Dilip Mandal @ Das vs The State Of Assam And Anr.

By this criminal appeal, filed under Section 374 of the CrPC, the convict appellant from jail has challenged the Judgment and Sentence dated 28.01.2022, passed by the learned Special Judge, POCSO, North Salmara, Abhayapuri, in Special (POCSO) Case No. 22 (A) of 2021, by which the appellant was convicted under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (shortly here-in-after referred to as “POCSO Act”), and was sentenced to undergo Rigorous Imprisonment for the remainder period of his natural life with a fine of Rs. 50,000/- and in default for payment of fine, to undergo Rigorous Imprisonment for another period of 3 (three) years.

The case of the prosecution is that an ejahar was lodged by the grandmother of the victim on 19.09.2019, before the Officer-in-Charge of North Salmara Police Station, stating inter alia, that on 17.09.2019, at around 07:00 pm, while she was returning from her relatives’ house, carrying her 5-year-old granddaughter, i.e., the victim in her arms, the appellant approached her and requested her to allow him to hold her grand daughter in his arms. The informant further stated that initially she refused, but on his insistence, she handed over her granddaughter to him. She also stated that when the appellant held the victim in his arms, he inserted his finger into her private part and that the informant had witnessed the incident herself and also further that victim at that juncture screamed and cried and then the appellant had put her down and fled. The informant further stated that there was some delay in lodging the FIR, which was due to the fact that she and her family members were searching the appellant.

On receipt of the said ejahar, the Police registered the case as Abhayapuri PS Case No. 626 of 2019 under Section 376 AB of IPC, read with Section 4 of the POCSO Act. On completion of the investigation, the Police submitted charge sheet against the appellant on 31.12.2020 under Section 379 IPC, read with Section 4 of the POCSO Act, before the Court of learned CJM, Bongaigaon. Subsequently, the case was committed to the Court of learned Special Judge, POCSO, North Salmara, Abhayapuri, and the said Court upon perusal of the records of the case, and after hearing the parties, framed charge against the appellant under Section 4 of the POCSO Act. The said charge was read over and explained to the appellant, to which he pleaded not guilty and claimed to be tried. However, during the trial, it was found out that a prima facie case under Section 6 of the POCSO Act, was made out and as such, the charge was altered by replacing the charge under Section 4 of the POCSO Act by Section 6 of the POCSO Act. The charge was again read over and explained to which the appellant pleaded not guilty and claimed to be tried. The Trial Court examined 7 (seven) numbers of prosecution witnesses and thereafter, examined the appellant under Section 313 of the CrPC, and on completion of the trial, the Trial Court passed the Judgment and Order dated 21.12.2022, as mentioned above. The Trial Court had convicted the appellant mainly on the following grounds:-

The victim had narrated the incident in similar terms before the Trial Court as she had stated before the Police during the investigation.

ii) The grandmother of the victim, i.e., the informant, had witnessed the incident and had narrated the entire incident corroborating the statement of the victim.

iii) The evidence of the doctor also corroborated the prosecution case inasmuch as, the report reflected that the vaginal orifice of the victim was inflamed.

iv) The appellant during his examination under Section 313 CrPC, admitted that on the day of occurrence, he met the victim’s grandmother and the victim on their wayback to home, with the further statement that he was in drunken state at that point of time.

There is nothing on record to indicate that the grandmother of the victim or any other relatives of the victim had any enmity with the appellant.

vi) The Trial Court had opined that the act of the appellant fell under Section 3 (b) of the POCSO Act and the child being aged about 5 (five) years at the time of occurrence, the appellant is stated to have committed aggravated penetrative sexual assault, which is an offence under Section 5 (m) of the POCSO Act, and the same being punishable under Section 6 of the POCSO Act, the conviction and sentence is as such, inflicted.

