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Judgments of Supreme Court of India and High Courts

Unknown vs The State Of West Bengal on 6 February, 2020

IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE

Before :

The Hon’ble Justice SAHIDULLAH MUNSHI
And
The Hon’ble Justice SUBHASIS DASGUPTA

C.R.A. No. 483 of 2016
Litan Sarkar
… Appellant/Accused

-Versus

The State of West Bengal
… Respondent

Mr. Arindam Jana,
Mr. Sumanta Das

… for the appellant

Mr. Navonil De

… for the State

Heard on : 19.09.2019, 08.11.2019, 03.12.2019 04.12.2019.

Judgment on : February 6, 2020

Sahidullah Munshi, J.: This appeal is against the judgment

and order of conviction dated 12th July, 2016 passed by the learned

Additional District Sessions Judge, 2nd Court, Krishnagar, Nadia in

Sessions Trial No. VII(V) of 2016 arising out of Sessions Case No.
2

11(03) of 2016 (Special) sentencing the appellant to suffer

imprisonment for five years together with a fine of Rs.10,000/-, in

default, to suffer further rigorous imprisonment for six months for the

commission of offence punishable under Section 263 of the Indian

Penal Code and further sentencing him to suffer imprisonment for 10

years and to pay a fine of Rs.50,000/- in default to suffer rigorous

imprisonment for one year for the commission of offence punishable

under Section 6 of the Protection of Children from Sexual Offences

Act, 2012, both sentences being run concurrently.

Appellant committed to stand a trial before the Court of learned

Additional District and Sessions Judge, 2nd Court, Krishnagar, Nadia

in Sessions Trial No. VII (V) of 2016 arising out of 11(03) of 2016

(Special) to answer the charge framed against him, for commission of

offences punishable under Section 363 of Indian Penal Code and

Section 6 of the Protection of Children from Sexual Offences Act,

2012. The prosecution examined as many as 12 witnesses and

produced document in order to bring home the charge framed against

the accused whereas the defence pleaded not guilty and claimed to be

tried.

The learned trial Judge upon perusing the materials on record

and the evidence adduced by the prosecution and after hearing

respective submissions of the parties passed the impugned judgment

and order of conviction and sentence as aforesaid.
3

In the appeal the accused/appellant filed an application for

suspension of sentence as also prayed for an order directing stay of

realization of fine and the said application was allowed. The petitioner

is now on bail. Learned trial Court while passing the impugned order

of conviction and sentence held that the victim stated that her age is

15 years and the investigating agency seized the birth certificate of the

victim wherefrom it was revealed that she was born on 26.12.2000;

the incident took place on 14.08.2015 and therefore, there is no

hesitation to say that the victim was 15 years old at the time of

occurrence. According to the trial Court, question of ossification test

does not and cannot arise as there is an authenticate document

which goes to show clearly the age of the victim.

According to the trial Court Section 29 of Protection of Children

from Sexual Offence Act, 2012, the Court shall presume that the

accused person has committed the offence as the case may be unless

the contrary is proved by the offender. Learned Court below stated

that when it is proved that the victim was minor and kidnapped by

taking her to Dum Dum through train and toto (a three wheeler). And

cross-examination of the victim showed that out of fear she did not

utter anything to anybody, particularly when the victim was cohabited

and ravished by the accused at his maternal uncle’s house at Dum

Dum where they stayed for 4 days together, it should be taken to be

proved that the cohabitation took place on many occasion and

cohabitation with the minor girl is completely within the definition of
4

rape and penetrative sexual assault within the ambit of POCSO Act

and the accused failed to rebut the presumption.

The learned trial Court held, in view of medical evidence, the

statement of the victim before the Court and the statement before the

learned Magistrate, it is well established that the accused has

committed an offence of kidnapping and aggravated penetrative

sexual assault punishable under Section 363 of IPC together with

Section 6 of the POCSO Act. Learned Court below came to a

conclusion that prevailing circumstances as evident from the evidence

on record that the accused person had committed an offence of

kidnapping and aggravated penetrative sexual assault of the minor

girl of 15 years. It held that from the oral testimony of the victim,

medical evidence and other supporting evidence, it is clear that there

was an intention to commit aggravated penetrative sexual assault by

the accused leading to commission of the offence. The Court below

observed “the correct approach of the Judge conducting Criminal trial

should be that no innocent should be punished and no guilty person

should be unpunished. It is not judicial heroism to blindly follow the off-

quoted and repeated saying. ‘Let hundred guilty man be acquitted but

let not one innocent be punished’. It is undesirable to acquit a guilty

person and / or punish an innocent. An exaggerated devotion to benefit

of doubt is disservice to the society….. Proof beyond reasonable doubt

is a guideline not a fetish.

