Paritosh Sarkar v. The State
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] PRESENT : THE HON'BLE JUSTICE TIRTHANKAR GHOSH AND THE HON'BLE JUSTICE CHAITALI CHATTERJEE (DAS) CRA/3/2025 IA No. CRAN/2/2025 SHRI PARITOSH SARKAR VS.
THE STATE For the appellant : Mr. Alokesh Sarkar For the State : Mr. Sumit Kumar Karmakar For the defacto complainant : Ms. Nazneen Heard on : March 20, 2026 Judgment delivered on : March 20, 2026 TIRTHANKAR GHOSH, J.
1.
The present appeal has been preferred challenging the judgment and order of conviction and sentence dated 25th September, 2023 passed by the Learned Special Judge (POCSO Act), South Andaman in connection with the Special Case No. 20 of 2016, Special Trial No.3 of 2016 wherein the learned Trial Court was pleased to arrive at a finding of guilt thereby observing that the accused cannot be punished for the offence punishable under sections 5/6 of the POCSO Act and the accused was found guilty of commission of offence punishable under
section 376 and section 506 of the Indian Penal Code thereby sentencing him to suffer rigorous imprisonment for ten years for the commission of offence punishable under section 376(1) of the Indian Penal Code and fine of Rs.30,000/-, in default, to suffer further rigorous imprisonment for six months. Additionally, for the offence under section 506 of the Indian Penal Code, the Trial Court was pleased to impose sentence upon the appellant to suffer rigorous imprisonment for two years along with fine of Rs.5000/- in default to suffer further rigorous imprisonment for three months.
2.
The genesis of the present case relates to Hut Bay Police Station Case No.109 of 2012 dated 4th November, 2012 under sections 376/506 of the Indian Penal Code, which was registered on the basis of the statement of the victim girl recorded by the Sub Inspector of Police attached to the R.K.Pur, Police Out Post.
3.
The allegations which were the basis or foundational facts of the case relate to a statement before the Police Officer by the victim and is set out in verbatim as follows:
"I used to live my mother and two brothers in our private house at R.B. Nagar Ward No.3. My father had left us and gone to mainland (Kolkata) a long time ago. My mother got married to Shri Paritosh Sarkar S /o Late Bhaddar Sarkar five (5) months ago. My second father, Paritosh works as a fisherman and lives in R.K. Pur Ward No.11. My mother and I used to live in R.K. Nagar only. That two months ago, my mother sent me to my second father Shri Paritosh Sarkar to do household works. On 01/11/2012 second father Paritosh Sarkar took me to Nali No. 3, 5 Km away, for fishing. We fished there. After sometime I sat down under a tree to rest, then my second father Paritosh Sarkar came and sat near to me and held me and started pressing my chest and took off my lower clothes. I asked him to leave me but he did not listen. Then he took off his own
clothes and started rubbing his private part on my private part. Then he forcibly inserted his private part inside my private part which caused me a lot of pain and started screaming, then he took out his private part from my private part and the white coloured liquid that came out of it spilled over my stomach. I was told not to tell anyone about this, or it would be inappropriate. He hasn't left me alone since that day. On 4/11/12 at around 8 pm, my second father, Paritosh Sarkar, caught me in the house and started pressing my chest. I freed myself. I came out of the house and screamed. Shri Kokkan Gain and several other people came out of their houses and I told them all the matter. You all came after some time". 4.
The Investigating Agency on completion of investigation submitted charge sheet under section 376 and 506 of the Indian Penal Code. However, the learned Trial Court, while considering the charges, was pleased, by its order dated 10th June, 2016, to frame charges under sections 5/6 of the POCSO Act, sections 376 of the IPC and under section 506 of the IPC.
5.
The prosecution, in order to prove its case relied upon 14 witnesses while the defence in order to rebut the prosecution case relied upon two witnesses.
6.
We have considered the evidence of the witnesses but we are not inclined to enter into the merits of the case for the present as we find that the judgment delivered by the learned Trial Court although resulted in finding of guilt so far as the offences are concerned but erroneously observed as follows:
"The Prosecution has been found successful in proving its case beyond any shadow of doubt. It is found that the accused cannot be punished for the offences punishable under section 5/6 of the POCSO Act, 2012. The accused is found guilty of commission of the offence punishable under section 376(1)/506 of IPC and he is liable to be convicted.
7.
In view of the Trial Court sentencing the appellant to a period of 10 years rigorous imprisonment and the provision of section 6 of the POCSO Act provides for greater punishment, we are of the view that the learned Trial Court should have dealt with section 42 of the POCSO Act much elaborately prior to refusing to interfere in respect of the sentences prescribed for the offence under section 6 of the POCSO Act. 8.
We confronted the learned Public Prosecutor as well as the learned advocate appearing for the victim, who have also expressed their dissatisfaction for non-applicability of the POCSO Act. 9.
Having regard to the same, we are not inclined to enter into the merits of the case, as prima facie, it appears to this Court that in case an offence under POCSO Act has been made out which is a finding of the learned Trial Court, then the learned Trial Court would have to assess, which would be a greater punishment i.e. whether the offences under POCSO Act or offences under the Indian Penal Code and thereafter record his satisfaction for the same. The same having not been done in the present case, we are of the opinion that the finding of the guilt by the learned Trial Court should not be disturbed and the appeal be remanded on the ground of improper sentencing. As such, for the purpose of proper sentencing under the relevant provisions of law, we are of the view that the present case being Special Case No. 20 of 2016 be remanded back for fresh sentence and be imposed under the appropriate provisions
of law, after giving an opportunity of hearing to the State as well as the appellant.
10.
Accordingly, sentence imposed by the learned Trial Court in connection with the Special Case No.20 of 2016 is hereby set aside. 11.
Thus, CRA(DB)/3/2025 is disposed of with the aforesaid direction. 12.
Appellant be produced before the learned Trial Court immediately, preferably within a fortnight from the date of communication of this order.
13.
Pending applications, if any, are consequently disposed of. 14.
Let the trial court records be transmitted forthwith. 15.
Department is directed to forward a copy of the judgment to the learned Trial Court and also the Superintendent of Correctional Home immediately.
16.
All parties shall act on the server copy of this judgment duly downloaded from the official website of this Court. 17.
Urgent photostat certified copy of this judgment, if applied for, be supplied to the parties upon compliance of all requisite formalities. ( Tirthankar Ghosh, J. ) I agree.
( Chaitali Chatterjee (Das), J. )