Shri Amir Hussain v. The State

IN THE HIGH COURT AT CALCUTTA

CRIMINAL APPELLATE JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] ******** PRESENT: HON'BLE JUSTICE UDAY KUMAR CRA (SB)/4/2022 Shri Amir Hussain ...

Appellant

Versus

The State ... Respondent For the Appellant : Mr. Kishore Karmakar.

For the State : Mr. Sumit Karmakar Heard on : 11.12.2024 Judgment on : 16.12.2024 UDAY KUMAR, J.

1.

The present appeal has been preferred against the judgment of conviction and order of sentence dated 29th April, 2022 of Special Judge under POCSO Act, 2012, North & Middle Andaman, Mayabunder, passed in connection with Special POCSO G. R. case No. 06 of 2022, Special (POCSO) S.T. No. 08 of 2022 arising out of Police Station Rangat FIR No. 16 of 2022 dated 4th April, 2022 under Sections 5/6 of

POCSO Act, 2012, wherein and whereunder the appellant Amir Hussain was sentenced to undergone rigorous imprisonment for five years for the offence punishable under Section 10 of Protection of Children from Sexual Offence Act, 2012 and fined Rs. 50,000/- (Rupees Fifty Thousand only), out of which 90 per cent amount has to be paid to the victim as compensation under Section 357 of the Code of Criminal Procedure, in default of payment rigorous imprisonment for six months was granted.

2.

Appellant sexually assaulted victim girl (6 year old) in the evening of 04th April, 2022, when she was alone in her home. Her mother reported the incident to Rangat Police Station, upon which FIR No. 16 dated 04.04.2012 under Section 5(m)/6 of the POCSO Act was started against appellant/accused Amir Hussain. After investigation charge sheet was filed on 04.07.2022 under Section 5(m)/6/10 of POCO Act to the Court of learned Special Judge (POCSO) at Mayabunder upon which learned Special Judge has taken cognizance of the offence in terms of Section 33 (1) of the POCSO Act. Formal charge was frame, evidence of witnesses were recorded, the statement of accused under Section 313

of Cr.P.C were recorded and finally the impugned order was passed.

3.

Mr. Kishore Karmakar, learned advocate for the appellant submitted that prosecution failed to bring foundational facts against appellant, but learned Special Judge has erroneously considered on inadmissible evidences to held the appellant guilty. Medical report did not disclose any evidence of injury in or around the private part of the victim girl. Non examination of brother of the victim girl and non-citing of any neighboring people as the witnesses so the incident are amount to material defects in the prosecution story, which was not considered by learned Special Judge. 4.

Learned Advocate for the appellant challenged the order on the ground that (i) the conviction was awarded on the basis of inadmissible evidences of PW-1 because she did not disclose the date, time and place of occurrence in her deposition.

(ii) She also did not say anything that whether he was taken to police station or not.

(iii) the defects left by IO in investigation such as the FIR was filed prior to the date of occurrence and (iv) no call detail records were collected.

(v) No person living around the house of victim was made witness.

(vi) No one seen the incident.

(vii) Medical report does not corroborate the story of prosecution. Prosecution failed to prove the charge under Section 6 of the POCSO Act.

5.

To the contrary, Mr. Sumit Karmakar, learned Public Prosecutor submits that total six witnesses have been examined. All deposed in same tune and case of prosecution has been totally corroborated. This is the case of sexual assault of a six year old girl. She stated same version in her deposition as PW-1, in statement recorded under Section 164 of the Code of Criminal Procedure and to the doctor during her medical examination. Her version is also corroborated by the opinion of Medical Officer. All evidences corroborate the time, date, place and manner of incident. Doctor finds reddish mark on the private part of victim girl and also opined that sexual assault cannot be ruled out.

Since victim girl was gagged she was unable to raise alarm. Appellant failed to cross-examine the witnesses on material particulars to impeach their trustworthiness. Mere denial of facts would not help him unless the defence of enmity or victim girl was tutored had not been taken by the appellant/accused. As such appellant failed to rebut the presumption of his guilt as he was under obligation by dint of Section 29 of the POCSO Act. As such the appeal is deserve to be dismissed.

6.

It is fact that accused has been convicted under Section 10 of the POCSO Act. Section 10 of the Act provides punishment to a person who commits aggravated sexual assault on a child, for a period not less 05 years and with fine. In respect of age of the victim girl there is no dispute. This fact has not been challenged by appellant as well and is well established by her birth certificate.

7.

Section 7 defines Sexual Assault which provides that "7.Sexual Assault. - Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault."

The Act of the appellant would come under Section 9 (m) of the POCSO Act, which provides:

"9. Aggravated sexual assault. - (m) whoever commits sexual assault on a child below twelve years;" 8.

The points involved in this appeal for determination is that whether appellant able to rebut the presumption of his innocence as law imposed on him as per Section 29 of the POCSO Act.

9.

The unfortunate incident happen in the evening of 04.04.2022 when victim girl was alone. She was watching T.V. inside the room. Her mother and elder sister went to Rangat Market. Her elder brother was playing in the field. The appellant knocked the door. She opened the door in anticipation that it would be her elder brother. Appellant entered inside the room, laid her on the bed, gagged her mouth, lifted her clothing, removed her undergarments and started to kiss her necked body including her private part. He sucked there and inserted his finger into her private part. When she started to cry, the appellant fled away therefrom. The appellant was residing near the house of the complainant.

10.

The said information was investigated into. The Investigating Officer come to the same conclusion on the basis of evidences recorded by her during the investigation and charge sheet was submitted under Section 5 (m)/6/10 of POCSO Act.

11.

