Modern concepts of penology discard the retributive aspect of punishment and highlight the deterrent factor, which is evident from the evolution of ‘jails’/‘prisons’ into “Correctional Homes”: Calcutta High Court

In the High Court at Calcutta Criminal Appellate Jurisdiction Appellate Side The Hon’ble Justice Sabyasachi Bhattacharyya C.R.A. No.2017 Sushanka Ghosh The State of West Bengal Mr. Arindam Jana Mr. Sumanta Das Mr. Bidyut Kumar Ray Ms. Rita Dutta For the appellant For the State Hearing concluded on Judgment on Sabyasachi Bhattacharyya J: This appeal has been preferred against the conviction of the appellant under Sections 417 and 376 of the Indian Penal Code and Section 4 of the Protection of Children from Sexual Offences Act 2012 POCSO Act). 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. By placing reliance on Mahadeo S o KerbaMaske Vs. State of Maharashtra and another reported at 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 Rules 2007 under Rule 12 clearly provides the mode of proving the age. In order of priority the documents are :the Matriculation orequivalent certificate if available the Birth Certificate from the School first attended and 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. Learned counsel further cites Jarnail Singh Vs. State of Haryana reported at7 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. Learned counsel for the appellant contends that the said judgment read in conjunction with Section 94 of the Juvenile JusticeAct 2000clearly 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. PW1 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. 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 PW2 the mother of the victim stated in her statement under Section 164 of the Code of Criminal Procedure that she had learnt of the incident about a month prior to the date of giving such statement that is November 12 2015. 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 thepolice station was on November 10 2015. 9. Hence it is submitted that there is inherent discrepancy between the versions of PW1 and PW2 as far as the date of knowledge of PW2 regarding the incident is concerned. 10. Learned counsel for the appellant further places reliance on Ravinder Singh Gorkhi Vs. State of U.P. reported at5 SCC 584 tocontend 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 all in the present case thereby leaving altogether no scope of applicability of the POCSO Act let alone Section 29 of the said Act to cast the burden of proving his innocence on the accused. 11. Learned counsel next contends that admittedly there was an affair going on between the accused who was aged about 20 years and the victim who was allegedly 17 years 5 months old at the relevant point of time as corroborated both by PW1 and PW2. 12. By placing reliance on the evidence of PW15 the doctor it is pointed out that the doctor specifically stated that vaginal swab was taken and handed over to escort party and that no injury mark was noted in the private part or other parts of the victim’s body nor was any foreign body found in her private part. However it appears from Exhibit 7 the report that no vaginal swab could be collected due to delay. Such statements are contradictory to each other and demolish the prosecution case on the counts of Section 376 of the IPC as well as Section 4 of the POCSO Act. In the event such swab was collected the same should have been produced before the Court which was not done in the present case. 13. Learned counsel goes on to argue by placing reliance on the judgment rendered by a Division Bench of the Sikkim High Court reported at 2018 SCC OnLineSikk 215 that the test under Section 35 of the Evidence Act was also relied on in the said case while discussing the probative value of public documents in evidence. It is further argued on behalf of the appellant that PW13 who accompanied the victim to the hospital for her medical examination on November 10 2015 did not state anything in her evidence regarding having collected any vaginal swab. 15. Thus it is evident that the evidence of the doctor the medical report and the evidence of PW13 the escort of the victim of the hospital militate against each other. In view of the above circumstances it is contended that sufficient doubt is cast on the prosecution case which hits at the root of its 17. Learned counsel for the appellant submits that in the cross examination of DW1 the father of the victim a clear suggestion was put to the DW1 that a hot altercation had taken place between the daughter and the accused regarding “Denapaona” of marriage. It was admitted by DW1 that after the hot altercation the victim and her mother lodged written complaint before the police station as per instruction of villagers. 18. Thus it is clear that the 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. 