The grandmother of the victim, i.e., the informant was examined as PW No. 1 and she stated before the Trial Court that she knew the appellant, who is a co-villager and that on the time of occurrence, she was returning home with the victim and when she was on her way, she met the appellant, who requested her to let him carry the victim to the victim’s house on his shoulder. She, thereafter, stated that at first, she did not allow, but the appellant forcefully took the victim from her and started carrying her on his shoulder and that in front of her own eyes, the appellant inserted his fingers into the vagina of the victim, at which the victim shouted and that she took the victim on her lap. She further stated that at that juncture, her son, i.e., the victim’s father came and seeing her son, the appellant fled away. This witness also stated that after the incident, the vagina of the victim swelled and that she was in great pain and also that, she could not walk for 2/3 days. She thereafter stated that police seized the birth certificate of the victim.

This witness was cross-examined by the defence and she stated that at the time of occurrence, neither there was any street light nor there was any other person present therein. This witness further reiterated that there was darkness at the place of occurrence. She also stated that the victim at the time of occurrence was wearing a frock. There appears a contradiction in the statement of this witness and the same was put to her in the cross-examination, wherein she stated that it is not a fact that she did not make the statement as mentioned in her examination-in-chief stated above, before the Police. This witness also stated that the Police, had seized the birth certificate of the victim and that the same is not a forged document. She reiterated that it is not a fact that appellant did not commit the crime or that she has given false evidence.

The victim girl was examined as PW-2 and she being 7 years of age, at the time of her appearing as a witness, her ability to understand the questions was looked into and after finding out that she has given rational answers, the Court certified the victim to be a competent witness and, thereafter, recorded her statement. The statement was recorded in a Question and Answer Form, wherein she replied that she had come to the Court to tell about the act that the appellant did with her. She also answered to the concerned query that appellant inserted his finger insider her “nunu” which she explained by pointing towards her vagina.

This witness was cross-examined and during the same, she stated that she had visited the Court with her grandmother and that her grandmother taught her as to what she should say in the Court. However, she reiterated that it is not a fact that appellant did not insert his finger into her vagina.

The mother of the victim was examined as PW-3 and she stated before the Trial Court that her mother-in-law had narrated the incident to her, wherein it was stated that while she was returning back with her daughter, she met the appellant, who requested her to permit him to carry her daughter and when her mother-in-law allowed, the appellant had inserted his fingers into the vagina of the victim, at which the victim shouted and that the appellant fled away. This witness further stated that after the incident, her mother-in-law brought her daughter to her house and told the incident to her and others. She also stated that on the complaint made by her daughter, about pain in her vagina, she examined the area and found that there was swelling in the vagina and that she took the victim to the doctor.

During cross-examination, this witness reiterated that she did not see the incident and that it was told by her mother-in-law. A contradiction was also put to this witness, to which she proved the same stating that she did not state before the Police that the victim’s vagina was swelling and that she took her to the doctor for treatment. However, she also stated that she did not make such statements as Police did not ask her.

The son of the informant, i.e., the father of the victim was examined as PW-4 and he stated that his mother had narrated the incident to him, wherein his mother similarly stated as she stated before other witnesses that while she was bringing her 5-year-old daughter by taking her in her lap, the appellant met his mother and by introducing himself, took the victim on his lap, by taking her from his mother and while he was carrying her on his shoulder, the appellant inserted his fingers into the vagina of the victim, to which the victim shouted and that the appellant by leaving the victim, fled from the scene. This witness also stated that after his mother told the incident to him, he reported the matter to his fellow villagers.

This witness was cross-examined and during the same, he stated that his mother had eye-sight problems and that he did not see the incident. A contradiction was put to him with regard to the fact that this witness had not stated few statements before the Police, to which he replied that it is not a fact that he did not state before the Police, the statement he made in his examination-in-chief, to the effect of hearing the incident from his mother.

The doctor who examined the victim, deposed as PW No. 5, and he stated that on examination of the victim, he found the vaginal orifice of the victim inflamed. However, he stated that the hymen was found intact and that no injury mark was seen on the body.