5

There is no heroism in acquitting a hundred guilty men. The

correct approach of the Court sitting in a Criminal trial has been fully

laid down in 1994 Cr.L.J. 2254. The sermon does never enjoin that

the Court acquit a hundred guilty persons. It is more than a caution to

the Court. It is a caution to the Court as to the approach the Court

should adopt in a criminal trial. It never dictates the Court to acquit

hundred guilty men, rather it dictates the Court to see that innocent

persons is not punished and no guilty persons escapes the

punishment.”

Mr. Jana, learned advocate appearing for the appellant

submitted before us that the Court below has been influenced by his

emotion rather by the materials on record and the evidence adduced

by the prosecution. He submitted that the trial Court instead of

proceeding the evidence on record took shelter under Section 29 of

the POCSO Act holding that in every case the accused must adduce

independent evidence to disprove the allegation leveled against him.

He submitted that reverse burden of proof in every case is mandatory

for the accused irrespective of the effort shown by the prosecution to

prove its own case. Mr. Jana has further argued that the evidence is

totally lacking in so far as it says about the kidnapping of the girl

from the lawful custody of the guardian even if it is presumed that she

is a minor and the entire circumstances narrated by the complainant

as also the victim apart from contradiction, does not disclose even the

offence of kidnapping and rape.

6

Mr. Jana in support of his case relied on the following

decisions:

• State of Gujarat -Vs. – Bharat alias Bhupendra

reported in 1991 Cri LJ Court;

• Jay Prakash Singh -Vs. – State of Bihar Anr.

reported in (2012) 4 SCC 379 and

• Rahim Beg Anr. -Vs. – State of U.P. reported in

(1972) 3 SCC 759

• Sadhu W/o Motlal Turra -Vs. – State of

Maharashtra reported in 2018 SCC Online Bom

1303.

Contradicting the submission made by Mr. Jana, Mr. De

learned advocate appearing for the State submitted that on the day of

deposition of the victim, it was revealed that the victim was 16 years

of age which shows that on the day of occurrence she was 15 years

and since there is no cross-examination on this point nor was there

any suggestion given to the witness, the appellant cannot agitate that

in absence of ossification test the age of the victim cannot be

construed to be of 15 years or that her consent to the offence can at

all be construed to be a free consent. Mr. De submitted that although,

it was agitated by the defence that the appellant was falsely

implicated because of the political rivalry between the landlord (PW10)

and the accused but there was a cross-examination and/or
7

suggestion to prove otherwise on the part of the defence. He

submitted that it will not be safe to rely on the medical evidence and

to acquit the accused inasmuch as the examination was made by the

Officer six days after the commission of offence, as a result the doctor

could not find any major injury into the private parts. He submitted

that victim’s evidence is sufficient as the same is not contradictory.

According to Mr. De, the accused has been rightly convicted and

sentenced by the trial Court.

In support of his submission Mr. De relied on the following

decisions:

• State of Himachal Pradesh -Vs. – Suresh Kumar

alias DC reported in (2009) 16 SCC 697

• Bibhuti Bhusan Roy -Vs. – The State of West

Bengal reported in (2019) 1 Cal LT 105 (HC).

We have heard the parties at length. Perused the decisions cited

by the learned advocates for the respective parties and we also

perused the records and evidence adduced by the parties.

On perusal of the First Information Report we find that the

police station received information of occurrence of the offence on 19th

August, 2015 at 16.25 hours while the incident occurred on 14th

August, 2015 at 06.00 hours. The written complaint was (Exbt.2/1)

