Dismissed

Mithun Sikder v. the State

Calcutta HC29 Sept 2023CRA(SB)/6/2022

Case brief

AI extract

What is this about?

The Appellate Court dismissed the appeal against conviction for aggravated sexual assault under POCSO. Upholding the Trial Court, the High Court held that the victim's consistent evidence established guilt beyond doubt absent independent witnesses required no corroboration. The statutory presumption under Sections 29 and 30 shifted the burden to the accused, who failed to rebut it due to untrustwo

What did the court decide?

CRA (SB)/6/2022 is dismissed; appeal fails; judgment and order of sentence affirmed; sentence already undergone adjusted.

Mithun Sikder Vs the State — Child Sexual Offences (POCSO) | Calcutta HC (2023)

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IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION APPELLATE SIDE

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[CIRCUIT BENCH AT PORT BLAIR]

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PRESENT: HON’BLE JUSTICE RAI CHATTOPADHYAY

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	CRA(SB)/6/2022
Mithun Sikder	… Appellant
	Versus
The State	... Respondent
For the petitioner	: Mr. Alokesh Sarkar
For the respondent	: Ms. A. S. Zinu
Heard on	: 25^thSeptember, 2023
Judgment on	: 29^thSeptember, 2023

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RAI CHATTOPADHYAY, J.

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The appellant/convict in Special Trial No. 54 of 2017, has preferred the instant appeal to challenge the judgment dated October 14, 2022 of the Special Court under POCSO Act, Andaman and Nicobar Islands, Port Blair, in the said Session Trial.

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The Trial Court has convicted the present appellant and sentenced him for an offence under Section 9 (m) of the POCSO Act 2012, which is punishable under Section 10 of the said Act, to suffer rigorous imprisonment for 5 years with a fine of rupees ten thousand.

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The Trial Court has also awarded compensation to the victim girl to the tune of rupees one lakh. In default of payment of fine, the appellant was directed further, to suffer rigorous imprisonment for three months more.

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Mr. Alokesh Sarkar, learned advocate appearing for the appellant/convict has placed his submissions on the points that the prosecution has been unsuccessful in proving the charges against his client beyond scope of all reasonable doubt. He has specifically stressed on the points that in this particular case there has been a delay of two days’ in filing the FIR, which the prosecution has failed to prove the reason for. He has further submitted that the prosecution is far away from examining any trustworthy and independent witness and instead produced before the Trial Court, the witnesses who must be considered to be interested witnesses and who must not be relied on.

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Mr. Alokesh Sarkar also pointed out that in spite of there been ample opportunity to the prosecution to cite and produce independent witnesses, it has failed in duty to cite any of them. On behalf of the appellant, Mr. Alokesh Sarkar has placed sufficient reliance upon the defence witness to submit that the prosecution case has been duly vitiated by the cogent and sufficient evidence from defence. On the grounds as above, Mr. Alokesh Sarkar has urged that the Trial Court’s

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judgment as mentioned above may be set aside and his client be acquitted and immediately released from custody.

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Ms. A.S. Zinu is representing the State in this case. She has raised strong objection to the submissions made on behalf of the defence. According to Ms. Zinu, it is the coherent and trustworthy evidence of the victim as well as the other witnesses on the basis of which the Trial Court has came to a just finding regarding due proof of prosecution’s case. Ms. Zinu has gone that far to submit that in view of the consistent and emphatic evidence of the victim girl, the case of the prosecution may be considered to have been proved beyond scope of all reasonable doubt, even without corroboration with any other witnesses. So far as the point of delay in filing the FIR, Ms. Zinu, has pointed out that the father of the victim (PW-3) in his crossexamination has duly and conclusive explained the reason for the delay which, according to her cannot be overruled in view of socio economic background of the victim and her family.

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So far as the point raised on behalf of the appellant regarding non availability of the medical evidence is concerned, Ms. Zinu has stated that the facts and circumstances of this particular case and the nature of offence as alleged would not specifically require corroboration of any medical expert or related documents.

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The State has further made out its case on the basis of Sections 29 and 30 of the POCSO Act, 2012. It has been submitted that after

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the foundational facts are brought on record by the prosecution, the presumption under Section 29 of the Act would apply to shift the burden of proving innocence, to the accused person i.e. the appellant here. On this point, it is stated that the appellant has miserably failed to discharge any such burden to rebut the presumption or law against him under both the aforestated provisions of law. Under such circumstances and under the object and scheme of this special statues, it is only just and proper that the trial Court has found guilty of the accused person to the standard of beyond scope of all reasonable doubts.