During cross-examination, this witness stated that vaginal orifice of a female can get inflamed because of infection, itching etc., and also that if a child plays outside without wearing undergarment, she can suffer vaginal infection.

The Investigating Officer was examined as PW No. 6, and he stated that the grandmother of the victim lodged the ejahar and on registration of the same, he conducted the investigation.

During cross-examination, he proved the contradiction with regard to the statement of the grandmother of the victim, who had not stated before him that the father of the victim had come when the incident took place and that seeing the father of the victim, the appellant fled away and also that, the victim’s vagina was swelling and that she was in great pain and further that the victim could not walk for 2/3 days.

Another Investigating Officer, who was handed over with the Case Diary by PW-6, was examined as PW-7 and he stated that after collecting the Case Diary, he also collected the Medical Report of the victim and had seized the birth certificate, and upon finding out a prima facie case against the appellant under Section 376 of the IPC, read with Section 4 of the POCSO Act, he submitted the charge sheet.

These are the evidences adduced by the prosecution and thereafter, the appellant was examined under Section 313 of the CrPC wherein the Trial Court had put all the incriminating circumstances appearing against the appellant in the said case and to all the said circumstances, the appellant replied that he does not know anything about the same and also that the allegations adduced were false. To the final query, as to whether the appellant has anything to say, the appellant replied that on the date of occurrence, at about 07:30 pm, he met the informant and the victim on their wayback home and that he was in a drunken state at that point of time, but he denied of doing anything as alleged by the prosecution. Thereafter the Ld. Trial Court heard the arguments on behalf of both the parties and delivered the Judgment and order convicting the appellant and sentencing him under Section 6 of the POCSO Act.

Mr B Haldar, learned Amicus Curiae appearing for the appellant submitted that there are many contradictory statements made by the prosecution witnesses and that there are contradictions which were proved by putting the said statements before the Investigating Officer, to the effect that certain statements made by the informant as well as the father of the victim were not stated before the Investigating Officer, which were proved by the IO, as mentioned above. He submitted that the witnesses have developed and had embellished the present case while deposing before the Trial Court. He further submitted that the opinion given by the doctor is not considered to be conclusive and further that the cross-examination of the said doctor, reflected that the injuries found in the private part of the victim can be due to playing outside. The learned Amicus Curiae also submitted that the prosecution witnesses were all related to the victim and that there were no independent witnesses and the statement of the victim before the Trial Court was also a tutored statement as could be discerned from the statements of the victim during her cross-examination.

Mr. Rishiraj Kaushik, learned APP for the State, submitted that the statement of the victim, both before the Magistrate recorded under Section 164 CrPC as well as before the Trial Court, were consistent, inasmuch as, in both the statements, the victim stated that by taking her in his arms, the appellant inserted his finger in her private part and that she cried in pain. He further submitted that the doctor’s evidence also corroborates the evidence of the prosecutrix as well as the grandmother of the victim to the extent that the victim’s vaginal orifice was found to be swollen. He also submits that in the present case, there is also an eye-witness, i.e., the grandmother of the victim, who had seen the appellant inserting his finger into the vagina of the victim. He, as such, submits that the judgment and order had no flaws and the same be upheld.

Mr Ujjal Choudhury, learned counsel for the respondent No. 2, submitted that in the present case, there are no two views which can be discerned from the evidences on record. He also submitted that the incident had taken place on 17.09.2019, and the appellant was examined under Section 313 of the CrPC on 8 of December, 2022, i.e. after a span of 3 (three) years and in that view of the matter, the appellant taking the defence, that he was in an inebriated state at the time of occurrence, cannot be taken into account not only on the fact that there was no evidence that the intoxicating element was administered to him forcefully, but also, after so many years, the same cannot be considered to be correct. He submits further that due to consistent statement of the victim before the authorities, the offence against the appellant under the POCSO Act is well-established and the said Judgment and Order cannot be interfered with.

These are submissions of the Learned Counsels appearing for all the parties.