19. Learned counsel appearing for the State contends that the Trial Judge in the impugned judgment clearly indicated that the Admit Card of the victim was shown to the Court which reflected that the date of birth of the victim was May 30 1998. Hence a presumption under Section 29 can easily be attached to the accused shifting the burden on the accused to prove his innocence. The statement of the victim under Section 164 CrPC also shows that the victim was 17 years 10 months on the date of such statement that is April 12 2016 and was a minor at the time of the alleged incident. By placing reliance on the evidence adduced by PW10 and PW12 the doctors learned counsel for the States argues both indicate that the victim was aged about 17 years at the time when she was taken to the hospital for medical examinations. 20. As such 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. 21. Learned counsel for the State submits that there is sufficient corroborative evidence on record to prove the prosecution case. 22. Upon hearing learned counsel for both sides as well as on going through the materials on record the yardsticks of the JJ Act and the Rules which are according to the Supreme Court as per the judgments cited by the appellant applicable even for ascertainment of the age of victims were not satisfied in the instant case. Not only any document regarding the age of the victim was produced in evidence in accordance with law no ossification test was conducted to ascertain the age of the victim. The finding of the learned Trial Judge that the date of birth of the victim was May 30 1998 is not borne out by any of the materials on record. Although it is mentioned by the learned trial Judge that the victim had an Admit Card to show her date of birth no such document has been marked as exhibit in the present case. Moreover the yardsticks of Section35 of the Evidence Act were not compliedat all in the present case. Unless proved in accordance with law no document including the purported Admit Card could even be looked into by the Trial Judge since there was no probative value of such document even if handed over during trial to the court below. The findings of the doctors regarding the age of the victim were cursory mentions in all probability on the basis of the victim’s own submission and not based on any valid medical examination to ascertain the age. 23. Hence since the age of the victim was in any event above 17 years at the relevant juncture it is doubtful as to whether the provisions of the POCSO Act could at all be attracted in the present case since there was no formal proof on record to indicate that the victim was a minor at the relevant juncture. The age of 17 and above based on assumptions and bereft of supporting documents gives rise to sufficient doubt as to whether the victim had already attained majority at the relevant juncture thereby obviating the applicability of the POCSO Act itself and not only Sections 29 and 30 thereof. 24. As far as the allegations under Section 376 of the IPC and Section 4 of the POCSO Act are concerned both Section 375 IPC which defines ‘rape’ and Section 3 of the POCSO Act which defines “penetrative sexual assault” make it a prerequisite for the accused to have “penetrated” the vagina or any other part of the body of the victim. 25. However the 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. 26. The mere contours of the anatomy of the sexual organs of a male and a female cannot be sufficient to presume that any sexual union between two sufficiently mature persons was a unilateral act of the accused and not participatory. In the present case the victim was aged more than 17 yearsof the IPC and Section 39of the POCSO Act would lead to the absurd presumption that even if the sexual union between two persons of sufficient maturity was participatory in nature only the male should be held guilty of such offence. 29. Modern concepts of penology discard the retributive aspect of punishment and highlight the deterrent factor which is evident from the evolution of ‘jails’ ‘prisons’ into “Correctional Homes”. 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. This would frustrate the purpose of the POCSO Act as well as the jurisprudence behind the IPC and lead to unscrupulous abuse of the said statutes at the drop of a hat. 30. Undoubtedly the said proposition has to be taken with a pinch of salt as is the cut off mark of 18 years to come within the purview of “child” as defined in the POCSO Act. To ascertain whether the act was unilateral or participatory is essential along with the level of maturity and psyche of the victim as well as the accused before convicting the accused under such serious allegations of rape and penetrative sexual assault which might ruin an otherwise bright career at the bud. It is evident from the depositions of the mother of the victim as well as the victim herself as corroborated by the father of the victim that the complaint was a mere backlash due to the altercation regarding the conditions of