w w w . L a w y e r S e r v i c e s . i n

Akhil Shil v/s The State

Company & Directors' Information:- AKHIL INDIA PRIVATE LIMITED [Active] CIN = U51109JK2000PTC002046

Company & Directors' Information:- AKHIL CORPORATION PRIVATE LIMITED [Under Process of Striking Off] CIN = U74900TG2015PTC098902

    CRA. No. 004 of 2019

    Decided On, 19 June 2019

    At, High Court of Judicature at Calcutta


    For the Appellant: Krishna Rao, Advocate. For the Respondent: S.K. Mandal, Senior Advocate, S.C. Mishra, Advocate.

Judgment Text

Joymalya Bagchi, J.

A horrendous incident of brutal sexual assault marring the innocent childhood of a three year girl is the subject matter of instant appeal. It is alleged that the minor girl was playing in the verandah in front of her room. The appellant, a co-tenant, called her into his room on the pretext of giving tea. Thereafter, PW-2, mother of the victim, heard screams coming from the room of the appellant. She rushed to the spot and banged at the door which was closed from inside. After much effort appellant opened the door. He was naked. Victim was also found undressed. As the mother of the victim was leaving the room with the child, the appellant pushed her. PW-2 enquired from her daughter about the incident and the latter informed her that the appellant removed her wearing apparels and inserted his finger into her vagina.

On the written complaint of PW-2, First Information Report was registered against the appellant. The victim was medically treated at the hospital by PW-7 who found injuries in her private parts. Upon completion of investigation, charge sheet was filed against the appellant. Charges were framed against him under sections 4/6 of POCSO Act, 2012 and under section 376/342/341 IPC. Prosecution led evidence by examining eight witnesses and exhibiting a number of documents. Defence of the appellant was one of innocence and false implication.

In conclusion of trial, the trial Court by the impugned judgment and order convicted the appellant for the offences punishable under section 6 of the POCSO Act and under section 342 of the IPC and sentenced him to suffer rigorous imprisonment for ten years and to pay a fine of Rs. 10,000/- in default to suffer simple imprisonment for six months more for the offence punishable under section 6 of the POCSO Act and to suffer rigorous imprisonment for six months for the offence punishable under section 342 IPC. Both the sentences to run concurrently.

Learned lawyer appearing for the appellant submitted that the prosecution case suffers from various contradictions and/or inconsistencies. The victim (PW-1) could not coherently narrate the incident in court. The version of her mother (PW-2) suffers from various contradictions when compared with her earlier statements in FIR as well as before Magistrate. In her statement before the Magistrate under section 164 Cr.P.C, PW.2 claimed that the appellant was lying in the verandah in a drunken condition. She also claimed that other persons had banged on the door at the time of the incident. These facts were significantly absent in her deposition in Court. It was her specific case that the victim was admitted in hospital for two days. Thereafter FIR was registered. On the contrary, it appears FIR was registered on the day of the alleged incident. Medical report is also not conclusive of the act of penetrative sexual assault. In view of the aforesaid lacunae in the prosecution case, the appellant is entitled to an order of acquittal.

Mr.Mandal, learned senior counsel with Mr.Mishra argued that aggravated penetrative sexual assault was perpetrated on a three year old child. Evidence of the minor must be appreciated keeping in mind her age and other attending circumstances of the case. Evidence of the victim (PW-1) is corroborated by her parents (PW.2 and PW.3) and the medical evidence of Doctor PW.7. Minor contradictions in the evidence of the aforesaid witnesses does not affect the credibility of the prosecution case which is wholly founded on the versions of the victim PW.1, her parents PW.2 and PW.3 and the medical witness P.W.7. Hence, the appeal is liable to be dismissed.

Victim (PW.1) was aged around three years at the time of incident. She was examined in Court after putting preliminary questions to her which she had duly answered showing maturity commensurate to her tender age. Her evidence, therefore, is to be judged bearing in mind her immature years and it would amount to a travesty of justice if her evidence is tested with such exactitude and scrutiny as if she were an adult witness. Hence, I have proceeded to appreciate her deposition in the backdrop of the aforesaid facts and circumstances of the case particularly her tender age and the trauma associated with the alleged crime. The witness identified the appellant in Court and stated that he was not a good man and had removed her wearing apparels. What more can be expected of a three year old child who suffers secondary victimization in Court of being compelled to recount and narrate the utter trauma of sexual violence which befell her at such tender age? Her evidence resonates with the truthfulness of her innocence and ought to be given due respect it deserves.

PW-2 her mother has, however, laid the framework of the prosecution case on solid foundation. She deposed, on 15th May, 2016, while she was stitching clothes, her daughter was playing in the verandha. The appellant- a co-tenant, took her daughter into his room on the pretext of giving her tea. He took her inside the room and locked the door from inside. Soon thereafter, PW-2 heard cries coming from the room. She went to the room of the appellant and found the door closed from inside. She knocked at the door. The appellant opened the door of his room unclothed. Peeping inside she found her daughter was also naked. While she was coming out of the room with her daughter, the appellant caught hold of her hand. Her daughter told her that the appellant had taken her inside the room and after locking the room had removed her wearing apparels and inserted a finger in her private parts. These aspects of her statement remained un-assailed in crossexamination. The version of PW-2 has been corroborated by her husband PW-3 as well as PW-7, the medical officer who examined the victim.

