Shyama Kanto Biswas v. The State

IN THE HIGH COURT AT CALCUTTA

CRIMINAL APPELLATE JURISDICTION CIRCUIT BENCH AT PORT BLAIR

Present:

The Hon'ble Justice Shampa Sarkar and The Hon'ble Justice Ananda Kumar Mukherjee C.R.A. No. 2 of 2020 Shyama Kanto Biswas .... The Appellant

VERSUS

The State .... The Respondent For the Appellant:

Mr. D.Illango, Adv.

For the Respondent: Ms. A.S. Zinu, Adv. Hearing concluded on:

27.04.2022.

Judgment on:

29.07.2022.

Ananda Kumar Mukherjee, J. :- 1.

This appeal has been preferred under Section 374 (2) of the Code of Criminal Procedure 1973 assailing the Judgment of conviction and sentence dated 29.6.2020 and 30.6.2020 passed by Learned Special Judge (POCSO Act) North & Middle Andaman, Mayabunder corresponding to Special (POCSO) S.T No. 02 of 2019 arising out of Special (POCSO) Case No. 08 of 2018, in which the appellant has been convicted for the offence punishable under section 6 of

the POCSO Act and section 506 of the Indian Penal Code. The appellant was sentenced to suffer imprisonment for life and to pay a fine of Rs. 25,000/-, in default to suffer rigorous imprisonment for one year for the offence punishable under section 6 of the POCSO Act and also to suffer a sentence of rigorous imprisonment for one year for the offence punishable under section 506 of IPC. Both the sentences have been directed to run concurrently. On realization of the fine, the amount was to be paid to the prosecutrix. 2.

Genesis of the prosecution case can be traced to the written complaint lodged on 29.10.2017 by the victim girl PW-1, (herein after referred to as the prosecutrix), who was a minor, aged about sixteen years. In the First Information Report lodged by her, she disclosed that she was a resident of Pichar Nallah and studied in class XI in Sadesh Nagar School. Her family was residing in a house constructed on an encroached land of APWD. On the night of 24.9.2017, the day before Durga Puja at about 8:30 P.M, she went to the shop of the accused to buy 'Pan'. The accused suddenly caught hold of her hand and pulled her inside the shop. He took her to a room at the back of his shop and without paying heed to the repeated refusal by the prosecutrix, forcibly raped her.

He told the prosecutrix not to disclose the matter to anyone, or else, she would face dire consequence. The prosecutrix out of fear, did not disclose the incident. Again on 27.9.2017 when the prosecutrix went to fetch water from a water tap near the shop of the accused, he called her for some work and committed rape on her in the room at the back of the shop. On the third occasion, on 3.10.

accused. Out of fear, the prosecutrix did not speak to anyone about the occurrence. Smt. Geeta Roy (PW-3) who was the Sarpanch, came to know about the incident and on 29.10.2017, she went to the house of the prosecutrix. For the first time the prosecutrix told her about the occurrence and thereafter, on being taken to the police station, the complaint was lodged by the prosecutrix. The complaint was written by the Inspector Smt. T. Hemavathi, Inspector of police on the basis of the statement made by the prosecutrix. In course of trial, the complaint was proved by the PW-11 and was marked as Exhibit 1. The prosecutrix (PW1) stated in her deposition that she had narrated the incident to the lady police officer and identified her signature on the FIR as Exhibit 1/1.

3.

The appellant was called upon to answer the following charge: "FIRSTLY- That you, on or about 24th day of September, 2017 (Sunday) at about 8:30 PM, also on 27th day of September, 2017 and on 03rd day of October, 2017 in the room behind your shop at Swadesh Nagar under PS Billiground, District North & Middle Andaman committed penetrative sexual assault on the prosecutrix (name withheld) a minor girl below the age of 18 years and that you thereby committed an offence punishable under section 6 of the Protection of Children from Sexual Offences Act and within my cognizance."

"SECONDLY- That you, on or about 24th day of September, 2017 (Sunday) at about 8:30 PM in the room behind your shop at Swadesh Nagar under PS Billiground, District North & Middle Andaman committed criminal intimidation by threatening the prosecutrix (name withheld) with injury to her person with intend

to cause alarm to said prosecutrix by saying that she should face bad consequences if she would disclose about penetrative sexual assault committed by you to any person and that you thereby committed an offence punishable under section 506 of the Indian Penal Code and within my cognizance."

The accused having pleaded not guilty to the charge, underwent trial. 4.

In order to prove the aforesaid charge prosecution examined eleven witnesses. The victim girl had been examined as PW-1, Manti Munda, the mother of the victim had been examined as PW-2, Geeta Roy as PW-3, Archana Guha as PW-4, Rajesh Soreng as PW-5, Jabantus Kujur as PW-6, Hemlata Tirkey as PW-7, S.I G. Mohan Rao as PW-8, Constable M. Mohan as PW-9, Doctor Rekha Verma as PW-10, Inspector T. Hemavathi Recording Officer as (PW-11) and the Investigating Officer as PW-8. Documents had been produced and admitted in evidence as Exhibit 1 to Exhibit 16. The accused person was examined under section 313 of Cr. P.C, where he pleaded his innocence and stated that he had been falsely implicated in the case. No defence witness was examined. The only defence plea as it would appear from the trend of cross examination of the prosecution witnesses was that the accused had been falsely implicated.

5.

The judgment of conviction and sentence passed against the appellant were assailed on the grounds that learned Trial Judge has failed to appreciate the facts that the statement of the victim made in the fardhbayan (FIR) and the statement made by her during trial were completely different. Mr. Illango, learned advocate for the appellant strenuously argued that the learned Judge

failed to consider the fact that the alleged occurrence took place at a crowded place, as the shop was situated near Pitcher Nallah Bus Stand. It was urged that delay in lodging FIR in this case, had not been explained, and those aspects had not been considered by the learned Trial Judge. The contention of the appellant was that the alleged occurrence took place on 23.09.2017, 27.09.2017 and 3.10.2017 but the victim went back to her house and did not complain to anyone, not even to her parents. Learned advocate urged that such discrepancies would go to establish that the accused had been falsely implicated.

