Calcutta High Court (Appellete Side)
Sk. Mofizul Islam @ Saheb vs The State Of West Bengal & Anr on 4 July, 2025
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON'BLE DR.JUSTICE AJOY KUMAR MUKHERJEE
CRA (SB) 103 of 2024
With
CRAN 2 of 2024
Sk. Mofizul Islam @ Saheb
Vs.
The State of West Bengal & anr.
For the Appellant : Mr. S.K. Moinuddin
For the State : Mr. Anasuya Sinha
Ms. Trina Mitra
For the respondent no.2 : Ms. Jharna Biswas
Heard on : 01.05.2025
Judgment on : 04.07.2025
Dr. Ajoy Kumar Mukherjee, J.
1. This appeal is directed against the impugned judgment of conviction
and order of sentence dated 09.08.2023 and 10.08.2023 respectively passed
by learned ADJ 1st Court, Sealdah in Special Trial no. 02 (01) 2023, arising
out of the special case no. 46 of 2022. By the impugned judgment learned
Court below convicted the appellant herein under section 10 of the
Protection of Children from Sexual offences Act 2013 (in short POCSO Act)
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and also under section 354 A of the Indian Penal Code (in short IPC) and
sentenced the appellant to suffer rigorous imprisonment for 5 years and to
pay fine of Rs. 50,000/-
2. The prosecution case as appearing from the FIR is quoted below:-
“Yesterday (16/11/22) at 5 P.M. in the evening our next door neighbour
Priyanka Ray told me that Saheb is doing some obscene work with my
daughter. Then I asked my daughter what has happened, my daughter told
me that Saheb uncle had yesterday (15/11/22) at 4 P.M. in the afternoon
when she was playihg, called her and making her sit in the room he touched
her on the head and back while talking, after that he touched his mouth
with her mouth. He kept his head on her chest and opening his lungi told her
to suck his penis, then someone made sound outside and Saheb uncle went
out of the room and she also came out. After coming out he told her not to
disclose anything to anyone. That is why she did not tell anything to
anyone. Today during interaction with aunt she told her about the incident.
After knowing about this I told my husband. When my husband went to talk
about this at first he refused to accept it. after that he went away by
pushing my husband, Saheb used to work with our next door neighbour
Bappa Saha.”
3. During the trial prosecution has examined 13 witnesses including
victim and on closure of recording of prosecution evidence, the appellant
herein was examined under section 313 of Cr.P.C., where he stated that the
allegation is false and defended himself by saying that on the same date of
occurrence at about 11 a.m. the father of said child went to his stall in
intoxicated condition and demanded so many articles from him and he
refused and also slapped him and at that time he told Appellant that he
would give him a lesson and the present case is the outcome of the same.
Appellant has not examined any witness on his behalf.
4. Being aggrieved with the findings arrived at by the learned Sessions
judge, Mr. Moinuddin learned Counsel appearing on behalf of the appellant
submits that the FIR case is false and based on concocted story. The said
FIR was lodged by PW1/mother of the victim girl but the entire complaint
was written by PW13 Payel Das @ prity who is the paternal aunt of the
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victim girl and surprisingly she wrote the name of complainant in the
complaint as if complaint put her signature therein but the complainant is
admittedly an illiterate lady. He further submits in this context that the
evidence of PW6 Abhijit Das corroborates with the evidence of PW13 Payel
Das that the FIR was neither written nor signed by PW-1/complaint.
5. He further submits that prosecution failed to bring any eye witness.
The medical report and evidence of PW7 and PW9 do not support the
prosecution case.PW-12 i.e. the investigating officer in his evidence admitted
that he did not get any direct evidence from the local people, who had seen
the victim to go to the house of appellant nor did he get any evidence about
the movement of the victim to go to the bathroom situated close to his
residential place. Infact the investigation discloses that the victim was
playing outside as usual on the date and time of incident and there is
nothing to show nor there is any direct evidence that on the date and time of
alleged incident, the victim was with the accused.
