'Not Unmindful Of Social Stigma Attached To Nature Of The Offence': Calcutta HC Condones Delay In Lodging FIR In POCSO Case Of Man Raping 14 Yr Old

The Calcutta High Court on Wednesday observed that there is existing social stigma associated with the offence of rape and accordingly held that a delay in lodging FIR in cases of such nature would not vitiate the prosecution case.  The Court accordingly upheld the conviction of a man for raping a minor victim aged 14 years who had subsequently given birth to a still born child. 

A Bench comprising Justices Joymalya Bagchi and Bivas Pattnayak observed that it is apparent that the victim did not inform anyone about the crime due to continuous threats by the appellant and that she had proceeded to lodge the police complaint only after her pregnancy was discovered. 

"I am also not unmindful of social stigma attached to the nature of the offence which might have also attributed to the delay in lodging FIR. Even otherwise, the mere factum of delay in filing complaint in regard to an offence of this nature by itself would not be fatal so as to vitiate the prosecution case", the Court underscored. 

Further the Court observed that there is no evidence of concoction of a false version or embellishment and accordingly dismissed contentions pertaining to the delay lodging of an FIR. 

Background 

In the instant case, the appellant had challenged the order of conviction issued by the Sessions Court under Section 6 (aggravated penetrative sexual assault) of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and under Sections 448 (house trespass) and 506 (criminal intimidation) and 376 (2)(i) (rape on a woman when she is under 16 years of age) of the Indian Penal Code, 1860 (IPC). 

The appellant used to come to the house of the victim for the last 7 years and would even refer to the victim as his 'grand-daughter'. Taking advantage of the absence of other family members, the appellant had trespassed into the house of the victim and had forcibly committed rape on her repeatedly on different occasions for the last 6-7 months. Thereafter, the minor victim had herself lodged a compliant against the appellant on June 10, 2014. 

Due to the offence of rape, the minor victim had subsequently conceived and given birth to a still born child on August 29, 2014. 

Observations 

Although the Court acknowledged that there has been delay in lodging the FIR, it rejected the contention of the appellant that the case of the prosecution is shrouded with suspicion as there is immense delay in lodging of the FIR. 

The Court observed that the victim in the written complaint as well as in her statement under section 164 CrPC has consistently stated of continuous threatening by the appellant. 

"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", the Court held. 

Reliance was also placed on the Supreme Court judgment in State of Punjab v. Gurmit Singh and Others wherein the Apex Court had observed, "The courts cannot overlook the fact that in sexual offences delay in lodging FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving cool thought that a complaint of sexual offence is generally lodged."

The Court further noted that only after a Councillor from Childline spoke to the minor victim did she agree to lodge a complaint. "Therefore it is quite apparent from the above evidence that the victim did not inform about the incident due to continuous threatening by the appellant and only when her pregnancy was discovered, she lodged the complaint", the Court observed further. 

 It was further noted that although no DNA test had been done on the delivered child due to a lapse on the part of the investigating officer, however, this could not be a ground to discredit the testimony of the victim girl. "The victim girl had no control over the investigating agency and any negligence of the investigating officer cannot affect the credibility of the evidence of the victim girl", the Court underscored further. 

Accordingly, the Court upheld the conviction of the appellant and further held that the minor victim is entitled to compensation under the 'Victim Compensation Scheme'. 

Case Title: Md. Israil v. The State of West Bengal

Case Citation: 2022 LiveLaw (Cal) 23. 

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