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Ms. Zinu has emphasised that the Trial Court has applied the principles rightly and scrutinized the facts emerged through the evidence appropriately in order to reach to a finding which is just and proper. Hence she says that there is no reason to interfere with the judgment of the Trial Court, as above and the appeal is liable to be dismissed.

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The victim girl recorded a statement at Diglipur Police Station on November 03, 2016, on the basis of which the FIR was registered being Diglipur Police Station Case No. 94/2016 dated November 03, 2016 under Section 354 of the Indian Penal Code / 9 (m)/10 of the POCSO Act, 2012. The crux of the allegation may be narrated as herein below:-

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At the time of incident the victim was studying in class –IV in Primary School at Durgapur. She was aspiring to be admitted in high school ( Navodaya Vidyalaya) in 2017 and for such reason she took admission for private tuition with the appellant. The scheduled hours for tuition was from 04.30 PM to 05.30 PM. She has alleged of an incident on November 01, 2016 at 04.30 PM. She and her classmate (hereinafter mention with letter “P”) went to the tuition centre. “P” had left the place within a very short period of time, after informing the appellant that she would be discontinuing the tuition classes. The victim stated that as such, the appellant and herself only were left together in the room and that the appellant started teaching Maths by sitting beside her. The appellant had made the victim to sit on his lap and touched indecently on her private parts. She had stated thereafter that the untoward sudden incident as above made her nervous and alert and she got down from his lap and immediately left the place without taking her belongings. She has further told about meeting her aunt (Anima Das) in the temple, near the vegetable shop, who called her father to the place and the victim disclosed the entire incident to her father.

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On the FIR as above, the police started investigation and the same has finally culminated into filing of a charge-sheet by the police in this case against the present appellant.

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In the Trial the prosecution has cited nine witnesses including the doctor and the police witnesses.

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PW-1 is the victim whereas PW-3 and PW-4 are her parents. PW5 is a student of Class-VIII in a Government Senior Secondary School, Subash Gram (hereinafter refer to as “R”). PW-6 and PW-9 are the Doctors who have examined the victim and produced the birth certificate of the victim respectively. PW-7 is the Executive Magistrate, Diglipur who has recorded the statement under Section 164 Cr.P.C. PW-8 is the Investigating Officer of the case. PW-2 is a formal witness, who has recorded the formal part of the FIR.

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At first the evidence of the victim girl may be looked into. She has alleged of an incident on November 01, 2016 at 04:30 PM. Allegedly the appellant who was the private tutor of the victim was alone in the room with the victim at the particular point of time. The appellant made the victim to sit on his lap. She has further told that by lifting her garment, the appellant asked him whether she was wearing any under garment or not. Thereafter he touched her breast and molested her by that way. The sudden shock made the victim to leave the room immediately, leaving her bag etc. Near “Kali Mandir” she meet with her “Mashi”, “Mashi” called her father. After her father came, she narrated the entire incident to her father. Victim further states that one “Rohit Kaka” took her to the room i.e. the place of occurrence again from where they took the bag which was earlier left

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behind by her and then returned to the home with “Rohit Kaka”. On arrival at home she has stated to have narrated the entire incident to her mother and thereafter she stated that on November 03, 2016 she went with her farther to the Police Station and made statement before police. The same was reduced to writing by a Lady Officer and she put her signature over there. Thereafter she was taken to a Lady Doctor to be examined and also recorded her statement before the Magistrate. The victim has identified her signature over her statement made in the Police Stations (Exhibit-1) as well as before the Magistrate (Exhibit-2 collectively). This evidence of victim has been duly corroborated by the PW-3 and PW-4 i.e. father and mother of her. So far as the date, place and time of occurrence are concerned, all three principal witnesses of the prosecution have deposed in unequivocal terms.

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Excepting this there witnesses, PW-5 i.e. minor “R” has stated before the Court that she was acquainted with the victim and on November 01, 2016, she went to the tuition class and found that the appellant and the victim to be present there only and no other person. 16. The prosecution has heavily relied on this evidence, in addition to the evidence of the PW-1, PW-3 and PW-4 in proving the circumstance that at the time of incident the victim was alone in the room with the appellant. However, in my considered opinion this witness is a stray witness whose evidence can hardly be relied on to find that the same has aided in any way to the proof of guilt of the

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appellant beyond scope of all reasonable doubt. This Court opines so, in view of the fact that PW-5, has never been connected with the instant case, at any earlier point of time, than the date of her deposition. Neither she has ever been present at the place of occurrence, not have witnessed any pre-occurrence scenario. She has also not been examined by police, during investigation. There is no iota of any material or her involvement in any way in the present case. Therefore, in the considered opinion of this Court, her evidence would not bear any value in proving prosecution’s case here and the same is discarded.

