'Mother's Evidence The Best Evidence In Such Cases': Calcutta High Court Upholds Man's Conviction For Committing ‘Unnatural Offences’ On 3-Yr-Old

The Calcutta High Court has dismissed the appeal of a man accused of committing unnatural offences (under Section 377 of the IPC) on his 3-year-old neighbour, upon the prosecution having established his guilt beyond a reasonable doubt. 

Justice Shampa Dutt (Paul) observed that the evidence rendered by the child’s mother would be the ‘best evidence’ in such cases.

"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 act of the appellant herein constitutes the ingredients required to constitute the offence under Section 377 of the Indian Penal Code and the same has been proved by the prosecution beyond reasonable doubt by way of evidence both oral and documentary evidence. The appellant is directed to surrender before the Trial Court within a week from the date of this order to serve out his sentence in default, Trial Court shall proceed in accordance with law."

It was submitted by the girl’s mother (“complainant”), that the accused, who was their neighbour, had called her daughter to his room in the absence of anyone else. The complainant submitted that when she went to check on her daughter as she did not return within a reasonable time, she found that the accused was sexually assaulting her daughter, by “entering his penis in her mouth.”

At trial, the accused was convicted under Section 377 IPC and sentenced to 7 years imprisonment, with a fine of Rs 5,000.

During the present appeal, the appellant argued that the Trial judge had failed to appreciate the lack of injuries on the victim or the absence of any independent witnesses and that the complainant had accused the appellant of such heinous offences due to ‘personal grudges.’

It was argued that there existed contradictory witnesses’ statements and that the prosecution had failed to prove the charges beyond all reasonable doubt, leading to the conviction being a violation of the principles of natural justice.

In appreciating the arguments of the parties and the evidence on record, the Court noted that both the victim and the accused were tenants under the same landlord and that the mother’s witness statements could not be doubted since:

"This is a mother, who without wasting any time lodged the complaint and went to the Court on the very next day. Her motherly instinct made her look for her child, who was playing outside. This instinct led to her child, who was being molested and abused in a heartless/perverted manner."

Accordingly, observing that there were no material discrepancies in the witness statements as claimed by the appellants, the Court dismissed the appeal and upheld the sentence of the accused.

Coram: Justice Shampa Dutt (Paul)

Citation: 2023 LiveLaw (Cal) 256

Case: Asgar Ali Vs. The State of West Bengal & Anr.