lodged by Sri Sisir Santra, father of the victim aged 15 years. The

complaint initially disclosed the offence under Section 363/366A of
8

the Indian Penal Code stating that the victim left home for taking

private tuition to Dakshion Suravistan on 14.08.2015 but as she did

not return home within expected time the complaint was lodged as he

learnt from local people that the accused took the victim away. The

written complaint was scribed by one Dilip Biswas (PW7). The written

complaint, was forwarded to the learned Magistrate with delay

although it ought to have been sent within 24 hours and such delay

has not been explained by the prosecution. Even the prosecution has

not explained the delay in lodging the complaint on 19th August, 2015

while the incident occurred on 14th August, 2015. This long delay of 5

days appears not to have been explained by the prosecution. The

victim was examined by the learned Magistrate and her statement has

been recorded under Section 164 of the Code of Criminal Procedure

(Exbt.1). Such statement was recorded on 26.08.2015 when she

stated before the learned Magistrate that she knew the accused and

used to visit her friend’s house and thus she knew him. The accused

took her to Dum Dum in the name of travelling and against her will

putting vermilion on her parted hair and married her. Then he took

her at a house and raped her against her will. She was there for five

days and thereafter, on 19.08.2015 (Wednesday) fled away from that

place and went to Belgharia station wherefrom availed herself of a

train to reach at Krishnagar where she resides. Accused married and

raped her against her will. In the deposition of the victim she has

stated that she was going to tuition and the accused threatened her

with dire consequences and took to Dum Dum by train at Dum Dum
9

at the maternal uncle’s house of the accused. The accused got her

married at a Kali Temple and she was kept at the maternal uncle’s

house where she stayed for four days as husband and wife. The

accused also cohabitated with her during such stay and the victim

managed to flee away from that place to Badkulla to her parental

house. She stated everything to her parents and thereafter, complaint

was made. In her cross-examination in reply to the suggestion given

on behalf of the accused she deposed that the accused is a supporter

C.P.I.M and Bipul jethu (PW10) is the landlord and used to help her

father and his family and is a supporter of T.M.C. party. She deposed

that “I did not shout when I was taken by accused for going to other

place out of fear. I did not see any G.R.P., police personnel at Badkulla

station area for narrating the fact them. In the train there are so many

passengers and I did not tell to passengers that I was forcibly taken by

Litan Sarkar. When I reached Dumdum I did not tell about the incident

to station master, police personnel of Dumdum. We reached at the

house of maternal uncle of the accused from Dumdum station by Toto.

There is no passenger in the said Toto. I did not tell to Toto driver about

the incident out of the fear. In the Kali Mandir there is a priest. I did not

tell to priest about the incident out of fear. Sishir Santra is my father.

Swapan Santra is my mother. Ratna Biswas is my maternal aunt. Dilip

Biswas is my maternal uncle (Meso). Other public witness are my close

family well wishers.”

She further deposed “It is true that there is a conversation in

between police and our family regarding this case while I was
10

accompanied by the police to Ranaghat Court. Out side of the chamber

of Ld. Magistrate police and my mother were present. The cohabitation

was taken place against my will and I raised objection. I received injury

for forcible intercourse. I have stated the fact to doctor babu. I also

stated about the injury after the incident to Darogababu.” While it is

stated by the victim aged 15years in her cross-examination by the

defence that she was followed by the accused and sustained injury for

forcible intercourse, the doctor treating the victim on 25.08.2019

deposed “On examination I found there is no sign of injury to the

external genitalia but the hymen was raptured.” While perusing the

report (Exbt.4) of the doctor (PW5) shows “Her labia minora and

majora apparently looking healthy. No sign of injury in her private

part… Vaginal swab semen taken and leveled for examination.”

In this context the evidence of PW8 who is the maternal aunt of

the victim. During cross-examination she deposed “…I knew the fact

of incident from Swapna that Sarmistha was raped by Litan. Sarmistha

Santra used to go here and there by bicycle. Swapna came with me

today.” While the evidence of PW3, mother of the victim was examined

it appears that mother told that he date of occurrence was 15.08.2012

not 14.08.2015 and she further deposed that “After 3 days from 15th

August 2015 she returned to our house and I asked to my daughter

where she was and she disclose me that she was at the house of

maternal uncle of Litan Sarkar at Dumdum.” In cross-examination this

witness (PW3) also reiterated that “…after 3 days from 15th August

2015 she returned to our house and I asked to my daughter where she
11

was and she disclosed me that she was at the house of maternal uncle

of Litan Sarkar at Dumdum…”

The evidence of PW2 the father of the victim discloses that his

daughter aged 15 years was missing since 14th August, 2015 and he

submitted written complaint on 16th/17th August, 2015. He deposed

that “I heard that my daughter left with Litan Sarkar, thereafter, I

submitted written complaint… After one week I saw my daughter at

Badkulla station and thereafter I asked my daughter actually where

she went. My daughter did not disclose anything to me. Litan Sarkar is

present today (Identified on dock).” In cross-examination this witness

further deposed “…I saw that my daughter was loitering at Badkulla

station, thereafter I took her from that place. Besides this I have no

personal knowledge about the incident.”

If the quality of the evidence of the victim (PW1), father of the

victim (PW2), mother of the victim (PW3), maternal uncle of victim

(PW6), the scribe (PW7) and maternal aunt (PW8) are taken into

consideration it appears firstly, that complaint filed by the father after

a delay of at least 5 days has not been explained at all; no justification

appears to have been given as to why the inmates of the victim could

file at least a missing diary either on the day of the incident or on the

following day, although, nature of complaint as has been drafted and

filed before the police is not in the nature of a missing diary. It cannot

reasonably be believed that the parents who knew that their daughter

went for tuition and did not return home kept silent for 5 / 6 days
12

without bringing it to the notice either to the neighbour or to the

police. In their entire evidences they did not also disclose that any

attempt was made to find out the victim at their relative’s house or

any other known place where the victim had a possibility of going. The

private tutor where the victim had to go, has also not been examined

by the prosecution; the prosecution has not examined the maternal

uncle of the accused where the victim was taken by the accused and

allegedly cohabitated for long 5 days; police did not make any

investigation about such place where the victim was taken and the

offence of rape allegedly committed upon the victim by the accused;

no reason is forthcoming as to why the victim who is admittedly aged

about 15 years did not confront with the accused in any manner

possible.

Evidence of the victim in Court also does not corroborate the

complaint and also her statement recorded under Section 164 of The

Code of Criminal Procedure. In her 164 statement she stated that on

19th August, 2015 she fled away from the place where she was kept by

the accused and catching a train from Belgharia station she came

home. Whereas, the evidence of PW2 the complainant shows that she

met her father at Badkulla station and came home with her father.

