Shri Manojit Joydhar 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)/4/2023 Shri. Manojit Joydhar ... Appellant
Versus
The State ... Respondent For the appellant : Mr. Rakesh Pal Gobind For the State : Mr. Sumit Karmakar Heard on : 04.12.2024, 05.12.2024, 09.12.2024, 10.12.2024 Judgment on : 16.12.2024 UDAY KUMAR, J.
1. This criminal appeal is preferred against the order dated 05.09.2023 passed by learned Additional Sessions Judge, Special Court (POCSO Act), South Andaman, Port Blair in Special Case No. 37 of 2018, Special Trial No. 9 of 2019 whereby appellant was convicted under Section 7/8 of Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as 'the Act') and was sentences to suffer rigorous imprisonment for four years and to pay a fine of Rs.25000/- in default of payment of fine to suffer further rigorous imprisonment for six months.
2. Briefly stated the appellant acted indecently with minor daughter of complainant Sangeeta Toppo on 30th May, 2018 when she had been to the Primary Health Centre, Chouldari to meet her brother who was admitted there for treatment of his fever along with Nahun Kerketta by riding on an auto rickshaw of the appellant. It is her case that at 9.50 P.M. her neighbour (PW5) informed the complainant from her mobile phone that victim told her that auto driver had molested her. Thereafter, victim girl stated that auto driver slept in her lap and touched her chest/breast. She called auto driver and scolded him. She lodged her statement at Ograbraj Police Station upon which FIR No.
78 of 2018 dated 31st May, 2018 was started under Section 7/8 of POCSO act against the appellant Manojit Joydhar and the said information was culminated into charge sheet. Learned Chief Judicial Magistrate taken cognizance of the offence. Formal charge was framed. Six witnesses were examined. Circumstances came against the accused during trial were explained to the accused and his statement were recorded under Section 313 of the Code of Criminal Procedure and eventually the impugned order was passed.
3. Learned advocate for the appellant submitted that (i) Nahun Kerketta was present all along the incident. He was neither cited as witness nor examined before the court. His evidence was material in nature.
(ii) But further stated that presumption of Section 29 would not lie as prosecution failed to bring the foundational facts.
(iii) There is discrepancies in respect of the place of occurrence. Victim girl has cited that incident was happened when she was waiting for Nahun Kerketta in the parking of hospital, who returned back to the ward to bring his purse, which he mistakenly left there and in the meantime accused has sexually assaulted her. But in her statement recorded under Section 164 of Code of Criminal Procedure she stated that appellant sexually assaulted her in the midway, when Nahun Kerketta went to purchase something from shop, but none of the place of occurrence has been proved by the prosecution, as no site plan has been submitted by Investigating Officer. Medical examination of victim girl did not support the allegations of complainant. None of the medical staff or guard of Primary Health Centre were interrogated by the Investigating Officer of this Case or made them as witness of this case.
4. Per contra, learned public prosecutor submit that (i) Prosecution successfully establish the charge against the accused person.
(ii) Accused person failed to discharge his onus to rebut the presumption as imposed by Section 29 of the Act.
(iii) Admittedly, the place of occurrence is near the gate of the Primary Health Centre and it take five minutes to reach ward from the gate and during that short period appellant did the act of sexual assault of victim girl in drunken condition.
(iv) Appellant has been rightly convicted and his appeal deserved to be dismissed with exemplary costs.
5. The main issue involved in this appeal to decide that whether prosecution able to bring home the charges against the appellant.
6. PW 1 is the victim girl, who deposed in her examination-in-chief that she had been to Primary Health Centre, Chouldari on 30th May, 2018 to see her ailing brother admitted there in ladies ward along with Nahun Kerketta with the home made dinner, for her mother and brother riding on the auto of appellant. After finishing dinner at hospital, her mother instructed her to return home. She boarded on the same auto. After covering some distance Nahun remembered that he forget his money purse at hospital and immediately rushed towards the ward to bring his purse. Finding her alone sitting on the back seat of the auto rickshaw, driver uncle came there and put his head in her lap and thereafter started to touch her chest and told her that he will stay with her in night at her house. He was under the influence of liquor. In the meantime Nahun uncle returned. They reached home. Then she narrated the incident to her
neighbour (PW5) and to, mother from mobile phone of the neighbour and also to the police.
7. In her cross examination she stated that Chouldari Primary Health Centre is about half KM away from her house and Nahun Kerketta was known to her since her child hood as he is her maternal uncle by relation. Her father is not living with them. Her mother is working under caterer. She further admitted that only peon uncle of hospital was present at some distance, at the time of incident and he was busy with his phone. Incident took place within couple meter from the gate of hospital, peon uncle was staying about 10 meter away therefrom. Hospital was situated about 20 meters from the place of occurrence, but no guard was present over there at that time and as she was frightened she did not go to hospital to report the incident to her mother.