6. He further argued that during examination under section 313 of
Cr.P.C. the appellant explained under what circumstance the false allegation
has been lodged against him. Infact the entire prosecution case is false and
fabricated and on the basis of such materials the order of conviction or
sentence is not sustainable in the eye of law. Prosecution side failed to bring
any direct evidence and the evidence adduced by the prosecution witnesses
are hearsay evidence, on the basis of which the court below erroneously
awarded conviction against the appellant. He further submits that the age of
the victim girl has not been adjudicated in the present case and though the
conviction order was passed on the basis of circumstantial evidence but the
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prosecution has miserably failed to link the chain of circumstances to prove
the guilt of the accused.
7. In this context he relied upon the judgment of P.Yuvaprakash Vs.
State which was decided by the Supreme Court on 18th July, 2023 and
another judgment of Bhim Singh and another Vs. State of Uttarakhand,
reported in (2015) 4 SCC 281.
8. Mr. Moinuddin further submits that in view of Navin Dhaniram
Baraiya Vs. State of Maharashtra decided by Bombay High Court on 5th
June 2018, the well settled principle of law is that foundational fact of the
prosecution is to be proved and then only the presumption under section 29
of the POCSO Act will apply. In the present case in the absence of any eye
witness or direct evidence the foundational fact could not be established by
the prosecution, which the prosecution was obliged, under the law to prove
first. In this context he also relied upon the judgment of Arjun Baro Vs.
State of Maharashtra. Accordingly appellant has prayed for setting aside
the judgment impugned
9. M/S Jharna Biswas and M/S Anusuya Sinha, learned counsel
appearing on behalf of the defacto Complainant and the State respectively
vehemently argued that the prosecution has successfully proved it’s case.
They further argued that even the sole testimony of the prosecutrix can be
the basis for convicting the appellant and the court below correctly came to
the conclusion in this case. Furthermore the evidence of victim and defacto
complainant completely inspire confidence that the appellant himself has
committed the offence and as such the Court below rightly passed the
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impugned judgment of conviction and order of sentence and as such both of
them prayed for upholding the same.
10. Before going to further details, let me go through the relevant portion
of evidence as adduced by the prosecution witnesses to evaluate the findings
of the learned Sessions Judge. PW1 is the mother of the victim, who has
stated that she learnt from her daughter that the appellant kissed her
daughter forcefully dragged her towards the toilet and asked her to remove
her wearing apparel but she did not do it and at that time someone opened
the gate and the appellant fled away by squeezing the breast of her
daughter.
11. PW2 is the victim, who is a school going child, categorically stated
before the court that the appellant forcefully took her inside his room and he
embraced her and kissed her and then she was taken to the toilet and
appellant after lifting his lungi had asked her to suck his organ, which she
refused to do and then the appellant forced her to remove her pant which
she also denied and then the appellant forcefully squeezed her breast and at
that time she managed to escape from the spot.
12. PW-3 stated that when she asked the victim, she told her that the
Appellant had called her and kissed her on 15.11.2022. PW4 also stated
that on 15.11.2022 at about 5 P.M. while her granddaughter was playing,
the accused called her and kissed her.
13. PW-6 is the father of the victim who stated that at the time of
occurrence he was out of his residence and when he returned he had heard
from his wife that the appellant has done some indecent activity with his
daughter, who was aged about 6 years at that time.
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14. The medical officer who examined the victim girl deposed as PW7 and
she also stated that as per history of assault narrated by the, victim and her
mother, while the victim went to play on 15th November, at 4 P.M. the
appellant called her to his house and had assaulted her by kissing her lips
asking her to suck his penis and pressed her breast and that said appellant
also asked the victim to remove her pant but victim had refused and ran out
of that place.
15. PW-9 is another medical officer who also stated victim’s version as
stated to her is that while she was playing with her friends, the appellant
took her and forcibly dragged to the P.O. and kissed her and that when said
accused anticipating someone outside the door had left the place
16. The PW-10 and PW-8 stated that they have heard from the father of
the victim that the appellant had committed indecent act with the said
victim.
17. PW-12 is the investigating officer and PW13 is the FIR writer who
stated that as her boudi (de facto complainant) is illiterate she wrote down
the said complaint at the police station and the signature of PW1/de facto
complainant as found in the said complaint was written by her and it is not
the signature of de facto complainant.
18. In this context it also needs to be mentioned that during investigation
the victim was examined under section 164 Cr.P.C. on 17.11.2022 i.e. two
days after the alleged occurrence, where she categorically stated that the
appellant had kissed her on her lips and squeeze her breasts and then after
lifting his lungi he asked the victim to suck but at that time hearing sound
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from outside, he left the room and asked the victim not to disclose the
incident to anyone.
