Shyam Chand Halder (In Jail) v. The State

IN THE HIGH COURT AT CALCUTTA

CRIMINAL APPELLATE JURISDICTION (CIRCUIT BENCH AT PORT BLAIR) ******** PRESENT: HON'BLE JUSTICE SUBRATA TALUKDER AND HON'BLE JUSTICE RABINDRANATH SAMANTA CRA/3/2022 Shyam Chand Halder (in Jail) ...

Appellant Vs The State ...

Respondent For the appellant ... Mr. Rakesh Pal Gobind For the State ... Ms. A.S Zinu Heard on ... November 17, 2022 Judgement on ... November 25, 2022 RABINDRANATH SAMANTA, J :- This appeal has been preferred against the judgement and order of conviction and sentence passed by the learned Additional Sessions Judge-cum-Judge, Special Court (POCSO Act), Andaman & Nicobar Islands at Port Blair in Special Trial No. 09 of 2021 arising out of Special Case No. 24 of 2020 whereby the appellant (hereinafter referred to as the accused) was convicted for commission of the offence punishable under Section 6 of the POCSO Act, 2012 and sentenced to suffer rigorous imprisonment for 20 (twenty) years and to pay a fine of Rs.5,000/- (Rupees five

thousand only), in default, to suffer rigorous imprisonment for 6 (six) months. By the judgement the learned Trial Judge in terms of Rules 9 (4) and 9 (5) of Protection of Children from Sexual Offences Rules, 2020, directed the Andaman & Nicobar Islands Administration to pay compensation of Rs.2,00,000/- (Rupees two lakhs only) to the victim girl.

The prosecution case, in short compass, may be delineated as under:- The informant Smt. Putul Mondal, W/o Shri Durga Pada Mondal was residing in a rented house of Shri Paresh Halder at Laxmanpur, Saheed Dweep, Andaman & Nicobar Islands with her husband and two minor daughters for about last two years. In August, 2019 Shyam Chand Halder, the father in-law of Paresh Halder came to the house of Paresh coming from Kolkata. In one evening she was at the verandah of her house with her husband and two minor daughters and talking to Shyam Chand Halder. Her elder daughter who was then aged about 41⁄2 years was also there beside Shyam Chand Halder. Her elder daughter was listening songs over the mobile phone of Shyam Chand Halder. Her husband left the place to clean his bicycle and she took her younger daughter inside her house to feed her. After sometime when she came out of the house she saw

that both the accused Shyam Chand Halder and her elder daughter were not present at verandah. While she was searching for her daughter, she saw that the accused Shyam Chand Halder laid her daughter on his bed undressing her. The accused inserted his penis into her daughter's private parts. Seeing this, she raised alarm. Then the accused ran away from the place. At the time of occurrence there was none in the house of Paresh Halder as Paresh had gone to Port Blair and his wife had gone to one of her relative's house at Bharatpur. She narrated the incident to her husband, but they did not tell it to anybody due to social stigma. After a few days the accused went back to Kolkata.

Feeling pained at the shocking incident and to get justice she lodged an FIR at the local Police Station. On the basis of the FIR lodged by the informant at the local police station, one Shaheed Dweep PS Case No. 05 of 2020 dated 8th May, 2020 under Sections 5/6 of the Protection of Children from Sexual Offences Act, 2012 (in short POCSO Act) was registered against the accused for investigation.

During the course of investigation, the Investigating Officer arrested the accused and produced him before the learned Trial Judge. During investigation, the Investigating

Officer recorded the statement of available witnesses under Section 161 Code of Criminal Procedure and arranged for medical examination of the victim girl as well as of the accused. On prayer of the Investigating Officer statement of the victim girl as well as the informant were recorded under Section 164 of the Code of Criminal Procedure by a learned judicial Magistrate. During the course of investigation, the Investigating Officer collected the medical examination report on the person of victim girl as well as of the accused. After completion of the investigation, the Investigating Officer submitted charge sheet against the accused under Sections 5/6 of POCSO Act.

Ultimately, charge under Sections 5(m) and 6 of POCSO Act and alternatively under Section 376 of Indian Penal Code (in short IPC) was framed against the accused who pleaded not guilty to the charge and claimed to be tried. Hence, the trial commenced.

Prayer for bail made on behalf of the accused was denied by the learned Trial Judge.

Since the accused remained undefended for trial, free legal aid was provided to him by the concerned Legal Services Authority by engaging a learned advocate to defend him.

In order to bring home the charge the prosecution examined as many as six witnesses including the victim girl and her mother, the informant. The documents upon which the prosecution placed reliance were marked as Exhibits 1 to 12.

No oral or documentary evidence was adduced from the side of the defence.

Upon hearing the learned advocates appearing for the parties and considering the evidence on record, the learned Trial Judge convicted the accused for commission of the offence punishable under Section 6 of the POCSO Act and imposed the sentence as indicated above. As it appears, the trend of cross examination of the prosecution witnesses and the statement of the accused under Section 313, Code of Criminal Procedure show that the accused denies the prosecution-allegations and pleads innocence.