6.

Learned Advocate for the appellant referred to the evidence of the prosecutrix where she had admitted in the cross examination that she had not stated before the Magistrate that on 3.10.2017 at 5:00 A.M. she was forcibly taken by the accused to his room and raped, whereas her statement before the Magistrate was otherwise. It was argued that there were contradictions in the statement of the victim made before the police where she stated that on 24.9.2017 the accused committed rape on her by lifting her wearing apparels, whereas in her statement recorded under section 164 of Cr. P.C. she stated that the accused person had taken off her dress at the relevant time. According to the appellant the victim girl was not interested to lodge any complaint against the accused. PW-2, the mother of the prosecutrix had stated that the complaint was lodged by her daughter on being pressurized by Geeta Roy the Sarpanch and Archana Guha. It was argued on behalf of the appellant that learned Trial Court did not consider the evidence of PW2 that Deben and

Subash Mazumdar had persuaded the victim to lodge the complaint. It was contended that the evidence of PW-3 was hearsay in nature and the learned Trial Court erred in law by placing reliance upon inadmissible evidence. It was also argued on behalf of the appellant that Archana Guha, the PW-4 had stated that she was informed by some ladies that the accused had physical relation with the victim girl, but she was unable to name the ladies who had informed her about the incident. PW-4 also deposed that she had not made any statement to the police that Rajesh Soreng went to her house on 29.10.2017 and informed her that the accused had confessed to him about his physical relationship with the prosecutrix. According to the appellant, the evidence on record was fragile and did not establish the charges levelled against the accused person. The impugned judgment was liable to be set aside. 7.

Advancing her arguments for the State, Ms. Zinu learned advocate submitted that the case was based on direct evidence where a minor girl, aged 16 years was subjected to penetrative sexual assault by the accused person on several occasions, forcibly and repeatedly. The victim belonged to a downtrodden family, and was a student of class XI at the relevant time. From the victim's evidence, it would appear that her father had been mentally unsound for the past 20 years and her mother was working as a nanny. Taking advantage of the situation, the unprotected prosecutrix became an easy prey for the appellant, a married man aged above 60 years. The occurrence took place for the first time on 24.09.2017 when at about 8:30 P.M. the prosecutrix went to buy 'pan' from the shop of Shyama Kanto Biswas, the accused person,

who she used to address as 'uncle'. From the testimony of the prosecutrix it would appear that the accused caught hold of the wrist of the victim and dragged her to a room situated behind the shop room, forcibly removed her wearing apparels and committed rape on her. From her cross-examination it would appear that although the shop of Shyama Kanto Biswas was situated near Pichar Nallah Bus Stand, the PW-1 denied the suggestion given to her that the place remained crowded throughout the day. Instead, she deposed that people would remain present at the shop only upto 6:00 P.M. She further deposed that in spite of her repeated refusal, the accused who she addressed as 'uncle', took her inside the room which was dark and lay her on a 'machan' (raised bamboo platform), lifted her wearing apparels and forcibly committed sex with her.

The accused told her that it would not be good for her, if she disclosed the incident to anyone. It was argued by learned advocate for state that the suggestion was put to PW-1 that only she and Shyama Kanto Biswas were aware about the physical relationship between her and Shyama Kanto Biswas, to which she replied in the affirmative. The trend of cross-examination on the part of appellant resulted in admission of the prosecution story in its material particulars which undermined the appellant's case and the accused could not avert the consequence.

8.

Learned advocate for the State argued that the appellant had failed to bring out discrepancy between the statements of the prosecutrix made in the 'fardhbayan' (FIR) and her evidence in court as to whether the wearing apparels were lifted or removed at the time of the sexual act. It was argued that the act

of lifting the clothes and removing the wearing apparels were different ways of describing the same act and it did not appear to be a major contradiction, to dislodge the prosecution case.

9.

Our notice was drawn to the evidence of the prosecutrix (PW-1) where she deposed that she was forcibly raped by the accused person on 27.9.2017 at about 6:30 P.M when she went to take water from the tap situated near the shop of the accused. PW-1 deposed that the accused called her to his shop and when she reached the place, the accused took her to the room behind his shop and forcibly committed rape on her and again asked her not to disclose the incident. In the cross examination PW-1 deposed that in her 'fardhbayan' she disclosed that on 27.9.2017, she went to fetch water from the tap near the shop of the accused, and when the accused called her and told her that he had some work she went to the shop and asked what the work was, then the accused caught hold of her hand and took her to the room at the back of the shop and forcibly committed rape.

10.

Mr. Illango, learned advocate for the appellant highlighted the contradictions in the statements of the prosecutrix made in the 'fardhbayan' and her evidence. We find that in the FIR, the prosecutrix did not mention the time when she went to take water, but in her evidence she deposed that on 27th September, 2017, she went to fetch water from a tap near the shop of the accused at 6:30 P.M. when the accused called her and committed rape on her by force. Details may not have been available in the FIR. The FIR disclosed a cognizable offence, with material particular of the facts. Furthermore, the

omission to mention the time of occurrence in the FIR would not given rise to a major contradiction in the prosecutrix's case. It is amply clear from the evidence of the prosecutrix that the accused called her to his shop when she went to collect water from the tap and thereafter raped her. 11.