These contradictions are not minor contradictions because such an

incident if at all happened with the victim it is not natural that she

would forget everything within a span of few months. Her statement

under Section 164 Cr.P.C. recorded on 16.08.2015 whereas she

deposed before the Court on 21st June, 2016. That apart the victim
13

has stated before the Court that before recording of 164 statement her

family members talked to the police personnel outside the Court of

the learned Magistrate. This raises a doubt of tutoring by the parents.

Therefore, to rely on the 164 statement is risky in this case.

It is pertinent to note that mother (PW3) says 3 days after 15th

August and father says the commission of offence was 14th August

when she left house. 15th August being a memorable day it can be

presumed that the mother spoke the truth but if it becomes the truth

the evidence of PW2 / complainant appears to be untrue that she was

missing from 14th August, 2015. If mother is to be believed that she

returned home on 18th August then why the complaint was made on

19th August, that too at about 4.25 hours. The father PW2 in his

deposition stated that after one week he saw her daughter at Badkulla

station. Again PW3 the mother in her cross-examination stated

“Grandmother of Litan Sarkar left my daughter at Badkulla station.”

For all such contradictions it is difficult to believe which one of the

witnesses speaks the truth. Even the deposition of PW1 does not

inspire confidence at all that she is speaking the truth.

Another serious infraction of law is apparent from the evidence

of PW3 where she deposed in chief “In my presence Ld. Magistrate

recorded the statement.” Which is contrary to the provision of law for

recording statement under Section 164 of The Code of Criminal

Procedure. Therefore, the evidence of these witnesses cannot be relied

on at all.

14

So far the medical evidence is concerned the doctor examining

the victim on 25.08.2015 stated in chief that he did not find any

injury but hymen was ruptured. The report (Exbt.4) shows that

specimen was collected for chemical examination but from the

examination of the IO it appears that the chemical examination report

has not been brought on record.

In her examination the victim (PW1) stated “After reaching to my

house I have stated all these things to my parents. At Ranaghat S.D.

hospital I was examined by lady doctor…” This lady doctor (PW5)

while examining the victim has not stated anything about the incident

happened with the victim as claimed to have been narrated by her to

the doctor. The history has also been noted down by the doctor in the

report. Report (Exbt.4) contains only the observations as aforesaid.

Doctor’s report does not support the allegation made by the victim

narrated by her in the complaint or deposed before the Court by her

mother or other relative witnesses. On top of it the doctor has stated

in cross-examination that “Hymen may be ruptured other than sexual

intercourse.” Keeping this opinion of the doctor that rupturing of

hymen may be caused other than of sexual intercourse find support

in this case when PW8 another maternal aunt of the victim deposed

“…Sarmistha Santra used to go here and there by bicycle…” The

evidence of PW8 raises possible circumstances through which the

victim could have sustained injury of the nature in the hymen

indicated by the doctor in his report other than sexual intercourse

and this possibility gets confirmation when the doctor said she found
15

no sign of injury to the external genitalia. Trustworthiness of the

witnesses related to the victim and her parents raises a doubt and

more so, when maternal uncle of the victim in his cross-examination

pointed out “…there is no good relation in between the family of

accused and the family of my elder sister Swapna as well as our

family. It is true that Sarmistha Santra is always in the habit of fleeing

away with the boys and previously she fled away with 6/7 boys and

they are the inhabitant of outside of Badkulla. Sarmistha Santra fled

away with the son of Mukul Sikder. After 6/7 days she returned back

and we recovered her from Badkulla station. It is true that there is no

good relation in between accused and Bipul Ghosh due to political

reason.” The evidence of this witness not only does not support the

prosecution case but it goes against the prosecution. This evidence

also raises doubt about the truthfulness of the victim’s statement

before the Court and also creates doubt about impartiality of the

landlord of the victim’s parents, Bipul Ghosh (PW10), in his

deposition stated “…Sarmistha Santra left home with one person

namely Litan.” But his evidence is again not admissible inasmuch as

it was deposed “I was not examined by the police.” Therefore, he

deposed for the first time before the Court and thus his evidence

cannot be relied on. On an analysis of the evidence adduced by the

witnesses for the prosecution it is not apparent that the victim was

kidnapped by the accused from the lawful custody of the guardian.

The charge under Section 363/366A of Indian Penal Code could not

be proved beyond reasonable doubt.

16

Record reveals that the Investigating Officer seized the

certificate of the victim.

