Raghunath Mondal v. The State

IN THE HIGH COURT AT CALCUTTA

CRIMINAL APPELLATE JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] ******** PRESENT: HON'BLE JUSTICE DEBANGSU BASAK AND HON'BLE JUSTICE JAY SENGUPTA CRA No. 2 of 2021 Raghunath Mondal ... Appellant

Versus

The State ... Respondent For the appellant : Mr. Deep Chaim Kabir, Advocate For the State : Mrs. A.S.Zinu Heard on : December 6 and 7, 2021 Judgment on : December 16, 2021 JAY SENGUPTA, J.

1. This appeal is directed against a judgement and order of conviction dated 27th August, 2019 and sentence dated 29th August, 2019 passed by the learned Special Judge (POCSO Act) North & Middle Andaman, Mayabunder, in Special (POCSO) ST No. 17 of 2019: Special (POCSO) Case No. 10 of 2019, thereby convicting the appellant under Section 6 of the POCSO Act and under Section 377 of the Penal Code and sentencing him to suffer rigorous imprisonment for a period of ten years and to pay a fine of Rs.20,000/-, in default to suffer simple imprisonment for three months for the offence

under Section 6 of the POCSO Act. No separate sentence was passed in respect of the charge under Section 377 of the Penal Code. Furthermore, the victim was awarded a compensation or Rs. 1,00,000/- and direction was issued upon the learned Secretary, District Legal Services Authority, Andaman & Nicobar Islands at Port Blair to ensure that the victim received the compensation.

2. On 5th April, 2019 at about 2130 hours the 11 years old victim boy (PW 1) lodged the First Information Report with the Diglipur Police Station alleging commission of offences under Sections 3 and 4 of the POCSO Act and Section 377 of the Penal Code. A gist of the allegations was that on 5th April, 2019 at about 9 hours the victim went to his relative's house accompanied by his grandmother (PW2) to attend a prayer and Kirtan. At about 13:00 hours he come out from the prayer and started playing with other children. At that time a man who usually sold 'rosgolla and samosa' in their area came to him and asked him to go to his house. First, he refused. But on being stubbornly asked, he went to his house. The accused then closed the door, undressed himself and then forcefully committed sexual assault upon the minor boy. The child felt pain and blood also come out from his back. The accused asked him not to tell this to anyone. But, he went to his grandmother (PW2) and confided the facts in

her. Seeing the boy limping, his mother (PW3) asked him about what had happened. He disclosed everything to his mother. Thereafter his mother accompanied by his aunt (PW4) went to Diglipur Police Station and lodged the First Information Report. At the Police Station, PW4 could identify the accused as one Raghunath Mondal, being the person who used to sell rosgolla and samosa at that place.

3. After completion of investigation, a charge-sheet dated 8th May, 2019 was submitted by the Investigating Agency under Section 377 of the Penal Code and Sections 3 and 4 and added Sections 5 and 6 of the POCSO Act.

4. On 3rd June, 2019 learned Trial Judge framed charges against the appellant under Section 6 of the PCOSO Act and Section 377 of the Penal Code. The appellant pleaded not guilty and claimed to be tried.

5. During trial the prosecution examined 12 witnesses and relied upon several documents including the statement of the victim recorded under Section 164 of the Code and the medical reports of the victim and the accused.

6. PW1 was the minor victim boy, aged about 12 years at the time of deposition. First, he was duly examined to test his competency as a child witness to depose. In his evidence, he

fully corroborated the First Information Report lodged by him. However, he mentioned that the incident took place on the particular day between 11:00 A.M and 11:30 A.M. He described the offence in graphic details as he had done at the time of the lodging the First Information Report. He identified the accused in Court. In his cross examination he stated that about 80 persons had come to the Kirtan and that he sat at the Kirtan for a short period. There were about 5 to 6 boys with whom he played. One of the boys was his classmate Kanu Saha. They were playing hide and seek. He admitted that at the time of the incident he was not aware of the name of the accused. He categorically stated that between the place of Kirtan and the house of the accused there was a supari plantation and a field.