Learned advocate for the State referring to the evidence of the prosecutrix (PW-1) argued that the third incident of alleged rape took place on 03.10.2017 in the evening, when the prosecutrix was passing through the road in front of the shop of the accused person. In her cross examination PW-1 denied that she had stated before the Learned Magistrate that on 3.10.2017 at about 5:00 A.M in the morning, she was passing through the road and the accused forcibly took her to a room behind his shop and raped her. Learned advocate for the State submitted that the Learned Magistrate while recording the statement of the victim under section 164 of Cr. P.C recorded that on "3.10.2017 at about 5:00 A.M when she was passing through the road, the accused forcibly took her to his room and raped her."

It was contended on behalf of the State that the statement under section 164 of Cr. P.C was not substantive evidence, but it was meant only for contradiction or corroboration of the evidence. Moreover the learned Magistrate had not been examined to explain the contradiction. PW-1 in her cross examination refuted that she made any statement before the Magistrate to the effect that the occurrence took place at about 5:00 A.M on 3.10.2017. This denial by PW-1 weeds out the difference of time. In her evidence, the prosecutrix, reiterated her case as narrated in the FIR, where she did not mention any time of with regard to the occurrence on 3.10.2017.

only at the time adducing evidence before the court that she deposed that the occurrence on 3.10.2017 took place in the evening. We therefore find no reason to disbelieve the evidence of the prosecutrix that all the three occurrences took place in the evening.

12.

It was pointed out on behalf of the appellant that the prosecutrix did not disclose about the occurrence to anyone, not even to her parents till 29.10.2017. Thereafter PW-3 Geeta Roy went to the house of the prosecutrix along with Archana Guha (PW-4) and created pressure upon the prosecutrix to persuade her to lodge a complaint against the accused person. It was argued that Archana Guha had stated in her evidence that some ladies informed her at her house that Shyama Kanto Biswas had a physical relation with the prosecutrix and the matter was informed to the Sarpanch, Geeta Roy who went to the house of the victim on the same day. Referring to the cross examination of PW-4 learned advocate for the appellant contended that PW-4 could not mention the names of the ladies who had allegedly informed her about such occurrence.

She also denied that Rajesh Soreng (PW-5) had either gone to her house or had informed her that Shyama Kanto Biswas confessed to him about having a physical relation with the prosecutrix. It was urged on behalf of the appellant that the evidence of PW-4 was of no value to the prosecution as she failed to disclose the source of her information. 13.

Controverting the contentions of the appellant, it was argued on behalf of the State that the source of information received by PW-4 prior to meeting the prosecutrix was not material. It was a mere information reported by some

persons before Archana Guha. A member of Swadeshnagar Panchayat called PW-3 Geeta Roy, the Sarpanch and disclosed to her about the matter. It was only after Geeta Roy and Archana Guha went to the house of the prosecutrix on 29.10.2017 and verified the matter from her, the alleged occurrence was confirmed and reported to the police. It was submitted that the victim voluntarily disclosed about the occurrence and the involvement of the accused person in committing repeated rape on her. PW-1 has also deposed that no pressure had been applied on her, to lodge the complaint at the police station.

Referring to the evidence of PW-1, it was argued that she did not reveal the occurrence on earlier occasions to anyone, not even to her mother, due to threat perpetrated by Shyama Kanto Biswas to the effect that he would kill her, if she disclosed about the incident to anyone. This statement of the witness has not been controverted in the cross examination. Learned advocate for State submitted that the conduct of the prosecutrix in not disclosing the occurrence was absolutely normal due to the stigma attached to such act, followed by threat by the accused. PW-2, the mother of the prosecutrix deposed that she came to know about the occurrence that Shyama Kanto Biswas forcibly had sex with her daughter for the first time from Geeta Roy, the Sarpanch.

She stated that her daughter did not disclose to her about the occurrence on earlier occasion.

14.

In her cross examination, PW-2 stated that her daughter was not interested in lodging the complaint and that Deben and Subash Majumder counseled her daughter at the Bus Stand for some time and persuaded her to

lodge the complaint. On traversing the evidence on PW-2, this court finds that the mother of the prosecutrix did not have prior knowledge about the occurrence until the Sarpanch, Geeta Roy and Archana Guha member of Swadesh Nagar Gram Panchayet went to their house on 29.10.2017. PW2 deposed that her daughter went to the police station to record her statement and PW2 put her thumb impression on the statement. There is no evidence on record to show that the prosecutrix had refused to lodge the complaint at the police station. The evidence of PW-2, the mother, was found to be spontaneous and natural. Consequently, the same does not destroy the prosecution case.

It can be well assumed that PW-2 had a burden to maintain her family and look after her daughter and mentally challenged husband, for which she could not muster courage to stand up against all odds and against the evil acts of the accused. It is inconsequential whether PW-2 had any intention to lodge any FIR or not, as the criminal law can be set in motion by any person. It is noteworthy that no suggestion was given to PW-2 in her cross-examination that the alleged incident of rape did not take place. The trend of evidence of PW-2 suggests that she had no motive to falsely implicate the accused in the case. 15.

The other facet of this appeal revolves around the question of credibility of Rajesh Soreng (PW-5), an independent witness who had no enmity with the accused person. PW-5 deposed before the court that in the month of October 2017 when he went to the shop of Shyama Kanto Biswas, the accused confessed to him at about 12:00 noon that he had physical relation with the prosecutrix in the room behind his shop. PW-5 in his evidence stated that since

the prosecutrix was a minor girl residing in their village, he brought the matter to the notice of the panchayat and informed the same to a panchayat member of Ward No. 2. It was argued on behalf of the State that the extra judicial confession of the accused person before PW-5 lent support to the prosecution case, independent of the evidence of the prosecutrix. Learned advocate for the appellant argued to the contrary that the evidence of PW-5 was hearsay in nature and had no evidentiary value or bearing to the case. In view of the nature of evidence of PW-5 based on extra judicial confession, learned advocate relied upon the ratio of the decision in the case of Rahim Beg and Another Vs.