From the record it is revealed that the Investigating Officer

seized a birth certificate of the victim under the seizure list. Carbon

copy of the seizure list prepared and signed by the Investigating

Officer mechanically through carbon process. Seizure list has been

marked as Exbt.7. The seized birth certificate was handed over to the

father of the victim on execution of his jimmanama. Carbon copy of

the said jimmanama has been marked as Exbt.8. Exbt.8 appears to

be the receipt against the jimmanama whereby the original birth

certificate was returned to the father of the victim. It is surprising that

although birth certificate was seized, the same was returned to the

father but during examination of the witnesses particularly, PW2

(father) or PW3 (mother) it was not even tendered through the

investigating officer during his examination before the Court. The

learned trial Court has not seriously considered this document and he

has allowed the receipt to be marked as an exhibit and treated the

same as proof of the date of birth which is not permissible under the

law. Exbt.7, the seizure list dated 19.08.2015 seized in connection

with Taherpur P.S. case no. 145/15 dated 19.08.2015 shows that the

document being a certificate of original birth certificate, was produced

by Sisir Santra. In column 5 of the seizure list the article seized has

been described to be “one original birth certificate of Sarmistha Santra,

D/o Shisir Santra SL No- 0330970 issued from K.M.C. Health
17

Department. S-SN Banerjee Road Kolkata 700013. Date of birth is

26/12/2000.”

Law of evidence requires that documents must be proved by

primary evidence except in cases enumerated under Section 65(a)(2)(g)

of Indian Evidence Act. Section 65(e) says when the original is a

public document within the meaning of Section 74 or when the

original is a document of which a certified copy is permitted by the

evidence Act, or by any other law in force in India to be given in

evidence; certified copy of the document but no other kind of

secondary evidence is admissible. As per Section 74 of the Evidence

Act following are the public documents:

(1) Documents forming the acts, or records of the acts –

(i) of the sovereign authority,

(ii) of official bodies and tribunals, and

(iii) of public officers, legislative, judicial and executive, of

any part of India or of the Commonwealth, or of a foreign country;

(2) Public records kept in any State of private documents.

How the public documents can be proved has also been

mentioned in Section 78 of the Evidence Act. Sub-section which says,

Acts, orders or notifications of the Central Government in any of its

departments or of the Crown Representative or of any State
18

Government, – by the records of the departments, certified by the

head of those departments respectively,

“78. Proof of other official documents.–The following public
documents may be proved as follows:–

(1) Acts, orders or notifications of [the Central Government] in any
of its departments, [or of the Crown Representative] or of any
State Government or any department of any State Government,–

by the records of the departments, certified by the head of
those departments respectively,
or by any document purporting to be printed by order of
any such Government [or, as the case may be, of the Crown
Representative];

(2) The proceedings of the Legislatures,–

by the journals of those bodies respectively, or by
published Acts or abstracts, or by copies purporting to be printed
[by order of the Government concerned]; [by order of the
Government concerned];

(3) Proclamations, orders or regulations issued by [Her Majesty]
or by the Privy Council, or by any department of [Her Majesty’s]
Government,–

by copies or extracts contained in the London Gazette, or
purporting to be printed by the Queen’s printer;

(4) The acts of the Executive or the proceedings of the Legislature
of a foreign country,–

by journals published by their authority, or commonly
received in that country as such, or by a copy certified under the
seal of the country or sovereign, or by a recognition thereof in
some [Central Act];1[Central Act];

(5) The proceedings of a municipal body in 6[a State],[a State],
19

by a copy of such proceedings, certified by the legal keeper
thereof, or by a printed book purporting to be published by the
authority of such body;

(6) Public documents of any other class in a foreign country,–

by the original, or by a copy certified by the legal keeper
thereof, with a certificate under the seal of a Notary Public, or of
[an Indian Consul] or diplomatic agent, that the copy is duly
certified by the officer having the legal custody of the original,
and upon proof of the character of the document according to the
law of the foreign country.”

Therefore, the document (birth certificate) which was part of

Exbt.7 (seizure list) ought to have been proved either by producing the

records of the department concerned or by the certified copy of the

said document issued by official bodies authorized by the department.

Said procedure being not adhered to, the prosecution could not be

said to have successfully proved that the victim was born on

26.12.2000 and that she was minor on the date of occurrence

(14.08.2015) meaning thereby the victim was aged 15 years 8 months

19 days. Firstly, the age of the victim has not been proved by the

prosecution and no attempt has also been made to prove. The age

otherwise than by birth certificate can be proved by way of ossification

test because in a given case which is on the border line, that is say,

the victim was about to be of the age of consent by only four months,

it is difficult for the Court to rely on the statement of the mother of the

victim that the victim was aged about 15 years on the date of

occurrence. In absence of ossification test report and in absence of

the proof of birth the Court holds that there are two possibilities
20

either the victim has attained majority and that is why the birth

certificate although, seized was not tendered in evidence by the

Investigating Officer or by the parents. The other possibility could be

that the accused was sought to be trapped because of the strain

relationship as indicated earlier and in such circumstances the

possibility which would lead acquittal should be considered and

definitely the benefit of doubt should be made available for the

accused leading to acquittal. In view of this situation it is very difficult

to hold that the prosecution has successfully proved the offence under

Protection of Children from Sexual Offences Act.

Serious discrepancies and contradictions are apparent from on

the face of the record of this case, namely (i) the Investigating Officer

admitted in his cross-examination that “There is no whisper by any

witness that they saw Litan forcefully took the victim to other place.”