He further admitted that he sat with his grandmother and took prasad of the Kirtan and then came back to his house. PW2 was the grandmother of the victim boy. She was an immediate post occurrence witness. Before having lunch she notice that the victim was not walking properly. She asked the victim about it. But, at that time the victim do not disclose anything. Only after the lunch was over, the victim confided the facts in her. In her cross, she admitted that she did not know the name of the accused at that time. At about 400 to 500 people attended the Kirtan. PW3 was the mother of the victim boy.

son was not walking properly. On inquiry, the victim boy disclosed the facts to his mother. The victim told her that only after he started crying saying that he would discharge stool that the 'singharawala' leave him. PW3 counter signed the First Information Report. She was also a signatory to the victim's medical report and to the seizure of victim wearing apparel, blood sample and birth certificate. She was also a witness to the statement of the victim boy recorded under Section 164 of the Code. In the cross, a rather casual suggestion was given to her that the accused was falsely implicated because the accused was resident of the same village and sold singhara there. PW4 was the maternal aunt of the victim boy. PW2 told her about the incident.

She accompanied the victim, his mother and his grandmother to the Police Station for lodging the First Information Report. She was witnesses to the statement given by the victim boy at the Police Station. She was also a witness to the medical examination and the seizure list for the birth certificate of the victim. In her cross, she categorically stated that in their village there was no other 'singharawala' than the accused. PW 5 was a neighbour to whom PW3 had disclosed the facts. He was a witness to the seizure of the birth certificate of the child. PW6 was a nursing officer at the hospital where the victim boy as well as the accused were taken for medical examination.

sample collected from the accused. PW7 was a ward attendant at CHC, Diglipur. He deposed that on 5th April, 2019 the police brought the victim as well as the accused for medical examination. Swab was collected from the male child and he appended his signature to the medical examination report of the child. He was also a witness to the seizure of the anal swab, blue coloured jeans and green coloured T-shirt of the child. He was also a seizure list witness for the penis swab and blood sample collected from the male accused. He also witness the seizure of FTA Card containing dried blood sample of the male child and to the medical examination of the accused. In the cross-examination, he admitted that he did not find the blue coloured jeans and green coloured Tshirt in the court room. PW8 was a relative of the child.

The Kirtan was held in his house. He categorically stated that the child as well as the accused came to his house on the fateful day to attend the Kirtan. PW9 was the learned Chief Judicial Magistrate, Mayabunder who recorded the statement of the victim boy under Section164 of the Code. PW10 was the Doctor who examined both the accused and the victim. On examination of the victim boy, he found some injuries. In the anal region there were two cut injuries measuring about 3 x 1 cm and 2 x 1 cm on the left side. Semen was found around the anal region.

region within 24 hours of the examination. He proved the medical examination report of the victim as well as accused. He was a seizure list witness for the seizure of wearing apparel of the child, the blood sample of the child collected for DNA profiling as also for the collection semen and blood sample of the accused. In his cross, he clearly stated that the injuries found on the anal region of the victim boy could not occur due to fall on a sharp object. PW11 was a constable who carried the materials seized from Diglupur, Police Station to CCS, Port Blair. PW12 was the Investigating Officer of the case. During investigation, he collected the formal First Information Report, recorded the statement of the victim boy and arrested the accused on the very same day at about 22.10 hours.

He sent the minor boy and the accused for medical examination and seized wearing apparel of the victim boy as also swabs and blood samples for forensic examination. He had a statement of the minor boy recorded under Section 164 of the Code. He also seized a copy of the child's birth certificate. He sent some exhibited materials to PS, CCS, Port Blair Malkhana for forwarding the same to CFSL Kolkata for medical analysis. In his cross, he stated that he sent the victim boy to CHC, Diglipur for medical examination on 5th April, 2019 at about 22:05 hours.

7. Mr. Deep Chaim Kabir, learned counsel appearing on behalf of the appellant, submitted as follows. Although the alleged incident took place either around 11 A.M in the morning or at 1 PM, the First Information Report was lodged only late at night. The victim boy contradicted himself regarding the time of occurrence. In the First Information Report he stated the time of occurrence to be at around 1 PM and during deposition he pegged the time at 11:00 to 11:30 hours. In his statement under Section 164 of the Code the child gave 12 noon as the time of incident. While victim stated that about 80 persons attended the Kirtan, PW2 admitted that about 400 to 500 people attended the ceremony.