marriage and could not be construed to have convincingly prove commission of offences under Section 376 of the IPC or Section 4 of the POCSO Act. As far as Section 417 of the CrPC is concerned the same provides for punishment for ‘cheating’ which term has been defined in Section 415 of the IPC. However it is well settled that the prosecution has to establish any intention of cheating on the part of the accused at the juncture when the alleged offence was committed. Subsequent refusal to marry cannot be come within the purview of cheating on the premise that the accused resiled from his previous intention to marry subsequently.There is no evidence on record at all to show that the accused hadunilaterally perpetrated the offences alleged with the deliberate intention to deceive the alleged victim at the relevant point of time when the alleged offence took place. Hence the conviction of the accused under Section 417 of the IPC also fails. In such view of the matter CRA No.209 of 2017 is allowed thereby setting aside the judgment and orders of conviction and sentence dated February 7 2017 and February 8 2017 passed by the Additional District and Sessions Judge Second Court atKrishnanagar District Nadia in Sessions Trial No.IX(III) 2016. The appellant is hereby acquitted of all the charges and shall immediately be released if in custody. The appellant is further discharged from any condition or bond if furnished by the appellant in connection with any order of bail obtained by the appellant at any point of time. 34. The parties as well as all concerned shall act on the server copy of this order without insisting upon prior production of a certified copy Sabyasachi Bhattacharyya J. ) 

Summary: 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, was participatory from both ends. Such an opinion was held by the Hon’ble High Court of Calcutta before the Hon’ble Justice Sabyasachi Bhattacharyya in the matter of Sushanka Ghosh Vs. The State of West Bengal [C.R.A. No.209 of 2017]. It appears that the appeal had 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). It was contended by the learned advocate representing the appellant that the prosecution did not produce any document in evidence to show that the victim was a minor at the relevant date. Learned advocate contends that the trial court relied on an Admit Card, which was never revealed at all. Moreover, the counsel for the appellant referred to a case reported in the Hon’ble Supreme Court which was Mahadeo S/o KerbaMaske Vs. State of Maharashtra and another [ (2013) 4 SCC 637], wherein the Hon’ble Supreme Court categorically held that under Rule 12 of the Juvenile Justice (Care and Protection Children) Rules, 2007, that clearly provides the mode of proving the age. The victim admitted that the accused offered to marry her and cohabited with the victim one or two times. The learned counsel next contends that as admitted by the victim there was an affair going on between the accused, who was aged about 20 years, and the victim, who was allegedly 17 years 5 months old at the relevant point of time. Furthermore, it was contended on behalf of the appellant that the prosecution witness, who accompanied the victim to the hospital for her medical examination on November 10, 2015, had not stated anything in her evidence regarding the collection of any vaginal swab. Whereby, the medical report and the witnesses’ visit with the victim to the hospital oppose each other. Learned counsel representing the State contends that the Trial Judge, in the impugned judgment, indicated that the Admit Card of the victim was exhibited in the Court, which revealed the date of birth of the victim was May 30, 1998. The State representative submits that there is sufficient corroborative evidence on record to prove the prosecution case. However, the Hon’ble Court mentions that unless proved in accordance with the law, no document, including the alleged Admit Card, could even be looked into by the Trial Judge, since there was no probative value of such document, even if handed over during trial to the court below.  The Hon’ble Court was of opinion that a simple refusal to marry, subsequently after the alleged incident cannot be a handle to implicate the appellant on the charges clamped against him. Therefore, keeping all the facts, evidence in check,  the Hon’ble High Court of Calcutta before the Hon’ble Justice Sabyasachi Bhattacharyya ruled out  “… the judgment and orders of conviction and sentence dated February 7, 2017, and February 8, 2017, passed by the Additional District and Sessions Judge, Second Court at Krishnanagar, District-Nadia in Sessions Trial No.IX(III)/2016. The appellant is hereby acquitted of all the charges and shall immediately be released, if in custody. The appellant is further discharged from any condition or bond if furnished by the appellant in connection with any order of bail obtained by the appellant at any point of time”.