Murshidabad Court Tries ‘Child’ Accused Of Raping 11-Yr-Old Cousin As 'Adult', Sentences Him To 12 Yrs Rigorous Imprisonment

In making various observations regarding the ordeal suffered by the minor girl, at the behest of her elder brother, the Court negated the submission that the defence case could rely merely on the lack of corroborative evidence, to prove the innocence of the CCL. ASJ Deepto Ghosh held:

“It needs no emphasis that the physical scar on a rape- victim or whom such an attempt has been made may heal up, but the mental scar will always remain. So it is to be kept in mind that when a woman is ravished, what is inflicted is not merely physical injury, but the deep sense of some deathless shame. An accused cannot cling to fossil formula and insist on corroborative evidence, even if taken as a whole the case spoken to by the victim strikes a judicial mind, as probable judicial response to human rights cannot be bounded by legal jugglery.

The thread with which the prosecution case is knitted is sufficiently strong to disdain any doubt as to the guilt of the present accused person/ CCL in the commission of the crime where a cousin elder brother, CCL is found to have gratified his animated passions and sexual pleasures, by having carnal knowledge of his own cousin sister, an innocent girl of tender age, besmirching a sacred relation of brother and sister in traditional Indian society and a formidable conclusion can be arrived that the prosecution has been successful in bringing home the guilt of the accused on sexual assault in terms of Section 5 of the POCSO Act punishable u/s 6 of POCSO Act. He thus deserves to be convicted in absence of any negative legal evidence and benefit of doubt.”

It was the prosecution’s case that the minor girl and the CCL were neighbours and cousins, and that one time in 2018, when the girl was 11 years old, she had gone to the CCL’s home for an errand, where she was brutally assaulted and raped by the CCL.

It was submitted that due to such aggravated assault, the minor continued bleeding from her abdomen, and had to thereafter be shifted to the labour ward of a local hospital. The mother of the minor filed a police complaint, on the basis of which the CCL was arrested and prosecuted under Section 6 of the POCSO Act.

To buttress their submissions, the prosecution examined several witnesses, including the sole eye-witness who was the minor girl herself, and secondary witnesses, such as the minor’s mother, other cousins, the investigating officer, as well as the various doctors and nurses who had taken care of her in hospital.

The case of the defence on the other hand was one of complete denial. The defence did not examine any independent witnesses, but instead attacked technicalities such as there not being enough corroborative evidence, as well as ‘non-examination’ of certain witnesses by the prosecution.

In brushing aside the contentions raised by the defence about the credibility of the minor’s statement, the Court held that in this case, wherein the minor had herself appeared before the Court and corroborated her version of events, there would not remain any scope of doubt. It said:

“It is well settled principle, as we all know, that Criminal Trial cannot be equated with a mock scene from a stunt film. The legal trial is conducted to ascertain the guilt or innocence of the accused arraigned. In arriving at a conclusion about the truth, the Courts are required to adopt rational approach and judge the evidence by its intrinsic worth and the animus of the witnesses. Needless to mention that, a person witnessing the incident is not supposed to narrate the finer details of the entire incident in a parrot like manner. The normal course of the human conduct would be that while narrating a particular incidence there may occur minor discrepancies, such discrepancies in law may render credential to the depositions. Parrot like statements are disfavoured by the courts. It is a trite position of law fortified by several authorities that minor variations or contradictions of this nature do not erode the otherwise reliable version of the prosecution. The minor discrepancies or inconsistencies, which do not go to the root of the matter and do not shake the basic version of the witnesses, can never be annexed with undue importance, more so, when the all-important ‘probabilities-factor’ echoes in favour of the version narrated by the victim-girl. Here I am not unmindful of the fact that the instant case pertains to allegation of ravishment of a minor girl who turned up before the Court to testify. She as narrated above is the only eyewitness to the incident. She is also a child witness. Considering her tender age and perception of time and thing her testimony can be said to have remained free from blemish. Flabbergasting blisters, from the side of the defence, to erode credibility of the version of a child witness, cannot wither away her otherwise trustworthy rendition of events.”

The final consideration for the Court to make was whether the CCL who was 17 years old at the time of commission of the offence would be tried as an adult for the purpose of Section 6 of the POCSO Act.

At the sentencing hearing, the Court sentenced the CCL to 12 years of rigorous imprisonment along with a fine, keeping in mind that due to the nature of offence, the CCL could not get the protective benefit of Chapter II of the Juvenile Justice Act. It was held:

Whereas the aggravating circumstance are concerned, here the CCL is tried as an adult. This being the situation, a child tried as an adult, is not supposed to be tried under the protective umbrella of Chapter-II of the Juvenile Justice Act, 2015 where fundamental principles of presumption of innocence, dignity and worth, participation, best interest of the child, family responsibility, safety measures, non-stigmatising, semantics or non-waiver of rights, equality and non-discrimination, right to privacy and confidentiality, institutional measures as last resort, repatriation and restoration, doctrine of fresh start, diversion and natural justice, come into the protection of the child as mandatory statutory safeguard, since the CCL was found not only, having the mental and physical capacity, prima facie, to commit such heinous offence but also had the ability to understand consequence of the acts in terms of Section 15 of Juvenile Justice ( Care & Protection of Children ) Act, 2015.

Reiterating, again that it is the duty of every Court to award proper sentence, having regard to the nature of the offence and the manner in which it was executed or committed, the sentencing Courts, are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of offence, keeping in view also the rights of the victim of the crime but also the society at large while considering appropriate sentence, except a forethought that a meagre sentence may run counter-productive in the long run and against interest of the society so that it does not shock its conscience and as such striking a proper balance is the order of the day.

Considering all the aspects while abiding by the canon of prudence & circumspection and keeping in mind the guiding principle of the Hon'ble Apex Court as stated above this Court awards and also keeping into consideration the parameters setting rehabilitation of the CCL aiming towards his reforms and social reintegration, the convict CCL is sentenced to suffer Rigorous Imprisonment for twelve (12) years and to pay fine of Rs.50000.”

Case: State of West Bengal -Vs-CCL (POCSO 54 of 2018)

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