Learned Counsel appearing for the appellant vehemently submits that the appellant has falsely been implicated in the case. Learned Counsel points out that the alleged incident took place in the month of August, 2019, but the FIR was registered on 8th May, 2020. There is no cogent explanation in lodging the FIR belatedly. Learned

Counsel further points out that though the victim girl was medically examined by the concerned Doctor more than eight months after the incident, some portion of the medical examination report indicates that as if the incident took place recently. Learned Counsel further argues that the learned Trial Judge committed error by placing reliance on the evidence of the child witness who is susceptible to be tutored and on the incredible medical examination report prepared by the doctor. On such score, learned Counsel submits that the conviction as recorded by the learned Trial Judge and the punishment as inflicted upon the appellant is liable to be set aside.

Learned Counsel appearing for the State submits that the informant in the FIR has explained the delay in lodging the FIR by stating therein that out of fear and social stigma she and her family did not feel courageous to lodge the FIR in time. Learned counsel submits that if the evidence of the victim girl and her mother and the medical examination report of Doctor are assessed in proper prospective, there will be no room for interfering with the judgement of the learned Trial Judge convicting and sentencing the appellant. Learned counsel emphasizes that the prosecution has successfully proved the foundational facts, but no iota of evidence has been adduced from the

side of the defence to rebut the presumption which will be drawn against him under Section 29 of the POCSO Act. In support of her contention, learned Lawyer has cited a decision dated 29th September, 2021 rendered by the Hon'ble High Court, Calcutta in CRA No. 69 of 2019 (Raju Roy Vs. State of West Bengal), a decision dated 20th July, 2022 also rendered by the Hon'ble High Court, Calcutta in CRA No. 69 of 2020 (Digen Mandal Vs. The State of West Bengal) and the decision dated 13th October, 2022 rendered by the Hon'ble High Court of Meghalaya in CRA No.17 of 2022 (Swill Lhuid Vs State of Meghalaya and ors). Perusal of the judgement of the learned Trial Judge shows that the learned Trial Judge on consideration of the evidence of the victim girl, her mother and the medical examination report found the accused guilty of commission of the offence as above.

Now let us see whether the judgment of the learned Trial Judge is sustainable in law and on facts. Since this Court is a Court of First Appeal, we have scrutinized the evidence and the materials on record meticulously to assess the sustainability of the findings of guilt recorded by the learned Court below.

It is alleged by the prosecution that the accused committed aggravated sexual assault on the victim girl of tender age.

Before we proceed to consider the evidence on record we feel it apposite to refer to Section 3 of the POCSO Act defining penetrative sexual assault. According to Section 3 of the Act a person is said to commit penetrative sexual assault if he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person. Section 5 (m) of the Act provides that a penetrative sexual assault on a child below the age of twelve years shall be construed as aggravated penetrative sexual assault.

Amongst the prosecution witnesses, PW 1 is the victim girl then aged about 41⁄2 years, PW 2 the informant, Putul Mondal and PW 3 Durgapada Mondal, the father of the victim girl.

In the decision in the case of Raju Roy vs. State of West Bengal, it has been held by Division Bench of the Hon'ble High Court, Calcutta (one of us, Rabindranath Samanta, J was a member) that a child of tender age can be allowed to testify if he/she has intellectual capacity to understand questions and give rational answers thereto. In practice it is not unusual to receive the testimony of a child

if they appeared to possess sufficient understanding. The competency of the child witness can be ascertained by questioning him/ her to find out intelligence to understand the occurrence witnessed and duty of speak the truth before the court and thereby his/her statement inspiring confidence can be relied upon even without corroboration. The other two decisions in Digen Mondal and Swill Lhuid as cited (supra) also speak of the importance to be attached to the value of the evidence of a victim girl of tender age who has been sexually ravished.

As we find, the victim girl who at the time of the incident was aged about 41⁄2 years was examined by the learned Trial Judge to ascertain her competency to testify. The learned Trial Judge after being satisfied with the answers given to the questions put by him intelligently certified that the witness was capable of giving rational answers.

It is in the evidence in chief of the victim girl (PW-1) that she knew the accused Shyam Chand Halder and called him as "Dadu" (grandfather). He told her that he would play some songs for her. Thereafter, he opened his pant and also opened her frock and inserted his penis in her private parts. As a result of which she shouted. In cross examination she denied the suggestion that the accused did

not commit any mischief upon her. The evidence of the victim girl clearly shows that the accused committed aggravated penetrative sexual assault on her. PW 2 Putul Mondal, the informant in her evidence states that in the month of August, 2019 in one evening at around 4:00/5:00 PM when her husband was cleaning his bicycle, the accused Shayam Chand Halder called her daughter to his room for playing songs through head phone. After sometime she was walking in front of the room of the accused. She noticed that the door of the room was open and her daughter was lying on bed in a naked condition and the accused Shyam Chand Halder was lying on her in naked condition. He was establishing a physical relation with her by way of inserting his penis in her vagina. She called her husband. Her husband came there and threatened Shyam Chand Halder.

