Gopal Baroi @ Abhir Baroi v. The State

IN THE HIGH COURT AT CALCUTTA

CRIMINAL APPELLATE JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] ...

CRA/226/2020 IA No:CRAN/1/2021 Gopal Baroi & Abhir Baroi ... Appellant Vs.

The State ... Respondent Mr. D. Ilango ... for the appellant Ms. A.S.Zinu ... for the State December 15, 2022 [SR] Item No.1 The appeal is directed against a judgment dated 18th September, 2020 passed by the learned Special Judge, POCSO, North and Middle Andaman, Mayabunder in Special(POCSO) ST No. 5 of 2018/ Special (POCSO) Case No.27 of 2018. The appellant was convicted under Section 4 of the POCSO Act, 2012.

The facts of the case are that on the 2nd August, 2017, the victim girl, who was 16 years old and was studying in Class XI, was invited over the phone at mid-night at 12.00 O'Clock to meet the appellant-accused. She waited outside her house at about 12.30 AM when the accused took her to vacant katcha house near her residence. After some foreplay, the appellant had sexual intercourse with the victim.

The parents of the victim PW-3 (Mother) and PW-5 (Father) went for searching of the victim and found her in the varandha of the abandoned house near their residence.

The victim is stated to have informed to her mother of the incident. FIR was thereafter registered on 3rd August, 2017 under sections 3 and 4 of the POCSO Act, 2012. The appellant was 22 years of age at the time of the incident. It appears from the evidence-in-chief of the victim that she had a love affair with the appellant. The parents of the victim are daily labourers The parents were not aware of her love affair with the appellant.

As many as 13 witnesses were examined by the prosecution which are noted hereinbelow:

PW-1 :

Victim girl (name withheld) PW-2 :

Shri Gokul Baroi - father of the accused PW-3 :

Smt Bishnu Rani Das - mother of the victim PW-4 :

Shri Pradeep Gain - Ward Boy, CHC, Diglipur.

PW-5 :

Shri Narayan Das - Father of the Victim PW-6 :

Shri Ragu Kujur - Head Constable - FIR writer PW-7 :

Shri Egnalius Bara - Investigating Officer PW-8 :

Dr.Jai Biswas - Medical Examiner PW-9 :

Shri Jishi Geroge, S.I - Fardbayan Recorder PW-10 :

Shri Sudaranjan Das - Neighbour PW-11 :

Smt V.Prasanna Kumari, Nurse attached to CHC, Diglipur PW-12 :

Dr. Michael, who examined the accused.

PW-13 :

Smt Lalitha Tigga, Block Development Officer Based on the evidence above and the statements of the witnesses, the learned Special Judge found that the appellant was guilty of offence punishable under section 4 of the POCSO Act. By an order of sentence dated 21st September, 2020, the appellant was convicted and sentenced to suffer seven years of rigorous imprisonment and fine of Rs.20,000/- in default simple imprisonment for six months.

Learned Special Judge applied the dicta of the Supreme Court and that of the Calcutta High Court in various judgments.

This Court has carefully considered the evidence on record and the depositions of witnesses in examination and cross-examination. The medical report of the victim indicates a pre-ruptured hymen. This would clearly established that the victim as had physical relations before the incident. The Court also finds from the records that the victim had a love affair with the appellant. This Court has also found that the circumstances under which the incident came to the knowledge of the parents i.e. PW-3 and P-5 and that of a neighbour PW-10 are rather inconsistent. The victim was found, according to the mother, after she went for looking of her on her own in the varanda of the neighbour vacant house. However, PW-10, neighbor who had deposed that he was approached by father and mother about the missing girl from the house has stated that they went to look for the victim together.

The aforesaid inconsistencies may not negate the occurrence of the actual incident but, throw up a questions on the circumstances under which the incident occured. It has also come on record that the parents of the victim demanded that the accused should marry the victim, if not a complaint would be lodged.

The evidence of PW-8, who was the Doctor, who examined the victim is equally important and is set out hereunder.

"3. On examination of Kumari Peepsha Das I found that her hymen was old ruptured, there was no mark of violence and inflammation around the vagina. NO spermatozoa was found. Menstrual bleeding was present. Vaginal swab and pubic hair were taken and handed over to police. No stray hair was found around her vagina or private parts. She was not suffering from any venereal disease. No dried semen found. Identification mark was one black mole on the left side of the chin." The examination was conducted a day after the incident and no evidence of any body fluids of the accused have been found on the victim. There was therefore no clear medical evidence that there was penetrative sexual assault as defined in Section 3 of the said Act.

It is only in cross-examination that the victim stated of penetrative assault on her by the victim. She did not mention that same before the Magistrate under section 164 of Cr.P.C.

The Special Judge found the evidence of penetrative sexual assault on the victim despite no bodily fluids of the accused on the victim with a pre-ruptured hymen. There is no evidence to support the finding that the pre-ruptured hymen has occurred because of cycling or while she was playing.

The Sessions Judge relied upon the sole testimony of the victim that the appellant committed the act under section 3(a) of the Act of 2012. There is therefore some doubt in the mind of this Court that the burden of proof has been shifted on the accused to prove that the incident has not taken place.

Given the fact however that there was a love affair between the victim and the accused and the time when the

accused and victim met, there is a strong presumption of penetrative sex having occurred between the victim and the accused, albeit voluntary and without force.

This Court however bears in mind that it is the trial Judge who has seen the witnesses to depose and is the best placed to form an opinion and such views are not lightly interfered. This Court is therefore of the view the conclusion arrived by the Court below as regards the occurrence of the incident in the charge, could be sustained.

The only question that remains to be considered therefore, is whether a consent by the victim girl of the age of sixteen years under the POCSO Act would amount to any lawful consent at all. It is now well settled in various dicta of the Hon'ble Supreme Court and the provisions 3 and 4 of the POCSO Act 2012 that even a consensual sexual intercourse with a minor girl would amount to an offence within the meaning section 3 of the said Act. The Special Judge, therefore, cannot be faulted in arriving at the judgment that the appellant was guilty of offence under section 3 of the POCSO Act.

This Court, however, must and should take judicial notice of the fact that sexual awareness among the girls as on date and as on the date of incident of i.e. 2017 is much higher than what is understood and accepted as per social customs mores, norms and beliefs in this country. With freely available pornography and other adult materials in the media on the web and other electronic communication devices, knowledge and awareness, in girls of

the age 15 16 years old or below 18 years cannot be ignored. The aforesaid availability of material indicated has drastically increased promiscuity levels amongst young girls and boys and the bench mark of eighteen years for lawful consent can no longer be considered rational in the present day and times.

The aforesaid discussion is directed at a proper evaluation of the sentence imposed on the appellant. In the light of the evidence that has come on record which has been considered by the Court in careful detail and the discussions hereinabove, this Court is of the view that the conviction of the appellant cannot be and may not be disturbed in view of the mandatory provision of Section 3 and 4 of the POCSO Act, 2012.

Since after commencement of trial and post conviction and sentencing the appellant has undergone 1 year and 5 months of custody/incarceration. This Court is of the view that the same is sufficient penalty on the appellant in the light of the discussions hereinabove.

In the above circumstance, the sentence of the appellant is reduced to the extent of the incarceration and custody already undergone by him. He shall be set a liberty forthwith.

CRA/226/2020 is allowed in part and disposed of and CRAN/1/2020 stands disposed of.

Lower court records be sent down.

All parties shall act on the server copy of this order duly downloaded from the official website of this Court.

( Rajasekhar Mantha, J. ) ( Bibhas Ranjan De, J.)