Vishal v. The State
THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] ******** PRESENT: HON'BLE JUSTICE RAJASEKHAR MANTHA AND HON'BLE JUSTICE BIBHAS RANJAN DE CRA (DB/3/2022 Vishal .... Appellant
Versus
The State .... Respondent For the Appellant : Mr. D. Ilango For the State : Mr. A.S.Zinu Heard on : 16th & 22nd December, 2022 Judgment on : 23rd December, 2022 BIBHAS RANJAN DE, J.
1.
This appeal is directed against the judgement and order dated 10th June and 13th June, 2022 respectively passed by learned Special Judge under POCSO Act, North and Middle Andaman, Mayabunder in connection with Special POCSO case No. 19 of 2019/ Special POCSO Sessions Tile No. 05 if 2020 convicting the appellant under Section 6 of the POCSO Act, 2012 and sentencing him to undergo rigorous imprisonment for life and to pay fine of Rupees Two Lakhs in default, to undergo rigorous imprisonment for one year more.
2.
This case was put into motion by written complaint submitted by the victim who had a love affair with the appellant and had physical relationships with each other. On a day in the
month of January 2019 appellant/accused called her to his uncle's house and they had physical relations and lastly on the 29.01.2019. In the month of February her menstrual period stopped and she informed her Mother. After 2-3 months her parents took her to a hospital for examination on 04 July, 2019 and she was found pregnant and finally on 18th July, 2019 she was brought to BGR Hospital for check-up wherefrom the medical staff informed the Police.
3.
On receipt of said information Diglipur as FIR No. 73 of 2019 dated 21st July, 2019 under Section 376 of the Indian Penal Code and 5/6 of the POCSO Act was started against the appellant/accused. The case was investigated by ASI P. Abdul Salam. On completion of investigation the charge sheet was filed against the appellant under Section 5/6 of the POCSO Act, 2012 read with Section 376 of the Indian Penal Code. Learned Special Judge framed charges against the appellant/accused under Section 6 of the POCSO Act. The case was finally put into trial.
4.
In course of trial, the prosecution examined as many as eleven witnesses and a good number of documents were admitted in evidence as exhibits. Upon conclusion of the evidence of the prosecution side the statement of the appellant/accused was recorded under Section 313 of the Code of Criminal Procedure wherein he had denied all the
incriminating circumstances put to him. The accused did not adduced any evidence in his defence.
5.
Upon conclusion of trial the learned Special Court had found that the charge under Section 6 of the POCSO Act was fully established on the basis of the evidence brought on record. Accordingly, learned Judge convicted the appellant for the offence punishable under Section 6 of the POCSO Act and sentence to suffer imprisonment of life and pay a fine of Rupees Two Lakhs.
6.
Assailing the judgement and order impugned, Mr. D. Ilango, learned advocate appearing on behalf of the appellant, has argued that evidence brought on record by the prosecution side could not prove the charge brought against the appellant under Section 6 of the POCSO Act. Mr.D. Ilango has further contended that prosecution, at best, can be said to have succeed to prove a love affair between the appellant and the victim but the evidence adduced on behalf of the prosecution could not prove the sexual assault on the victim.
7.
Alluding to exhibit A (declaration of the victim) Mr. D. Ilango has submitted that it clearly shows that victim refused DNA examination for the reasons best known to her and hence the accused cannot be held guilty of any offence for sexual assault within the meaning of Section 5/6 of the POCSO Act. It has been further submitted on behalf of the appellant that victim was a sufficiently grown up girl and was therefore aware
of the consequences of physical relations. Mr. Ilango has lastly referred to the evidence on record and has submitted that insufficient evidence adduced on behalf of the prosecution cannot prove the charge under Section 6 of the POCSO against the appellant.
8.
In support of his contention Mr. D. Ilango relied on the following authorities:
i. Mohd. Hasim vs. State of UP and others in connection with Criminal Appeal No. 1218 of 2016 arising out of SLP (Crl) No. 6104 of 2014) ii. State of Vs. Raghu and others in connection with Criminal Appeal No. 579/2016 in the High Court of Karnataka at Bangaluru iii. Vijaylakshmi and another vs. State in connection Criminal OP No. 232 of 2021 and Criminal MP No. 109 of 2021.
9.
Per contra, Ms. A.S.Zinu, learned advocate appearing on behalf of the state, has submitted that there is sufficient evidence on record to prove the continuous physical relationship between the appellant and the minor victim and that fact is sufficient to bring home the charge under Section 6 of the POCSO Act. Ms. A.S.Zinu has further argued that evidence adduced on behalf of the prosecution clearly proves physical relation between the appellant and the victim. The relations between the appellant and the victim cannot consensual as the
victim was a minor. A minor's consent is absolutely immaterial under the provisions of POCSO Act. Ms. Zinu supported the judgement passed by learned Special Judge.
