'Evidence Of Sexual Assault Victim Need Not Be Tested With Same Amount Of Suspicion As That Of An Accomplice': Calcutta HC Upholds Conviction In POCSO Case

While opining that the sole evidence of a victim of sexual assault is enough to secure a conviction, the Calcutta High Court on Friday observed that the evidence of a victim need not be tested with the same amount of suspicion as that of an accomplice.

A Bench comprising Justice Shekhar B. Saraf and Justice Kesang Doma Bhutia observed that the Supreme Court in various decisions have held that barring serious exceptions, the evidence of victim of sexual assault is enough for conviction. 

Opining that the evidence of a victim of sexual assault need not be tested with the same amount of suspicion as that of an accomplice, the Court underscored, 

"A girl, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person's lust and, therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. Maintaining that the sole and trust worthy evidence of a woman, who is a victim of a sexual offence, is enough to find her assailant guilty. An accused guilty for committing of offence of rape, the solitary evidence of the prosecutrix is sufficient, provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality."

The Court further observed that the testimony of a minor sexual assault victim must be appreciated taking into account the facts and circumstances of the case. It was also noted that even if the mother of the victim turns hostile. the sole evidence of the victim if found reliable can be enough to secure a conviction. 

"..it has been held rape is not mere physical assault but instead destroys the whole personality of the victim. The rapist degrades the very soul of the helpless female and therefore, the testimony of the prosecutrix must be appreciated on the background of the entire case, even if the mother turns hostile", the Court observed further. 

Background 

The instant appeal had been preferred against the judgment dated November 6, 2017 passed by a Sessions Court wherein the appellant had been convicted for the commission of offence punishable under Section 6 of the POCSO Act (aggravated penetrative sexual assault) read with Section 376 of the IPC (rape). 

The appellant, who is the step father of the victim, had raped the minor on several occasions between July, 2016 till she informed her mother about missing her period. The appellant used to rape the minor victim whenever her mother and sister used to be away from home. 

On being informed, the mother of the minor victim had taken her to a hospital where on medical examination she was found to be six months pregnant. Consequently, the mother along with the step father had admitted the minor victim to Nirmala Shishu Bhawan, Port Blair (the Children's Home of Missionaries of Charity for abandoned street babies and children or a shelter home or institution meant for minor children in need of care and protection) on June 8, 2017 with an assurance to take her back after delivery.

On finding the minor victim to be pregnant and on learning that she had been impregnated by her own step father, the Sister-in-charge of the Children's Home set the criminal law in motion by informing the concerned authority i.e. the Nodal Officer of Social Welfare Department and who in turn informed the District Child Protection Unit (DCPU), Port Blair.

The members of the DCPU and a lady police official of Women Police Cell, Port Blair thereafter spoke to the victim girl who invariably told them that it was her step father who had committed sexual offence upon her. Then they obtained a written complaint duly signed by the victim and on which the members of DCPU too had signed and subsequently forwarded the same to the concerned police station for taking necessary legal action. 

Thereafter, a zero FIR was registered on June 5, 2017 under Section 5(j)(ii)/6 of POCSO Act (aggravated penetrative sexual assault) read with Section 376 IPC (rape). 

Observations 

The Court at the outset reprimanded the conduct of the minor victim's biological mother for her complicity and for not lodging any FIR against the appellant in a bid to save her second marriage. 

"Such unusual conduct on the part of the biological mother of the victim gives rise to presumption that she was very much aware of the involvement of her second husband of few months in the crime and knew him to be the real perpetrator and thereby she wanted to give protection to him or she wanted to hush- up the entire incident just to save the family from being ostracized in the local community and/or to save her second marriage, and therefore, did not bother to lodge any FIR or find out from the daughter about the real culprit", the Court observed. 

Pursuant to a scrutiny of the evidence of the minor victim, the Court held that there is nothing on record to disbelieve the evidence given by the victim. The Court noted that the victim in her evidence-in-chief had categorically reiterated what she had alleged in her FIR and in the statement recorded under Section 164 Cr.P.C. by the concerned Judicial Magistrate. It was further taken into consideration that the minor in her cross- examination had categorically denied that she had become pregnant because she allegedly had a physical relationship with a boyfriend.

"Unfortunately, the defence/appellant has failed to bring on record the details and particulars of the alleged boyfriend of the victim or victim's physical access to some other male at the relevant period of time. On the contrary, the victim in her evidence recorded under oath corroborated what she had alleged in the FIR and in her Section 164 Cr.P.C. statement recorded by Magistrate during investigation stage. In fact, no substantial materials have come during cross examination of the victim to shatter what she has stated in her chief or in the complaint/FIR and in her statement recorded under section 164 Cr.P.C", the Court averred. 

The Court also underscored that it is immaterial if the minor victim consented or did not consent to the sexual intercourse in view of clause 6 of Section 376IPC which stipulates that sexual intercourse with a girl not related as wife below 16 years constitutes an offence of rape. It is settled principle of law that a minor's consent is no consent in eyes of law in rape cases, the Court averred further. 

The Court noted that in the instant case, the minor victim was born on December 18, 2001 and when the alleged incident took place in between July, 2016 to early part of 2017 the victim was a minor girl below 16 years of age. 

Accordingly, the Court upheld the conviction of the appellant under Section 5 of POCSO Act, 2012 punishable under Section 6 of the Act by observing, 

"..this Court is of the considered view that prosecution has been able to prove that the victim who was below 16 years was subjected to penetrative sexual assault repeatedly by her own step father immediately after becoming a member or part of their family and that too in their shared household beyond all reasonable doubt and accused has failed to rebut the presumption under Section 29 of the POCSO Act. Accordingly, this Court does not find any illegality or infirmity in the judgement of conviction passed by the learned Trial Court against the accused/appellant for committing offence under Section 5 of POCSO Act, 2012 punishable under Section 6 of the Act."

However, the Court observed that since the alleged offence had taken place between July, 2016 to April, 2017, the accused is liable to be sentenced as per the original provision of Section 6 of the POCSO Act and not as per the amended provisions of Section 6 of the POCSO Act, which came into effect from August 16, 2019. Reliance was placed on Article 20 of the Constitution which stipulates that no one shall be subjected to a greater penalty for an offence than what was provided under the law in force when the offence was committed.

Accordingly, the Court ruled, 

"This Court sets aside the sentence imposed by the Trial Court being void and illegal and hereby sentences the accused Ram Sevak Lohar for committing offence punishable under Section 6 of the POCSO Act read with Section 376 IPC with rigorous imprisonment for fourteen years and fine of Rs. 50,000/- and in default R.I. for another six months. The period of detention undergone by the accused is subject to set-off against the sentence of imprisonment under Section 428 of Cr.P.C."

Case Title: Ram Sevak Lohar v. State 

Case Citation: 2022 LiveLaw (Cal) 92

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