During investigation the statement of six year old victim girl was recorded by Judicial Magistrate First Class, North and Middle Andaman, Mayabunder on 06.04.2022 wherein she stated that appellant was residing in front of her house and professing to collect iron scrap. On the date of occurrence her father was not there, mother and elder sister had been to market and elder brother was playing at the time. The said old entered inside her room, gagged her mouth and dragged her to bed and touched and licked her private part.

12.

She was medically examined on 05.04.2022 at 12.45 A.M. by Dr. Shobhika Shree, GDMO at PHC, Rangat wherein she finds neither genital or physical injuries present, suggestive of no use of force, however sexual assault cannot be ruled out and she corroborated the same in her cross examination held on 27.04.2022 as PW 3.

13.

Victim girl stated in her cross examination held on 26.04.2022 that incident was happened in the evening, wherein one person had sucked her private parts. The witness identified the one person as Amir Hussain who was present in Court. Thereafter she informed the matter to her mother. She was examined by Magistrate and put her signature thereupon. She was also medically examined by PW 3.

14.

In her cross examination she admitted that so many houses around her house at Sitapur and she admitted that she cannot shout as her mouth was gagged by accused person.

15.

PW 3 is Dr. Shobika Shree who examined victim girl and find redness present in the vaginal orifice. 16.

PW 2 is her mother, who was not present at the time of occurrence. She did not see the incident but came of know about the incident from the mouth of PW 1. As she stated in her cross examination that at the time of incident, she was in market and she returned home at 6:00 P.M. and she further admitted that many persons are residing around her house and some person are residing at the first floor of her

house and that the accused used to business of sale and purchase of old iron scraps, which he stored in front of her house. She further admitted that she did not see the appellant in her house when returned from market. 17.

PW 4 is Dr. B,Ajith Kumar, who conducted the potency test of appellant and submitted his report that appellant is capable of doing sexual intercourse.

18.

PW 6 is the Investigating Officer.

19.

The case of prosecution is very short. On the date and time of occurrence no one was there inside the house except the minor girl. Taking advantage of the situation appellant sexually assaulted her. The victim girl was six years old as her date of birth was 12.03.2016. However, age of victim girl is not in dispute. It was evening. Her elder brother was playing outside.

20.

Victim girl did not disclose the date and time of occurrence either to medical officer or to the magistrate who recorded her statement under Section 164 of Cr.P.C or in her deposition.

21.

It is also admitted position of fact that place of occurrence is surrounded by many houses and same person

are residing in the first floor of the victim's house. But none had seen the incident is also cause a big dent in the prosecution story. The allegation of victim girl is that appellant gagged her mouth, dragged her to bed. Remove her undergarments, lifted her wearing apparels kissed her body, sucked and licked her private part and inserted a finger but she did not state anything about the inserting of finger inside her private part either in her statement recorded under Section 164 of Code of Criminal Procedure or in her deposition. In fact, the FIR was not lodged by her. It was lodged by her mother, who was not present at the time of occurrence. Exaggeration in FIR cannot be denied.

On the basis of FIR case was started under Section 5 (m) which makes a person liable for aggravated penetrative sexual assault when a person commits penetrative sexual assault on a child below 12 years of age.

urethra or anus of the child or makes the child to do so with him or any other person; or (c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or (d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such peon or any other person."

22.

The act makes a person liable for aggravated penetrative sexual assault when he commits penetrative sexual assault on a child below 12 years or by public servant or authority or more than once and repeatedly. For making a person liable under penetrative sexual assault, insertion of penis or any other article inside the vagina is necessary. As per Section 3 (b) insertion of finger inside the private part would make a person liable under penetrative sexual assault and since victim girl was below the 12 years, the act of appellant would come under aggravated penetrative sexual assault.

23.

Similarly, sexual assault is defined under Section 7 of the Act where in it has been stated that- "Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touches the vagina, penis, anus or breast of such person or any other person, or does any other

act with sexual intent which involves physical contract without penetration is said to commit sexual assault" which is punishable for the period of three years under Section 8 of the Act. If such sexual assault becomes aggravated when if such act committed on a child below twelve years, the person would be punished for five years for aggravated sexual assault.

24.

Except FIR, the facts of penetration of finger has not been supported by any other evidence. Even medical report is silent on it. Medical examination was done immediately after the incident, the following night of the date of occurrence, but Doctor did not find anything as to insertion of finger inside the vagina of a six year old girl would certainly cause some injury therein, but medical report is silent on it.

25.

These are some foundational fact which was required to be established first by prosecution to make the appellant liable under Section 29 to rebut the presumption of his innocence. Mere on the statement of PW 2 who was not present at the time of incident prosecution against a person cannot be started under Section 10 of POCSO Act. In

addition of that no circumstances were placed before the appellant in respect of insertion of any object inside the vagina of victim girl during his examination under Section 313 of Code of Criminal Procedure and he was held guilty under Section 10, aggravated sexual assault without giving him an opportunity to take his defence which amount to grave error in the order as it goes to the root of case. 26.

Such defect is factual in nature and sufficient to blow the entire edifices of the prosecution case. Not only this nonciting of neighbor in the list of witnesses is also cast doubt in the prosecution case.

27.

In view of above discussion I find that prosecution is unable to prove its case beyond reasonable doubt and the impugned order is suffers from material defects. 28.

Accordingly, I find this impugned order is liable to be set aside.

29.

The appeal succeeds. CRA (SB)/4/2022 is disposed of. 30.

Bail bond of the appellant, if any, be released. 31.

Registry is directed to transmit the Trial Court Records along with this judgement at once.

32.

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

(Uday Kumar, J.)