Pradeep Halder v. The State

IN THE HIGH COURT AT CALCUTTA

CRIMINAL APPELLETE JURISDICTION (CIRCUIT BENCH AT PORT BLAIR) PRESENT:

THE HON'BLE JUSTICE TIRTHANKAR GHOSH CRA 012 of 2019 Pradeep Halder -vs.- The State For the Appellant :

Mr. D. Ilango For the State :

Ms. A.S. Zinu Heard on :

20.06.2022, 23.06.2022, 27.06.2022, 28.06.2022 & 29.06.2022 Judgment on :

25.07.2022 TirthankarGhosh, J:- The present appeal has been preferred challenging the judgment and order dated 15.07.2019 passed by the learned Special Judge (POCSO), Andaman& Nicobar Islands at Port Blair in Special Case no. 7 of 2016 (corresponding to Special Case Trial No. 6 of 2016) arising out of Kalighat Police Station case no.31/15 dated 23.12.2015 under Section 354/354D(1)(i)/341/509 of the Indian Penal Code read with Section 7/8, 11/12 of the Protection of Children from Sexual Offences Act, 2012, wherein

the learned Special Court was pleased to hold the appellant guilty of the charges under Section 12 of the POCSO Act, 2012 and under Section 354D(2) of the Indian Penal Code and sentenced the appellant as follows:

1) Rigorous Imprisonment for eighteen (18) months and fine of Rs.10,000/- in default Simple Imprisonment for further two(2) months for the offence under Section 12 of the POCSO Act, 2012.

2) Rigorous Imprisonment for six (6) months for the offence under Section 354D(2) of the Indian Penal Code.

Kalighat Police Station Case no. 31/15 dated 23.12.2015 was registered pursuant to a verbal complaint by 'X' which was reduced to writing in the form of her statement by one lady constable Subhralekha Sarkar of Kalighat Police Station. It was alleged in the statement by the victim 'X' that she was residing with her parents and two younger brothers at her house at Nabagram and was a student of Class VIII in Government Sr. Sec. School, Kalighat. It has been alleged that one Pradeep Halder aged about 28 years was a neighbour residing with his wife and three children in his own house, who used to stop her when she went and returned from school and addressed vulgar comments. Being fade up with such activities of Pradeep Halder the informant/victim reported the incident to her parents, who took her to Nabagram, Pradhan Shri Niranjan Baroi and complained against Pradeep Halder. Over the issue in the house of Panchayat Member Smt. Anita and in front of Pradhan the family of the informant and appellant Pradeep Halder's family asked Pradeep Halder not to

repeat such activities as he confessed his guilt. At that time Pradeep Halder apologised in front of all the persons and stated that he would not repeat such acts. For few days Pradeep Halder did not disturb the informant but since about one week from the date of lodging the information the accused again started to disturb the victim and on 22.12.2015 at about 8.00 am when she was going to school and crossing the nallah near her house the accused Pradeep Halder stopped her and caught hold of her hands and said bad things. Having no other alternative on 23.12.2015 the informant complained to Kalighat Police Station against Pradeep Halder for taking appropriate steps. The Investigating Authority on conclusion of investigation submitted charge-sheet no.2/16 dated 23.01.

16 under Sections 458/354/354A(i)(ii)/354D(1)(i)/341/509 of the Indian Penal Code and Section 8/10/12 of POCSO Act, 2012 before the learned Special Court. The learned Special Court after compliance with the provisions of Section 207 of the Code of Criminal Procedure was pleased to frame charge after affording opportunity to both the parties under Section 7/8/11/12 of the POCSO Act read with Section 354/354D(1)(i)/341/509 of the Indian Penal Code.

PW8 Sasadhar Mondal, villager/resident of the locality; PW9, Jyotsna Mondal, relation of the victim; PW10, C.G. Kindo, Head Constable who was posted at Kalighat Police Station and was also station writer; PW11 Subhralekha Sarkar, lady constable who recorded the statement of PW1 which was treated as FIR and PW12 T. Dillan Rao, Investigating Officer of the case. The prosecution also relied upon 6 documents being statement of PW1 which has been treated to be the complaint (Ext.1); Statement of PW1 under Section 164 of Code of Criminal Procedure (Ext.2); Seizure List in respect of Birth Certificate of PW1 (Ext.3); Birth Certificate of PW1 (Ext.4); Formal FIR (Ext.5) and Sketch Map (Ext.6).