19. After going through the evidence on record, it is seen that at the time
of alleged occurrence the victim was only a girl of 5 years. The impugned
judgment states that the birth certificate of the victim was seized by the IO
from the mother of the victim namely PW1 under seizure list dated
17.11.2022 [exhibit P-15(12)] and during the course of argument the age of
the victim was not challenged and for which it can be safely concluded that
the victim was less than 12 years of age at the time of alleged occurrence.
20. The terms “sexual assault” has been defined in the POCSO Act as
follows:-
7. Sexual assault:-
Whoever, with sexual intent touches the vagina, penis, anus or breast of the
child or makes the child touch the vagina, penis, anus or breast of such
person or any other person, or does any other act with sexual intent which
involves physical contact without penetration is said to commit sexual
assault.
21. The offence “aggravated sexual assault” has been defined in section 9
of the Act and explanation (m) of section 9 states that whoever commits
“sexual assault” on a child below 12 years, shall be treated to have
committed “aggravated sexual assault”.
22. In the present case as I have stated above that according to the FIR,
on 15.11.2012 at 4 p.m. the appellant called the victim at his room and
touched his mouth with her mouth and thereafter lifting his lungi told her to
suck his penis and then anticipating someone’s presence out side the room,
he went out of the room and the victim also came out from the room. Such
statement has been fully corroborated by the victim during her statement
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made under section 164 Cr.P.C. as well as during her evidence before the
court. It is true that PW-3 and PW4 only stated that they have learnt from
the victim that the appellant called her and kissed her on 15.11.2022. In the
cross examination of PW3 even the accused put a suggestion to the witness
that she did not hear any other allegation against the accused except the
allegation of kissing her and thereby appellant has not disputed the incident
of kissing her by the appellant. PW 7 and PW9 are the medical officer whose
recording of history of assault corroborates with whatever the complainant
and the victim has stated in their evidence and in the statement recorded
under section 164 Cr.P.C. PW10 and PW8 only stated that they have heard
that the appellant had committed indecent act with the victim. In such view
of the matter all material witnesses including PW3 and PW4 have stated that
they have learnt from victim that the appellant had kissed her. From the
evidence of other witnesses specially from evidence of defacto complainant
and victim it had been further established without any contradiction that
the appellant called her in his room and he touched his mouth with her
mouth and after lifting his lungi told her to suck his penis and he has also
squeezed her breast and also attempted to disrobe her.
23. The definition of sexual assault as has been quoted above clearly
states in section 7 that even “any other act with sexual intent, which involves
physical contact without penetration” is also said to commit sexual assault.
The victim at her little age categorically narrated before the court that
appellant forcibly took her inside his room and embraced her and kissed her
on her lips and then lifting his lungi asked her to such his organ and also
attempted to disrobe her forcefully. During cross examination of victim there
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is no denial against such statements. The prosecution case has been
sufficiently corroborated by the prosecution witnesses and they are in
consonance with each other and during cross examination it has not been
controverted or contradicted.
24. In Raju and others Vs. State of M.P. reported in (2008) 15 SCC 133
it was held by Apex court as follows:-.
“……..Corroboration as a condition for judicial reliance on the testimony of the
prosecutrix is not a requirement of law but a guidance of prudence under
given circumstances. It must not be overlooked that a woman or a girl
subjected to sexual assault is not an accomplice to the crime but is a victim of
another person’s lust and it is improper and undesirable to test her evidence
with a certain amount of suspicion, treating her as if she were an accomplice.
Inferences have to be drawn from a given set of facts and circumstances with
realistic diversity and not dead uniformity lest that type of rigidity in the
shape of rule of law is introduced through a new form of testimonial tyranny
making justice a casualty. Courts cannot cling to a fossil formula and insist
upon corroboration even if, taken as a whole, the case spoken of by the victim
of sex crime strikes the judicial mind as probable.”
10. The aforesaid judgments lay down the basic principle that ordinarily the
evidence of a prosecutrix should not be suspected and should be believed,
more so as her statement has to be evaluated on a par with that of an injured
witness and if the evidence is reliable, no corroboration is necessary.
