IMPORTANT POINT
Penetrative sexual assault on minor girl – Minor victims of sexual assault need rehabilitation and constant care in future – Measures for adolescent well-being and child protection need priority.

JUDGMENT :

(Abhay S. Oka, J.)

FACTUAL ASPECTS

1. Criminal Appeal No.1451 of 2024 has been preferred by the State of West Bengal, being aggrieved by the judgment and order dated 18th October 2023, passed by a Division Bench of the High Court of Judicature at Calcutta. In Suo Motu Writ Petition (C) No.3 of 2023, this Court’s attention was drawn to certain objectionable observations made in the aforesaid judgement. While dealing with the same, this court took note of the systemic failure of the State to protect the victim, resulting in her fate and wellbeing being ultimately tied up with that of the accused. Accordingly, in this judgement, we are dealing with the issue of sentencing of the accused arising out of the criminal appeal and the Suo Motu Writ Petition. We are also dealing with the issue of rehabilitation of the victim and her child.

2. The learned Special Judge appointed under the Protection of Children from Sexual Offences Act, 2012 (for short, ‘the POCSO Act’) convicted the accused for the offences punishable under Section 6 of the POCSO Act and Sections 363 and 366 of the Indian Penal Code, 1860 (for short, ‘the IPC’). For the offence punishable under Section 6 of the POCSO Act, the accused was sentenced to undergo rigorous imprisonment for twenty years and pay a fine of Rs.10,000/-. For the offences punishable under Sections 363 and 366 of the IPC, the accused was sentenced to undergo rigorous imprisonment for four years and five years respectively and was also ordered to pay a fine of Rs. 2,000/-and Rs. 5,000/- respectively. Though the learned Special Judge under the POCSO Act came to the conclusion that the accused was guilty of the offences punishable under clause (n) of sub-section (2) and sub-section (3) of Section 376 of the IPC, in view of the sentence imposed for the offence punishable under Section 6 of the POCSO Act, no separate punishment was imposed. The accused preferred Criminal Appeal (DB) 14 of 2023 before the Calcutta High Court against the conviction. The High Court by the Impugned Judgement dated 18th October 2023 purported to exercise its jurisdiction under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 (for short, “the CrPC”) to set aside the conviction of the accused for the aforesaid offences.

3. This Court by a detailed judgement dated 20thAugust 2024, set aside the impugned judgment of the High Court and restored the verdict of the learned Special Court to the extent of the conviction of the accused for the offences punishable under clause (n) of sub-section 2 and sub-section (3) of Section 376 of the IPC and Section 6 of the POCSO Act. This Court confirmed the acquittal of the accused for the offences punishable under Sections 363 and 366 of the IPC. However, the sentencing was postponed for the reasons recorded in the judgment. In paragraph 2 of the said judgment, the basic facts of the case have been mentioned and in paragraph 3, the findings recorded by the High Court have been mentioned. Paragraphs 2 to 5 of the judgment are relevant which read thus:

“2. The victim girl was fourteen years old at the time of the incident. The victim’s mother lodged a First Information Report (FIR) on 29th May 2018. The victim’s mother stated in her complaint that the victim, who was her minor daughter, escaped from her home at 5:30 p.m. on 20th May 2018 without informing anyone. On inquiry, it was found that the accused enticed her to leave her house. The accused did so with the help of his two sisters. The victim’s mother repeatedly visited the house of the accused and requested him to facilitate the return of her daughter. However, the victim did not come back. A female child was born to the victim. Admittedly, the accused is the biological father of the child. There was a gross delay in the investigation, and the accused was arrested on 19th December 2021. The chargesheet was filed on 27th January 2022 against the accused for the offences for which h