It is a settled position of law that in cases of sexual offence, the evidence of the prosecutrix assumes paramount importance and on the sole basis thereof, conviction and sentence on the accused person can be warranted. However, the rider is that the said statement or the testimony of the prosecutrix, should inspire the confidence of the Court and the Court should reach a finding on careful examination of the statements that the said testimony demonstrates truthfulness from all the corners. The said principle has been held in so many cases by the Hon’ble Supreme Court and one of such cases is the observation made by the Apex Court in Rai Sandeep -vs- State of NCT of Delhi; reported in (2012) 8 SCC 21, which is reproduced as follows:-

Keeping the aforesaid principle in mind, to the effect that while returning a finding that the prosecutrix is a sterling witness, the Court has to look into her statement, right from the initial stage till her statement made before the Trial Court. As such, the statement of the victim before the Investigating Officer be seen at the first instance. The victim, in her very short statement before the Police, recorded under Section 161 of the CrPC, on 19.09.2019, had stated that while she was returning with her grandmother, one person took her in his lap and that he put his finger on her private part and further that, she felt pain and she cried.

The second statement that needs to be seen is the statement of the prosecutrix before the Magistrate recorded under Section 164 of the CrPC. This statement was also recorded on 19.09.2019, i.e., on the day of lodging of the ejahar. The Learned Magistrate examined the victim to see her competency in the beginning and on finding her ability to understand, her statement was recorded, wherein she stated that on an invitation, she went to her uncle’s house with her grandmother few days before the incident, and when she was returning, her grandmother was carrying her in her arms and that on her way back, a man desired to carry her in his arms and that her grandmother shifted her to the arms of the said man. She further stated that taking her in his arms, the man inserted his finger in her genitals, which she explained by indicating towards her private part. She also stated that she cried in pain and that later, her grandmother saw her crying and by taking her in her arms, returned home.

The final statement that needs to be considered, in order to see whether the testimony of the victim inspires confidence of the Court, is the statement recorded by the Trial Court. Before the Trial Court, the competency of the victim was first examined and on finding her answers, rational, the Court recorded the statement of the prosecutrix by putting questions and eliciting answers to the same. In her answers, the victim replied that she had visited the Court to depose the act committed by the appellant upon her. She also replied that the appellant inserted his finger inside her ‘nunu’ by pointing her fingers towards her vagina. However, during cross-examination, the victim stated that she had visited the Court with her grandmother and she stated whatever her grandmother taught her to say in the Court.

The next task for this Court is to see whether there appears any discrepancy in the statement of the victim before the aforesaid three authorities. In her statement before the Police, she stated that a person took her on his lap and that he put his finger on her private part, whereas in her statement before the Magistrate, she stated that the person inserted his finger in her genitals and by saying this, she pointed towards her private part, and in her statement before the Trial Court, she stated that the appellant inserted his finger inside her ‘nunu’ and by saying this, she again pointed her finger towards her vagina. There appears a contradiction with regard to the same between the statements. In her statement before the Police, she stated that the man had put his fingers on her private part, whereas, in her statement before the Magistrate, she stated that the man had inserted his finger in her genitals, and before the Trial Court, she stated that appellant inserted his finger inside her ‘nunu’. Although there appears discrepancy with regard to the exact part, where the alleged act was stated to be committed by the man/appellant, but the victim being of such a tender age, cannot be expected to make the difference thereof. There is a difference between genitals, vagina as well as ‘nunu’, but the victim in all the three occasions, had pointed her fingers towards her private part, which establishes the fact that the act was committed in or on her private part.