Undoubtedly, the aforesaid observations must carry the greatest weight and
we respectfully agree with them, but at the same time they cannot be
universally and mechanically applied to the facts of every case of sexual
assault which comes before the court.”
25. In the instant case I find from victim’s statement that she has pointed
her finger at the accused and stated to her mother that appellant embraced
the victim and kissed her and thereafter lifting her lungi asked her to suck
his penis. During trial the victim identified the accused. If anything indecent
to the victim girl had not been occurred, a child of 5 years would not have
come to tell a lie against the appellant and not only that her statement has
been substantially corroborated by the mother of the victim and the other
witnesses before whom she narrated the incident. There is neither any
denial of such incident during cross examination nor Appellant has made
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minimum effort to establish that present proceeding is an outcome of any
animosity in between the complainant and the appellant, as has been
sought to be defended by the Appellant during his examination under
section 313 Cr.P.C.
26. It is no more res integra that conviction can be based upon even on
the testimony of solitary witness, if it is found to be trustworthy without any
blemish and inspired the confidence of the court. In the instance case even
only that part of her evidence that “Appellant embraced her and kissed her”
sufficiently raised the foundational fact to attract section 7, which states
“any other act with sexual intent which involves physical contact without
penetration” and at the same time raises presumption under section 29 of
the Act, that the Appellant has committed the offence of sexual assault and
since nothing contrary to such presumption has been proved, presumption
has not been rebutted and his guilt is established, even without taking into
consideration the fact of corroboration by other witnesses.
27. The argument advance by learned Counsel appearing on behalf of the
appellant that the FIR was written by PW13 who put the name of defacto
complainant /PW1 in the FIR but she did not put her signature in the FIR
as she is illiterate and aforesaid allegation falsify the FIR story which has
been concocted forging someone’s signature. I don’t find any merit in such
submission, since the said FIR ultimately culminated into a charge sheet
and after recording evidence of prosecution witnesses, the court below found
the appellant guilty. In fact once the investigation is over and the charge
sheet is filed, the FIR pales into insignificance and as such who has written
the same and by whose pen it was written, all becomes insignificant. This is
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also true in view of the fact that the concept of locus standi is completely
unknown in the case of lodging complaint in such criminal proceeding.
28. The submission of learned Counsel appearing for the appellant that
the trial court recorded the conviction only based upon suspicion does not
hold water since from her initial statement made under section 164(5)
Cr.P.C. till her testimony during the course of trial, the victim was
demonstrably found to be very consistent.
29. It is to be kept in mind that the victim is this case is vulnerable child
who fell prey to the lust of the appellant, who overpowered the victim by
taking advantage of the fact that she was not with her guardian. Victim on
17.11.22 stated before Magistrate that on the previous date after the
occurrence, Appellant threatened her not to disclose the incident to anyone
and for which she has not stated anything but on the next day i.e. on
16.11.22 her aunt seeing her physical appearance had suspected that
something wrong was done with her and on her query, the victim disclosed
the occurrence to her aunt and prompt FIR was lodged on the very next
date. In Jai Prakash Sing Vs. State of Bihar and another reported in
(2012) 4 SCC 379, the Hon’ble Supreme Court observed that prompt
lodging of an FIR is an assurance regarding truth of the informant’s version
and that a promptly lodged FIR reflects the first hand account of what has
actually happened and who was responsible for the offence in question.
Furthermore in the instant case the testimony of the victim girl is consistent
and reliable. Further, during the cross examination there is no denial of
sexual assault. In fact evidence of PW2 (victim) has not been impeached in
any manner and based on her evidence alone conviction is sustainable.
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30. In the above factual background of the case as stated above, I find no
reason to disbelieve the credibility/and or trustworthyness of the victim and
the defacto complainant, who are found to be reliable and liable to be
accepted.
31. In view of above the present appeal fails.
32. CRA (SB) 103 of 2024 stands dismissed. The conviction and sentence
awarded to the appellant herein by the learned Court below in connection
with Special Case no. 46 of 2022 convicting the appellant under section 10
of POCSO Act read with section 354 A of the IPC is hereby confirmed.
33. Sent the trial court record at once along with a copy of this judgment,
to the court below, wherefrom it was called for.
Urgent Xerox certified photocopies of this Judgment, if applied for, be given
to the parties upon compliance of the requisite formalities.
(DR. AJOY KUMAR MUKHERJEE, J.)
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