State of Uttar Pradesh; (1972) 3 SCC 759, it was held by the Apex Court that when there was no history of previous association between the witness to whom extra judicial confession had allegedly been made and the two accused persons, it was highly improbable that the two accused would go to one Mohd. Nasim Khan and blurt out a confession, upon reposing confidence in him. Similarly it was argued that in this case too, there was no reason for the accused/appellant to make any confession to PW-5 regarding commission of penetrative sex on a minor. It was argued that the extra judicial confession was a weak piece of evidence. It was lacking in probability and did not inspire confidence.

16.

On considering the rival contentions, it appears that no suggestion was put to PW-5 to discredit his testimony on the ground that such evidence had been adduced by him only due to rivalry or inimical relationship or he had ulterior motive or need to cause harm to the accused person. The evidentiary

value of an extra-judicial confession of an accused to a witness has been discussed in the case of State of Rajasthan Vs. Raja Ram; (2003) 8 SCC 180, wherein it was held as follows:- "19. An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the Court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made....................such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the bound of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a boutique of attributing and untruthful statement to the accused." 17.

In the instant case, there is no iota of evidence which would indicate that PW-5 was not in a fit state of mind or bore a grudge against the accused or had an axe to grind against the charged person. Therefore, learned Trial Court relied upon such extra judicial confession fortified by the principles laid down in the case of Piara Singh Vs. State of Punjab: AIR 1977 SCC 2274, The Hon'ble Apex Court held that, the law did not require that evidence of an extrajudicial confession should in all cases be corroborated. Reliance was also placed on the decision of Madan Gopal Kakkad Vs. Naval Dubey and Others: JT 1992 (3) SCC 270, where it was held that if extra judicial confession was not obtained by coercion, promise of favour or false hope and was plenary in character and voluntary in nature, such confession could be made the basis for

conviction, even without corroboration. We are of the considered view that though the extra judicial confession before PW-5 is not important to prove the case of a sexual offence, the same lends support to the prosecution case. We find from the cross examination of PW-5 that at the relevant time of disclosure by accused there was no other person in the shop of Shyama Kanto Biswas. Therefore, there is no scope for corroboration. PW-5 further deposed that he was not examined by the police. The evidence relating to extra judicial confession came to the fore only in the trial. However, this cannot be a reason to discard the same as on close analysis of the evidence of the witness, it has been found to be trustworthy to its core, without any blemish. Accordingly, this court finds that the testimony of PW-5 is a reliable piece of evidence, though the case is well founded on the evidence of the prosecutrix. We therefore cannot accede to the argument advanced on behalf the appellant that extra judicial statement through P.W.5 was untrustworthy and did not support the prosecution case.

18.

From the evidence on record, it is gathered that the sketch map of the place of occurrence has been admitted in evidence as Exhibit 5. On a perusal of the same, it appears that there was a room adjacent to the shop room of the accused which had been marked as 'A'. This description of the place of occurrence was consistent with the statement of the victim who had been forced into that room by the accused for commission of the sexual act. The investigating officer has collected an extract from the Register of Birth and Death and the Birth Certificate had been marked as Exhibit 13. It appears from

the said document that the date of the Birth of the prosecutrix is 4.4.2001. Therefore, at the relevant time, the prosecutrix was a minor, below the age of 18.

19.

On reappraisal of totality of the evidence on record we are of the view that the prosecutrix, a minor girl whose father was mentally unsound and the mother remained away from house to earn her livlihood, was left all by herself. She had no dispute or enmity with the accused person which would prompt her to make false allegations against him. The prosecutrix also did not have anything to gain by levelling false charges of rape against a person who was in her esteem like an 'uncle'. She also did not have the capacity under the law to give consent to such acts. The evidence of PW-1 reverberates that she offered resistance and repeatedly refused when she was forcibly taken inside the adjacent room by the accused person. The prosecutrix was threatened repeatedly by the accused person with dire consequences if she disclosed about the sexual act to anyone. This evidence had not been controverted in cross examination.

20.

Act of rape predominantly occurs within the confines of four walls or in a stealthy manner. Therefore, it is not justified to look for corroboration of such occurrence by qualification of witnesses. The sole evidence of the prosecutrix if found credible can be the basis of conviction in a case of rape or sexual assault. The prosecutrix, a growing girl had a social dignity as per her perception of womanhood and she would not venture to put her dignity at stake by levelling false charge of being raped. The evidence of the prosecutrix in

this case is found to be cogent, consistent, trustworthy and the same inspires confidence in our mind to hold that the prosecutrix has spoken the truth. 21.

PW-1 has deposed that after the sexual act she was threatened by the accused of being killed, if she disclosed about the occurrence. This evidence has not been challenged in cross examination. The charge under section 506 of IPC is therefore well established against the accused person. There is no evidence to indicate that there was any greater conspiracy between PW-1, PW3, PW-4 and PW-5 to falsely implicate the accused person or that they had anything to gain by seeing that the accused would be punished. 22.

In case of sexual assaults there may be circumstances for delay in lodging of the FIR. In this case, the occurrence took place on 24.9.2017 and it continued up to 3.10.2017. Due to threat, the prosecutrix did not inform anyone. The act did not go unnoticed by others and it became a matter of discussion amongst the local people, ultimately the Sarpanch and Panchayet Member took up the responsibility to verify its truth. It was only on 29.10.2017 after ascertaining the underlying truth of the occurrence, the FIR was lodged. The delay has been explained by the prosecutrix. 23.

