14-yr old girl subjected to penetrative sexual assault by man who called her grand daughter: Is girl’s complaint vital to form basis of conviction? Cal HC explains

Calcutta High Court: The Division Bench of Joymalya Bagchi and Bivas Pattanayak, JJ., in a penetrative sexual assault case of a 14-year-old girl, expressed 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.”

An appeal was directed against the decision of lower Court arising out of POCSO Case, convicting and sentencing the appellant for offence punishable under Section 448 and 506 of the Penal Code, 1860 and Section 6 of the POCSO Act, 2012.

The appellant used to come to the house of victim for last 7, 8 years and he used to call the girl as his granddaughter. Taking advantage of the absence of other family members, the appellant trespassed into the house of the victim and forcibly committed rape on her repeatedly on different occasions for 6-7 months.

In view of the complaint lodged by the victim under Section 376(2)(i) of IPC and Section 4 of the Protection of Children from Sexual Offences Act, 2012 investigation was initiated against the appellant and charge sheet was filed against the appellant under Section 376(2)(i) of the Indian Penal Code and Section 6 of the POCSO Act, 2012.

Analysis and Discussion

High Court noted that during the period of occurrence, the victim girl was aged just above 14 years.

Bench remarked that,

In a case relating to sexual assault and rape, the evidence of the victim girl is very much vital and if found reliable can form the basis of conviction of the accused without seeking for further corroboration. 

High Court noted that the victim herself lodged the written complaint, wherein she had categorically stated that the appellant, who called her grand daughter, committed rape upon her many times. She tried to protest against such unsocial nasty work, but the appellant threatened her by killing her along with her younger brother, father and grandmother.

FIR is never an encyclopedia rather it is information made at the first instance which sets the criminal law into motion. Criminal courts should not be fastidious with mere omissions in the first information statements, since such statements cannot be expected to be a chronicle of every detail of what happened nor to contain an exhaustive catalogue of events which took place [Rattan Singh v. State of H.P, (1997) 4 SCC 161]

Bench observed that the statement of the victim was recorded under Section 164 CrPC, the defence indicated certain omissions in her statement made in the Court during deposition.

Though, the Court noted that,

There are no material contradictions or contrary circumstance to disbelieve the evidence of the victim girl.

Court opined that the evidence of the victim girl before the Court, her written complaint and her statement before the Judicial Magistrate was consistent with the fact that the appellant committed forcible rape upon her on several occasions.

Hence, the evidence of the victim girl was very reliable to act upon. 

Pregnancy

From the evidence on record, it was quite apparent that the victim was pregnant of 5/6 months at the time of lodging of the complaint and she gave birth to a stillborn baby.

Though the investigating agency did not conduct any DNA Test, the Court held that the said was a drawback on the part of the investigating officer in not conducting the DNA test but that cannot be a ground to discredit the testimony of the victim girl.

Therefore, from the consistent evidence of the victim regarding the sexual assault perpetrated upon her by the appellant which resulted in her pregnancy and other evidences on record and the medical evidence stating of pregnancy, there cannot be any doubt that due to such sexual assault, she became pregnant.

High Court remarked that,

“…the evidence of the victim girl and other evidence as discussed above unerringly point to the guilty of the appellant as the person who ravished the victim on several occasions by entering into their house during the absence of other family members resulting in her pregnancy and also of threatening the victim with consequences to kill her and her family members in order to coerce her from disclosing such fact to her family members.”

Bench also observed,

In the normal course of human conduct, this unmarried minor girl, would not like to give publicity to the traumatic experience she had undergone and would feel terribly embarrassed in relation to the incident to narrate it to anyone, overpowered by feeling of shame and her natural inclination would be avoid talking about it to anyone, lest the family name and honour is brought into controversy.

With respect to delay in lodging an FIR, High Court expressed that it was not unmindful of social stigma attached to the nature of the offence which might have also attributed to the delay.

It was apparent that the appellant committed rape upon the victim aged just above 14 years forcibly. Therefore, as per the defining provisions of the IPC, the consent of the victim becomes immaterial. Accordingly, the presumption of law under Section 114(A) of the Evidence Act that the act was committed without the consent of the victim was of no relevance in the facts and circumstances of the present case.

Further, it was added that the presumption of law envisaged under Section 29 of the Act is also up against the appellant to have committed aggravated penetrative sexual act upon the victim as the same has not been rebutted.

As there was also evidence of trespass into the house of the victim by the appellant for committing the heinous offence of rape and subsequent threatening of killing the victim and her family members for not disclosing the fact to anyone the ingredients of Section 448 and Section 506 (II) of the Indian Penal Code is also established, Bench stated.

In view of the above discussion, the conviction of the appellant by the trial court was upheld.

In the present case, offence of penetrative sexual assault has been committed upon a helpless victim of 14 years which is inhumane and shakes the judicial conscience.

Sentence

High Court held that a term of 14 years of rigorous imprisonment will be commensurate with the nature of offence and accordingly sentence for rigorous imprisonment for life imposed in respect of Section 6 of POCSO Act, 2012, is reduced to rigorous imprisonment for a term of 14 years. The sentence of fine together with default clause as imposed by the trial court is maintained. The sentence in respect of offence under Section 6 of the POCSO Act, 2012 is modified to the aforesaid extent.

The conviction of the appellant was upheld.[Israil v. State of West Bengal, 2022 SCC OnLine Cal 209, decided on 2-2-2022]


Advocates before the Court:

For the Appellant: Mr Sourav Chatterjee, Adv.

Md. M. Nazar Chowdhury, Adv.

Ms Priyanka Saha, Adv.

For the State: Mr Binay Panda, Adv. Mrs Puspita Saha, Adv.

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