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Be that as it may, to assess the evidentiary value of what have been stated by the victim in the Court, this Court finds the same to be fairly consistent and convincing . There is no iota of material that, the said minor witness/victim, might have been tutored or prompted in any way. The inherent consistency of her evidence is not jeopardised, though at times certain discrepancies are evident. Since the basic consistent character of the victim’s evidence, is not shaken in any way by that, those discrepancies may well be termed as minor discrepancies, not to affect the facts fundamentally emerged from the evidence on record. The Statement given by her in the Police Station on November 03, 2016 on the basis of which the FIR has been recorded, that given by her before the Magistrate on November 09, 2016 and ultimately her deposition before the Court on March 22,

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2018 would show that the victim was present at the relevant point of time, at the place of occurrence, along with the appellant. The evidence of PW-3 is also corroborating the fact of the victim’s presence at the place of occurrence at the relevant point of time. And to this aspect there is hardly any challenge put up by the defence in the cross-examination.

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Principal point for the defence is found to be that no independence witnesses but only interested parents are examined in this case which should vitiated prosecution evidence.

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However, this Court finds, particularly in view of the specific facts of this case, that it is not very unnatural that any of the third person would not be in a position to gather any direct knowledge or evidence, about the incident. The defence has never challenged the fact that at the relevant point of time the victim was not alone in the room with the appellant, by suggesting the same in the crossexamination. Under these circumstances the point taken up by the defence of not examining any other student of the appellant regarding the incident or any other members of public at large roaming around at nearby market place, is only an exaggerated idea regarding prosecution’s flaws.

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Even for the sake of argument, if the evidence of the PW-3 and PW-4 are discarded, the settled principles of law would allow the evidence of the victim only to establish prosecution’s case, if the same

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is found to be consistent, coherent and sufficient enough to espouse the Court’s confidence. After all it is not with mathematical precision, the guilt of the accused is to be proved. But the law has envisaged to the effect that perception or guilt of the accused beyond scope of all doubts which may reasonably come to a prudent man’s mind - would be sufficient to find that the charges against him have been duly brought home by the prosecution. The bottom line would be that the consistence, coherence and trustworthiness of the evidence would be to such an extent, so that it eliminates all point of doubt from the mind of a prudent person. If that be so, the prosecution evidence can be said to have been proved to the standard or beyond all reasonable doubts.

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So far the point whether PW-3 and PW-4 can be stated to be interested witness or not, this Court is the opinion that by merely being the parents of the victim, their evidence cannot be outright discarded. The evidence of close relative of the victim, as the natural witness, is not liable to be rejected outright, on the ground of being a relative only. The interestedness of the witness must be surfaced, through the evidence on record. We’ll see afterwards, that evidence of defence witness is not trustworthy, that only to evade three months salary of the accused, he has been plotted by the father of the victim. Therefore, in this case, interestedness of the witness is absent. That would be the reason, the parents of the victim, would be the most

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natural witnesses in this trial. One may refer to a judgment of the Hon’ble Supreme Court reported in (1992) 2 SCC 105 (Chandra Mohan Tiwari and Another vs State of Madhya Pradesh ), to find that the Court has held that parent’s evidence cannot be thrown overboard simply on the ground that they had animus towards the accused and were interested witness, but keeping in mind the facts of the case, the Court held the parents to be the most natural witnesses. As a matter of fact, in this case, not even any animosity between the appellant and the witnesses No. PW-3 and PW-4, has been on record, in any manner.

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In view of the particular facts and circumstances of the present case, where the victim is a minor girl and has been subjected to the physical violence, would have reasonably and very naturally only confide to her parents and no one else. This justifies her not speaking up to any other person even at the first instance, as has been pointed out on behalf of the appellant. An innocent minor, being in utter shock and dismay, having been violated physically, would very naturally feel most safe, in the shelter of her parents only. That she was in shock, is transpiring from her evidence that after the incident, she had to rush out from the place of occurrence due to sudden shocking impact of the same.

