, film or digital or any other mode,
of any part of the body of the child or the involvement of the
child in a sexual act; or

(vi) entices a child for pornographic purposes or gives gratification
therefor.

Explanation.- Any question which involves “sexual intent” shall be a
question of fact.”

Section 12 of POCSO Act provides as follows :

“12. Punishment for sexual harassment.-Whoever, commits sexual
harassment upon a child shall be punished with imprisonment of either
description for a term which may extend to three years and shall also be
liable to fine.”

11. From the evidence of PW-2 hereinabove discussed it is clear that the act of

the accused as narrated by the victim (PW-2) does not fall within the

meaning of sexual harassment as defined and enumerated under Section

11 of POCSO Act. It is evident that the conviction of the appellant for the

offence punishable under Section 12 of POCSO Act is not justified.

Curiously enough, though charge was framed by the trial court under

Section 354 IPC along with Section 12 of POCSO Act, the impugned

judgement does not reveal any discussion or finding with regard to the

charge under Section 354 IPC. The judgement of the trial court is silent

regarding the fate of the charge under Section 354 IPC. In her statement

under Section 164 CrPC the victim narrated the incident in the following

manner :

“On 23.08.14 during morning hours I was going to my school in the vehicle
and was sitting in the front seat side of the driver. On that day the other
three students did not turn up and I was alone in the vehicle with the
driver. Then all on a sudden when the vehicle reached no.17 of Panighatta
Tea garden and forest, the driver touched and held my hands and body with
ill motive. I had a register in my hand and with that I assaulted him, and he
left me. But the driver threatened me with dire consequences and told me
not to report about the incident to anyone. The school was nearby and after
some time we reached the school and I reported about the incident to my
teacher who thereafter reported the same to the Principal.
……………………………………………….”

Surprisingly, in her evidence in Court, for reasons best known to her, the

victim refrained from reiterating whatever she had stated in her statement
under Section 164 CrPC. For recapitulation, the relevant portion of the

victim’s evidence in court is quoted hereinbelow :

“On the way to School between 17 No. there is a reserved forest usually
isolated and on coming to this isolated area the accused taking advantage of
situation tried to molest me and kiss me. I restrained him from such
activities, but accused threatened me and told that if I narrated the
incident to anyone the consequences would not be good.
……………………………………….”

Here in her evidence the victim merely stated that the accused tried to

molest her and kiss her. There is nothing in her evidence to show that the

accused had actually touched her or had made any physical contact.

12. It is significant to mention that alternative charge framed against the

accused was under Section 354 IPC and not under Section 354-A IPC.

Reference to Section 42 of POCSO Act by the learned advocate for the State

is of no avail to the case in hand. Section 42 of POCSO Act reads as follows

:

“42. Alternate punishment. – Where an act or omission constitutes an
offence punishable under this Act and also under Sections 166-A, 354-A,
354-B, 354-C, 354-D, 370, 370-A, 375, 376, 376-A, 376-AB, 376-B, 376-C,
376-D, 376-DA, 376-DB, 376-E or Section 509 of the Indian Penal Code (45
of 1860), then, notwithstanding anything contained in any law for the time
being in force, the offender found guilty of such offence shall be liable to
punishment under this Act or under the Indian Penal Code as provides for
punishment which is greater in degree.”

At this juncture it may be useful to refer to the definition of sexual assault

as given in Section 7 of POCSO Act which reads as follows:

“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.”

Section 8 of POCSO Act relates to punishment for sexual assault. Section

8 of the said Act reads as follows :

“8. Punishment for sexual assault. – Whoever, commits sexual assault, shall
be punished with imprisonment of either description for a term which shall
not be less than three years but which may extend to five years, and shall
also be liable to fine.”

It is evident that the trial court, while framing charge did not go through

the provisions of POCSO Act. Without application of judicial mind and

without perusing the contents of the FIR and the material relied upon by

prosecution the charge was framed against the accused.

13. For the reasons aforestated, I am of the view that the matter should be

remanded to the trial court for delivering a fresh judgement discussing the

evidence on record relating to the charge under Section 354 IPC and

recording a finding regarding the fate of the aforesaid charge. It is true that

the accused has the right to speedy trial and the court must ensure that

the accused is given fair and expeditious trial but when there is an
omission on the part of the court to record a finding and arrive at a

reasoned decision regarding the charge framed against the accused, the

victim of the crime cannot be denied justice by acquitting the

accused/appellant on account of such lapse or failure on the part of the

trial court.

14. Consequently the impugned judgement of conviction and sentence passed

against the appellant is set aside and the matter is remanded to the trial

court for delivering a fresh reasoned judgement after hearing both the

parties. Needless it is to say that the judgement shall be on the basis of the

evidence on record and in accordance with law in the light of the

observations made hereinabove.

15. The trial court shall expedite the matter and dispose of the case in

accordance with law within three months from this date without granting

unnecessary adjournment to either of the parties.

16. It is made clear that no opinion has been expressed by this Court on the

merits of the charge under Section 354 I.P.C.

17. The appellant who is on bail shall appear forthwith before the trial court to

enable the trial court to proceed with the matter as stated hereinabove.

18. The appeal is thus disposed of.

19. A copy of this judgement along with the lower court records be sent

forthwith to the trial court for information and necessary action.

20. Urgent photostat certified copy of this judgement, if applied for, be given to

the applicant upon compliance of requisite formalities.

( ASHA ARORA, J. )

dc.

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