JITEN ROY Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) A thirteen year old child with special needs and poor eye sight is alleged to have been subjected to penetrative sexual assault by the appellant, a mendicant who promised to cure her poor eye sight by massaging her with oil. P.W.1, father of the child (P.W.4) had met the appellant at the panchayat office. In lieu of Rs.400/- the appellant had promised to cure his daughter's eyesight with medicine. Accordingly, on 13.5.2013, appellant came to the residence of P.W.1 and went into a room with the minor while her parents remained outside. After half an hour, the appellant left the room. Upon entering the room, parents of the child (P.W.1 and P.W.2) found the victim naked and in senseless condition. Subsequently, the child disclosed to her mother (P.W.2) that she had been raped. Other relations and locals were also informed of the incident. The child was in a traumatized stage and was treated by one Dr. Panchamani Ghatak. On 15.6.2013, P.W.1 lodged first information report against the appellant under Sections 420/376(2)(l)/506 of the Indian Penal Code. In conclusion of investigation, charge sheet was filed and charges were framed under Sections 376(2)(l) of the Indian Penal Code and under Section 3(a)/4 of the POCSO Act, 2012. The appellant pleaded not guilty and claimed to be tried.

(2.) In the course of trial, prosecution examined 14 witnesses including the minor, P.W.4 who was examined with the help of an interpreter, P.W.3. In conclusion of trial, by the impugned judgment and order dated 29.5.2015 and 30.5.2015, the appellant was convicted of the offence punishable under Section 376(2)(i) of the Indian Penal Code and under Section 4 of the POCSO Act and sentenced to suffer rigorous imprisonment for ten years and to pay fine of Rs.5,000/- in default to suffer rigorous imprisonment for five months more.

(3.) Learned Counsel appearing for the appellant assailed the prosecution case on various counts. Firstly, it is submitted that the charge framed in the instant case is defective. Although it is stated in the charge that the incident occurred in the night of 13th May, 2013, evidence on record shows that the incident occurred between 10/11.00 a.m. of that day. Secondly, no explanation is forthcoming with regard to inordinate delay in lodging the first information report. Thirdly, there is confusion when the child (P.W.4) disclosed the alleged sexual assault upon her to her parents. While her father (P.W.1) stated she disclosed the incident to him two days later, her mother (P.W. 2) stated she narrated the incident to her on the self same day. Dr. Panchamani Ghatak who had treated the victim had not been examined. There is confusion whether the appellant was available immediately after the incident as deposed by the panchayat member, P.W.6. Neither the birth certificate of the victim nor the ossification report has been placed on record to show that she was a minor. Genesis of the prosecution case has not been established and the appellant is entitled to an order of acquittal.