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Making The Victim Naked Shows Culpable Mental State, Touching Of Private Parts Not Necessary Calcutta HC Upholds Conviction For Aggravated Sexual Assault In POCSO Case

Sai Krishna ,
  17 May 2022       Share Bookmark

Court :
IN THE HIGH COURT AT CALCUTTA
Brief :

Citation :
C.R.A 550 of 2019

Case Title:
Chitta Biswas Vs. The State of West Bengal & Anr.

Date:
13 May, 2022

Bench:
JUSTICE BIBEK CHAUDHURI

Parties:
Appellant –Mr.Prabir Majudmer, Adv.,Mr. Snehansu Majumder, Adv.
Respondent – Ms. Sreyashee Biswas, Adv.

Subject

The appellant had filed an appeal against a judgment and order of conviction and sentence passed by the trial court stating that it was impugned and he had not committed any sexual assault.

Important Provisions

Section 10 of POCSO Act – Whoever commits aggravated sexual assault shall be punished with imprisonment

Section 4 of POCSO Act – Punishment for penetrative sexual assault.

Section 5 of POCSO Act – Commission of aggravated penetrative sexual assault.

Section 8 of POCSO Act– Punishment for sexual assault.

Section 30 of POCSO Act - Presumption of existence of culpable mental state.

Section 376(2)(i) of IPC – Whoever commits rape shall be punished with rigorous imprisonment.

Overview

  • Parimal Biswas filed a complaint on 18th august, 2018 stating that his minor daughter was subjected to sexual assault.
  • The child had gone to the complainants’ brothers house at 8am in the morning to defecate as they had no toilet in their house.
  • On her way to her uncle’s house, she was forcibly taken by the accused Chitta Biswas to the house of Manoka.
  • The child’s pants were pulled off and the accused opened his pants and touched the breast and private part of the child.
  • On the basis of the complaint the accused was booked under Sections 4, 5 and 8 of POCSO Act and also under Section 376(2)(i) of the IPC.
  • The trial court examined 10 witnesses mainly the child, the childs father, Manoka – the aunt of the child, Dr. Swadesh Garai – the medical officer who examined the child, Dr. Anirban Pal, Investigating officer of the case and few other people.
  • The child stated that the accused forcibly laid her on the ground and sexually assaulted her and later when child’s aunt came into the house, she saw the girl lying naked alongside the accused and cried for help, the accused fled the scene in the meanwhile and was manhandled by the locals. The father of the child corroborated with the evidence given out by the child.

Issues raised

  • Whether making the victim naked shows the culpable mental state even when the private parts are not touched by the accused?

Advancements made by the appellant

  • The learned counsel for the appellant stated that nobody saw the accused touching the private part of the girl and from the evidence given out by Manoka it was found that the accused was only sitting by the girl who was naked on the floor.

Judgment Analysis

  • The court stated that in an offence of sexual violence or sexual assault, the evidence of the victim girl was of utmost importance.
  • The statement provided by Manoka stated that she saw the girl naked lying on the ground next to the accused.
  • When the evidence of both the child and her aunt was taken together there was no doubt in the evidence of the victim girl
  • The court stated it was entitled to raise statutory presumption about culpable mental state of the accused as under Section 30 of POCSO Act.

Conclusion

The court concluded that the presumption under Section 30 of POCSO Act cannot be rebutted by the accused by proving he had no such mental state. The court affirmed with the judgment and order of conviction and sentence passed by the lower court and dismissed the appeal.

Learn the practical aspects of CrPC HERE, CPC HERE, IPC HERE, Evidence Act HERE, Family Laws HERE, DV Act HERE

Click here to download the original copy of the judgement

 
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