Hopeless prosecution caused acquittal of accused u/s 6 of POCSO Act by Howrah Special Court (Spl T R No. 16 of 2020)-14/09/2022

IN THE COURT OF JUDGE, SPL COURT UNDER POCSO ACT CUM ADDL. SESSIONS JUDGE, 2ND COURT HOWRAH

Present: Sri Arun Rai,
Judge, Special Court under POCSO Act cum
Additional Sessions Judge, 2nd Court, Howrah.

Spl T R No. 16 of 2020

(Arising out of Domjur PS case no.40/20 dt. 26.01.2020)

State
-: vs:-
Sk Sajid (on CB)

Offense :- Punishable u/s 6 of POCSO Act framed on 24.02.2022.

For State: Sri Goutam De….………………… Ld. Public Prosecutor.
For Defence : Jamsed Arrsad ….……………Ld. Defence Advocate.

Date of delivery of judgment : 14.09.2022.

J U D G M E N T

Prelude :-

Accused person namely Sk Sajid stands for trial for the offence punishable u/s 6 of POCSO Act arising out of Domjur PS case no.40/20 dt.26.01.2020 per se.

Factual Exposure :-

Fact of the case is that the Defacto-complainant-cum mother of the VG lodged a complaint before Domjur PS alleging, inter alia, that for the last two month prior to 24/25.01.2020 her daughter i.e. the VG (name kept undisclosed vide provision u/s 33(7) of POCSO Act, 2012) aged about 13 years had been sexually exploited by the accused Sk. Sajid and for that reason, the de facto complainant filed this case. Hence, this instant case.

Police-Case and Charge -Sheet :-

On the basis of the said written complaint, a Domjur PS case no.40/20 dt.26.01.2020 u/s 376(2)(f)(i)(n) of IPC & u/s 6 of POCSO Act was registered against the accused person. Thereafter, on completion of the investigation, the I.O. PSI Arup Biswas submitted final charge sheet being no.112/20 dated 23.03.20207 against the accused more fully captioned in the cause-title above punishable u/s 376(2)(f)(i)(n) of IPC & u/s 6 of POCSO Act inter se.

Cognizance taken as Special Case :-

On perusal of the police report and connected documents submitted u/s 173 of Cr.PC, it appears that the prima facie case being made out against the accused person punishable u/s 376(2)(f)(i)(n) of IPC & u/s 6 of POCSO Act, the cognizance was taken under sec 33(1) of POCSO Act which was exclusively triable by the Special designated Sessions Court and the case was taken to the file of the Court of Additional Sessions Judge, 2nd Court, as the Special Designated Court in terms of section 209 of CrPC read with sec 28 of POCSO Act meant for trial accordingly for disposal as per procedure of law.

Charge Framed :-

On perusal of materials on record, however, the charge was framed u/s 6 of POCSO Act against the accused person Sk. Sajid. The charge so framed was read over and explained to the accused person in Bengali to which he pleaded not guilty by saying “AAMI NIRDOSH” and claimed to be tried. Hence, this trial.

Testimony of Evidence :-

During trial, the prosecution in order to prove the charge levelled against the accused person has adduced the following evidences as under :-

Profile of Witnesses :-

1.PW1 – The VG.
2.PW2 – One Sanowara Begum, the mother of PW1.

Documentary Evidence:-

1. Exbt.1 (collectively) – The two signatures of PW1 in the statement u/s 164 CrPC.
2. Exbt.2 – The signature of PW2 in the written complaint.

Material evidence :-

No material is exhibited.
Examination under section 313 CrPC:

The defence case as it appeared from the trend of cross examination of the witnesses, from hearing of argument and also from the statement of the accused person recorded U/S 313 Cr.P.C, is the plea of complete denial of the prosecution case and the story of innocence of the defense pro tanto. However, the accused person refused to adduce any defense evidence in his favour.

Evidence adduced by the prosecution1. PW1 is the minor VG who stated that one incident was occurred which was long back and so she cannot remember the date of incident, however, her mother lodged written complaint against accused Sk Sajid and so the police arrested said Sajid. Further stated that
she was brought along with her mother before the hospital for medical test and thereafter, she
was taken to the court for recording her statement u/s 164 CrPC and the same is read over and
explained to her and she put her signature there and two signatures of PW1 in the statement
u/s 164 CrPC are collectively marked as Exbt.1. But she cannot remember the fact of the
incident at present. PW1 further stated that she deposed for the first time before this court and
thereafter the witness is declared hostile.

