Dismissed

Kalyan Bhagwar v. the State

Calcutta HC20 Dec 2021CRA/3/2021

Case brief

AI extract

What is this about?

Criminal appeal against conviction and sentence under Section 10 of the POCSO Act. The High Court upheld the conviction of an appellant for molestation of a minor girl on a bus, finding the minor witness reliable and the presumption under Section 29 rebutted.

What did the court decide?

The appeal was dismissed. The conviction and sentence under Section 10 of the POCSO Act were upheld.

Kalyan Bhagwar Vs the State — Child Sexual Offences (POCSO) | Calcutta HC (2021)

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IN THE HIGH COURT AT CALCUTTA

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CRIMINAL APPELLATE JURISDICTION

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[CIRCUIT BENCH AT PORT BLAIR]

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PRESENT: HON’BLE JUSTICE JAY SENGUPTA

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CRA No. 3 of 2021 Kalyan Bhagwar ... Appellant

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Versus The State ... Respondent For the appellant : Mr. K.Sabir, Advocate For the State : Mrs. A.S.Zinu, Advocate Heard on : December 16, 2021 Judgment on : December 20, 2021

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JAY SENGUPTA, J.

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This appeal is directed against a judgment and order for conviction dated 20.10.2020 and sentence dated 21.10.2020, thereby convicting the appellant under Section 10 of the POCSO act and directing him to suffer a sentence of rigorous imprisonment for five years and to pay a fine of Rs. 5000/-, in default of such fine to suffer further simple imprisonment for one month.

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On 12.03.2015 at about 11:00 hours, PW3 the mother of the minor victim girl lodged an information with the Havelock Police Station, which was treated as a First Information

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Report under Section 354 of the Penal Code read with Section 10 of the POCSO Act. The crux of the allegations made by PW3 was that on 12.03.2015 she was going to take her five years old daughter to school by STS bus. At about 7:45 hours when the bus reached near their house and she was going to board the bus with her daughter, on seeing the bus, her daughter refused to go to school and ran towards home. Upon inquiry, the child cried and disclosed that the person who used to give tickets in the bus would make her sit on his lap and by indication, she further said that after making her sit on the lap the said ‘uncle’ would put his hand on her private part. On 11.03.2015 the said person did the same thing with her and told her not to disclose anything to anyone. The conductor who used to be there in the bus on those dates was Kalyan, the present appellant.

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During investigation the Investigating Officer had the minor victim girl medically examined. However, no statement of the victim could be recorded under Section 164 of the Code. After completion of the investigation, a charge sheet dated 20.04.2015 was submitted under Section 354 of the Penal Code and Section 10 of the POCSO Act.

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On 15.09.2015 a charge was framed against the accused/appellant under Section 10 of the POCSO Act. The appellant pleaded innocence and claimed to be tried.

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During trial the prosecution examined 13 witnesses. As would be evident from the trend of cross-examination and the examination of the accused under Section 313 of the Code, the case of the defence was that of a plain denial of the prosecution case.

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After scanning the evidence on record, it appears that PW1 was a neighbour who gave out a hearsay account. PW2 was tendered in evidence. PW3 was the mother of the victim girl and the defacto complainant of the case. She fully corroborated her statement made before the police that was treated as First Information Report. PW4 was the five years old victim girl herself. First, she was examined on the question of competence. In her evidence, PW4 fully supported the prosecution case and gave a clear account of the incidents that happened. She identified the appellant bus conductor in the dock. PWs 5, 6, 7 and 9 were students of higher classes of school who used to travel in the same bus. They deposed that they did not know anything about the incident and were declared hostile. PW8 was the Checking Inspector, in-charge of STS Unit, Havelock. He issued a certificate. PW10 was the doctor who examined the victim girl. She proved the medical report which stated that an abrasion was found in the private part of the victim girl. PW11 was the bus driver. He too confirmed that the

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appellant was acting as the conductor of the bus on the particular day. PW12 was the Police Officer who recorded the First Information and PW13 was the Investigating Officer of the case. PW13 had the victim girl medically examined and collected the report thereafter. He arrested the accused and interrogated some students who availed of the same bus service. During his examination under Section 313 of the Code, the appellant simply denied the charges.

