Nityananda Malakar vs State Of Tripura

Heard Mr. Alik Das, learned counsel appearing for the appellant as well as Mr. Ratan Datta, learned Public Prosecutor appearing for the State-respondent.

This appeal is directed against the judgment and order of conviction and sentence dated 07.08.2019, passed in Case No. Special (POCSO) 09 of 2018 by the learned Special Judge (POCSO), North Tripura District, Dharmanagar, whereby and where-under the appellant was sentenced to suffer R.I. for 1 (one) year with a fine of Rs.5,000/- with default stipulation for the offence under Section 354A (1)(i) of the Indian Penal Code (for short, IPC), and R.I. for 3(three) years with a fine of Rs.5000/- with default stipulation for the offence under Section 8 of the Protection of Children from Sexual Offences (for short, POCSO) Act, 2012.

Briefly stated, that in the evening of 25.06.2017 at about 7:00 pm, the victim along with her mother went to the house of their neighbour, Sri Pramesh Malakar to attend 'kirtan' and at about 9:00 pm the victim was sleeping with her younger brother when all on a sudden, the convict- appellant who is the uncle of the victim entered into the room and kissed the cheek of victim girl, placed his hand on her breast and warned her not to raise alarm but the victim told the convict-appellant that she would divulge the matter to her father. Thereafter, the convict-appellant left the place.

Narrating the incident, the father of the victim, Sri Rajen Roy lodged a written complaint on 29.06.2017 before the Women Police Station, Dharmanagar against the convict-appellant and it was registered being Dharmanagar Women PS Case No.2017 WDN 022, under Sections 354B/506 of IPC read with Section 8 of the POCSO Act, 2012.

Investigation was carried out. The investigating officer, after being satisfied with the prima facie case, submitted charge-sheet against the convict-appellant. The learned Special Judge framed charges against the convict-appellant under Section 354 of IPC and Section 8 of the POCSO Act,2012 to which the convict-appellant pleaded not guilty and claimed to be tried.

In course of trial, as many as 12 witnesses were examined by the prosecution. After closure of prosecution evidence, the accused was examined under Section 313 of CrPC to which he denied all the incriminating evidence and materials as surfaced against him by the prosecution witnesses.

Feeling aggrieved, the convict has preferred the instant appeal challenging his conviction and sentence as aforestated.

As per evidence, PW-5, PW-6, PW-7 and PW-8 were independent witnesses and they did not disclose anything adverse to the convict-appellant despite the claim of the mother of the victim that they were among the persons who participated in the 'kirtan' on that evening. PW-4, PW-9, PW-10 and PW-12 are the official witnesses as well as most of them are police personnel. PW-11 is the medical officer of the case and she deposed nothing against the convict-appellant. I find that the conviction of the accused-appellant is entirely based upon the evidence of the victim (PW-2), the mother of the victim (PW-1), the father of the victim (PW-3).

Let me take the opportunity of perusing the evidence of PW-2, the victim girl. She deposed that she went to the house of grand-parents on the evening of 25.06.2017 at a point of time she got sleep and went to a room and slept with her younger brother Deep Malakar. While she was almost sleeping she found that her uncle i.e. the appellant herein, entered into the room, kissed her and touched her breast and also tried to pull off her wearing apparels. She informed her mother about the incident and other participants who were present at the said 'Kirtan'. She tried to raise alarm when the appellant threatened her and left the place. She divulged the incident to her mother PW-1.

PW-1 deposed that on 25.06.2017, she went along with her son and victim girl to the house of her father-in-law to attend the 'Kirtan' ceremony. While 'Kirtan' was going on, her daughter (victim) along with her son entered into a room to have a sleep. When almost they were sleeping, the appellant entered into the room and touched her daughter's breast, kissed her and tried to pull off the wearing apparels. She further deposed that immediately thereafter she informed the matter to one Sumitra, PW-5 and Smt. Rita Malakar, PW-7 and other participants.

PW-3 is the father of the victim girl, Rajen Roy. He deposed that after attending 'kirtan' his wife, son and daughter (victim) returned back to their own house. On the next day, he went to his work place and when he returned back to his house, PW-1 informed him about the incident as narrated here-in-above.

Now, coming to the evidence of independent witnesses, i.e. PW-5, Smt. Sumitra Malakar, the grandmother of the victim girl and is the house owner where 'kirtan' was held. She deposed that about one and half years back once there was a evening 'kirtan' in their house on the occasion of 'Shradha ceremony' of her son-in-law and police came to her house and then she came to know that on the night of 'kirtan' there was some incident but she did not make any attempt to know the details. PW-5 was put to cross-examination while she stated that on the day of 'kirtan' they did not invite Rajen Roy i.e. PW-3, father of the victim and his family members to attend the 'kirtan'. She further stated that Nityananda Malakar, the accused-appellant also did not attend the 'kirtan' but his father attended.