During cross examination, PW1 replied that she cannot remember the contents of the
statement which she stated before the court. Further she cannot remember the fact of the
incident as her mother filed this case out of misunderstanding and the same has been settled at
present. PW1 further stated that she did not state anywhere else about the fact of the incident.
2. PW2 is one Sanowara Begum, the mother of PW1, who stated that she is the de facto
complainant and stated that one incident was occurred which was long back and so she cannot
remember the date of incident, in fact, she lodged written complaint against accused Sk Sajid
and so the police arrested said Sajid and thereafter PW1 along with PW2 was brought before
the hospital for medical test and thereafter, PW1 was taken to the court for recording her
statement u/s 164 CrPC. PW2 further stated that she put her signature in the written complaint
after understanding the contents of it and the signature of PW2 in the written complaint is
marked as Exbt.2. But she cannot remember the fact of the incident at present. PW2 further
deposed for the first time before this court and thereafter the witness is declared hostile.
PW2 at the time of cross examination replied that she cannot remember the contents
of the written complaint which she lodged before the PS. Further she cannot remember the
fact of the incident as she had filed this case out of misunderstanding and the same has been
settled at present. PW2 knows accused person as co-villager. PW2 further stated that prior to
it, she did not state anywhere else about the fact of the incident.

Points for consideration

1. Whether the accused Sk Sajid committed sexual assault upon victim girl or not ?

2. Whether the prosecution has been able to prove this case beyond shadow of reasonable doubts against the accused Sk Sajid punishable u/s 6 of POCSO Act or the accused person is entitled for the benefit of doubt?

Decision with reasons

As stated above, Prosecution has examined two material witnesses. The accused person was examined u/s 313 Cr.P.C and he declined to adduce any defence evidence on his behalf.

The Points 1 & 2 :-

It is the cardinal Principle of Criminal Jurisprudence that the Prosecution shall have to prove the case beyond all Shadow of Reasonable Doubts and the Prosecution can not stand on the weakness of the Defense Case.

In the light of above underlined Principle of Criminal Jurisprudence, both above
posted points are taken up together for consideration as one has similar nexus with the other.
In order to prove this case, the prosecution examined the minor VG and the deposition
of PW1 apprises that one incident was occurred long back and so she cannot remember the
date of incident. However, her mother lodged a written complaint against accused Sk Sajid
and so the police arrested said Sajid. She was brought along with her mother before the
hospital for medical test and then she was taken to the court for recording her statement u/s
164 CrPC and she proved her two signatures in the statement u/s 164 CrPC collectively as
Exbt.1. But she cannot remember the fact of the incident at present and she deposed for the
first time before this court. (the witness is declared hostile).

During cross examination, PW1 replied that she cannot remember the contents of the
statement which she stated before the court. Further she cannot remember the fact of the
incident as her mother filed this case out of misunderstanding and the same has been settled at
present. PW1 did not state anywhere else about the fact of the incident.

All and above, the cross-examination of PW1 seems to be sharp and virtual departure
from the main-stream of the story delineated in the FIR and she has not been declared hostile
witness to the best reason known to the prosecutor itself which causes the State as the sheer
sufferer from the shadow of suspiciousness and doubts so much so.

To the same spirit, next witness is PW2 namely one Sanowara Begum, the mother of
PW1cum de facto complainant who stated that one incident was occurred which was long
back and so she cannot remember the date of incident and lodged written complaint against
accused Sk Sajid and so the police arrested said Sajid . Thereafter PW1 along with PW2 was
brought before the hospital for medical test and PW1 was also taken to the court for
recording her statement u/s 164 CrPC. She put her signature in the written complaint after
understanding the contents of it and the signature of PW2 in the written complaint is marked
as Exbt.2. But she cannot remember the fact of the incident at present and reiterates that she
deposed for the first time before this court and thereafter the witness is declared hostile.
PW2 at the time of cross examination replied that she cannot remember the contents
of the written complaint which she lodged before the PS. Further she cannot remember the
fact of the incident as she had filed this case out of misunderstanding and the same has been
settled at present. PW2 knows accused person as co-villager and she stated that prior to it, she
did not state anywhere else about the fact of the incident.