PW1, 'X' in her deposition before the learned Court stated that she was a student of Class VII of Government Senior Secondary School, Kalighat and was staying at Nabagram under PS Diglipur. In the year 2015 she lodged a written complaint on 23.12.2015 against Pradeep Halder who was a neighbour and had his wife and three children. Earlier both the family had visiting terms and Pradeep used to come to their house and used to joke but surprisingly, one day he proposed her for going to Havelock. She raised objection to such proposal as she was a student and was having her class at school at that point of time but the accused stated that they will enjoy by entering into physical relationship. One day accused suddenly entered their house and in her room, when she raised hue and cry and at that point of time the accused caught hold of her mouth and as her mother suddenly entered into the room and switched on the

light, he fled away. Her mother noticed that the accused while leaving the room left his torch light. Her mother went to the house of Sasu Mondal with the torch, called Krishna Mazumder and went to the house of the accused's father. The matter was settled as Pradeep assured that he would not commit such act in future again. The accused thereafter for about one and half weeks stopped such act but thereafter again started teasing her. On 22.12.2012 (2015) when she was going to school at about 08.00 am the accused was sitting near nallah and when she was crossing the same he caught hold of her hand and pulled her down by uttering wrongful and nuisance words. After returning from school she complained the incident to her parents and a written complaint was lodged with Kalighat Police Station and her statement was also recorded.

The said statement was marked as Ext.1 after being identified by the witness. She stated that she was taken to a Judicial Magistrate, Mayabunder where she gave her statement, she identified her statement and the signatures therein which were marked as Ext.2. In cross-examination the witness was confronted with the topography of the area/locality. The issue of whether the witness and her mother used to visit the residence of Pradeep Halder for watching TV. The witness acknowledged for having visited the house of the accused with her mother for 2/3 months, and thereafter their family members asked them not to go to their house for watching TV. The witness was asked regarding the incident of 23.12.15 and she narrated the incident in the same manner as in her examination-in-chief.

PW2 is the mother of PW1, who stated that her daughter was a student of Government Senior Secondary School, Kalighat and was studying at Class VII. In the year 2015 she deposed that the accused used to tease her daughter as and when she went to school and as such the matter was reported to Panchayat Pradhan, in the meeting the accused assured that he would not repeated his acts, however, one day at night he entered the room of her daughter and pressed her mouth. After seeing such incident she switched on the light and called her maternal father-in-law Sashodhar Mondal when the accused fled away leaving his torch.

The incident was reported to Pradhan and as per direction of the Pradhan the accused stopped such act for a limited period and after such interval once again started teasing her daughter and as such she was compelled to take her daughter to the police station and lodge a written complaint. She identified the statement and also identified her right hand thumb impression on the seizure memo. In cross-examination she was asked regarding the issue of watching television at the house of the accused and the objection raised by the family members for watching TV. So far as the incident is concerned she narrated the same version as in her examination-inchief. PW3 is the father of PW1, he also stated that the accused used to tease her daughter when she used to go to school and he caught hold of her hand and used to speak silly/abusive words.

misdeed but thereafter he again started creating trouble and on 22.12.2015 when his daughter was going to school at that point of time the accused pulled her by catching hold of her hand and thereafter a complaint was lodged at Kalighat Police Station. He identified the accused in Court. The witness was confronted regarding the timings and duration of the school and regarding reporting the incident. He denied the suggestions that his daughter did not attend the school in the month of December. However, he stated that he was not aware regarding the fact when his wife and daughter used to watch TV at the house of Pradeep.

PW4, Anita Dey, is a Panchayat member who deposed that she was present when PW3 came for reporting the incident to Panchayat. The witness was declared hostile but in cross-examination by the prosecution she stated that she came to know that the accused used to tease PW1 when she used to go to school and she stated that the accused in presence of Pradhan and Upa Pradhan admitted his fault and assured that he would not commit such acts. The witness also stated that it was decided in case the accused repeated his acts, PW3 could then report the incident to the police station. The witness also identified the accused in Court.

PW5, Sadhan Mazumdar, was acting as Upa Pradhan on 22.12.15. He stated that PW3 came to the Panchayat and stated that accused Pradeep was teasing his daughter. When both the families were called the accused Pradeep admitted his fault and assured that he would not commit such act in future.

The witness stated that subsequently he came to know that a police complaint was lodged.

