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2020 Supreme(Cal) 202
IN THE HIGH COURT OF CALCUTTA
Shivakant Prasad, J.
Bharat Chettri - Appellant
Versus
State Of West Bengal And Another - Respondents
Criminal Appeal No. 319 of 2017
Decided On : 06-02-2020
Biplab Mitra, Advocate, Trina Mitra, Advocate, Ranabir Roychowdhury, Advocate, Mainak Gupta, Advocate
Final Result : Allowed
The main legal point established in the judgment is the reliance on credible testimony to uphold a conviction under the POCSO Act, as well as the consideration of mitigating circumstances in determining the appropriate sentence.
Headnote:
POCSO - Conviction under Section 8 - [Protection of Children from Sexual Offences Act] - [Section 8] - The court upheld the conviction of the appellant under Section 8 of the POCSO Act, finding the evidence of the victim girl to be credible and convicting the appellant to suffer rigorous imprisonment for five years and pay a fine of Rs.10,000. The court also considered the mitigating circumstance of the appellant being the only earning member of his family and reduced the sentence to the period already undergone.
Fact of the Case:
The appellant was convicted under Section 8 of the POCSO Act for sexually assaulting a minor girl while giving her tuition. The victim girl reported the incident to her aunt, leading to the filing of the case against the appellant.
Finding of the Court:
The court found the appellant guilty of the offence under Section 8 of the POCSO Act based on the credible testimony of the victim girl and sentenced him to rigorous imprisonment for five years and a fine of Rs.10,000. The court also considered the appellant's role as a teacher and the mitigating circumstance of being the only earning member of his family, and reduced the sentence to the period already undergone.
Issues: The issues revolved around the credibility of the victim girl's testimony, the absence of certain witnesses, and the appellant's defense. The court also considered the appropriate sentencing in light of the appellant's role as a teacher and his family circumstances.
Ratio Decidendi: The court relied on the credible testimony of the victim girl and found the evidence sufficient to uphold the conviction under Section 8 of the POCSO Act. The court also considered the mitigating circumstance of the appellant being the only earning member of his family in determining the appropriate sentence.
Final Decision: The Criminal Appeal was allowed in part, and the sentence of rigorous imprisonment for 5 years was reduced to the period already undergone by the appellant. The judgment and necessary documents were to be sent to the trial court and correctional home for action.
JUDGMENT
Shivakant Prasad, J. - The instant appeal is directed against the judgment and order of conviction and sentence dated 6th March, 2017, passed by the learned Additional Sessions Judge, 2nd Court, cum Special Court Darjeeling under Protection of Children from Sexual Offences Act in Special Case No.32 of 2014 Sessions Trial No. 60(8)/16 arising out of Sadar Police Station Case No.153 dated 18.11.2014, whereby the appellant was convicted for the charge under Section 8 of the POCSO Act and sentenced to suffer Rigorous Imprisonment for five years and also to pay fine of Rs.10,000/-, in default to suffer R.I. for six months and with further direction that 50% of the fine should be paid to the victim girl, inter alia, on the ground that the learned Additional Sessions Judge acting as a Special Judge under POCSO has committed in error holding the appellant guilt of the said charge inasmuch as there are serious lacuna and inconsistency in the evidence on record which makes the prosecution case doubtful.
2. Precisely the facts leading to the instant appeal is that the complainant Avilasha Thapa lodged a complaint before Sadar P.S., Darjeeling on 18.11.14 to the effect that accused on 15th November 2014 called her in her cell phone at 12.30 P.M. to send the victim girl to the A1 Coaching Classes and sent her for tuition. When the victim girl came back home at 6.00 P.M. she saw her hysterically crying and found marks on her cheeks and when the complainant asked how it happened she answered that the accused had inappropriately touched her. During the class other children who attended the said class were sent outside the said building to play and the accused tried to come close to her and touched her chest and forcefully kissed her and ran his hand all over her body touching her thigh and chest and also locked the door when the victim girl started crying but the accused tried to console her and insisted her to stay in the class but again let her open the door and she went outside and told her friend Bunu who studies in the same tuition class. Bunu also confessed about similar instances, the accused had molested her and shown dirty videos in his computer. Moreover, the victim girl met Sunila Miss and complained to her but she did nothing.
3. On the complaint of Avilasha Thapa the aunt of the victim girl Darjeeling Sadar P.S. Case No.153/14 dated 18.11.2014 under Section 8 of the Protection of Children from Sexual Offences Act, 2012 was started against the accused-appellant and on usual investigation, I.O. submitted charge-sheet against him.
4. The accused-appellant stood trial for the charge under Section 8 of the Act to which he abjured the guilt and claimed to be tried. The prosecution examination as many as 10 witnesses to bring home the charge against the accused-appellant. After the conclusion of the evidence, the learned Judge upon hearing the parties found the appellant guilty of the offence under Section 8 of the POCSO and handed over punishment to suffer rigorous imprisonment for five years and to pay fine of Rs.10,000/- with default clause by the impugned judgment.
5. The accused-appellant was examined under Section 313 of Cr.P.C. to which he declined to adduce any defence evidence but he pleaded not guilty as having been implicated in the case. In the course of investigation, the I.O. had placed the victim girl before the learned Judicial Magistrate, Darjeeling for recording her statement under Section 164 of the Cr.P.C. and her statement was recorded by the Judicial Magistrate on 01.12.2014 proved as Exhibit - 1 which corroborates the written complaint Exhibit- 2 proved during trial. The incident took place on 15.11.2014 at 12.30 P.M. on which date the victim had been to take tuition as called by her teacher Bharat Chettri, the appellant. According to the victim girl, the appellant had called her aunt, Avilasha Thapa, the complainant over phone told to send her for tuition at Red Cross Building. Upon her aunt telling her t