It also cannot be lost sight of the fact that a person while taking a child from the shoulder of another person and while adjusting the child on his shoulder, there can be every possibility that the private parts of the child gets exposed and gets touched by the hand of the other person. This can also be deduced from the fact that there is no evidence on record that the victim was wearing any undergarment. It is rather in the evidence of the grandmother that the victim was wearing a frock at the time of occurrence, but it is nowhere stated by the grandmother that the victim was wearing an undergarment. The said finding can also be reached in view of the fact that the victim stated before the Police that the man had put his finger on her private part and before the Magistrate and Court, she stated that he inserted his finger. It can also not be ignored that the victim in her initial statements before the Police and the Magistrate, addressed the accused person as “a man” whereas in her statement before the Trial Court, she addressed the accused person by his name i.e. Dilip Das”. As such many discrepancies are noticed which shakes the confidence of the court.

Amongst many requirements, another one that needs to be fulfilled before a prosecutrix can be termed as a sterling witness is that she should be able to withstand the cross-examination of any length and as strenuous it may be, and that under no circumstance, the same should give room for any doubt as to the factum of the occurrence as well as the person involved. In the instant case, during the cross-examination of the victim, which was however, very short, she stated that she visited the Court with her grandmother and that the grandmother had taught her, what to say in the Court. Those were the precise words used by the victim, i.e., “grandmother taught me, what to say in the Court.” There is a difference between “what to say in Court” and “how to say in Court”. A child witness can be taught by the relative as to how to depose before the Court since the same involves intricacy in the facts of the case as well as the platform. However, in the instant case, the victim stated that grandmother taught her what she should state in the Court, which means the contents of her statement. This fact raises doubt as to the factum of the occurrence, and in such an eventuality, the victim cannot be termed as a sterling witness.

It is also required that the victim should be consistent in stating the facts of the case in the same sequence before all the authorities. In her statement before Police, she stated that a person took her on his lap and put his finger on her private part. In her statement before the Magistrate recorded on the same day of lodging of the ejahar, she stated right from the invitation given by her uncle, many days before the occurrence. She had stated that on the invitation, she went to her uncle’s house with her grandmother before few days of the occurrence and when she was returning, her grandmother was carrying her in her arms and that a man desired to take her in his arms and after taking her, the man inserted his finger in her genitals. It is noticed that she had narrated the incident in details. However, in her statement before the Trial Court, she did not narrate the incident, rather she stated in the form of replies that she had visited the Court to say about the acts committed by the appellant on her and that the appellant had inserted his finger inside her ‘nunu’.

The further sequence that the victim stated is also invaded by discrepancy. In her statement before the Police, she stated that after the finger was put by the man, she felt pain and she cried. In her statement before the Magistrate, she said she cried in pain. However, in her statement before the Trial Court, she did not state about the same. As such, there appears that the sequence narrated by the victim, both on the aspect of the occurrence as well as the subsequent part, do not appear to be consistent.

It is also a settled position of law that in case, the statement of the prosecutrix does not inspire confidence of the Court, corroborations should be sought for, from other evidences on record. The most clinching evidence in the present case is the incident being witnessed by the grandmother of the victim. The grandmother examined as PW-1 stated that when the appellant took the victim on his shoulder, the appellant inserted his finger into the vagina of the victim. However, the victim in her statement before the Magistrate, stated that when she cried, her grandmother seeing her crying, took her in her arms and returned home. She did not state that grandmother saw the man inserting his finger and took her on her lap. Further, the grandmother’s evidence is replete in discrepancies, inasmuch, she stated before the Trial Court that the father of the victim reached the place of occurrence during the occurrence and seeing the father of the victim, the appellant fled from the place, whereas, the father of the victim examined as PW No. 4, did not state that he reached the place of occurrence. He simply said that his mother revealed the incident to him when they reached home.

Furthermore, the contradiction was put to the grandmother of the victim during her cross-examination, wherein she stated that it is not a fact that she had not stated before the Police, about the statement of both the occurrence as well as the father of the victim reaching the place of occurrence during the occurrence. The said contradiction although not in full, but in part was proved by the Investigating Officer during his examination as PW No. 6, who stated to the effect that the grandmother had not stated that father of the victim had reached during the occurrence and that seeing the father, the appellant fled from the place, with the further contradiction that the vagina of the victim was swelling and that she was in great pain and also that, she could not walk for 2/3 days. However, the contradiction with regard to the occurrence was although placed before the grandmother, but the same was not proved as per the law, but the fact remains that the same was placed before the grandmother. The further contradiction to the effect that the pain felt by the victim and the swelling of the private part was however proved, together with the son reaching the place of occurrence.

