Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(Cal) 1532

IN THE HIGH COURT AT CALCUTTA
JOYMALYA BAGCHI, GAURANG KANTH, JJ.
Saranga Mondal - Appellant
Versus
The State – Respondent
CRA(DB) No.2 of 2024
Decided On : 10-07-2024

Advocates Appeared:
For the Appellant : Mr. Alokesh Sarkar
For the State : Ms. A.S. Zinu

The absence of DNA evidence does not nullify a credible survivor's testimony in sexual assault cases; victim credibility may prevail despite delays in disclosure due to coercive threats.

Headnote:(A) Protection of Children from Sexual Offences Act, 2012 - Section 4 and 6 - Conviction for rape of a minor - Appellant convicted under Section 6, modified to Section 4 due to lack of evidence regarding subsequent acts of rape - Sentence altered to rigorous imprisonment for ten years and a fine of Rs. 2,00,000/- with terms regarding default - Prosecution proved the commission of rape through the testimony of the survivor and corroborating witnesses. (Paras 40, 39)

(B) Credibility of Witnesses - The testimony of a minor survivor must be evaluated considering her vulnerability and the circumstances surrounding the incident, including threats by the accused that impeded her ability to report the crime. (Paras 22, 28)

(C) Evidentiary Requirements in Sexual Assault Cases - The absence of DNA evidence does not preclude conviction if the survivor's testimony is reliable and corroborated. The Court stated, 'To throw out a case merely on the ground of non-production of DNA report would lead to gross injustice.' (Paras 36)

(D) Non-examination of potential witnesses - Non-examination of the survivor’s grandmother does not significantly impair the prosecution's case given the minor's circumstances and the corroborating evidence presented. (Paras 30) (E) Defense Claims - Claims of false implication based on family disputes must be substantiated with greater evidence and cannot undermine a credible victim’s testimony. (Paras 32, 33)

Facts of the case:
The appellant was accused of raping a 14-year-old girl, who was misled under the pretense of black magic, resulting in her pregnancy after a series of events where she was taken to a secluded place. (Paras 3-5)

Findings of Court:
The appellant's conviction was modified from Section 6 to Section 4 of the POCSO Act, with the sentence adjusted accordingly. The Court upheld the survivor's testimony as credible despite the absence of DNA evidence. (Paras 40)

Issues: Whether the testimony of the minor survivor is reliable given the challenges she faced in disclosing the crime and whether the absence of DNA evidence warrants acquittal. (Paras 19, 35)

Ratio Decidendi: The conviction was modified based on the lack of evidence for additional acts of rape while maintaining the reliability of the survivor's testimony regarding the principal act of rape. The Court noted that a victim's failure to report immediately can be a product of trauma and fear of threats from the assailant. (Paras 39, 22)

Result: Appeal partly allowed, conviction modified.

JUDGMENT :

JOYMALYA BAGCHI, J.

1. The appeal is directed against judgment and order dated October 05, 2021 passed by the learned Special Judge (POCSO), North and Middle Andaman, Mayabunder in Special POCSO Case No.12 of 2018/Special POCSO S.T No.21 of 2018 convicting the appellant for commission of offence punishable under section 6 of the POCSO Act and directing him to suffer rigorous imprisonment for life and pay fine of Rs.2,00,000/- (Rupees Two Lakhs only) in default to suffer rigorous imprisonment for one year more with a further direction 90% of fine, if realised, would be paid to the survivor.

PROSECUTION CASE:-

2. Prosecution case as alleged against the appellant is as follows:

3. The survivor is a young girl who was studying in Class IX at the time of occurrence. Her mother had suddenly left the family. Her father was distraught over the incident. Taking advantage of the situation, the appellant approached the father of the survivor (PW-7) and proposed to perform a puja which would bring back his wife. Initially PW-7 was hesitated but subsequently relented. Thereafter the appellant performed puja at PW-7’s house. Then he informed PW-7 that to get better result he has to perform puja at the bank of Nallah i.e. creek. Thereafter on Tuesday he took the girl on his bicycle to the side of the Nallah. The following Saturday he again took the girl to the same spot and forcibly raped her. At that time family was residing in the house of the appellant. During their stay he repeatedly raped the child. He also threatened the girl not to disclose the incident to any one failing which she would face dire consequences even death. After one and half months PW-7 took his family back to his own residence. The girl fell ill due to cold and her menstrual cycle had stopped. At this juncture, the girl disclosed the incident and was taken to PHC Billiground. Medical Officer found her pregnant.

4. Statement of girl was recorded and was treated as First Information Report. Her statement was also recorded before the magistrate and charge sheet was filed. Charge was framed under section 6 of POCSO Act. Appellant pleaded not guilty and claimed to be tried.

5. During trial prosecution examined eighteen witnesses to prove the case. Defence of the appellant was one of false implication. It was his specific defence he had permitted PW-7 father of the girl to work as a share cropper. PW-7 did not give the appellant his share and dispute cropped up. As a result he was falsely implicated.

6. Trial Judge, after considering evidence of record, convicted the appellant and sentenced him as aforesaid.

ARGUMENTS AT THE BAR:-

7. Mr. Sarkar for the appellant contends that PW-2 the minor is an unreliable witness. Her version in court is at variance to her earlier statement before the police/magistrate. In court she did not state that she had been subsequently raped. She was also silent with regard to threats held out by the appellant. Her father claimed that her daughter had come out with the incident before his mother in law. The said lady had not been examined. PW-2 also admitted there was quarrel between the appellant and her father, (PW-7). Appellant was falsely implicated due to dispute with PW-7. DNA report with regard to blood samples collected by police had not been produced. Hence, appellant is entitled to an order of acquittal.

8. Ms. Zinu for the State submits that the survivor is a 14 year of old school going girl. Her mother had deserted her. She was in an extremely vulnerable position. Appellant tricked her father and committed rape. At the material time, the family was staying in the house of the appellant, who had threatened the child to dire consequences. As a result the child could not come out with the incident. When the family returned to their own home and her menstrual cycle had stopped, she divulged the incident to her family members. She was found pregnant. Her deposition is corroborated by her father (PW-7) and other witnesses. Appeal is liable t