It is absurd that inspite of the presence of so many people near the place of occurrence and despite the fact that at the relevant time the victim boy was playing with several other children, the boy could just be taken away forcibly by the accused. In fact, PW2 admitted that place where the children were playing was visible to her. It is an unnatural conduct on the part of the minor victim boy not to have stated about the incident immediately to his grandmother and others and to have waited till the lunch was over. The identification of the accused is also suspect. It was only after PW4 identified the accused by name that the present accused could be implicated in this case. FSL reports for the blood sample, etc. never saw the light of the day.

garments were seized in this case. The wearing apparel was not identified by any one during trial. It is absolutely incomprehensible that semen could be found at the effected place after so many hours. By then, victim must have changed the clothes and washed. Admittedly he had to pass stool. Therefore, the victim must have washed atleast once. There were interpolations on the medical report of the victim boy that remained unexplained. This further enhances the suspicion that the victim boy must have changed his wearing apparel and washed in the meantime. Most important of all, the appellant was not given a proper opportunity of hearing. The appellant had clearly denied the allegations during his examination under Section 313 of the Code.

At the end, although the appellant did not want to produce any defence witness, he did take up a plea of alibi. In fact, afterwards on 13th August, 2019 an application was made on behalf of the appellant for adducing defence witnesses. However, it is true that the same was not pursued thereafter inasmuch as no revision was preferred against the relevant order. The learned Trial Court could have acted in a more proactive manner. The learned Trial Court should have asked questions to elicit the real truth.

(HC), State of Haryana vs Ram Mehar & others: Air 2016 SC 3942 and Devidas Loka Rathod Vs State of Maharashtra, AIR 2018 SC 3093.

8. Ms. A.S.Zinu, learned advocate appearing on behalf of the Administration, submitted as follows. The prosecution made out a strong case against the appellant. Not only was there an unshaken testimony of the minor victim boy, but also the evidence adduced by immediate post occurrence witnesses. Minor discrepancies regarding a variance of time by half-anhour or an hour or the like are not relevant. The accused was clearly identified by the victim as the assailant. No crossexamination was done as to why the appellant would have been falsely implicated. The medical evidence adduced including the evidence of the doctor clinched the case for the prosecution. There is a presumption under Section 29 of the POCSO Act regarding commission of the offences involved. The accused miserably failed to rebut such presumption.

The defence had rather casually made a belated application for adducing defence witness, but failed to adduce any defence witness despite getting sufficient opportunity. As regards the decisions relied upon on behalf of the appellant, the same are clearly distinguishable on facts and did not help the cause of the appellant in any significant manner. The prosecution was able to prove its case beyond all reasonable doubt.

9. We heard the submissions of the learned counsels appearing on behalf of the parties and perused the petition of appeal, the impugned judgement and order, the evidence adduced and the other materials on record.

DELAY IN LODGING THE FIRST INFORMATION REPORT

10. In cases of sexual assault upon minor victims, any delay in lodging the First Information Report has been dealt with a great deal of leniency by courts of law. It is another thing that in a case where the alleged sexual assault takes place roughly around noon and a First Information Report is lodged on the same night, one cannot treat this as a delayed complaint. It has come out in evidence that the 11 years old minor victim boy was totally traumatised after the incident. As a result of the assault he was limping. First, either out of disorientation or shame or fear that was instilled by the accused by giving threats after the incident, he could not disclose the facts immediately to his grandmother. It was only after they had lunch that the boy mustered enough courage or conviction or regained a better state of mind to confide the facts in his grandmother. By the time they reached back home, it was already 3:00 P.M. The victim and his family are villagers living at a distant place. Therefore, they requested others to accompany them to the Police

Station to lodge the complaint. This is a fair and reasonable explanation for the purported time gap in time in lodging the First Information Report.

IDENTIFICATION OF THE ACCUSED BY NAME

11. It has come out in the evidence of the minor victim (PW1) as well as PW4 that there was one 'singharawala' who used to sell samosas in their locality. PW1, the victim had categorically stated to one and all that it was the said 'singharawala' who had committed the sexual assault upon him. Eventually, he identified the accused in the dock. The prosecution case suffers from no suspicion whatsoever on the score that it was PW4 who had first disclosed the name of the said 'singharawala' as Raghunath Mondal, that too on or before the lodging of the First Information Report. PRESENCE OF THE ACCUSED AT THE SPOT

12. Not only the minor victim boy (PW1) and the grandmother (PW2), but also the person (PW8) at whose residence the kirtan was taking place categorically stated the accused who was his neighbour was there at the place of the occurrence at the relevant time. Here, it hardly matters whether PW8 happened to be a relation of the victim boy.