Her daughter became traumatized and her private parts got swollen and she was crying out in pains. They lodged complaint with the local Police Station in the month of May, 2020 and the reason of delay was fear and social stigma. Nothing has been elicited from the cross examination of PW 2 which may shake the credence of her evidence as adduced in chief.

On assessment of the evidence of PW 2 it is found that this witness saw the accused committing aggravated penetrative sexual assault on her daughter.

PW 3 Durga Pada Mondal, the father of the victim girl testifies that at the time of the incident he was cleaning his bicycle. The accused called his daughter to his room for playing some songs and listening to the same through head phones. His wife noticed that the room of the accused was open and she found that the accused was doing some wrong deeds upon his daughter. Soon thereafter his wife called him and he saw that the accused was lying on his bed. He cautioned him and threatened him about the incident. He called Paresh Halder and his wife over phone. Both Paresh and his wife came and scolded the accused over the said incident. After two days the accused fled away. As a result of the incident his daughter became traumatized and cried out in pains. They noticed that the private parts of their daughter got swollen. Subsequently, they lodged the written complaint at the local Police Station. Such evidence of PW 3 has not been vented in any manner in cross examination.

It is a settled preposition of law that if evidence of the prosecutrix is reliable and inspires confidence,

conviction can be based on the sole testimony of the prosecutrix.

From the cross examination of PW 2 Putul Mondal and PW 3 Durga Pada Mondal, the parents of the victim girl we do not find any suggestion put forward to them on behalf the defence that out of previous enmity or any grudge or for monetary gain they falsely implicated the accused in the case.

Though it has been properly assessed by learned Trial Judge, we, after considering the medical examination reports prepared by Doctor Ankitha Banerjee (PW 5) find that at the time of examination on the person of the victim girl it was narrated to the attending Doctor that the victim girl was sexually ravished by the accused. As we find from the medical examination report as a whole, it has been opined by the Doctor that hymen of the victim girl became ruptured and she was not habitual to sex. The medical examination report on the person of the accused also prepared by Doctor Ankitha Banerjee shows that at the time of the incident the accused was capable of performing sexual intercourse.

Therefore, if the evidence of the victim girl (PW 1), her mother (PW 2), her father (PW 3) and the Doctor (PW 5) are considered conjointly, it is found that the prosecution

has successfully proved the foundational facts relating to committing aggravated penetrative sexual assault upon the victim girl.

As the evidence as discussed above evince, the accused inserted his penis into the vagina of the unfortunate victim girl. The medical evidence as above corroborates that because of the sexual assault committed by the accused hymen of the minor virgin girl became ruptured.

As section 29 of the POCSO enjoins, 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 findings as recorded above clearly show that the prosecution has not only proved the foundational facts of the case, but proved the case as a whole beyond any shadow of doubt. As indicated above, the cross examination of the prosecution witnesses does not make out any defence by which the foundational facts as proved by the prosecution get whittled down or shaken. As stated above, no independent evidence has been adduced by the defence

to rebut the presumption which can lawfully be drawn against him.

As we find, the investigating officer PW 6 Inspector Shabana Hanif conducted the investigation properly and submitted the charge sheet citing all the vital witnesses therein.

Therefore, the argument advanced by the learned counsel appearing for the appellant assailing the judgement on the score as above is not acceptable.

Section 6 of the POCSO Act reads as under:- "6. Punishment for aggravated penetrative sexual assault.- (1) Whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person, and shall also be liable to fine, or with death.

(2) The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expense and rehabilitation of such victim."

The victim minor girl aged about 41⁄2 years, who expected love and care from the accused whom she addressed as grandfather instead of getting love and affection from him became prey to his perverted sexual lust. We find that the learned trial judge after considering all the aggravating and mitigating

circumstances has rightly inflicted the sentence upon the accused. As required under Section 6 (2) of the Act, the learned Trial Judge directed that the fine to be deposited by the accused shall be utilised for medical expenses and rehabilitation of the victim. As the Rules 9 (4) and 9 (5) of the Protection of Children from Sexual Offences Rules, 2020 enjoin, the learned Trial judge is justified in directing the Andaman And Nicobar Islands Administration to pay compensation of Rs. 2,00,000/- (Rupees Two Lakhs Only) to the victim girl.

Accordingly, we do not find any illegality or irregularity in the judgement and the order of conviction and sentence as well as the award of compensation passed by the learned Trial Judge. In view of the above, the appeal merits dismissal and accordingly the appeal is dismissed on contest. The judgement and the order of conviction and sentence as well as award of compensation passed by the learned Trial Judge are hereby confirmed. No order as to costs.

Send down the LCR to the learned Court below along with a copy of this judgement for information.

Urgent Xerox certified copy this judgement be supplied to the Learned Counsel appearing for the respective parties upon compliance of usual formalities.

I Agree.

(SUBRATA TALUKDAR, J.) (RABINDRANATH SAMANTA, J.)