Further, the doctor’s evidence also does not, in so many words, corroborate the statement of the victim. The doctor opined that the vaginal orifice of the victim was found to be inflamed and during the cross-examination, he stated that the same can occur due to infection, itching etc. with the further opinion that if a female child plays outside without an undergarment, she may suffer vaginal infection. In the instant case, it is nowhere in the evidence that the victim was wearing an undergarment and as the meaning of inflamed vaginal orifice suggest the same to be the result from infections like yeast overgrowth, irritation from soaps or detergents, physical friction during activity etc., the same cannot lead to the only conclusion about the alleged activity committed by the appellant.

Furthermore, it is also mandated that there should be no room for doubt regarding the person involved in the offence. Regarding the identity of the offender, there are only two evidences on record, one revealed by the grandmother and the other revealed by the appellant himself in his statement under Section 313 CrPC. There is none other, who had seen the victim being taken on the lap by the appellant. Although appellant had stated that he met the victim and the grandmother on their wayback home, but he had denied the commission of the act. Further, the victim had never identified the appellant, rather she addressed the accused person as a man in her statement before the Police and Magistrate and to make the case more doubtful, she stated before the Trial Court that she visited the Court to state what Dilip Das had done with her and that Dilip Das had inserted his finger inside her “nunu”, with the further statement in her cross-examination that her grandmother taught what to say.

Furthermore, in the evidence of the mother of the victim examined as PW-3, it is noticed that although she had stated in her examination-in-chief that on examining the vagina of the victim, she found swelling, but the said statement was contradicted and the same stood proved when she admitted that she did not state before Police that the victim’s vagina was swelling. An enmity between the informant’s side and the appellant was also stated in the form of a suggestion by this witness with regard to some tree plantation owned by the appellant. A surprising factor is also discerned from the evidence of the father of the victim to the effect that the informant did not know the appellant beforehand and that the appellant on meeting the informant had introduced himself and consequent upon the said introduction, the informant had allowed the appellant to take the victim on his lap. However, the informant had stated in her examination-in-chief that she knew the appellant as they were from the same village during her deposition.

The appellant was convicted and was sentenced under Section 6 of the POSCO Act. Section 6 of the said Act provides as under;

A bare perusal of the said definition, makes it crystal clear that in the context of the present case, Sub-Section (b) of Section 3 of the POCSO Act, would be relevant. The said provision provides that a person can be said to have committed penetrative sexual assault, if he inserts any part of his body into the vagina or other parts of the child. In the instant case, although it is stated by the victim before Trial Court and the Magistrate that the appellant / man had inserted his finger inside her private part but in her statement before the police, she stated that the man had put his finger on her private part. As has been stated above that since the victim cannot be termed as “sterling witness”, due to the discrepancies, it cannot be also concluded that appellant had inserted his fingers into the private part of the victim and in that view of the matter, no conviction can be inflicted under the said provision of law.

In presence of so many discrepancies appearing in the present case as mentioned herein above, this Court finds it fit to interfere with the Judgment and Sentence dated 28.01.2022, passed by the learned Special Judge, POCSO, North Salmara, Abhayapuri, in Special (POCSO) Case No. 22 (A) of 2021, convicting the appellant under Section 6 of the POCSO Act. Resultantly, the said judgment and order is set aside and quashed.

The appellant, namely, Dilip Mandal @ Das, is hereby acquitted. The appellant is directed to be released forthwith, if not required in any other case.

We direct the Legal Services Authority to pay the remuneration, which is required to be given to the Amicus Curiae, for rendering his appreciable service to this Court, with regard to the present case.

Send back the Trial Court Records.