In the case of Md. I Vs. State of West Bengal, the Calcutta High Court on 02.02.2022 emphasized on the gravity of the offence of sexual assault on a minor and held that minor omissions would not contradict the statements made by the victim.
Facts– The Appellant used to visit the house of the 15 year old victim girl for the last couple of years and would refer to her as his ‘granddaughter’. Whenever the victim used to be alone at home, he used to trespass inside and commit the act of rape repeatedly over a period of 6-7 months. The victim then lodged a complaint under Section 376(2)(i) (Punishment for rape) of the Indian Penal Code (“IPC”) and Section 4 of the Protection of Children from Sexual Offences Act, 2012.(“POCSO Act”) On completion of investigation, charges were also framed under Sections 448 (Punishment for house-trespass) and 506 (Punishment for criminal intimidation) of the IPC and Section 6 of the POCSO Act. The Appellant was convicted and sentenced by the learned Trial Court. Aggrieved by the order, the Appellant filed for appeal to the Calcutta High Court, stating that there were many discrepancies in the statements of the victim and the witnesses and certain lapses in the investigation by the prosecution.
The counsel for the Appellant argued that-
- The grandmother of the Victim, who was examined as a witness from the defense side also lived in the same house and she had deposed that some other boy used to come and meet the victim and he was the one who impregnated her.
- The father of the victim had mentioned in his statement that he had two sons as well. Strangely, none of the sons were examined.
- The victim did not mention in her written complaint that she was impregnated due to the sexual assault committed by the Appellant.
- While a medical examination was conducted which determined that the victim was 26 weeks pregnant, there was no sign of the DNA test of the child.
- There was an unexplained delay in filing the FIR.
- No signs or marks of injuries were found on the body or private parts of the victim.
The Counsel for the Respondent simply argued that-
- The evidence provided by the victim was consistent enough to establish the Appellant had only committed the crime of penetrative sexual assault upon her and an omission in mentioning the pregnancy in the written complaint did not absolve Appellant from the charges brought against him.
- The oral evidence of the family members and the other witnesses revealed the pregnancy of the victim and the investigating officer had mentioned in the cross-examination that he had received a message about the victim having given birth to a still-born baby.
- The inadequacy in conducting the DNA case did not render the case against the Appellant as completely false.
Observations of the High Court–
- In light of the penal provisions being applied in the case, the most important aspect was the age of the victim, who was 15 years old at the time of the incident. This was authenticated by a certificate issued by her school and there was no evidence contradicting this claim.
- The Court concluded that the statements and evidence of the victim was vital and if its reliability was established, it could form the basis of conviction of the Appellant. The Court cited a case decided by the Hon’ble Supreme Court where it was held that a victim’s statement should be taken into sole consideration if it is found to be reliable and seeking corroboration of the same would add insult to the injury (State of Punjab v. Gurmit Singh, 1992).
- As far as the discrepancies were concerned, the Court remarked by relying on Rattan Singh v. State of Himachal Pradesh (1997) that an FIR is not an encyclopedia of facts but just a step to initiate the process of administrating justice and the omissions mentioned above are not serious enough to counter the allegations against the Appellant.
- The medical examination took place a few months after the incident. Hence, the doctor did not find any physical injuries on the body or private parts of the Victim. Also, the victim had no control over the process of investigation and any lapses in the same could not be attributed to her or used to dismiss her statements.
- While it was claimed by the defense that the victim was pregnant because of another boy, no evidence was brought on record to prove this.
- JJ, Bagchi and Pattanayak observed that-
“Crime against woman is increasing as a whole. Such type of crime is a direct insult to the human dignity of the society and therefore imposition of any inadequate sentence not only results in injustice to the victim and the society in general but also stimulates criminal activities. Obligation is thus bestowed upon the court for imposing appropriate punishment against such criminals in response to the cry of the society. While considering the appropriate
punishment the court has not only to keep in view the rights of the criminal/accused but also the rights of the victim who suffers in the hands of the perpetrator of crime. The offence of rape and sexual assault not only cause physical scar but also cause mental scar which the victim has to bear throughout her life.”
The Court finally concluded that the charges against the Appellant were proved beyond reasonable doubt but reduced the punishment awarded from rigorous imprisonment for life to 14 years of rigorous imprisonment and ordered for compensation to be awarded to the victim under the Victim Compensation Scheme.
– Vaishali Jain, Advocate & Associate – Child Safety at Work & Rhea Bazaz, Final Year Student, Symbiosis Law School, Pune