PW-7 deposed on 15th May, 2016 a minor girl aged about three years was brought to CHC Diglipur where she was working as CMO. She found muddling (manhandling/fingering) of the vagina of the victim. Hymen was intact. Inflammation around vaginal area and labia minor were detected. The area was red, inflamed with tenderness. There was no complete penetration but attempt was made. Vaginal swab was taken and handed over to the police. She identified the medical proforma (Exhibit-4) which was written by her. She handed over test-tubes containing vaginal swab and the wearing apparels of the victim. She signed on the seizure list.

PW-8 is the Investigation Officer in the instant case who forwarded the victim and PW-2 for recording statement under section 164 of the CrP.C. He collected the vaginal swab etc from the Medical Officer and submitted the charge sheet.

PW-4 drew up the formal FIR on the basis of the written complaint received from PW-2 on 15th May, 2016.

Evidence of PW-2 has been criticized on the premise that she claimed that her daughter was admitted in hospital for two days after the incident and thereafter FIR was registered. Materials on record, however, show FIR was registered on the self same day and thereafter the victim had been medically examined.

Prosecution evidence is also criticized on the ground that independent witnesses who were claimed to be present at the place of occurrence as per statement of PW-2 before the Magistrate had not been examined.

I find that FIR in the instant case was registered on the self same day i.e. 15th May, 2016. Exhibit -3 i.e FIR read along with evidence of PW-4 clearly establishes such fact. Soon thereafter, the victim was taken by a lady police officer and her mother to the hospital for medical examination.

PW-7 found muddling i.e. manhandling/fingering of the vaginal area which showed inflammation and redness. Prompt lodging of FIR and the aforesaid medical evidence lends considerable force and credence to the version of penetrative sexual assault on the victim as narrated by her mother, PW-2. When judged from this backdrop, variation in her version with regard to admission of the victim in the hospital prior to lodging of FIR may be due to poor recapitulation and would not affect the foundation of the prosecution case of penetrative sexual assault on the minor by the appellant on the fateful day.

When the version of the victim and her mother, that is PW-1 and PW-2 with regard to penetrative sexual assault receives corroboration from medial evidence, non-examination of independent witness, if any, in my considered opinion, does not affect the credibility of the prosecution case. No case of pre-existing enmity between the parties was elicited during cross-examination of the prosecution witnesses so as to discredit their versions in absence of independent or corroboration.

I am also unable to accede to the plea of the learned counsel for the appellant that the case would not fall within the ambit of ‘aggravated sexual assault’ as defined under section 5 of the POCSO Act. Insertion of finger in the vagina of a three year old girl which is supported by medial evidence leaves no doubt in my mind that the ingredients of the aforesaid offence are wholly established.

Opinion of PW-7 with regard to the lack of complete penetration must be read in the backdrop of her entire evidence. Complete penetration is not sine qua non for the offence of rape or penetrative sexual assault. Penetration of any form is sufficient to attract the ingredients of such offences.

In the facts of the case, I have no doubt in my mind that the appellant had brutally penetrated the minor victim with his finger resulting in severe injuries in her private parts. The prosecution case stands wholly established beyond doubt. The conviction and sentence is, accordingly, upheld.

Evolution of criminal law in the recent past has witnessed substantial changes. From a bipolar jurisprudence between the State and the offender, criminal justice delivery system has shifted to a multipolar dimension involving the victim as a prime participant in the said system encompassing recitative justice. The statutory recognition of such evolution is found in the incorporation of the definition ‘victim’ in the Code as well as incorporation of Section 357 A therein which enjoins upon the State to provide compensation to the victims of grave crimes. Keeping in mind such wholesome progress in law as well as the necessity to compensate a three year old rape victim belonging to a humble background, I consider it imperative to direct the State to pay compensation to the tune of Rs.5.00 lakhs to the minor victim in public law realm to ensure her proper education and rehabilitation. Such payment shall be paid by the State to the minor (PW.1) through her natural guardians (PW.2 and 3) within eight weeks from date.

At this juncture we are informed by Mr. S.K.Mandal, learned senior advocate that the Andaman and Nicobar Administration has already formulated and notified the ‘Victim Assistance Scheme/Survivors of Sexual Assault/other Crimes, 2019’ vide notification dated 22nd March, 2019. Copy of the scheme is kept with the rec

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ord. This is a laudable step. However wide publicity and public awareness of the Scheme amongst members of the public and legal fraternity is necessary for its true fruitition. Accordingly, I direct the Administration as well as the District Legal Services Authority to give wide publicity to the said scheme amongst members of the public and legal fraternity. The District Legal Services Authority shall ensure that the said scheme is displayed in a prominent manner in its office as well as in the court premises for public awareness and effective implementation of the Scheme. Principal Secretary (Law), A & N Administration and Member Secretary. District Legal Services Authority shall take necessary steps for compliance of these directions. Compliance reports shall be filed on the next date of hearing. A copy of this judgment and orders be communicated to the Principal Secretary (Law), A & N Administration and the Member Secretary, District Legal Services Authority for due compliance. The appeal is disposed of. The matter shall appear after eight weeks from date for submission of compliance reports, as aforesaid. I agree. Abhijit Gangopadhyay, J.