PW-6, Sushanti Malakar, one of the participants of the 'kirtan' deposed that one and half years back there was a evening 'kirtan' in the house of PW-5 and she attended the 'kirtan'. After a few days she came to learn that on the evening of the 'kirtan', Nityananda i.e. the accused- appellant committed some wrong with the daughter of PW-3.

Being cross-examined, the said witness stated that the 'kirtan' started at about 6:00 pm and ended by 7:00 pm. During her stay in the 'kirtan', none informed her about any incident between the accused- appellant and the daughter of PW-3, Rajen Roy, and she came to know about the incident only when police visited their place.

PW-7, Rita Malakar while deposing before the court stated that she had no knowledge about the incident. Her cross-examination was declined by the prosecution. It is interesting to note that this witness was not declared hostile by the prosecution.

PW-8 was tendered by the prosecution. PW-9 Smt. Sanchita Nath was posted as SI of Police on 27.07.2018. She was endorsed with the case for investigation and after completion of investigation she submitted charge-sheet against the appellant.

PW-10 is the Women Sub-inspector of Police of the Dharmanagar Women Police Station. She was also endorsed for further investigation of the case as the previous IO was transferred. She re-visited the place of occurrence and examined and recorded some more witnesses.

PW-11 Dr. Sarmistha Chakraborty deposed that she found nothing to opine that there was any sign of penetrative sexual assault upon the victim girl.

PW-12, Rinki Debbarma is the OC of Dharmanagar Women Police Station who registered the complaint.

Mr. A. Das, learned counsel appearing for the appellant submits that the genesis of the prosecution case is entirely based on surmises and conjectures. According to learned counsel none of the independent witnesses, though they are closely related with the victim girl deposed before the court that the incident was immediately informed to them. Mr. Das, learned counsel would contend that there is no dispute in the Bar that in POCSO related cases presumption always lies in favour of the victim. The court may weigh the evidence of the victim on the presumption that the incident happened to her and the appellant committed such offence. However, presumption is always rebuttable.

There cannot be any rule or law in criminal justice system that only on the basis of presumption an accused shall be convicted and, if that be so, it would definitely offend under Articles 20(3) and 21 of the Constitution of India. As such, initial burden always lies with the prosecution to prove its case beyond reasonable doubt. True it is, that under Sections 29 and 30 of the POCSO Act the legislature to achieve a particular object, has given an additional advantage to the prosecution to commence the trial with the presumption of guilt of the accused. This established law cannot be dislodged by inclusion of the provision of Section 29 and Section 30 and Section 30 of the POCSO Act to impose punishment upon an accused on the basis of only presumption.

To say more comprehensively, the presumption to be drawn under Sections 29 and 30 of the POCSO Act do not absolve the prosecution of its duty to establish the foundational facts. Prosecution has to establish a prima facie case beyond reasonable doubt. Only when the fundamental facts are established by the prosecution, the accused will be under obligation to rebut the presumption that arise, by adducing evidence with standard of proof of pre-ponderance of probability. The insistence on establishment of fundamental facts by prosecution acts as a safety guard against misapplication of statutory presumption. Foundational facts in POCSO Act include:-

(i) the prove that the victim is a child;

(ii) that alleged incident has taken place;

(iii) that the accused has committed the offence; and

(iv) whenever physical injury is caused, to establish it with supporting medical evidence.

If the fundamental facts of the prosecution case are laid by the prosecution by leading legally admissible evidence, the duty of the accused is to rebut it, by establishing from the evidence on record that he has not committed the offence. This can be achieved by eliciting patent absurdities or inherent infirmities in the version of prosecution or in the oral testimony of witnesses or the existence of enmity between the accused and victim or bring out material contradictions and omissions in the evidence of witnesses, or to establish that the victim and witnesses are unreliable or that there is considerable and unexplained delay in lodging the complaint or that the victim is not a child. Accused may reach that end by discrediting and demolishing prosecution witnesses by effective cross-examination. Only if he is not fully able to do so, he needs only to rebut the presumption by leading defence evidence. Still, whether to offer himself as a witness is the choice of the accused. Fundamentally, the process of adducing evidence in a POCSO case does not substantially differ from any other criminal trial; except that in a trial under the POCSO Act, the prosecution is additionally armed with the presumptions and the corresponding obligation on the accused to rebut the presumption. It is imperative to mention that in POCSO cases, considering the gravity of sentence and the stringency of the provisions, an onerous duty is cast on the trial court to ensure a more careful scrutiny of evidence, especially, when the evidence let in is the nature of oral testimony of the victim alone and not corroborated by any other evidence-oral, documentary and medical.