Argument has been advanced on behalf of the Respondent/ State that the victim was a minor girl and fell within the definition of 'child' in section 2(1)(d) of the POCSO Act. The evidence adduced by the prosecution witnesses has established the foundation of the prosecution case which has given rise to the presumption under Section 29 and 30 of the POCSO Act whereby the onus shifted on the accused appellant to prove the contrary. It was asserted that the

offence under Section 5(1) of the POCSO Act had been proved against the accused, for which he was liable to be sentenced. 24.

On reappraisal of the entire evidence carefully and meticulously, we find that the testimony of the prosecutrix has established the foundational facts of the prosecution case that the accused repeatedly committed penetrative sexual assault on the prosecutrix thereby the provisions of aggravated penetrative sexual assault defined under Section 5 (1) of the POCSO Act which is punishable under section 6 of the POCSO Act, get attracted. 25.

Learned Judge, Special Court had examined the sanctity of the FIR, lodged after 25 days. Referring to the case of Karnel Singh Vs State of Madhya Pradesh; AIR 1995 SCC 2472, learned Judge Special Court observed that the delay in lodging of the FIR was not of much significance as the victim and her family members had to muster courage to come out of the fear of social stigma and had to gather inner strength to go for a legal battle. It was noted that in the FIR the prosecutrix stated that due to fear she did not disclose the incident to anyone. The delay in lodging the FIIR therefore stands properly explained.

26.

Learned Trial Court, by placing reliance upon the testimony of PW-1, which was corroborated by PW-3 and PW-4 and the extra judicial confession made by the accused person before PW-5, arrived at a conclusion that prosecution had discharged their burden of proof beyond reasonable doubt and that the accused had failed to discharge his onus of reverse burden to prove his innocence. The accused was found guilty of the offence of committing

aggravated penetrative sexual assault on the minor girl on 24.9.2017, 27.9.2017 and 3.10.2017.

27.

In a case under the POCSO Act, the prosecution is armed with the presumption. Once the sheet anchor of the prosecution case is laid by leading legally admissible evidence, the burden shifts upon the accused to establish the contrary from the evidence on record, that he had not committed the offence or to establish from the circumstances of a particular case that a man of ordinary prudence would most probably draw an inference of innocence in his favour. The accused may discharge his onus by leading defence evidence or by discrediting the prosecution witnesses or by exposing the patent absurdities or inherent infirmities in the version of the prosecution witnesses by analysis of the special features of the case. Section 29 of the POCSO Act reads as follows:- "29. Presumption as to certain offences.

- Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved."

28.

Learned advocate for the State argued that the evidence of the prosecutrix as well as the evidence of independent witnesses like Geeta Roy (PW-3) and Archana Guha (PW-4) who have no inimical relation with the accused and would wish to see him punished, had corroborated the statement of PW-1. It is further submitted that PW-5 has lent support to the prosecution case by deposing that the accused person made extra-judicial confession before him that he had physical relation with the prosecutrix. Prosecution witnesses

thus laid the foundation of the prosecution case by adducing consistent and credible evidence against the accused person. The "reverse burden" therefore lay upon the accused person to establish that the acquisition made against him were without foundation and the evidence adduced were absurd and suffered from inherent infirmities thereby rendering the prosecution case as doubtful.

29.

In support of her argument learned advocate for the State relied upon the decision in the case of Joubansen Tripura Vs. State of Tripura; CRL. A. (J) 30 of 2018 wherein it was held in paragraph 12 and 13, as follows:- "12. Upon meticulous reading of Section 29 and 30 of the POCSO Act, according to us, prosecution will commence the trial with an additional advantage that there will be presumption of guilt against the accused person, but, in our considered view, such presumption cannot form the basis of conviction, if that be so, it would offend Article 20(3) and 21 of the Constitution of India. Perhaps, it is not the object of the legislature to incorporate Sections 29 and 30 under the POCSO Act.

As we have said in the first part of this paragraph that prosecution will commence trial with an additional advantage of presumption against the accused but, prosecution is legally bound to establish foundational facts which sets the prosecution case in motion. If the prosecution succeeds to establish the foundational facts, then, it will be the obligation of the accused to prove his innocence, but, standard of proof again will be on the basis of preponderance of probabilities. Keeping in view the aforesaid principles, we shall proceed to decide as to whether the prosecution has been able to establish the foundational facts of the instant case.

(ii) that alleged incident has taken place;

(iii) that the accused has committed the offence; and (iv) whenever physical injury is caused, to establish it with supporting medical evidence.

13. If the fundamental facts of the prosecution case are laid by the prosecution by leading legally admissible evidence, the duty of the accused is to rebut it, by establishing from the evidence on record that he has not committed the offence. This can be achieved by eliciting patent absurdities or inherent infirmities in the version of prosecution or in the oral testimony of witnesses or the existence of enmity between the accused and victim or bring out material contradictions and omissions in the evidence of witnesses, or to establish that the victim and witnesses are unreliable or that there is considerable and unexplained delay in lodging the complaint or that the victim is not a child. Accused may reach that end by discrediting and demolishing prosecution witnesses by effective cross-examination.

Only if he is not fully able to do so, he needs only to rebut the presumption by leading defence evidence. Still, whether to offer himself as a witness is the choice of the accused. Fundamentally, the process of adducing evidence in a POCSO case does not substantially differ from any other criminal trial; except that in a trial under the POCSO Act, the prosecution is additionally armed with the presumptions and the corresponding obligation on the accused to rebut the presumption.

It is imperative to mention that in POCSO cases, considering the gravity of sentence and the stringency of the provisions, an onerous duty is cast on the trial court to ensure a more careful scrutiny of evidence, especially, when the evidence let in is the nature of oral testimony of the victim alone and not corroborated by any other evidence--oral, documentary and medical."

30.

