The reliability of the victim's testimony and other witnesses' evidence, and the consideration of the delay in lodging the FIR in cases of sexual assault.

JUDGMENT :

BIBHAS RANJAN DE, J.

1. Allegation of this case was put into motion by lodging of a complaint by the mother of the victim X addressed to the Officer-in-Charge of Kalna Police Station, Purba Bardhaman stating inter-alia that on 17.08.2018 at about 8 a.m. the father of the victim X, being a priest, on his way to perform puja dropped his daughter/victim X to her school and also, the complainant and her mother-in-law went out in order to prepare ‘bhog’ for puja. The victim X, being a student of class III, aged about 9 years came back to her house on that relevant day at 12 noon as the school was closed early on account of the death of former Prime Minister. Resultantly, she was all alone in her house at that point of time on that relevant day. One neighbor, namely Kartick Mondal in absence of the guardians of the victim X in order to take advantage of the loneliness of the victim girl entered into their house and with an ulterior motive sexually assaulted the victim X by touching different parts of her body and also tried to forcibly kiss her. Feeling embarrassed, victim X tried to resist the accused and threatened him to disclose the same to her parents if he did not leave their house immediately. Thereafter, the victim X somehow managed to rescue herself from the clutch of the accused and entered into the bathroom and locked the door of the bathroom from inside and stayed there until she was sure that the accused left their house. Thereafter, when the parents of the victim X returned, she narrated the whole incident to her mother and complainant after having discussion with her husband and mother-in-law decided to report it to the jurisdictional Police Station.

2. On 24.08.2018 the complainant lodged a written complaint with the Officer-in-Charge of kalna Police Station and accordingly, Kalna Police Station Case No. 414/2018 dated 24.08.2018 under Section 448/354B of the Indian Penal Code (for short IPC) read with Section 12 of the Protection of Children from Sexual Offences Act, 2012 (for short POCSO Act) was started. After completion of investigation charge sheet was submitted against the accused under Section 448/354B of the IPC read with Section 12 of the POCSO Act.

3. Thereafter cognizance of this case was taken by the Ld. Special Court under POCSO Act, Kalna, Purba Bardhaman against the accused and accordingly charges were framed under Section 448/354B of IPC read with Section 8 of the POCSO Act.

4. In course of trial prosecution examined as many as 8 witnesses namely one Paresh Manna (neighbour) as PW-1, Bikash Mondal (another neighbour) as PW-2, Mother of the victim X as PW-3, the victim X herself as PW-4, father of the victim X as PW-5, Arabindo Mondal (neighbour) as PW-6, Ms. Dalia Bhattacharya (Ld. Magistrate) as PW-7 and Digbijoy Nandy (Sub Inspector/I.O of this case) as PW-8.

5. During evidence few documents were admitted in evidence those are as follows:

Exhibit a series - written complaint along with signature therein

Exhibit 2 series - seizure list along with signatures therein

Exhibit 3 - Zimmanama

Exhibit 4 - statement recorded under Section 164 Code of Criminal Procedure (for short Cr.P.C.)

Exhibit 5 - formal FIR

Exhibit 6 - rough sketch map with index

6. Thereafter, accused was examined under Section 313 of Code of Criminal procedure Code where he pleaded his innocence but did not adduce evidence.

7. Ld. Judge after hearing the argument advanced on behalf of the parties, has held that the evidence of victim X was reliable which was further corroborated by other witnesses. Ld. Judge also relied on the presumption within the meaning of Section 29 of the POCSO Act and accordingly statement of victim X was found to be truthful and inspired confidence. Finally Ld. Judge returned his finding that the prosecution has succeeded to discharge the burden but accused failed to discharge his onus within the meaning of Section 29 of the POCSO Act. Accordingly, appellant was found guilty of committing offence under Section 448