Calcutta High Court: A single-judge bench comprising of Shampa Dutt (Paul), J., upheld the appellant’s conviction under Section 377 of the Penal Code, 1860 (IPC) on the ground that the same has been proved beyond reasonable doubt by the prosecution. The Court held that a mother’s evidence in a case of this nature is held in high regard by the court, as her love for her child is pure and her instincts are trustworthy.
The instant matter revolves around an appeal preferred by the appellant challenging the judgment dated 30-01-2017 passed by the Additional Sessions Judge, Fast Track Court arising from matter registered under Sections 342/377/354/376(f) IPC. The complainant-victim’s (3-year-old girl child) mother filed a complaint against the appellant alleging that the appellant called victim to his room and sexually abused her. The complainant alleged that she witnessed that the appellant penetrated his penis into the mouth of her daughter and pull of her pant, through a window and immediately raised an alarm, attracting local residents and later filed the complaint.
The defence (appellant) contended that there was no proof of injuries on the victim’s body, and the prosecution failed to provide credible independent witnesses. The defence also contended that the complaint was motivated by a prior grudge, and the prosecution’s case lacks reliability. The defence alleged that the examination under Section 313 of the Criminal Procedure Code, 1973 (CrPC) was unjust, violating principles of natural justice.
The Court observed that the complainant and the appellant are neighboring tenants and the complainant (mother of the victim), promptly reported the child’s abuse. The Court stated that that complainant’s swift action demonstrates a mother’s protective instincts and love for her child. The Court observed that such cases rarely have eyewitnesses due to their private nature, but the mother’s evidence is considered the most reliable.
“A mother’s evidence in a case of this nature is the best evidence before the Court. As truthful and sacred as the love in her heart for her tender helpless child of 3 years. A mother is the shield which protects her child against any harm that may befall upon the child. Cases of such nature do not come with eyewitness/eyewitnesses and one should not expect the same, as such acts are done in private, being against nature and the law.”
The Court observed that the evidence provided, the statement under Section 164 of the CrPC and the written complaint are consistent and reliable beyond reasonable doubt. The Court further observed that the judgment of the Gujarat High Court in Lohana Vasantlal Devchand v. State, 1967 SCC Online Guj 22, is pertinent to this case.
The Court held that act of the appellant falls within the purview of Section 377 of the IPC and “the same has been proved by the prosecution beyond reasonable doubt by way of evidence both oral and documentary evidence.”
The Court dismissed the appeal, and the appellant is directed to surrender within a week to serve his sentence. The Court directed the Trial Court to proceed in accordance with the law.
[Asgar Ali v. State of W.B., CRA 263 of 2017, order dated 31-08-2023]
*Judgment by Justice Shampa Dutt (Paul)
Advocates who appeared in this case :
Mr. Apalak Basu, Counsel for the Appellant
Ms. Anusuya Sinha, Mr. Pinak Kr. Mitra, Counsel for the Respondent/State
Buy Penal Code, 1860 HERE
Calcutta High Court: A single-judge bench comprising of Shampa Dutt (Paul), J., upheld the appellant’s conviction under Section 377 of the Penal Code, 1860 (IPC) on the ground that the same has been proved beyond reasonable doubt by the prosecution. The Court held that a mother’s evidence in a case of this nature is held in high regard by the court, as her love for her child is pure and her instincts are trustworthy.
The instant matter revolves around an appeal preferred by the appellant challenging the judgment dated 30-01-2017 passed by the Additional Sessions Judge, Fast Track Court arising from matter registered under Sections 342/377/354/376(f) IPC. The complainant-victim’s (3-year-old girl child) mother filed a complaint against the appellant alleging that the appellant called victim to his room and sexually abused her. The complainant alleged that she witnessed that the appellant penetrated his penis into the mouth of her daughter and pull of her pant, through a window and immediately raised an alarm, attracting local residents and later filed the complaint.
The defence (appellant) contended that there was no proof of injuries on the victim’s body, and the prosecution failed to provide credible independent witnesses. The defence also contended that the complaint was motivated by a prior grudge, and the prosecution’s case lacks reliability. The defence alleged that the examination under Section 313 of the Criminal Procedure Code, 1973 (CrPC) was unjust, violating principles of natural justice.
The Court observed that the complainant and the appellant are neighboring tenants and the complainant (mother of the victim), promptly reported the child’s abuse. The Court stated that that complainant’s swift action demonstrates a mother’s protective instincts and love for her child. The Court observed that such cases rarely have eyewitnesses due to their private nature, but the mother’s evidence is considered the most reliable.
“A mother’s evidence in a case of this nature is the best evidence before the Court. As truthful and sacred as the love in her heart for her tender helpless child of 3 years. A mother is the shield which protects her child against any harm that may befall upon the child. Cases of such nature do not come with eyewitness/eyewitnesses and one should not expect the same, as such acts are done in private, being against nature and the law.”
The Court observed that the evidence provided, the statement under Section 164 of the CrPC and the written complaint are consistent and reliable beyond reasonable doubt. The Court further observed that the judgment of the Gujarat High Court in Lohana Vasantlal Devchand v. State, 1967 SCC Online Guj 22, is pertinent to this case.
The Court held that act of the appellant falls within the purview of Section 377 of the IPC and “the same has been proved by the prosecution beyond reasonable doubt by way of evidence both oral and documentary evidence.”
The Court dismissed the appeal, and the appellant is directed to surrender within a week to serve his sentence. The Court directed the Trial Court to proceed in accordance with the law.
[Asgar Ali v. State of W.B., 2023 SCC OnLine Cal 2557, order dated 31-08-2023]
*Judgment by Justice Shampa Dutt (Paul)
Advocates who appeared in this case :
Mr. Apalak Basu, Counsel for the Appellant
Ms. Anusuya Sinha, Mr. Pinak Kr. Mitra, Counsel for the Respondent/State
Buy Penal Code, 1860 HERE
Buy Code of Criminal Procedure, 1973 HERE
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