Reliance has been placed on the decision in the case of Shri Swapan Mondal Vs. The State (CRA No. 015 of 2019) wherein paragraph 10, 12, 13 in page 35/ 36 read as follows:-

"10. The main substance of the prosecution's rests on appreciation of evidence in the context of Section 29 and 30 of the POCSO Act. It is submitted that, on their proper contraction, the said provision mean such that the reverse burden of proof cast therein has not been discharged by the accused in the present case. Therefore, it is argued that the court below was right ot presume and hold that the relevant actus reus and mens rea of the offences mentioned in Section 5 of the POCSO Act has been fulfilled on the basis of victim's unchallenged statement under Section 164 of the CrPC and, therefore, the accused was guilty of the offence mentioned in Section 5.

12. The POCSO Act is a special statute. In view of the fact that the child is in a vulnerable position and is required to be protected from offences of sexual assault, sexual harassment, etc., the Anglo-Saxon jurisprudential presumption of innocence is replaced by a presumption of commission or abetment or attempt ot commit an offence under Sections 3,5,7and 9 of the POCSO Act "unless the contrary is proved" by Section of the POCSO Act.

13. Similarly, Section 30 states that the Special Court shall presume that the accused had the requisite "culpable mental state" to commit an offence under the POCSO Act when prosecuted for an offence requiring such a mental state under the said Act. However, Section 30 allows the accused to take a defence by providing the fact that he had no such mental state with respect to the act charged as an offence under the POCSO Act. The explanation to Section 30 states that "culpable mental state" includes intention, motive, knowledge of a fact and the belief in or reason to believe a fact."

31.

Ms. A.S. Zinu reinforced her argument by relying on another decision in the case of Raju Roy Vs. State of West Bengal & Anr. (CRA 69 of 2019), which in turn referred to the manner of discharging the onus by the accused as discussed in the case of Shri Swapan Mondal Vs. The State (CRA No. 015 of 2019) reported in 2021 SCC online Calcutta 2007. It was observed as follows: "57. The POCSO Act is a special statute. In view of the fact that the child is in a vulnerable position and is required to be protected from offences of sexual assault, sexual harassment, etc., the Anglo-Saxon jurisprudential presumption of innocence is

replaced by a presumption of commission or abatement or attempt to commit an offence under Sections 3, 5, 7 and 9 of the POCSO Act "unless the contrary is proved" by Section 29 of the POCSO Act.

58. Similarly, Section 30 states that the Special Court shall presume that the accused had the requisite "culpable mental state" to commit an offence under the POCSO Act when prosecuted for an offence requiring such a mental state under the said Act. However, Section 30 allows the accused to take a defence by proving the fact that he had no such mental state with respect to the act charged as an offence under the POCSO Act. The explanation to Section 30 states that "culpable mental state" includes intention, motive, knowledge of a fact and the belief in or reason to believe a fact.

59. Sections 29 and 30, for the sake of convenience, are reproduced below:

'29. Presumption as to certain offences.--Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved."

30. Presumption of culpable mental state.--

(1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.

(2) For the purposes of this section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability.

Explanation.--In this section, "culpable mental state" includes intention, motive, knowledge of a fact and the belief in, or reason to believe, a fact.'

60. A presumption is a legal inference or assumption that a fact or legal outcome exists based on the known or proven existence of some other fact or group of facts. Most presumptions are rules of evidence calling for a certain result in a given case unless the adversely affected party overcomes it with other evidence. A presumption shifts the burden of production of evidence or persuasion to the opposing party, who can then attempt to overcome the presumption. In other words, it reverses the burden of proof. The strength or weakness of a particular presumption of fact or of law depends on the circumstances and the presence or absence of an alternative explanation." 32.

Learned advocate for the State argued that the evidence of the prosecutrix was so overwhelming in nature that the defence had miserably failed to point out any infirmity therein. Therefore, the accused failed to discharge his reverse burden of proof. It was urged that the learned Trial Court has arrived at the correct conclusion on the basis of the telling evidence and thus, the appeal was liable to be dismissed.

33.

Mr. D. Illango, in reply to the argument advanced on behalf of the State regarding the presumption raised against the accused under section 29 of the POCSO Act, argued that every accused person was presumed to be innocent unless the guilt was proved. It was contended that presumption of innocence of a person was his basic human right and the said principle formed the basis of criminal jurisprudence, subject to the statutory exceptions. It was submitted that the statutory presumption raised against the accused could not be read to mean that the prosecution version was gospel truth. The same did not take away the essential duty of the Court to analyze the evidence on record in the light of the features of a particular case. If the admissible evidence suggested that there were patent absurdities or inherent infirmities in the

prosecution version or there was entrenched enmity between the accused and the victim, it would give rise to an irresistible inference of falsehood in the prosecution case while determining whether the accused had discharged his onus and established his innocence in the given facts of the case. Learned advocate for the appellant in support of his argument relied upon a decision in the case of Sahid Hossain Biswas Vs. State of West Bengal (CRA No. 736 of 2016), where the Hon'ble Single Bench of this Court while discussing on the statutory presumption available to the prosecution in the case under the POCSO Act, 2012 observed as follows:

Section 29 of the said Act reads as follows:- "29. Presumption as to certain offences. - Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved."