PW6, Nirmal Dey is a co-villager who heard regarding the incident. The Birth Certificate of PW1 was seized in his presence and he signed on the seizure memo, identified the same and as such the seizure memo and his signature on the seizure memo was marked as Ext.3 and the Birth Certificate was marked as Ext.4.

PW7, Niranjan Ch. Baroi, was Pradhan of the gram panchayat in the year 2015. He stated that PW3 approached him and reported that the accused was teasing his daughter. He has also deposed that the accused was cautioned not to commit such act in future. After about 15 days the parents of PW1 again came for reporting when the witness asked them to approach the police station. The witness identified the accused in Court.

PW8, Sasadhar Mondal, who deposed that the wife of Bikash Mondal called him and disclosed that the accused entered their house, he also stated that he did not see the accused. He was present in the meeting called by the local panchayat where both the families were present. The witness identified the accused in Court.

PW9, Kumari, Jyotsna Mondal, narrated that she heard that the accused Pradeep used to tease her sister who refused to talk with the accused. So far as the said incident is concerned, she deposed that her mother told her over telephone regarding the incident.

PW10, C.G. Kindo, was Head Constable and station writer at Kalighat Police Station on 23.12.2015 and on that date the statement of PW1 was recorded and as per direction of the SHO, Kalighat police station the FIR was prepared and the Formal FIR contained his signature which was marked as Ext.5.

PW11, Subhralekha Sarkar, lady police constable who was posted at Kalighat Police Station. On 23.12.2015 she reduced the statement of PW1 as she was in-charge of Women and Child Helpline. She identified the said document which was marked as Ext.1/1.

PW12, T. Dilla Rao, the Investigating Officer of the case who identified the site plan with index which was marked as Ext.6, four photographs which were marked as Mat. Ext.I collectively. He also referred to the statement under Section 164 of the Code of Criminal Procedure. Identified the statement of the victim girl and the same was marked as Ext.2/1. In his deposition he stated that after completing his investigation he submitted charge-sheet in connection with the instant case.

Mr. D. Ilango Learned Advocate appearing for the appellant submits that the instant case has been registered out of previous enmity and insult for the purpose of wrecking vengeance upon the present appellant, as a dispute cropped up between both the families over the issue of watching television. According to the learned advocate for about 2/3 months the PW1 and her mother, PW2 used to regularly visit the house of the appellant for watching TV

which was disliked by the family members who asked them not to come and as such in a pre-planned manner the present case was instituted against the appellant. Learned Advocate further submitted that there are hardly any corroborating materials by independent witnesses supporting prosecution case. On the basis of conjuncture and surmises the learned Special Court convicted the appellant which should be set aside as the same is not maintainable in the eye of law.

On the other hand Ms. A. S. Zinu learned Advocate appearing for the State resisted such submission of the appellant and added that in the present case on scrutiny of the evidence the learned trial Court arrived at its conclusion thereby convicting the appellant under Section 12 of the POCSO Act and Section 354D(2) of the Indian Penal Code.

Learned Advocate also drew the attention of the Court to the statement of the victim girl under Section 164 of the Code of Criminal Procedure and submitted that the appellant committed the offence as was narrated by the victim girl in the the FIR (which is on the basis of the statement of the victim girl before the police authorities), the statement of the victim girl under Section 164 of the Code of Criminal Procedure before the learned Judicial Magistrate and the deposition of the witness before the Court and submitted that the evidence of PW1 taken as a whole independently satisfied the Court for convicting the appellant.

Indian Penal Code and arrived at its conclusion of guilt after the end of the trial, only under Section 12 of the POCSO Act and under Section 354D(2) of the Indian Penal Code. Learned counsel emphasised that there is no scope for interference and as such the judgment and order of the Learned Special Court should be affirmed.

In this case the statement of the victim girl before the Police Officer, her deposition before the Court and her statement before the learned Judicial Magistrate under Section 164 of the Code of Criminal Procedure are to be considered as a whole. For the purpose of this case a part of the statement of the victim girl under Section 164 of the Code of Criminal Procedure is set out as follows:

"I am residing at Nabagram, Kalighat, Pradeep Halder, resides near my house. I used to call him Chacha. Before that Pradip Halder used to talk with me, make fun with me, I never took it seriously.

But after that whenever I go to school, Pradip Halder used to stand near nallah which was little away from my house and used to pull my hand, tried to hug me, tried to kiss me and told bad bad things. He asked me come near his house at night. Pradip used to tell bad bad things in my school also. He asked to accompany him to roam around and to have sex. One day Pradip entered into my house at night. I was sleeping. I felt that something was touching me. I got up and sat. I saw Pradip and then suddenly he shut my mouth and mad me to lie down and ran out. He left his torch light in my house.

