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IN THE HIGH COURT OF CALCUTTA
SABYASACHI BHATTACHARYYA, J.
Sushanka Ghosh – Appellant
Versus
The State of West Bengal – Respondent
C.R.A. No. 209 of 2017
Decided On : 21-09-2021
Indian Penal Code, 1860 - Sections 417 - Protection of Children from Sexual Offences Act, 2012 - Section 4 - Cheating - Refusing to marry - Expression “penetrates” Rape - Inherent discrepancy between the versions of PW-1 and PW-2 as far as the date of knowledge of PW-2 regarding the incident - Evidence of the doctor, the medical report and the evidence of PW-13, the escort of the victim of the hospital, militate against each other.
Finding of the Court:
Belated lodging of complaint was merely an afterthought, as a back-lash of the admitted altercation which had taken place between the victim and the accused regarding the conditions of marriage, which also vitiates the prosecution case - There cannot be any doubt that the Trial Judge was justified in applying the provisions of the POCSO Act to the victim, who was a ‘child’ within the definition of said Act - expression “penetrates” as used in both Section 375(a) of the IPC and Section 3(a) of the POCSO Act, has to be construed as a unilateral act on the part of the accused. The psyche and mental maturity of the victim at the relevant point of time ought also to be looked into to ascertain as to whether the alleged act of sexual intercourse between the accused and the victim, if true, was participatory from both ends, or a unilateral assertive act of the accused, sufficient to be an offence of the accused alone under the aforementioned provisions of law-Thus, mere refusal to marry, that too at a stage subsequent to the alleged incident, cannot be a handle to incriminate the appellant on the charges clamped against him, particularly keeping in view the antecedents of the accused and admitted previous physical and romantic relationship between the alleged victim and the accused.
Result: Appeal allowed.
JUDGMENT :
SABYASACHI BHATTACHARYYA, J.
1. This appeal has been preferred against the conviction of the appellant under Sections 417 and 376 of the Indian Penal Code (IPC) and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).
2. Learned counsel for the appellant submits that the prosecution did not produce any document in evidence to show that the victim was a minor at the relevant date. Learned counsel contends that the trial Court relied on an Admit Card, which was never exhibited at all.
3. By placing reliance on Mahadeo S/o Kerba Maske vs. State of Maharashtra and Another, (2013) 4 SCC 637, learned counsel submits that the Supreme Court categorically held that the yardsticks for ascertaining the age of a juvenile can also be followed by courts for the purpose of ascertaining the age of a victim. It was held in the said judgment that the statutory provision contained in the Juvenile Justice (Care and Protection Children) Rules, 2007 (in short ‘the Rules’) under Rule 12, clearly provides the mode of proving the age. In order of priority, the documents are: (i) the Matriculation or equivalent certificate, if available, (ii) the Birth Certificate from the School (other than a play school) first attended and (iii) the Birth Certificate given by Corporation or a Municipality or a Panchayat. The said documents, in the above order, should be given precedence. In the event none of such alternative methods is available, only then medical information can be sought for to determine the age.
4. Learned counsel further cites Jarnail Singh vs. State of Haryana, (2013) 7 SCC 263, in support of the same proposition, that the ascertainment of age, both of a child in conflict with law and who is a victim of crime, should be on the yardsticks based on the Rules, in particular, Rule 12 thereof.
5. Learned counsel for the appellant contends that the said judgment, read in conjunction with Section 94 of the Juvenile Justice (Care and Protection) Act, 2000 (for short ‘the JJ Act’) clearly mandate the court to follow the said yardsticks in ascertaining the age of the victim, which was not done in the present case.
6. Learned counsel further argues that there is patent discrepancy inherent in the deposition of the prosecution witnesses. PW-1, the alleged victim, stated her age to be 17 years and 10 months on the date of her deposition of April 12, 2016. The alleged incident occurred between October 31, 2015 and November 9, 2015. Hence, the victim, even admittedly, was 17 years 5 months old at the relevant juncture and was studying in Class XII.
7. The victim alleged in her evidence that the incident took place about six months back, when the accused refused to marry her. She further admitted that the accused offered to marry her and cohabited with the victim one or two times, after which she allegedly narrated the incident to her mother. However, PW-2, the mother of the victim, stated in her statement under Section 164 of the Code of Criminal Procedure (Cr.P.C.) that she had learnt of the incident about a month prior to the date of giving such statement, that is, November 12, 2015.
8. From the FIR, the alleged date of occurrence has been mentioned as between October 31, 2015 and November 9, 2015 and the information received by the police station was on November 10, 2015.
9. Hence, it is submitted that there is inherent discrepancy between the versions of PW-1 and PW-2 as far as the date of knowledge of PW-2 regarding the incident is concerned.
10. Learned counsel for the appellant further places reliance on Ravinder Singh Gorkhi vs. State of U.P. (2006) 5 SCC 584, to contend that the yardsticks of the JJ Act were also applicable in case of complaints, along with Section 35 of the Evidence Act, 1872. It is contended that certain conditions are to be fulfilled before a document is held to be admissible under Section 35 of the Evidence Act. It is submitted that the criteria as stipulated in Section 35 have not been fulfilled at
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