The learned Trial Judge proceeded more on gut feeling and vague legal principles than assessing the materials on record objectively: Calcutta High Court

The accused was deprived of his liberty and freedom due to the impugned judgment by the learned Trial judge who overlooked to assess the materials on record objectively and proceeded more on gut feeling and vague legal principles. The Hon’ble High Court of Calcutta before the Hon’ble Justice Sabyasachi Bhattacharyya held such views in the matter of  Sk. Dilkhus Alam @ Sk. Dilkhush Alam Vs. The State of West Bengal [C.R.A. No.457 of 2019].

The facts of the case relate to an appeal that was raised out of the conviction of the appellant under Section 8 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act,2012). The learned advocate representing the appellant argues that there was no valid evidence that was enough to make out a rational case against the appellant. The learned advocate said that leaving out the 10-year-old victim girl alone just to fetch the victim’s parent’s AADHAR card was not at all acceptable. It was further known that the complainant alleged himself to be the maternal uncle of the victim, but during the cross-examination, it was admitted that the complainant did not know the victim’s father’s name. Moreover, all the witnesses belong to the same village as that of the complainant. 

The accused in his statement further stated that some people complained against Jhuma and her husband who were selling forms of AADHAR cards at a price of Rs 200. Thereby, the case seemed clear according to the learned counsel representing the appellant said that the case was devised against the accused since he protested against the illegal sale of AADHAR Card forms. 

On the other hand, the learned counsel representing the state denied the submissions of the appellant and contended that all the statements of the victim girl were verified by other evidence of the prosecution witnesses, all these proofs were sufficient to convict the accused. The Hon’ble Court had views that the entire evidence of the prosecution witnesses was hearsay and the knowledge of the said alleged incident derived from all the witnesses was from the complainant Raju Mal himself. 

Furthermore, during the cross-examination, Jhuma Let admitted that the place of occurrence was a crowdy and congested place that had traffic police, many people and shops, fruit stalls, meat-chicken shop, doctor’s chamber, utensil shop, sweet shop, etc. in front of the State Bank, Bolpur branch, within which the AADHAR Card office was located. However, no outcry was raised immediately after the alleged incident was discovered, for some unknown reason, neither the complainant approached the bank officials, nor was anybody present at the place of occurrence produced as a prosecution witness to make out a positive case, at least regarding the accused had taken the victim girl inside the AADHAR Card office. The investigation officer could not get their hands on the bank CCTV footage on a mere pretext that the bank officials refused to hand over them. The Hon’ble Court in this regard held “Withholding such witnesses and the CCTV camera footage of the bank gives rise to adverse inference against the prosecution under Section 114, illustration (g) of the Evidence Act, 1872”. 

It seems that various salient features from the mentioned facts remain unexplained. For instance, the reason still remains unknown for leaving the victim girl alone in the AADHAR card office; the fact that all the witnesses who were being produced as prosecution witnesses were all from the same village as that of the complainant, including some of his relatives; it was still unexplained that why none saw the victim girl being taken by the accused inside the room where the incident allegedly occurred. 

The Hon’ble High Court of Calcutta held “… In the light of the above considerations, the impugned judgment and order of conviction were bad in law as well as on facts and ought to be set aside. Accordingly, the appeal succeeds … thereby setting aside the judgment and order of conviction dated July 17, 2019, passed by the Additional District and Sessions Judge-cum-Judge, Special Court (POCSO Act) at Bolpur, Birbhum in Sessions Trial No.18 (June) of 2019 arising out of Special (POCSO) Case no.12 of 2019 and the consequential sentence awarded against the appellant”. 

The Hon’ble High Court of Calcutta before the Hon’ble Justice Sabyasachi Bhattacharyya pronounced “The appellant is hereby acquitted honourably and shall be discharged from custody, if at present in incarceration, and stands discharged of all conditions and bail bonds, if furnished by the appellant for obtaining bail at any point of time”. 

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Judgment reviewed by Bipasha Kundu

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