10. The deposition of witnesses may therefore be considered.
11. PW 1, ASI Diana recorded statement of victim at the office of the Superintendent of Police, Car Nicobar. She has stated that no official order was received prior to recording statement of victim.
12. PW 2, SI P.K.Abdul Arif has testified that on 18.07.2019 he was posted as SHO at PS Car Nicobar. On that day he registered a Zero FIR as the place of occurrence alleged to have been mentioned within the PS Diglipur. He arranged for the medical examination of the victim. He also arranged for recording of the statement of victim under Section 164 of Code of Criminal Procedure (exhibit 4).
13. PW 3, Shri Ramesh Kishan, Head Constable testified that on 21st July, 2019 he prepared formal FIR on the basis of written complaint received from the Car Nicobar Police Station.
14. PW 4 (Victim) testified that she filed a case against the appellant as she became pregnant due to physical relationship with him. And at the relevant point of time she was seventeen years old. She stated the entire facts to the learned Magistrate and she was examined by the Doctor in the hospital and she found pregnant. She identified her signature (exhibit 6).
15. In cross examination victim testified as follows:-
"4. Not a fact that I never visited to PS for lodging complaint.
5. I have lave affairs with Vishal. Vishal never forced to have physical relationship with me.
6. Not a fact that Vishal undertook that when I would be major or attending majority the marriage in between ourselves would be taken.
7. It is true that I was interested to study. As Vishal is our villager I know him.
8. Not a fact that due to physical relationship with Vishal I was not pregnant. I raised objection for DNA test but Vishal is held responsible for my pregnancy.
9. Not a fact that I have falsely filed this case.
10. I signed in the paper being directed by police.
11. Not a fact that the statement was not read over and explained to me. Not a fact that I am deposing falsely."
16. PW 5, Smt. Monalisa, Teacher posted at Nicobar District, proved baptism certificate (exhibit 7).
17. PW 6, Kumar Bedy also a Teacher of Nicobar District proved the seizure list by identifying his signature (exhibit 7/1) He stated that documents was seized to prove age of the victim but he did not say anything about the incident alleged. He never signed in any medical paper.
18. PW 7, Marry Justin, a nursing officer, proved her signature on a medical paper (exhibit 6/1).
19. PW 8, Dr. Beula Shiny, of the GDMO Katchal, PHC has deposed that on 18.04.2019 she examined the victim, who stated about the incident occurred on 29.01.2019 while the appellant called her to his uncle's house. They had no discussion regarding any sexual activity. They met twice at appellant's uncle house. Victim further stated before the Doctor when she arrives they started talking and decided mutually to
have physical relationship. Doctor found her pregnant. Medical examination report was marked as exhibit 6/2.
20. In cross examination PW 8 testified that she was not gynaecologist and victim did not state anything about forceful penetration.
21. PW 9, Inspector Preetam Behari, charge sheet in this case under Section 5-6 of the POCSO Act.
22. PW 10, Smt. Julina Robert, Mother of the victim, testified that her Daughter became pregnant and the appellant was responsible for her pregnancy as she heard from her Daughter.
23. In cross examination she testified that when they were residing at Diglipur her daughter never told that the appellant was responsible for her pregnancy.
24. PW 11, ASI P Abdul Salam, who investigated this case by recording statement of the victim and collecting medical documents. He arrested the accused and got him examined by Doctor. He collected statement of victim under Section 164 of the Code of Criminal Procedure. He visited place of occurrence and submitted charge sheet in connection with this case after investigation.
25. In cross examination he stated as follows:- "I cannot say that actually accused is no way connected to commit the offence and for such reason victim had made the declaration and denied to do DNA test."
26. The charge against the appellant is of Aggravated Penetrative Sexual Assault within the meaning of Section 5 of the POCSO Act.
27.
(g) whoever commits gang penetrative sexual assault on a child.