My mother told me to go to my fufu's (Sumoti Mistry) house as Pradip would degrade and torture me. I used to go to Kalighat School from Sitanagar. Pradip started to tell all bad things about me. Fufu told me that everyone was talking bad things about me and told me to return to my house. I again came back to Kalighat. Once told that matter to Pradhan Niranjan, as such Pradhan with members and neighbour of Pradip called Pradip and warned. For many days Pradip was quiet.

For last one month, again Pradip was catching my hands, hugs me and tries to kiss me. I told to my parents. They told that we cannot do anything as we told that matter to everyone. This time, we came to Police Station and lodged a complaint." I have assessed the deposition of the victim girl in Court, her statement before the Police Officer which was treated as First Information Report and her statement before the Learned Judicial Magistrate under Section 164 of the Code of Criminal Procedure, on a cumulative assessment of the same I am of the opinion that the explanation to Section 11 relating to sexual harassment which states that "any question which involves sexual intent shall be a question of fact" cannot be ruled out in this case taking into account the judgment of the Hon'ble Supreme Court in Attorney General for India -Vs.

- Satish & Anr., (2022) 5 SCC 545, paragraph 81 and 82 are relevant for the purpose of this case which are referred to below: "81. Parliamentary intent and emphasis, however, is that the offending behaviour (whether the touch or other act involving physical contact), should be motivated with sexual intent.

Parliament moved beyond the four sexual body parts, and covered acts of a general nature, which when done with sexual intent, are criminalised by the second limb of Section 7. The specific mention of the four body parts of the child in the first limb, and the use of the controlling expression "sexual intent" mean that every touch of those four body parts is prima facie suspect.

82. The circumstances in which touch or physical contact occurs would be determinative of whether it is motivated by "sexual intent". There could be a good explanation for such physical contact which include the nature of the relationship between the child and the offender, the length of the contact, its purposefulness; also, if there was a legitimate non-sexual purpose for the contact. Also relevant is where it takes place and the conduct of the offender before and after such contact. In this regard, it would be useful to always keep in mind that "sexual intent" is not defined, but fact-dependent-as the Explanation to Section 11 specifies."

The evidence on record in this case consistently states regarding the factum of the victim girl being teased with abusing words and also expressions which have overtones of sexual intent. The plea of the appellant that the same is because of preventing the mother and the victim girl from watching TV and they being asked not to come to the house of the appellant cannot be accepted.

The argument of such false implication which was the only point of defence by the appellant in course of the cross-examination cannot override the consistent statement of the victim girl, whose evidence is to be appreciated as an injured witness.

Accordingly the judgment and order of conviction and sentence passed by the learned Special Judge (POCSO) Andaman & Nicobar Islands at Port Blair in Special Case no. 7 of 2016 (corresponding to Special Case Trial No. 6 of 2016) under Section 12 of the POCSO Act and under Section 354D(2) of the Indian Penal Code is hereby affirmed.

Thus, Criminal Appeal being CRA 012 of 2019 is dismissed. The appellant is on bail his bail, bond stands cancelled and he is directed to surrender before the learned trial Court immediately. Before parting with I must remind the Special Courts to adhere to the judgment of Nipun Saxena & Anr. -Vs.- Union of India &Ors., (2019) 2 SCC 703 and the Division Bench Judgment of the Calcutta High Court being Prafulla Mura -Vs. - the State of West Bengal and Anr. in CRA (DB) 29/2022. I am not commenting on the learned Special Judge as the judgment was delivered in the month of July, 2019 while the Supreme Court Judgment was delivered on December 11, 2018. However, henceforth the Special Courts dealing with POCSO Act should adhere to the guidelines set out by the Hon'ble Supreme Court and the Division Bench of the Hon'ble High Court, Calcutta. Learned Registrar, Circuit Bench at Port Blair should circulate the direction of

the case of the Nipun Saxena & Anr. (supra) and Prafulla Mura (supra) to all the Special Courts within their jurisdiction. Department is directed to send back the Lower Court Records and communicate this judgment to the learned Court below. All parties shall act on the server copy of this judgment duly downloaded from the official website of this Court.

Urgent Xerox certified photocopy of this judgment, if applied for, be given to the parties upon compliance of the requisite formalities. (TirthankarGhosh, J.)