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Whoever, commits sexual assault, shall be punished with imprisonment of either Punishment for description for a term of 3-5 years: High Court Of Calcutta

The appellant was convicted under Section 8 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as “the POCSO Act”), this was held in the judgement passed by a single bench judge comprising HON’BLE JUSTICE  SABYASACHI BHATTACHARYYA,  in the matter   Sk. Dilks Alam @ Sk. Dilkhush Alam Vs. The State of West Bengal[C.R.A. No.457 of 2019].

According to the Learned counsel for the appellant contends that there is no credible evidence, sufficient to make out a plausible case against the appellant, even to attract the presumption under Section 29 and/or Section 30 of the POCSO Act. He also mentioned that the complainant allegedly returned within half an hour of leaving the victim. But, a journey from the place of occurrence to the residence of the victim’s parents takes about 45 minutes each way on a bus.

Although CCTV camera footage was available, the same was not seized and was not exhibited or sent for forensic examination by the police authorities also, None of the employees of the Bank, where the incident allegedly occurred, was also produced as witnesses for the prosecution. The entire evidence was based on hearsay. It was contended, by placing reliance on the answer of the accused to question no.19 put to the accused in his statement under Section 313 of the Code of Criminal Procedure (CrPC).

Meanwhile  Learned counsel for the State, controverting the submissions of the appellant, argues that the statement of the victim girl, which was corroborated by other pieces of evidence of the prosecution witnesses, is, by itself, sufficient to convict the accused. Upon hearing the learned counsel for the parties and going through the materials on record, it was clear that the entire evidence of the prosecution witnesses was not only hearsay but the knowledge of the alleged incident was derived by all such witnesses from the complainant Raju Mal. Thus, the source of the information of all the witnesses was the complainant himself.

The patent discrepancy in the evidence of the prosecution witnesses. At least three of the prosecution witnesses mentioned a lady being present at the spot of occurrence at the relevant time, who was never produced as a witness. A formal complaint and First Information Report (FIR) was lodged as late as about 4:25 p.m. on the said date.

The complainant, allegedly the maternal uncle of the victim, admitted in his cross-examination that he does not have a sister. To explain away such admission, a case was sought to be made out that the complainant is a distant relative of the victim. The fact that almost all the witnesses were from the same village as the complainant, including some of his relatives, being produced as prosecution witnesses is peculiar, more so, since the source of information of all of them regarding the alleged incident was none other than the complainant himself.

The court perused the facts and argument’s presented, it believed that – “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. 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: Mandira B S 

 

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