Therefore, the offence under Section 363/366A becomes doubtful and

other evidences on record does not support the commission of such

offence, secondly, the charge so framed under Section 363/366A

cannot be sustained. The first charge, therefore, cannot be sustained.

(ii) The victim as we have seen said that she was subjected to

cohabitation by the accused for 5/6 days at a place of the accused’s

maternal uncle. Police neither went for investigation at the said spot

where the allegation of rape commenced and which is the foundation

for the offence under Section 6 of the POCSO Act nor police examined

the maternal uncle during trial. No evidence from the inmates of the
21

house where the victim was allegedly confined and subjected to rape

is forthcoming which could have been the material evidence in

support of the 2nd charge framed under Section 6 of the POCSO Act

but those are absent. That apart in the cross-examination the

Investigation Officer deposed that “I have recorded the statement of the

V.G U/S 161 Cr.P.C. V.G disclosed me that she was introduced with

Litan by her friend and I did not cite the said friend as charge-sheeted

witness. V.G stated to me that she was taken to a temple where

marriage was solemnized.” Despite such fact neither the said friend

was examined nor even the priest of the temple where allegedly

marriage took place has been examined. Therefore, the prosecution

has withheld the best possible witness before the Court to reveal the

truth. And this should be considered fatal for the prosecution case.

The learned Court below on a total non-application of mind ignored

this fact and has simply relied on the deposition of the prosecutrix

alone which in our opinion does not inspire confidence of the Court as

regards its quality. It is true, conviction can be imposed simply on the

basis of the evidence of the prosecutrix but the same should be of

good quality and trustworthy and its quality should be so high that it

would inspire confidence to the Court to rely on it. This is not the case

here. We have already discussed the deposition of other witnesses.

With regard to the medical report so far as rupture of hymen is

concerned it is not conclusive proof of sexual assault on a lady. To

that extent we may refer to a few paragraphs from Modi’s Medical

Jurisprudence and Toxicology (24th Edition) (page 625)
22

“Normally, the hymen is ruptured by the first act of coitus, though
it may persist even after frequent acts of coitus if it happens to be
loose, folded and elastic; or thick, though and fleshy. Cases have
been recorded in which the hymen had to be incised at the time
of delivery, while even prostitutes have been known to possess
an intact hymen.

Besides the act of coitus, the hymen may be ruptured in the
following cases.

1. An accident, for example, a fall on a projecting
substance, fence, or while playing on a see-saw. The plea
that is usually brought forward by the defence pleader in
the case of alleged rape in mofussil courts is that the
hymen was ruptured by an accidental fall on the sharp
and obliquely cut remnant of a stem of an arhar plant
projecting 5 or 8 cm above the ground n field. Modi had
known of it lacerating the sole of the foot after penetrating
through a shoe, but rupture of the hymen alone in this
manner is highly improbable. Again, forcible separation of
the thighs will not rupture the hymen, especially in
children, unless the perineum is ruptured. Because of the
situation of the hymen, its rupture is not possible by
riding, jumping or dancing.

2. Masturbation, especially if practiced with some large
foreign body, may rupture the hymen. However, the
hymen is not destroyed in most cases, as the auto-
manipulation is generally limited to parts anterior to the
hymen. In such cases, the nymphae are elongated and
the clitoris is enlarged by the continued practice of
masturbation. The hymen is, however, liable to be
ruptured by the forcible introduction of a stick or finger
constituting indecent assault on small girls.

23

3. Introduction of instrument by medical practitioners
during examination or a surgical operation.

4. The insertion of sanitary tampons, particularly if the
hymen is a thin elastic membrane.

5. A foreign body, such as sola pith, introduced
purposely with a view to rendering very young girls fit for
sexual intercourse (aptoe viris). This is sometimes resorted
to by prostitutes. The usual procedure is to insert a piece
of sola pith as large as the vagina can contain and then to
make the unfortunate girl sit in a tub of water. The pith
acts as a sponge tent and dilates the vagina. The size of
the pith is increased gradually for further dilation. Thus,
the hymen is often lacerated.

6. Ulceration from diphtheria, coma, or other diseases.
In such cases, the whole hymen is destroyed leaving only
a scar.

Persistent pruritis due to worm infestation in children is likely to
lead to injury of the hymen.

Medico-Legal Aspects.- A virgin is a woman who has had no
sexual connection whatsoever, at any time. The question of
virginity is assuming importance in cases of marriage suits like
divorce, and nullity of marriages. Certain signs in the genitals,
particularly the intactness of the hymen, were always held to
signify the physical virginity of a woman. However, in reality, it is
seen that this particular anatomical structure has limited value,
since it happens that a single coitus is not necessarily sufficient
to rupture the membrane. There are cases on record of women
having regular marital relations, of pregnant women, and even
prostitutes, in whom the hymen appeared untouched.”
24

As regards Section 29 of the POCSO Act it is no more res integra

that in each and every case the defence has to take a plea and to

prove that he is innocent. Mr. Jana has rightly pointed out that the

prosecution unless proves its case and unless it can successfully

show the Court the foundational fact on which they proceeded to

punish the accused under Section 6 of the POCSO Act, the accused is

not under any compulsion to place reverse burden of proof that he is

innocent. The judgment relied on by Mr. Jana in Bibhuti Bhusan Roy

(supra) is conclusive on this point.