Explanation.- When a child is subjected to sexual assault by one or more persons of a group in furtherance of their common intention, each of such persons shall be deemed to have committed gang penetrative sexual assault within the meaning of this clause and each of such person shall be liable for that act in the same manner as if it were done by him alone; or (h) whoever commits penetrative sexual assault on a child using deadly weapons, fire, heated substance or corrosive substance; or (i) whoever commits penetrative sexual assault causing grievous hurt or causing bodily harm and injury or injury to the sexual organs of the child; or (j) whoever commits penetrative sexual assault on a child, which- (i) physically incapacitates the child or causes the child to become mentally ill as defined under clause (b) of section 2 of the Mental Health Act, 1987 (14 of 1987) or causes impairment of any kind so as to render the child unable to perform regular tasks, temporarily or permanently;
(ii) in the case of female child, makes the child pregnant as a consequence of sexual assault;
(iii) inflicts the child with Human Immunodeficiency Virus or any other life threatening disease or Infection which may either temporarily or permanently impair the child by rendering him physically incapacitated, or mentally ill to perform regular tasks;
(iv) causes death of the child; or;
(k) whoever, taking advantage of a child's mental or physical disability, commits penetrative sexual assault on the child; or (l) whoever commits penetrative sexual assault on the child more than once or repeatedly; or (m) whoever commits penetrative sexual assault on a child below twelve years; or (n) whoever being a relative of the child through blood or adoption or marriage or guardianship or in foster care or having a domestic relationship with a parent of the child or who is living in the same or shared household with the child, commits penetrative sexual assault on such child; or (o) whoever being, in the ownership, or management, or staff, of any institution providing services to the child, commits penetrative sexual assault on the child; or
(p) whoever being in a position of trust or authority of a child commits penetrative sexual assault on the child in an institution or home of the child or anywhere else; or (q) whoever commits penetrative sexual assault on a child knowing the child is pregnant; or (r) whoever commits penetrative sexual assault on a child and attempts to murder the child; or (s) whoever commits penetrative sexual assault on a child in the course of [communal or sectarian violence or during any natural calamity or in similar situations]; or (t) whoever commits penetrative sexual assault on a child and who has been previously convicted of having committed any offence under this Act or any sexual offence punishable under any other law for the time being in force; or (u) whoever commits penetrative sexual assault on a child and makes the child to strip or parade naked in public, is said to commit aggravated penetrative sexual assault."
28. The statement of victim under Section 164 of the Code of Criminal Procedure may now be considered when she was 16 years. She stated as follows:
"Tell me whatever you want to say. Ans.- (oath administered) In 2018, I went to birthday party of my friend named Swapana where I met with one boy named Vishal. I talked with Vishal and exchanged our phone numbers and we talked over phone so many times. Vishal proposed me and he loved me. I liked him too. On 28.01.2019, he called me at his uncle's house and we made physical relation there and in February, I became pregnant due such physical relation with Vishal. I told everything to my parents. My parents took me to hospital and then, test was done and my pregnancy was detected."
29. There was admittedly a love affair between the victim and the appellant and the appellant never applied any force for physical relationship with the victim. On 28.01.2019 they had physical relations and she became pregnant in the month of February.
30. If evidence of victim (PW 4), evidence of Doctor (PW 8) and statement of victim under Section 164 Code of Criminal
Procedure (exhibit 4) are placed in juxtaposition, it is found that on 28.01.2019 incident of alleged cohabitation took place and in month of February, 2019 victim was found pregnant at the time of her medical examination by Doctor (PW 8) not being a gynaecologist. However, the proximity between the alleged cohabitation and pregnancy of the victim could not be ascertained as victim herself refused the DNA test.
31. It appears from the evidence that appellant is a resident of the same village where victim resides and it is also evident from the record that there was a love affair between the victim and the appellant, but there is no evidence on record to the effect that the appellant had forcible sexual intercourse with the victim who was aged about 17 years.
32. From the evidence of the victim together with her statement under Section 164 of the Code of Criminal Procedure it is seen that there were consensual relations between the victim and the appellant and there was love affair between them. It has come in evidence that victim told her parents about her pregnancy but that was ignored and subsequently when her menstruation stopped then she was taken to hospital for examination and she was found pregnant. It is further evident from the record particularly the declaration (exhibit A) made by victim herself it is seen that she denied to undergo a DNA test that too in presence of her parents thereby, appellant/accused cannot be said to be held responsible for pregnancy beyond doubt. In
cross examination the victim testified that she had a love affair with the appellant who never forced to have physical relation with her. That apart, medical reports of the victim placed on record did not support any kind of injury whatsoever. If that be the position, I am unable to hold that the appellant has committed any offence either under Section 5 (j) (ii) or 5 (l) of the POCSO Act punishable under Section 6 of the Act 2012.
33. Considering the borderline age of the victim as well as the entire facts and circumstances together with the evidence on record I am of the view that the appellant/accused is entitled to be acquitted of the charge under Section 6 of the POCSO Act.
34. Accordingly the judgement and order dated 10th June and 13th June, 2022 respectively passed by learned Special Judge under POCSO Act, North and Middle Andaman, Mayabunder is set aside.
The bail bond already submitted by the appellant/accused shall remain in force for a period of six months from date.
35. The Criminal Appeal being CRA (DB)/3/2022 is disposed of. No order as to costs.
36. Let a copy of this order along with the case records be transmitted to the learned Special Court, Mayabunder. (BIBHAS RANJAN DE, J.) I agree.
(RAJASEKHAR MANTHA, J.)