Swarup Biswas vs State Of West Bengal & Ors.

Shivakant Prasad, J.

The instant appeal is directed against the judgment and order of conviction dated 06.01.2015 and sentence dated 07.01.2015 passed by the Additional

District & Sessions Judge, 2nd Court, Krishnanagar, District- Nadia in Sessions Trial No. XI (VIII) of 2014 arising out of Sessions Case No. 5(4) of

2014 (Spl.) convicting the appellant under Section 8 of POCSO Act, 2012 and sentencing him to undergone imprisonment for five years and to pay a

fine of Rs. 5,000/- in default to undergone Rigorous Imprisonment for three months inter-alia, on the grounds that the prosecution witnesses having

embellished their earlier statements made under section 161 of the Code of Criminal Procedure and having contradicted one another, the Ld. Judge

erred in law in convicting and sentencing the appellant for charge under Section 8 of POCSO Act.

It is submitted on behalf of the appellant that the medical evidence has not been appraised in its right perspective inasmuch as Dr. Bhabotosh

Bhowmick, the P.W. 2 as a Medical Officer of Nadia District Hospital of Krishnanagar had examined the victim girl who did not disclose anything to

him rather the history was narrated by her mother (P.W. 3) that victim girl sustained injury while she was playing. According to medical evidence this

type of injury may be caused if any person got down from Dolna (swing).

It is further submitted that Tumpa Biswas, P.W. 3 who is the mother of Barsha Biswas and her evidence is very concocted story. Evidence of said

P.W. 3 and other witnesses are hearsay in nature because she had not seen the appellant having inserted his finger into the private part of the victim

girl. Accordingly, it is submitted by learned counsel for the appellant that the prosecution witnesses have made vital departure from their earlier

statement under Section 161 Cr.P.C. recorded by Bhaskar Roy, P.W. 13 Investigating Officer.

Now the point for decision is as to whether the prosecution has been able to substantiate the charge leveled against the appellant and if the judgment

impugned is tenable in law. The prosecution case in brief is that on 31.02.2013 at about 2 P.M. in the afternoon, the accused Swarup Biswas (herein

after called as the appellant) entered into the house of the complainant and committed sexual assault on the victim girl by inserting his thumb into her

private part in absence of her father and mother as a result blood was oozing out from her vagina. The wife of the complainant rushed there on

hearing cry and saw him fleeing away from their house. Victim girl narrated the incident in tears. The mother took her daughter to Bagula Hospital

wherefrom she was referred to the Sadar Hospital.

On the basis of a written complaint, Hanskhali P.S. Case No. 225/14 dated 31.3.2014 under Section 376(2)(i) IPC read with Section 6 of the

Protection of Children from Sexual Offence Act, 2012 was started against the appellant and usual investigation S.I. Bhaskar Dey, I.O. submitted

Charge-sheet against the appellant under Section 376(2)(i) of IPC and Section 6 of Protection of Children from Sexual Offence Act, 2012.

After framing of charge under Section 8 of said Act against the appellant trial started and on closure of the prosecution evidence, the appellant was

examined under Section 313 Cr.P.C. to which he declined to adduce any defence witness. Defence is one of denial of charge as it emerges from the

trend of the cross-examination of the prosecution witnesses and the statement of the appellant made during examination under Section 313 Cr.P.C.and

that the charge has been foisted against him. Now the point for decision is whether prosecution has been able to substantiate the charge beyond

reasonable and the impugned judgment tenable in law and in fact.

In the context of the submission as made on behalf of the learned Advocate for the appellant, evidence laid by the prosecution are required to be

appraised. In this case, the victim girl aged 6 years deposed as P.W. 1 after preliminary examination to test her capacity to understand and give

rational answers and after the learned Judge formed his opinion as to the competence of the witness to depose as per the requirement of Section 118

of the Evidence Act.

At the trial, oral testimony of PW 1is the direct legal evidence about the incident besides evidence of her mother P.W. 3. It is stated in the evidence

that while she along with her younger sister were playing on a Dolna (swing) made of cloth, the appellant entered into their house and after removing

her pant pushed his finger into her vagina, as a result, blood was oozing out and this incident she has narrated to her mother. Mother of the victim has

deposed as P.W. 3 whose evidence may be hearsay according to defence, but her statement on oath cannot be discarded on its face value inasmuch

as narration of fact on evidence finds corroboration by their oral testimonies. Literally hearsay is evidence of a statement of a person made other than

the witness testifying at the hearing in question and offering to prove the truth as stated by her mother. Some statements as hearsay may not be

admissible as evidence in Court but some statements are exception to the general rule on hearsay and such exception to the hearsay rule apply only

when the declarant is unavailable for testimony at the trial for hearing. Therefore, the hearsay rule is an analytic rule of evidence that defines hearsay

and provides for both exception and from exception that rules. P.W. 3 has testified the fact on oath as narrate by her daughter the victim girl. Moreso,

prosecution case is well proved by corroboration of their statements recorded under section 164 of the Code of Criminal Procedure.