Since PW2 has not declared hostile witness to the best reason known to the
prosecutor it self which relegates the probative value of evidence that the State has relied in
toto. In auxiliary, her cross examination, PW1 unveils that she filed this case out of
misunderstanding which has been settled at present. In fact, PW1 as well as PW2 deposed for
the first time before this court today and they did not state any body else prior to the
deposition they made and PW1 cannot remember the contents of the written complaint at
present . Such deposition of PW1 who being the victim girl herself of this case, gets the jolt
as PW1 cannot say the contents of the Exbt-1 and she stated the fact of the incident for the
first time before the court and prior it, she did not say anywhere else and same version is there
in the deposition of PW2 who is the protagonist and she can not remember the content of the
FIR which diminishes the standard of the case vide the spirit of Judgment being SUPREME
COURT, CRIMINAL APPEAL NOS.523-527 OF 2009( 2012 (1) AICLR, PAGE 220 as the
deposition of PW1 being the VG is treated to be the protagonist of this case has indicated that
she was not examined by the investigating officer under sec 161 CrPC but naming the
accused person first time in her deposition in Court which causes the accused person entitle to
benefit of doubt as it further reveals that she did state before the Investigating Officer while
examining her under sec 161 but later her evidence in polished and unblemished version
before the court will create layer of cloud on the face of evidence . Besides, both PW1 and
PW2 identified the accused person as the co-villager, at Court Room during trial.
This being the deposition of prosecution witnesses, is not reliable and none of the
witnesses deposes to rope in support of the State Case.

Additionally, the Investigating Officer of the criminal case/ proceeding, be it triable
by the Sessions Judge or by the Magistrate, is considered to be the architect of such case and
so the merit and reliance of it revolves round the deposition of him/ her. Since the State could
not examine the medical witness. Further did not prove the final report of the seized
certificate of the VG in a bid to divulge the fact that she was minor at the time of incident etc ,
for no any good reason and explanation there to and such omission and error will definitely
mar the credence of the present case to the hilt.

Omissions, ifso facto, in the Criminal Case, if it remains unexplained for the good, will play the role of the proverbial ‘last nail’. (The Hon’ble Supreme Court has observed in Ganesh K. Gulve etc. v/s. State of Maharashtra,2002).

Since, the provision under sec 162 CrPC stipulates that the omission deliberately or indeliberately making on part of investigating Agency during investigation is itself the ground of disbelief of the weightage of evidence.

Without comment, we may refer the Hon’ble Supreme Court of India in the case
being A.Shankar vs State Of Karnataka on 9 June, 2011, wherein it is observed that the
omissions amount to a contradiction, creating a serious doubt about the truthfulness of the
witness and other witnesses also make material improvement while deposing in the court,
such evidence cannot be safe to rely upon.

Further the Hon’ble Apex Court in the Judgments being SC 287; Vijay @ Chinee v.
State of M.P., (2010) 8 SCC 191; State of U.P. v. Naresh & Ors., (2011) 4 SCC 324; and
Brahm Swaroop & Anr. v. State of U.P., AIR 2011 SC 280, it is in clarion calls observed as, “
The omissions which amount to contradictions in material particulars, i.e., materially affect
the trial or core of the prosecution’s case, render the testimony of the witness liable to be
discredited.”

As such, the evidence on record so much so weight of contradiction cropped up on the footage of aforesaid observation has inflicted the prosecution from the fatal shadow of doubt on its face of truthfulness.

Thus, the point nos. 1 and 2 are disposed of in negative of the State.

Conclusion

In summing up, there is so much proposition of Prosecution as there is no more resolution of deposition in the trend of material witnesses coming forth and emanated on record.

Thus, this is a case where an order of acquittal would lead not because of the
philosophy relating to the proof of beyond all shadow of reasonable doubt but because there
has been absolute dearth of truthfulness and credible testimony in back of the charges framed
as well as because there are so many matters remained unexplained and so many questions
left unanswered in want of clinching evidence with the State case to its credit.
So, under such facts and circumstances, in the light of above meticulous judicial
scanning as well as the gamut of oral and documentary evidences on record read with the
Spirit of the Reported Decisions of the Hon’ble Supreme Court of India in the case being
A.Shankar vs State Of Karnataka on 9 June, 2011, A.P., (2006) 9 SCC 713 and others read
with the Caterna being 2007 Cr.LJ 1100 Orissa ( supra), I am not afraid of holding that the
Prosecution has hopelessly been failed to prove this case beyond all shadow of reasonable
doubt against the accused person as named at the cause title punishable u/s 6 of POCSO Act
to the hilt.

Thus, the Prosecution case must fail on its own weight of contradiction.

Hence, it is

 O r d e r e d

That the accused person namely Sk Sajid is found not guilty for the offences punishable u/s 6 of POCSO Act inter se. Therefore, the sole accused person as captioned in the cause-title, is acquitted u/s 235(1) of Cr.P.C. He is set at liberty at once from his bail bond as well as surety too. Seized Alamat, if any, be confiscated to the State, after the appeal period is over.

Judge, Special Court under POCSO Act cum
Additional Sessions Judge,

2nd Court, Howrah.