On the issue of seizure list and the receipt against birth

certificate Mr. Jana submitted that photographic evidence cannot be

relied upon as proof in itself of the dimensions of the depicted object

or objects. These photographs if to be relied on, have to be admitted in

evidence. Without examining the person who took the photographs

and negatives being produced on record, it cannot be stated that the

photographs have been admitted into evidence. Thus the decision

cited by Mr. Jana in State of Gujarat (supra) supports the contention

that date of birth could not have been satisfactorily proved by the

prosecution. On the issue of delay in making complaint by the

complainant remained unexplained. Deficiency in explanation results

in suspicious circumstances in lodging the complaint as to the correct

happening of the incident because more delay in lodging complaint

there is a chance to the complainant to commit exaggeration and to

give rise a concocted story. Undoubtedly, it is more logical that

promptness in lodging FIR is an assurance regarding truth of the
25

informant’s version. The decision cited by Mr. Jana, in this respect in

Jay Prakash (supra) supports the case.

On the contention of the prosecution case that even after few

days of the occurrence victim’s hymen was found to be ruptured as

per the report of the doctor examining the victim. Mr. Jana submitted

that rupture of hymen cannot be a conclusive proof of sexual assault

as pointed out by Mr. Navneil De, appearing for the State. In this

regard the decision cited by Mr. Jana in Rahim Beg (supra) is opt on

the issue and paragraph 26 thereof is relevant for our purpose which

is set out below:

“26. According to Dr. Katiyar, Medical Officer of District
Jail Rae Bareli, if a girl of 10 or 12 years who is virgin and
whose hymen is intact is subjected to rape by a fully
developed man, there are likely to be injuries on the male
organ of the man. No injury was, however, detected by the
doctor on the male organ of any of the two accused. The
absence of such injuries on the male organs of the accused
would thus point to their innocence. The examination of the
two accused by Dr. Katiyar was on August 5, 1969. The
two accused, however, had been arrested, according to the
prosecution, on the morning of August 4, 1969. No cogent
explanation has been furnished as to why they were not
seen thereafter got medically examined by the police.”

So far, the issue of reverse burden of proof, we have already

pointed out earlier that this is not a case and the prosecution has not

shown sufficient materials constituting foundational facts so as to

attract the offence under Section 6 of the POCSO Act. Therefore, the
26

judgment cited in Sadhu W/o Motilal Turra (supra) a decision by the

Bombay High Court has got some bearing in the present case and

paragraphs 12, 13, 14 16 of the decision are relevant for our

purpose which are set out below:

“12. In the judgment of the Calcutta High Court relied upon by
the Counsel appearing on behalf of the appellant in the case of
Sahid (supra), it has been held as follows:-

“23. A conjoint reading of the statutory provision in
the light of the definitions, as aforesaid, would shows that
in a prosecution under the POCSO Act an accused is to
prove ‘the contrary’, that is, he has to prove that he has not
committed the offence and he is innocent. It is trite law that
negative cannot be proved [see Sait Tarajee Khimchand v.
Yalamarti Satyam, (1972) 4 SCC 562, Para-15]. In order to
prove a contrary fact, the fact whose opposite is sought to
be established must be proposed first. It is, therefore, an
essential prerequisite that the foundational facts of the
prosecution case must be established by leading evidence
before the aforesaid statutory presumption is triggered in
to shift the onus on the accused to prove the contrary.

24. Once the foundation of the prosecution case is
laid by leading legally admissible evidence, it becomes
incumbent on the accused to establish from the evidence on
record that he has not committed the offence or to show
from the circumstances of a particular case that a man of
ordinary prudence would most probably draw an inference
of innocence of his favour. The accused may achieve such
an end by leading defence evidence or by discrediting
prosecution witnesses through effective cross-examination
or by exposing the patent absurdities or inherent infirmities
in their version by an analysis of the special features of the
27

case. However, the aforesaid statutory presumption cannot
be read to mean that the prosecution version is to be
treated as gospel truth in every case. The presumption
does not take away the essential duty of the Court to
analyze the evidence on record in the light of the special
features of a particular case, eg. patent absurdities or
inherent infirmities in the prosecution version or existence
of entrenched enmity between the accused and the victim
giving rise to an irresistible inference of falsehood in the
prosecution case while determining whether the accused
has discharged his onus and established his innocence in
the given facts of a case. To hold otherwise, would compel
the Court to mechanically accept the mere ipse dixit of the
prosecution and give a stamp of judicial approval to every
prosecution, however, patently absurd or inherently
improbable it may be.”