P.W. 1 has clearly stated on oath having narrated the incident to her mother P.W. 3 who took her to hospital for her to be examined by a doctor. The

defensive suggestion put to the P.W. 1 in her crossexamination is that she sustained injury in her vagina while getting down from Dolna (swing) which

does not go to the root of the prosecution case. Dr. Bhabotosh Bhowmick, P.W. 2 a Medical Officer of Nadia District Hospital, Krishnanagar had

examined the victim girl and on examination observed scratch type of injury over labia minora on left side with slight bleeding though injury was simple

in nature as per the injury report Exhibit-1. Bed head ticket Exhibit-2 shows that the victim girl was admitted under him. In cross-examination the

history was narrated by the mother of the victim girl which in my opinion is quite natural. The defence went on to suggest to the doctor that such type

of injury might be caused if any person got down from Dolna (swing). The defence further contended that it was not the accused appellant who had

caused the injury on the labia minora. Such contention has no basis as the victim has identified the appellant as the person who committed the crime of

sexual assault on the victim.

According to P.W. 3, the mother of the victim, the victim was weeping and disclosed to her that after removing her pant the appellant had put finger to

her vagina. P.W. 1 and P.W. 3 both her made statements before the Judicial Magistrate who recorded their statements under Section 164 Cr.P.C.

and put her signatures as exhibits-3 series. Smt. Mala Chakraborty, P.W. 5 Judicial Magistrate, 6th Court, Krishnanagar had recorded the statement

of the victim and of Tumpa Biswas, the mother of the victim proved as Exhibits- 6 and 7 respectively. The first information report exhibit-5 finds

corroboration by its maker Biswajit Biswas, P.W. 4 the father of the victim who was informed about the incident by his wife from hospital itself. He

has also corroborated the fact of seizure of Dolna made of cloth under a seizure list exhibit-4 and exhibit-4/2. According to him, admittedly appellant is

his close relative and had visiting term to his family. The said Dolna made of cloth was seized under a seizure list Exhibit-4. In cross-examination P.W.

3 candidly testified the fact that there was no inimical relationship with the appellant. So, it cannot be said that a false case has been foisted on the

appellant.

The grandmother of the victim namely Sova Tarua P.W. 6 has testified the fact of victim being admitted in hospital at Krishnanagar sadar hospital for

treatment. P.W. 6, Plaban Kundu P.W. 7 and Mrityunjoy Roy P.W. 8 have not made any statement about the incident to the police at the earliest

point of time. So, their evidence are not relevant for the purpose of prosecution so also the evidence of Sankari Biswas P.W. 9 the ‘Ja’ of

Tumpa Biswas and of Puspa Biswas P.W. 10 who have been declared hostile by the prosecution. Criminal case was set on motion on the basis of a

complaint of Biswajit Biswas, the father of the victim registered as Hanskhali P.S. Case No. 225/14 dated 31.3.2014 under Section 376(2)(i) IPC read

with Section 6 of the Protection of Children from Sexual Offence Act, 2012 by ASI Achinta Kumar Dube evident from the endorsement on FIR

exhibit- 5/2 and the formal FIR Exhibit-8 and Bhaskar Dey S.I. of Police P.W. 13 submitted charge-sheet after the completion of investigation against

the appellant.

The evidence as gathered from the oral testimony of victim P.W. 1 and her mother P.W. 3 taken together with the medical evidence proved the fact

of sustaining cut injury in the labia minora. Undoubtedly, injuries to the female area labia, vulva and vagina in girls are protected. Straddle injuries can

be caused if an injury to the groin is caused on fall on an object such as, playground equipment, cross-bars of a bike or fence. Generally injuries is

caused on the outer labia i.e. labia majora because the labia minora, vagina and urethra are protected by the labia majora. Therefore, the injury in the

instant case on labia minora of the victim girl as per medical examination report clearly corroborates and support the statement of the victim girl

recorded under Section 164 Cr.P.C., ergo, the oral testimony of the victim , her mother and the medical evidence together with their statement

recorded under Section 164 Cr.P.C. supports the prosecution case that the appellant caused sexual assault on the victim girl by inserting his finger

forcibly into the vulva of victim girl aged about six years.

In the above premises the appellant does not deserve to be dealt with lenity. The object and reason for the POCSO Act, 2012 having been enacted to

strengthen the legal provision of Protection of Children from Sexual Offences with strengthen punishment graded as per the gravity of the offence. I

am of the view that the learned Trial Judge has rightly held the appellant guilty of the offence under Section 6 of POCSO Act, 2012.

The learned Advocate for the appellant submitted for reduction and/or modification of term of sentence already undergone by the appellant. The

question of sentence is a matter of discretion primarily resting with the trial Court. It is well settled that when that discretion has been properly

exercised, an appellate Court should not interfere unless there are very strong reasons and in case where the sentence cannot be said to be so grossly

inadequate as to amount to a miscarriage of justice.

Therefore, the question of sentence has to determined not with reference to the volume or character of the evidence adduced by the prosecution in

support of its case, but with reference to the fact whether there are any extenuating circumstance which can be said to mitigate the enormity of the

crime. In the context of what has been discussed above I do not find any mitigating circumstance to reduce the sentence to the period already

undergone. In the result, the appeal fails and is dismissed. A copy of this judgment be supplied to the appellant free of cost through his Advocate on

record. Send a copy to the Superintendent Correctional Home. LCR be sent to the learned Court below along with a copy of this judgment forthwith.

Urgent copies of this judgment be supplied to the State free of cost at once.