SEXUAL ASSAULT ON THE MINOR VICTIM BOY

13. The minor victim boy (PW1) had categorically stated about the incident of sexual assault perpetrated on him by the accused in the First Information Report, in his statement before the learned Magistrate recorded under Section 164 of the Code and during evidence. He had vividly given the gory details of the unfortunate incident, with much pain, to say the least. His evidence could not be shaken in crossexamination. The factum of sexual assault was duly corroborated by the medical report that was prepared by the doctor (PW10). The doctor clearly stated that there were injuries on the anal region of the victim and he found semen in such region. The wearing apparel of the victim was also exhibited. Besides, the victim, soon after incident, disclosed the facts to his grandmother and, after he went home, to his mother.

The victim's mother (PW3) and grandmother (PW2) duly corroborated such facts in evidence. The factum of sexual assault was further corroborated by the seizure of wearing apparel of the minor victim. As such, there is not a single iota of doubt about the fact that victim was subjected to grievous sexual assault.

MENTIONING DIFFERENT TIMES FOR THE INCIDENT AT DIFFERENT POINTS

14. It was argued on behalf of the appellant that the minor victim boy had stated the time of occurrence as 1:00 P.M. in

the First Information Report, as 12 noon in the statement under Section 164 of the Code and as between 11:00 to 11:30 A.M. during the trial. A difference of an hour or so in fixing the alleged time of occurrence, as given by a rustic victim boy of 12 years before imposing authorities like the police and the Court, cannot be treated as fatal to the prosecution case. Such alleged incongruency is a minor discrepancy that can only be dismissed as such. ARREST AND MEDICAL EXAMINATION OF THE ACCUSED

15. The immediate arrest of the accused and his prompt medical examination only go to corroborate the prosecution case. The accused was found capable of sexual intercourse. NON-PRODUCTION OF THE SWABS COLLECTED AND PURPORTEDLY SENT FOR FORENSIC TEST

16. Relevant swabs and blood samples were taken from the victim and the accused and were purportedly sent for forensic test. The presence of such report could have additionally bolstered the prosecution case. However, as it happens in so many other cases, the reports were unfortunately not forthcoming. But, absence of such reports cannot belittle the other pieces of vital evidence adduced in this case.

PLEA OF ALIBI VIS-À-VIS PRAYER FOR ADDUCING DEFENCE WITNESS

17. In his examination under Section 313 of the Code, the accused simply denied the circumstances appearing against him. He categorically stated that he did not want to adduce any defence witness. At the end, although not clearly raising a plea of alibi, yet the accused gave out some details of where he was on the date of occurrence, thus implicitly taken up a plea of alibi. Although he did not adduce any defence witness commensurately with what he had stated in his examination under Section 313 of the Code, subsequently after about a month from the date of the examination, an application was made on behalf of the appellant to adduce defence witness. As it appears from the records, no list of witnesses was mentioned in the application. Moreover, the prayer was not pursued any further by the appellant.

The appellant never took up the issue again or prefer any revision before this Court alleging denial to adduce defence witness. Therefore, the so called plea of alibi and the putting on record of an application for adducing defence witness cannot be termed as a serious effort to adduce evidence. As such, not much importance can be attached to such a prayer of the appellant.

ROLE OF A JUDGE IN A CRIMINAL TRIAL

18. From the submissions advanced on behalf of the appellant that the learned trial court could have asked a few questions to elicit the truth and from the decisions relied upon in this regard, it becomes necessary for this Court to at least briefly delve into the issue of the role of a judge in a criminal trial. It is true that a trial judge need not remain a mute spectator and should be proactive in seeing that the truth comes out. He has ample powers in this regard including invoking Section 311 of the Code or Section 165 of the Evidence Act. Reticence is one thing. But, where no such interference is required, an unduly interfering judge could demolish an entire proceeding, thus leading to grave miscarriage of justice. In the present case we do not find any reason that could have prompted the learned Trial Judge to ask questions suo moto.

19. In view of the unshaken testimonies of the minor victim boy and the immediate post occurrence witnesses, the medical evidence indubitably supporting the prosecution case and the complete chain of circumstances pointing towards guilt of the accused, we are of the view that the prosecution has been able to prove its case beyond all reasonable doubt.

20. Therefore, we do not find any merit in this appeal. Accordingly, the same is dismissed.

21. However, there shall be no order as to costs.

22. Let a copy of this judgement and order and the lower court records be sent back to the learned trial Court.

23. The Registry is also directed to forward a copy of this judgment and order to the appellant at the Correctional Home where he has been put up.

24. Urgent photostat certified copy of this judgement, if applied for, be supplied to the parties upon compliance of usual necessary formalities.

(JAY SENGUPTA, J.) I agree.

(DEBANGSU BASAK, J)