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The defence has tried to establish a case that with ulterior motive of not providing the tuition fee to the appellant, the victim and her family has come up with the alleged culpability of the present

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appellant. This however, does not inspire much confidence in the mind of the Court especially for the following two reasons;

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(i) Firstly; the defence witness is an interested witness. He is so as he himself has asserted of being favoured by the appellant in lieu of discharging some regular duties of the tuition class like preparing the tuition room by opening the door etc., In lieu of his job, his tuition fee has been waived by the appellant. Also, to the victim, the defence witness is unknown as a student of the appellant.

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(ii) Second reason for discarding of evidence of the defence witness is the glaring discrepancy of his evidence with the unchallenged evidence of the prosecution witness, regarding the period for which the victim has taken tuition with the appellant. PW-3 says that the victim was admitted for one month whereas the defence witness has stated that the victim was admitted with the appellant for three months. So far as the evidence of the PW-3 is concerned on the above, there is no denial or challenge for the defence, by way of any suggestion or denial. Thus being the fact the evidence of the defence witness appears to be not trustworthy.

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It is necessary to see as to what are the ingredients under the aforesaid provision of law which the prosecution is to prove in this

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trail. For this, it is necessary that the relevant provision is excreted herein below:

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“9. Aggravated sexual assault.

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(m) whoever commits sexual assault on a child below twelve years; or”

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Therefore, commission of an act or sexual violence, affecting injury to body or mind, to a child bellow 12 years, would amount to an offence under this provision of law.

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It is also necessary for this Court to see whether the pair presumptions under Sections 29 and 30 would be attracted in this case and if the onus would be shifted to the appellant for rebuttal of the same. The presumptions of law under Sections 29 and 30 of the said Act, would require this Court to presume upon proof of the foundational facts by the prosecution that the appellant is guilty of the offence punishable under the provisions of the POCSO Act and that he acted himself with the guilty intent – or culpable mental state.

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The burden of proving himself not guilty would then shift upon the appellant. As I have discussed elaborately above, that the evidence of the victim girl as well as PW-3 and PW-4 has duly and sufficiently established the prosecution’s case at least prima facie , as duly established foundational facts. One may refer to the judgment of the Hon’ble Supreme Court in a Three Judges Bench reported in (2022) 10

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SCC 321 ( Pappu vs. State of Utter Pradesh) , to find that upon establishment of the foundational facts of offence against the appellant/accused there, the Court has said that, the presumption under section 29 of the said Act would be available against the appellant and he only would be liable to rebut such presumption and to prove that he did not commit the alleged offence. Having the appellant failed to discharge that burden, in that case, the Court held that the said presumption would only lead to the finding of guilt against the appellant.

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Under such circumstances, no doubt, it is the onus of the defence to rebut the pair presumptions under Sections 29 and 30 of the said Act. For this, the defence has also tried its best, by providing the defence witness. But unfortunately to no avail, as the evidence of the defence witness has been found not trustworthy, as discussed above.

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Thus Court is constrained to find that the presumption of law under Section 29 of the POCSO Act, 2012 is attracted against the present appellant.

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30. The presumption under Section 30 of the Act, takes about the existence of mens rea or the culpable mind of the accused. A child is quite incapable of appreciating and understanding the mental state of others or even of himself. The victim, in absence of such a pair presumption might not find itself to give a complete account of mental

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state and mental elements of the accused which the victim might have come across during the commission of the offence. However, this also being a rebutable presumption, the accused has to overcome the same. On this point also, similarly as before, though the prosecution’s version has been able to compel requirement of the appellant to rebut the presumption under Section 30 of the said Act, the defence evidence has grossly fallen short of doing the same.

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On the entire discussion as above, this Court finds that the Trial Court has considered the evidence in its right perspective, attached adequate weight to the same and perceived its value in an appropriate manner. There is hardly any reason much less any sufficient reason to interfere with the findings of the Trial Court in the impugned judgment. Accordingly this appeal should fail.

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CRA (SB)/6/2022 is dismissed along with other connected application, if any. The judgment and order of the sentence of the Trial Court dated October 14, 2022 of the Special Court under POCSO Act, Andaman and Nicobar, Port Blair in Special Trial No. 54 of 2017 is affirmed.

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It is further directed that the period of incarnation already undergone by the appellant should be adjusted with the total period of sentence of five years of rigours imprisonment.

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The Lower Court Record be sent down immediately.

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Urgent Photostat certified copy of the judgment, if applied for, be supplied to the parties upon compliance of all legal formalities.

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(RAI CHATTOPADHYAY, J.)

Mithun Sikder v. the State

Case brief

What is this about?

What did the court decide?

Mithun Sikder v. the State

Case brief

What is this about?

What did the court decide?

What the court decided

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