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Mr. K.Sabir, learned counsel appearing for the appellant, submitted as follows. The charge-sheet was the result of a biased investigation. From nowhere, the Investigating Officer used the term ‘twirl’ his hand at the private part to describe the offence allegedly committed by the appellant. This improved version was erroneously taken into consideration by the learned Trial Judge. The learned Trial Judge even wrongly recorded the evidence of PW3 that the victim girl described the accused as a wicked man. The evidence adduced by the minor victim girl had to be scrutinised carefully. This was more so because she was not examined under Section 164 of the Code immediately after incident and she deposed about the incident in Court after nearly three years. The medical report did not mention the cause of such injury. It did not even indicate the age of such injury. The appellant might very well have been falsely implicated in

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this case. All the school students who were cited as witnesses turned hostile. The prosecution was unable to prove its case beyond reasonable doubt. Moreover, the appellant did not have any criminal antecedent.

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Ms. A.S. Zinu, learned counsel for the Administration, submitted as follows. The evidence adduced by the minor victim girl was clinching. It could not be shaken during cross-examination. It fully corroborated the version given by her mother PW3 as also the contents of the First Information Report. The other bus goers need not have witnessed the incident. So, turning hostile of the school students did not affect the prosecution case at all. The medical report indicated abrasions at the private part of the minor girl. There was hardly any cross-examination to contradict the medical evidence. Thus, the medical evidence fully supported the prosecution case. The defence never denied the presence of the accused at the spot at the relevant time. No reason whatsoever was cited for any purported false implication. The defence failed to rebut the presumption under Section 29 of the POCSO Act. In any event, only the minimum punishment for five years prescribed for the alleged offence had been awarded to the appellant.

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I heard the submissions of the learned counsels appearing on behalf of the appellant and the Administration and

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perused the petition of appeal, the order passed by the learned Trial Court, the evidence adduced in the case and the other materials on record.

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Had the five years old minor girl not refused to board the bus because of the unfortunate experience she had to bear with earlier, the alleged offence would perhaps have not come to light. The circumstances leading the registration of the First Information Report makes the allegations all the more credulous.

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The mother of the victim girl who was the defacto complainant in the case fully supported the First Information Report while adducing the evidence in Court.

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PW4, the minor victim girl fully stood her ground and adduced cogent evidence throwing light on the alleged offence committed by the appellant. This clearly supported the prosecution case and the First Information Report lodged by PW1. Her evidence could not be shaken in the crossexamination. She clearly identified the accused in Court. There is no reason indicated as to why she would falsely implicate the appellant. It is true that a child’s evidence is to be carefully scrutinised. But, in this case the examination for ascertaining competence of the child witness was successfully done. After that the minor victim girl deposed

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about the unfortunate incidents in details, which stood the test of cross-examination. Therefore, this Court has no reason to disbelieve her.

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The mere fact that the victim girl was not examined under Section 164 of the Code, presumably due to her tender age, is no ground to question of her credibility as a witness during trial.

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Although the doctor, in her report, did not mention the age of the injury, she had clearly indicated the presence of an abrasion at the private part of the minor victim. This corroborated the prosecution case. It was not possible for the doctor to highlight anything more about the cause of injury. This would depend on the attending circumstances.

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The turning hostile of the school students studying at higher classes who used to travel in the same bus is hardly of any consequence. Obviously, they had not witnessed the incident of sexual assault. Had they seen such incident, the case of sexual assault would have come to light earlier.

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The accused could not explain the circumstances appearing against him under Section 313 of the Code and has failed to rebut the presumption as contained in Section 29 of the POCSO Act.

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As regards the sentence imposed, there is hardly any scope for interference. This is a case of a middle aged man preying on a helpless minor girl. For this, only the minimum sentence imposable has been awarded in this case.

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In view of the above discussions, I do not find any merit in the appeal.

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Accordingly, the same is dismissed.

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However, there shall be no order as to costs.

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Let a copy of this judgement and order be sent down along with the lower court records to the learned Trial Court.

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A copy of the judgment and order shall also be forwarded to the appellant at the correctional home in which he has been put up.

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Urgent photostat certified copy of this judgement, if applied for, be supplied to the parties upon compliance of usual necessary formalities.

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(JAY SENGUPTA, J.)

Kalyan Bhagwar v. the State

Case brief

What is this about?

What did the court decide?

Kalyan Bhagwar v. the State

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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