(emphasis supplied)

Legally, the duty of the accused to rebut the presumption as arises only after the prosecution has established the foundational facts of the offence alleged against the accused. The yardstick for evaluating the rebuttable evidence is limited to the sale of preponderance of probability. Once the burden to rebut the presumption is discharged by the accused through effective cross-examination or by adducing defence evidence or by the accused himself tendering oral evidence, what remains is the appreciation of the evidence let in. Though, it may appear that in the light of presumptions, the burden of proof oscillate between the prosecution and the accused, depending on the quality of evidence let in, in practice the process of adducing evidence in a POCSO case does not substantially differ from any other criminal case. Once the recording of prosecution evidence starts, the cross-examination of the witnesses will have to be undertaken by the accused keeping in mind the duty of the accused to demolish the prosecution case by an effective cross-examination and additionally to elicit facts to rebut the statutory presumption that may arise from the evidence of prosecution witnesses. Practically, the duty of prosecution to establish the foundational facts and the duty of accused to rebut presumption arise, with the commencement of trial, progresses forward along with the trial and establishment of one, extinguishes the other. To that extent, the presumptions and the duty to rebut presumptions are co-extensive. (emphasis supplied)

If an accused is convicted only on the basis of presumption as contemplated in Sections 29 and 30 of the POCSO Act, then, it would definitely offend Articles 20(3) and 21 of the Constitution of India. In my opinion, it was not the object of the legislature. Presumption of innocence is a human right and cannot per se be equated with the fundamental right under Article 21 of the Constitution of India. The Supreme Court in various decisions has held that, provisions imposing reverse burden must not only be required to be strictly complied with but also may be subject to proof of some basic facts as envisaged under the Statute. [See State of Bombay Versus Kathi Kalu Oghad, (1962) 3 SCR 10: AIR 1961 SC 1808: (1961) 2 Cri LJ 856].

It may safely be said that presumptions under Sections 29 and 30 of the POCSO Act do not take away the primary duty of prosecution to establish the fundamental facts. This duty is always on the prosecution and never shifts to the accused. POCSO Act has no different connotations. Parliament is competent to place burden on certain aspects on the accused especially those which are within his exclusive knowledge. It is justified on the ground that, prosecution cannot, in the very nature of things be expected to know the affairs of the accused. This is specifically so in the case of sexual offences, where there may not be any eye witness to the incident. Even the burden on accused is also a partial one and is justifiable on larger public interest. [State of Bombay Versus Kathi Kalu Oghad, (1962) 3 SCR 10: AIR 1961 SC 1808: (1961) 2 Cri LJ 856; Noor Aga Vrs. State of Punjab & Anr.,(2008) 16 SCC 417; Abdul Rashid Ibrahim Vrs. State of Gujarat (2000) 2 SCC 513]

In the light of above discussion, in my considered view, with the inbuilt safeguards in the Act, the limited presumption do not upset the basic features of criminal law. Tendering of the oral evidence by accused is not mandatory or essential. (emphasis supplied)

In the backdrop of above critical analysis, in the instant case, it transpires that the prosecution did not examine the brother of the victim girl who was sleeping with her at the same cot in the house of PW-5, who is their grandmother. It is further revealed that after the incident the victim girl (PW-2) informed the matter to her mother and mother said that she informed the incident to Sumitra Malakar, PW-5 i.e. grandmother of victim and the mother-in-law of PW-2. But PW-5 Sumitra being the grandmother of the victim girl did not support the version of PW-2 that she was informed by PW-1 that on that very evening she was informed about the incident by PW-1. Similarly, PW-7, Rita Malakar also did not support the version of PW-1 that on that very evening she was informed about the incident by PW-2 that her daughter was sexually assaulted by the appellant. Curious enough, PW-5 being the house owner has categorically stated before the court on oath that they did not invite Rajen Roy, i.e. the father of the victim and his family members to attend 'kirtan'. Proceeding further, PW-5 stated that the appellant even did not attend that 'kirtan' but his father attended the said 'kirtan' on that evening. PW-6 also did not support the version of PW-1. Most interesting part, which, I have noticed is that it is the story of the father of victim, PW-3, that they returned back to their house after 'kirtan'. Strangely, on that night he was not informed about the incident neither by the victim girl nor by his wife (PW-1). Even the father, PW-3 was not informed about the incident on the next morning and during the whole day. It was only after his return in the evening from his work place, the incident was informed to him by PW-1. It appears to me very unnatural and irreconcilable in usual course of transaction.

Thus, the prosecution has failed to establish the foundational facts that the victim girl along with her parents and brother went to the house of PW-5, grandmother and participated in the 'kirtan', vis-a-vis the accused had at all participated in the 'kirtan' and entered into the room where the victim girl was allegedly about to sleep with her brother.

Having analyzed the prosecution evidence as stated above, the defence has been able to demolish and rebut the presumption that the court may draw in favour of the victim. To re-iterate, the prosecution has failed to establish the foundational facts required to prove the charges framed against the appellant beyond reasonable doubt for the reasons as recorded here-in-above. Accordingly, the judgment and order of conviction and sentence passed by the learned Special Judge (POCSO), North Tripura, Dharmanagar in case No. Special (POCSO) 09 of 2018 stands set aside and quashed. Consequently, the appellant is acquitted of the charges levelled against him on the benefit of doubt and set at liberty. It is informed that the appellant is on bail. He is discharged from his bail bond and the surety is also discharged.

The appeal, accordingly, stands allowed and disposed.

Send down the LCRs.