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IN THE HIGH COURT AT CALCUTTA
Tirthankar Ghosh, J.
Narattam Biswas @ Narottam Biswas – Appellant
Versus
The State of West Bengal & Anr. – Respondents
CRA (SB) 51 of 2022 With CRAN 2 of 2022
Decided On : 16-03-2023
POCSO - Sexual Offences - Section 8, Section 9(m), Section 10 - The Protection of Children from Sexual Offences Act, 2012 - Summary
Fact of the Case:
The case involves the appellant being convicted for the offence punishable under Section 10 of the Protection of Children from Sexual Offences Act, 2012, for sexually assaulting a minor girl who was taking tuition from him. The complaint was lodged after the victim disclosed the incident to her mother, leading to the arrest of the accused.
Finding of the Court:
The court found the prosecution's evidence, including statements under Section 164 of Cr.P.C., to be consistent and credible. The court rejected the appellant's arguments of delay in lodging the complaint and minor inconsistencies in the evidence, affirming the judgment and order of conviction and sentence.
Issues: The issues involved the credibility of the prosecution's evidence, the interpretation of sexual intent under the POCSO Act, and the relevance of minor inconsistencies in the evidence.
Ratio Decidendi: The court emphasized the interpretation of sexual intent under the POCSO Act, highlighting that the act of touching any sexual part of a child with sexual intent, even if not skin-to-skin contact, constitutes sexual assault. The court also noted that minor inconsistencies in the evidence should be considered in the context of the victim's age and the overall credibility of the prosecution's case.
Final Decision: The court affirmed the judgment and order of conviction and sentence, dismissing the appeal.
JUDGMENT :
Tirthankar Ghosh, J.
1. The present appeal has been preferred against the judgment and order of conviction and sentence dated 01.04.2022 and 02.04.2022 passed by the learned Additional Sessions Judge (POCSO Act), Islampur, Uttar Dinajpur in Sessions Trial No. 33/2019 arising out of POCSO Case No. 05 of 2019 wherein the appellant was convicted for the offence punishable under Section 10 of the Protection of Children from Sexual Offences Act, 2012 and sentenced to suffer Rigorous Imprisonment for six years and pay fine of Rs.1,00,000/-in default to suffer further Simple Imprisonment for 6 months.
2. The genesis of the case relates to a complaint lodged by one ‘Y’ with the Officer-in-charge, Chakulia Police Station, Uttar Dinajpur pursuant to which Chakulia PS Case No. 64/2019 dated 16.02.2019 was registered for investigation under Section 8/9(m) of the Protection of Children from Sexual Offences Act, 2012. The allegations made in the complaint were to the effect that the daughter of ‘Y’ namely, ‘X’ was aged about 9 years and was studying at Class III. She used to take tuition from the appellant at his house. For a considerable period of time the appellant/accused started touching her daughter with bad intentions. Being afraid her daughter did not inform at home. On 09.01.2019 at around 7.30 in the morning her daughter went for tuition and accused in order to quench his sexual thirst touched the private parts and breast of her daughter and physically tortured her. At this her daughter felt severe pain and feeling ill she returned home weeping. When the complainant asked her, she informed regarding the aforesaid incident. It has been alleged that the accused had been oppressing her daughter since long for which she got mentally disturbed and as such there was delay in informing to the police station. She prayed for taking action against the accused.
3. The investigating agency on receipt of such complaint and after registration of the case proceeded with the investigation and after completion of the same filed charge-sheet being no. 107/2019 dated 04.04.2019 under Section 8/10 of the POCSO Act against the accused. The learned Court on receipt of charge-sheet was pleased to take cognizance of the offence on 04.04.2019 and after supply of the documents on which the prosecution proposed to rely was pleased to frame charge on 10.04.2019 under Section 8/9(m) of the POCSO Act. The said charge was read over and explained to the accused person to which he pleaded not guilty and claimed to be tried. It would be pertinent to state that subsequently on 11.03.2022 charge was altered under Section 10 of the POCSO Act and the contents of charge were again read over and explained to the accused to which he pleaded not guilty and claimed to be tried.
4. Prosecution in order to prove its case relied upon 10 witnesses which included PW1, ‘Y’, complainant and mother of the victim girl ‘X’; PW2, ‘Z’ mother of the other victim girl ‘S’; PW3, victim girl ‘X’; PW4, victim girl ‘S’; PW5. Mahadeb Singh, scribe of the FIR; PW6, Dr. Sujit Kumar Saha; PW7, Dr. Deborup Mandal; PW8, Rita Biswas Sarkar, aunt-in-law of ‘X’; PW9, Bristrit Subba, first investigating officer of the case and PW10, Parikshit Paul, second investigating officer of the case.
5. The documents which were relied upon by the prosecution included Ext.1, written complaint; Ext.2, Aadhar Card; Ext.3, seizure list; Ext.4, statement of PW2 under Section 164 of the Cr.P.C.; Ext.5, statement of PW3 under Section 164 of the Cr.P.C.; Ext.6, Medical Report; Ext.7, statement under Section 164 of Cr.P.C. of PW4; Ext.8, Medical Certificate; Ext.9, Statement under Section 164 of the Cr.P.C. of PW8; Ext.10, FIR; Ext. 11, rough sketch map with index; Ext. 12, seizure list.
6. The defence also examined one witness namely Jhuma Tarafdar Disha as the only witness, being DW1.
7. PW1, ‘Y’ is the complain
AI
The interpretation of sexual intent under the POCSO Act, emphasizing that any act involving physical contact with sexual intent, even without skin-to-skin contact, constitutes sexual assault.
(1) Most important ingredient for constituting offence of sexual assault under Section 7 of POCSO Act is “sexual intent” and not “skin to skin” contact with child.(2) Interpretation of Section 7 of P....
(1) Sexual assault – Act of touching any sexual part of body of a child with sexual intent or any other act involving physical contact with sexual intent, could not be trivialized or held insignifica....
The act of touching a minor's breast constitutes sexual assault under Section 8 of the POCSO Act, affirming that sexual intent is sufficient to establish culpability irrespective of skin contact.
The main legal point established in the judgment is the interpretation and application of the provisions of the POCSO Act, specifically Section 7 read with Section 8, in determining the guilt of the ....
The POCSO Act allows for conviction based on the victim's testimony, provided it is credible, with burden shifting to the accused under Section 29 to prove innocence.
(1) Attempt to outrage modesty of minor girl – In order to bring home charge under Section 354 of IPC thereof, prosecution is required to establish that accused, with criminal or sexual intent, assau....
Section 7 of POCSO Act reads as whoever, with sexual intent touches vagina, penis, anus or breast of the child with sexual intent without penetration is said to commit sexual assault.
The central legal point established in the judgment is the requirement for the testimony of the prosecutrix to be reliable and of a sterling quality for a conviction under the POCSO Act. The judgment....
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