8. In her statement recorded under Section 164 of Code of Criminal Procedure by Judicial Magistrate First Class (II), Port Blair on 7th June, 2018 she stated on 30th May, 2018 her mother went to Primary Health Centre Chouldari with her brother in the evening. He was suffering from fever. Mother told her to stay at home and cook. After a while Nahun Kerketta came alongwith auto wala uncle. After cooking, she went to hospital along with Nahun uncle riding in the auto of accused. Stayed there for some time and taken their dinner together. Her mother told her to return home as it was quit late at night.
Nahun uncle and auto uncle then decided to return home with her. They get in the auto. Accused was driving the same. Nahun uncle and auto uncle both were in drunken condition. In the mid-way Nahun uncle stopped auto and went to shop. Accused then come to the side of her seat and slept in her lap as he felt drowsy. Then he suddenly started pressing her breast by his left hand and said her that he want to stay with her at her home on that night. I was frightened. She narrated the incident to her neighbour aunty on that night. She told the same to her mother over mobile. My mother came at about 12 P.M. and lodged complaint at Police Station on that night itself.
9. PW 2 is hearsay witness as she did not saw the incident. At the time if incident she was in the hospital. Her neighbour informed first in time. Thereafter victim girl informed her over telephone. She stated that incident happened at the gate of Chouldari, Primary Health Centre when Nahun Kerketta return to collect his purse forgetter there in the ward, leaving the victim girl in the auto. In the meantime, the appellant auto driver assaulted the victim sexually. She do not utter anything to Nahun and stated the incident to her neighbour who informed the incident to the complainant. In her cross examination she admitted that Nahun is very close to her. However, he is neither her neighbour nor blood relative. She further admitted that the gate of hospital manned by guard. On the day of incident she do not find any guard thereat. Her son was admitted in ladies ward. She also
admitted it takes 1 to 2 minutes to reach ward from the place where auto was parked i.e. place of occurrence. She do not stated the name of person appeared at place of occurrence at the time of confrontation with the accused/appellant. She denied the suggestion that auto driver was falsely implicated in this case as she fail to pay hire charges by stating that it was hired by Nahun Kerketta and not by her and also denied that the appellant was known to her and she was not aware of about the registration number of the said auto rickshaw. 10.
PW 3 is Dr. Tushnik Ghosh, who examined the accused and found that he was under the influence of liquor. 11.
PW 5 is the neighbour, Lilly Adhikari who stated that on 30.05.2018 at about 9:30 P.M. the victim girl came to her and asked her to hand over her phone as she wishes to talk to her mother with her mobile phone. In her cross examination she admitted that she was not examine by police and she had no knowledge of any incident.
12.
It is fact that appellant faces the charge under Section 7/8 of the Act. Section 7 defines Sexual assault it 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."
13.
Section 8 provides punishment for the sexual assault of a person who commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine.
14.
The allegation made by victim girl that appellant touches her breast from his left hand and put his head in her lap. It is admitted fact and proved by the medical report that appellant was under the influence of liquor. Whether he had touched her breast with sexual intention is not proved.
15.
PW 2 did not seen the occurrence. She heard the occurrence first frim her neighbour, Lilly Adhikari PW 5. But it is her denial that she had no knowledge about any incident of such nature. If she was not aware about any such incident then how PW 2 were informed by her. Prosecution failed to remove the doubt. 16.
The place of occurrence is also not fixed. There is material contradiction in the statement of victim girl made before the judicial magistrate that the incident was happened in the midway when Nahun uncle went to shop. Then appellant came to the side of her seat and slept in her lap as he felt drowsy and he suddenly started pressing her breast from his left hand and said that he want to stay with her in night at her home. She stated in her examination-in-chief that the place of occurrence was the gate of Primary Health Centre and the same was stated by PW 2. It is strange that investigating officer do not refer any of the two
place of occurrence in case diary. No site plan has been submitted by the investigating officer. No person of Primary Health Centre were either examined by investigating officer during investigation or made any of them as a witness of this case, casts doubt in the prosecution story.
17.
On the other hand Nahun Kerketta was the person who was with the victim girl through out of her journey but neither he was examined nor made witness and nor victim girl stated anything to him despite the fact he was material witness of this case.
18.
Entire case of prosecution depends upon the evidence of victim girl and her mother but their statements are not corroborated by any other independent witnesses or documents. When PW 5 did not support their case, then I fail to understand that how prosecution is succeeded to establish its case.
Even foundational case has not been establish by prosecution. So presumption has not been shifted on the shoulder of the accused to rebut the adverse presumption of his innocence. 19.
I find that prosecution is unable to prove its case beyond reasonable doubt and the impugned order is suffers from material defects.
20.
Accordingly, I find this impugned judgement is liable to be set aside.
21.
The appeal succeeds. CRA (SB)/4/2022 is disposed of.
22.
The appellant is acquitted from the charges. Bail bond of the appellant, if any, be released. Surety, if any, be discharged. 23.
Registry is directed to transmit the Trial Court Records alongwith this judgement at once.
24.
Urgent Photostat certified copy of this judgement, if applied for, may be supplied to the parties upon compliance of usual formalities.
(UDAY KUMAR, J.)