The law, therefore, provides for a reverse burden upon the accused in a prosecution under sections 3, 5, 7 and 9 of the aforesaid Act. The statutory presumption creates an exception to the ordinary rule of presumption of innocence available to an accused in a criminal trial and puts the onus on the accused to rebut such presumption and establish his innocence. Presumption of innocence is a basic human right which is a vital facet of fair trial rights enshrined in various international covenants like the Universal Declaration of Human Rights and the International Covenant of Civil and Political Rights (to which India is a signatory) but is not a fundamental right under Part III of the Constitution. [See Noor Aga vs. State of Punjab, (2008) 16 SCC 417]. The concept of presumption of innocence has, in recent times, been reversed in many situations by creating statutory presumptions like under sections 113A, 113B or 114A of the Evidence Act shifting the burden on the accused to prove his innocence. Section 29 of the POCSO is, therefore, a species of such

exception to the ordinary rule of presumption of innocence and must be borne in mind while appreciating the evidence of prosecution witnesses in a trial under the POCSO Act. The expressions "shall presume" and "unless contrary is proved" in the aforesaid provision creates a reverse burden on an accused to prove his innocence to earn an order of acquittal and absolves the burden of the prosecution to prove his guilt beyond reasonable doubt. How is the accused to discharge such burden? Sections 3 and 4 of the Evidence Act define the words 'proved', 'shall presume' and 'disproved' as follows:- Section 3:- "Proved" - A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.

"Disproved"- A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist.

Section 4:- "Shall presume".-Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved."

A conjoint reading of the statutory provision in the light of the definitions, as aforesaid, would show 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 vs. Yelamarti 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. 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 in his favour. The accused may achieve such an end by leading defence evidence or by discrediting prosecution witnesses through effective crossexamination or by exposing the patent absurdities or inherent infirmities in their version by an analysis of the special features of the 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 analyse 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, howsoever, patently absurd or inherently improbable it may be."

34.

In the said case, the Hon'ble Court on the assessment of the evidence of prosecution witnesses on the aforesaid parameters held that the appellant therein had been able to rebut the statutory presumption and demonstrate that the version narrated by the prosecution witnesses did not inspire confidence and that a man of ordinary prudence would arrive at the conclusion that he was innocent of the charges levelled against him in the facts of that case.

35.

Learned advocate for the appellant also placed reliance upon a decision in the case of Ram Prasad Vs. State of Maharashtra through Senior Police

Inspector; LAWS (BOM) 2018 6 137. In the said case Hon'ble High Court of Bombay laid down the following:

"18. Once such a conclusion is arrived at, the presumption under Section 29 of the POCSO Act comes into operation and it has to be presumed that the acts alleged against the appellant (accused) were indeed committed by him until the contrary stood proved. Therefore, the burden becomes heavier on the defence in such cases. It is required to be examined whether the evidence on record indicated that the appellant (accused) was able to rebut the presumption to demonstrate that the prosecution case was not made out. The presumption can be rebutted by showing that on preponderance of probabilities the defence raised by the accused was made out.

19. Section 29 of POCSO Act reads as follows: "29. Presumption as to certain offences - Where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3,5,7 and Section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved." The abovequoted provision mandates that unless the accused proves to the contrary, it would be presumed that he has committed offences under the POCSO Act for which he is prosecuted. But, there can be no doubt about the proposition that no presumption is absolute and that every presumption is rebuttable. A statutory presumption of this nature can be rebutted by the accused on the touchstone of preponderance of probabilities. In the case of Babu Versus State of Kerala [(2010) 9 SCC 189], the Hon'ble Supreme Court, while examining as to in what manner presumption under a statute could operate against the accused has held as follows:-

27. Every accused is presumed to be innocent unless the guilt is proved. The presumption of innocence is a human right. However, subject to the statutory exceptions, the said principle forms the basis of criminal jurisprudence. For this purpose, the nature of the offence, its seriousness and gravity thereof has to be taken into consideration. The courts must be on guard to see that merely on the application of the presumption, the same may not lead to any injustice or mistaken conviction. Statutes like Negotiable Instruments Act, 1881; Prevention of Corruption Act, 1988;

and Terrorist and Disruptive Activities (Prevention) Act, 1987, provide for presumption of guilt if the circumstances provided in those Statutes are found to be fulfilled and shift the burden of proof of innocence on the accused. However, such a presumption can also be raised only when certain foundational facts are established by the prosecution. There may be difficulty in proving a negative fact."

36.

Learned advocate for the appellant argued that the prosecution's evidence was wholly unreliable, starting with a shaky foundation of a delayed FIR, followed by the contradiction in the evidence. It was contended that the prosecutrix had stated that she has been subjected to sexual assault on repeated occasions, but did not mention the time of the second and third occurrence. Learned advocate pointed out that in the FIR she stated that the occurrence took place on 3.10.2017 without mentioning the time. In her statement under section 164 of Cr.P.C. she stated before the Learned Magistrate that the occurrence took place at 5:00 A.M., but during her evidence she deposed that the occurrence on 3.10.2017 took place in the evening.

It was vehemently argued that such contradictions regarding the alleged time of occurrence disclosed under Section 164 of Cr. P.C. and in evidence, rendered the prosecution case untrustworthy. It was also argued on behalf of the appellant that the evidence of PW-3 and PW-4 were hearsay in nature as they claimed to have heard about the alleged occurrence from the prosecutrix after one month.

about such confession. It was further urged on behalf of the appellant that the evidence of Dr. Rekha Verma, PW-10 clearly indicated that there was no mark of violence or physical sign of forcible sexual intercourse on the prosecutrix. Therefore, there was no evidence to substantiate the charge against the accused person. Learned advocate argued that the learned Trial Court failed to assess the evidence in their proper perspective and had taken into consideration, inadmissible evidence. Therefore, learned Trial Judge arrived at an erroneous conclusion on the basis of untenable evidence and the impugned judgment was liable to be set aside.

37.

We have carefully considered the arguments advanced by learned advocates for the appellant and the respondent in the light of the evidence on record and the legal authorities relied upon by the respective parties. 38.