13. The above quoted vies of the Courts elucidate the position of
law in respect of presumption that arises under Section 29 of the
POCSO Act. It becomes clear that such a presumption would be
triggered only upon the prosecution first proving foundational
facts of its case against the appellant. In the absence of cogent
evidence to prove such foundational facts, the presumption under
Section 29 of the POCSO Act would not operate against the
appellant. Even if such presumption arises, the accused under
the provisions of POCSO Act would be entitled to rebut the
presumption on preponderance of probabilities, either by
discrediting the prosecution witnesses through effective cross
examination or by adducing evidence/witnesses in support of its
defence. With this position of law in mind, the evidence placed on
record by the prosecution in the present case needs to be
examined.

28

14. the complainant (PW-1) in the present case in her oral report
to the Police on the date of incident i.e. on 08.05.2013 claimed
that her daughter came to her house after shouting, as the
appellant had called her to his house on the pretext of offering
bread and that he had done the act that has been described
above. The complainant (PW-1) specifically stated in the oral
report before the Police that when her daughter (victim) shouted,
one Padma Gajjawar came there, upon which the appellant gave
bread to the victim (PW-2) and she rushed back to her house. It is
significant that the prosecution has not examined the said Padma
Gajjawar, who could have been a material witness in support of
the prosecution case. In fact, the complainant (PW-1) claimed that
it was Padma Gajjawar who had first informed her about
shouting and crying of the victim (PW-2). Thus, the complainant
(PW-1) herself did not see any part of the incident. A perusal of
the deposition of the complainant (PW-1) shows that in cross
examination she has stated about having told the Police
regarding the appellant having done something else to the private
part off the victim (PW-2) upon which she was shivering when
she came home. This indicates that there were improvements
made by the complainant (PW-1) in her deposition before the
Court. In any case her evidence was in the nature of hearsay.

16. A perusal of the above portion of cross examination of the
victim (PW-2) shows that she has given details of the incident in a
manner which cannot implicate the appellant for any of the
offences for which he has been charged. It appears that the
victim (PW-2) has stated in her examination-in-chief what she
was tutored to say, but in her cross examination she has come
out with a version materially different from that of the prosecution
story. This completely demolishes the prosecution case, which the
trial Court has failed to appreciate in the correct perspective.”
29

Relying Bibhuti Bhusan Rai (supra) Mr. De, learned advocate

appearing for the State submitted that injury complained of by the

victim if gets corroboration from the medical report Court can safely

rely on the same and this may be a ground for conviction. As we have

already discussed earlier that medical evidence which is on record

does not support at all the prosecution case. Simply because there

appears rupture in the hymen of the victim it cannot conclusively

prove that sexual intercourse was committed by the accused upon the

victim girl. Rupture of hymen may be for different causes apart from

the act of sexual violence. The decision cited by Mr. De is on those

cases where injury of the victim was proved. Mr. De has also relied on

this decision to convince this Court that the victim is minor having

regard to the fact that Exbt.7 contained noting with regard to the date

of birth of the victim, although, birth certificate has not been admitted

into evidence. In the cited decision birth certificate was on record

before the Court and there date of birth was proved by cogent

evidence. Therefore, the ratio of the decision cited is not applicable in

the present case, both in respect of the proof of age and as regards

corroboration of medical evidence as sought to be argued. However,

the cited decision shows that imprisonment for 10 years rigorous

imprisonment with fine for commission of offence under Section

376(2)(f) IPC and under Section 6 of the POCSO Act was, ultimately,

reduced.

Next decision in Suresh Kumar alias DC (supra) cited by Mr.

De to argue that apart from all other evidence if it is found that the
30

prosecutrix has given clear picture of the commission of offence her

statement alone would be sufficient to convict the accused. In the

cited decision it appears that even in the cross-examination the victim

could not be shaken. Her stand so far as the accused is concerned

and the commission of offence by him remained the same even at the

extensive cross-examination made on behalf of the defence which is

not the case here. We have already pointed out that statement made

by the victim under Section 164 does not get corroboration from her

evidence before the Court and the evidence adduced by her in Court

does not inspire confidence. If other evidences on record are also

compared with that of the deposition of the victim, serious

contradiction is apparent on the face of the record which nullifies the

prosecution case to a great extent. Consequently, the conviction and

sentence imposed upon the accused is rendered unsustainable.

Accordingly, it is difficult for this Court to uphold the

contention of the prosecution and to affirm the judgment and order of

conviction and sentence passed by the trial Court. This Court thus set

aside the order of conviction and sentence.

The accused is set free. The bail bond stands discharged.

Criminal Section is directed to send down the records to the

learned Court below together with a copy of the judgment forthwith to

the concerned learned trial Court.

31

Urgent Photostat certified copy, if applied for, be delivered to the

learned counsel for the parties, upon compliance with all usual

formalities.

I agree.

(Subhasis Dasgupta, J.) (Sahidullah Munshi, J.)

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