The delay in lodging the FIR has been clearly explained by the prosecutrix who was threatened by the accused, after repeated sexual assault. The principle laid down in the case of State of Punjab Vs. Gurmit Singh; 1996 (1) SCC 485 relied on behalf of the State, is applicable to this case as the court cannot overlook the fact that delay in lodging the FIR is the hallmark in cases of sexual assault. The victim of sexual assault is usually not prompt in lodging the complaint before the police, due to the social stigma attached with such offence. In the present case, there are additional factors like threat exhibited by the accused person of dire consequence in the event the prosecutrix disclosed the incidents to anyone.

39.

The allegation of the prosecutrix on the point of her being raped by the accused person, has been clearly established. The prosecutrix has stood the test of grilling cross examination and could not be discredited. It appears from her testimony that the accused person repeatedly subjected her to penetrative sexual assault on 24.9.2017, 27.9.2017 and 3.10.2017. She was also threatened by him and asked not to disclose about such occurrence to anyone. The accused person is aged about 63 years and runs a business at Pichar Nallah near the Bus Stand. From the evidence on record we find that the first occurrence took place late in the evening at 8:30 P.M. and the two subsequent occurrences also took place in the evening.

In the course of cross examination it was suggested on behalf of the appellant that only Shyama Kanto Biswas and the prosecutrix were aware about the physical relationship and the prosecutrix answered in the affirmative. The prosecutrix has also stated the circumstances under which the accused person committed rape on her. On the first occasion she went to the shop of the accused person to purchase 'pan'. On 27.9.2017 at about 6:30 P.M. she went to take water from the tap near the shop of the accused when the accused called her for some work and raped her in the room situated on the rear side of the shop. On 3.10.2017 in the evening, the prosecutrix was passing through the road in front of the shop of the accused person when he called her and forcibly committed raped on her. The victim was a minor girl belonging to a poor family.

Her father had been mentally unsound for a long period and her mother worked in the house of some other person as a nanny. The prosecutrix did not have any inimical relation with the accused.

There was no entrenched enmity which would lead the prosecutrix to make a false statement. Therefore, her evidence appears to be credible and trustworthy, having an aura of truth for its acceptance. The prosecutrix did not disclose about such incident to anyone until there was intervention by the Sarpanch, Geeta Roy (PW-5) and Archana Guha (PW-4). The evidence of PW-3 and PW-4 are of collateral importance. It is not the case of the prosecution that PW-3 and PW-4 are direct witnesses of the occurrence. They gathered the information from the prosecutrix herself and their statements in court generate trustworthiness in the prosecution case. It was natural and probable for a girl to take shelter from elderly women when she was suffering from mental trauma due to the sexual assault. Therefore, the evidence of PW-3 and PW-4 are of some importance and it lends support to the prosecution case. 40.

The mother of the prosecutrix was absolutely in the dark regarding the occurrence. PW-1 did not venture to disclose the same to her mother. PW-5 Rajesh Soreng is another important witness for the prosecution to whom the accused made an extra judicial confession that he had physical relation with the prosecutrix in the room behind his shop. In course of cross examination, PW-5 disclosed that the accused made such confession to him at about 12 noon and on the same date at about 2 P.M., he informed the matter to the panchayat member of Ward No. 2. There is no material on record to suggest that PW-5 had enmity with the accused or there was any other reason for him to make a false statement against the accused person which could lead to his conviction. It appears from the cross examination of PW-5 that he was not

examined by police. Even if his evidence is considered with some amount of circumspection, the evidence of the prosecutrix supported by the consistent evidence of PW-3 and PW-4 lays down the foundation of the prosecution case against the accused.

41.

In a case of rape or sexual assault, the medical evidence loses its significance with delay. In the present case the medical examination took place 25 days after the last occurrence. Therefore, it is natural that no physical sign of forcible sexual intercourse would appear on the body or the genital area of the victim. In the given circumstances we are of the view that the evidence of prosecution witnesses has proved the guilt of the accused person to the hilt. On scrutiny of the evidence on record, we are unable to find any major contradiction or infirmity in the prosecution case. Therefore, applying the principle of reverse burden of proof, we find that the appellant had failed to bring out any patent absurdities or inherent infirmities in the versions of prosecution witnesses through cross examination or by adducing contrary evidence. Accordingly, we hold that the accused person failed to rebut the presumption under section 29 of the POCSO Act. 42.

Learned Trial Court after considering the nature of the offence has sentenced the accused person to suffer imprisonment for life for the offence punishable under section 6 of the POCSO Act and also imposed a fine of Rs. 25.000/- in default to suffer rigorous imprisonment for one year. The appellant has further been sentenced to suffer imprisonment for one year for the offence punishable under section 506 of the IPC and directed that both the sentences

shall run concurrently. Learned Trial Court in compliance with the provisions of section 33(8) of POCSO Act granted compensation of Rs. 50,000/- to the victim/prosecutrix and directed the secretary law, Andaman & Nicobar Island, Port Blair to ensure that the compensation is paid to the victim/prosecutrix within two months from receipt of the judgment. 43.

Having considered the attending facts and circumstances and the evidence discussed at length, we hold that the accused is found guilty for both the offences under section 6 of the POCSO Act and Section 506 of the IPC. The sentence passed is reasonable and not excessive. We are of the considered view that the Judgment of conviction and sentence passed by Learned Judge Special Court does not suffer from illegality and calls for no interference. Accordingly, the impugned Judgment is affirmed and the appeal stands dismissed. 44.

Interim order if any, stands vacated. Let a copy of this Judgment along with the trial court records be sent back forthwith to the Judge Special Court under POCSO Act for execution of the sentence. The convict/appellant who was on bail is directed to surrender within fifteen days from the date of this judgment to undergo the sentence.

45.

Urgent Xerox certified photocopies of this Judgment, if applied for, be given to the parties upon compliance of the requisite formalities. I Agree.

(Shampa Sarkar, J.) (Ananda Kumar Mukherjee, J.)