Calcutta High Court upholds 20-year sentence for father convicted of repeated sexual assaults on his minor daughter and her eight-year-old friend

The appellant was prosecuted in connection with allegations that, in July 2021, he sexually assaulted an eight-year-old girl, PW-1, in a jungle area near a school after taking her and his nine-year-old daughter, PW-3, there on the pretext of collecting jackfruit.

PW-3 allegedly witnessed the assault and was thereafter herself subjected to sexual assault by the appellant at home while her mother was on night duty.

The children were allegedly threatened with death if they disclosed the incidents.

The allegations came to light when PW-3 informed her mother, resulting in FIR Nos. 66/2021 and 82/2021 and separate investigative proceedings concerning the two victims.

The prosecution examined thirteen witnesses and relied on documentary and medical evidence.

The medical examination of one victim recorded erythema of the labia, a ruptured hymenal orifice and perineal erythema, which the doctor opined were indicative of forceful penetration.

The victim’s age was sought to be proved through her birth certificate and the original birth-register entry showing her date of birth as 4 October 2012.

The Additional Sessions Judge-cum-Special Judge (POCSO), South Andaman, convicted the appellant under Sections 5(1)(m) and (n) read with Section 6 of the Protection of Children from Sexual Offences Act, 2012, and Sections 376 and 506 of the Indian Penal Code, sentencing him to twenty years’ rigorous imprisonment and a fine of ₹50,000, with 90 per cent of the fine directed to be paid to the victim as compensation under Section 357 CrPC.

The appellant challenged the conviction on grounds including double jeopardy, defective charges and FIRs, contradictions in the witnesses’ accounts, unreliability of the Section 164 CrPC statements, defective investigation, inconclusive medical evidence, false implication and denial of a fair trial.

Whether the registration and prosecution of separate FIRs and proceedings concerning two child victims arising from the same investigative background violated Article 20(2) of the Constitution or Section 300 CrPC relating to double jeopardy?

Whether the alleged inconsistencies regarding the dates, times, sequence of events and delay in disclosure rendered the testimony of the child victims unreliable?

Whether the medical evidence, age proof and testimony of the victims established the offences under Sections 5(1)(m) and (n) read with Section 6 of the POCSO Act and Sections 376 and 506 IPC beyond reasonable doubt?

Whether the failure to send forensic samples to the CFSL, non-examination of certain independent witnesses and other investigative or procedural irregularities vitiated the conviction by causing prejudice or miscarriage of justice?

Whether the statutory presumption under Section 29 of the POCSO Act was attracted and whether the appellant successfully rebutted it?

The Court applied Sections 5(1)(m) and (n) read with Section 6 of the POCSO Act, which prescribe aggravated punishment for penetrative sexual assault committed against a child in the circumstances specified therein, along with Sections 376 and 506 IPC concerning rape and criminal intimidation.

Section 29 of the POCSO Act permits a presumption regarding the commission of the offence and the requisite mental state once the foundational facts are established, subject to rebuttal by the accused.

The Court considered Article 20(2) of the Constitution and Section 300 CrPC, holding that protection against double jeopardy is not attracted where separate offences are committed against separate victims at different times or places.

It further applied the principle that the credible and trustworthy testimony of a child victim or prosecutrix may by itself sustain a conviction, and that minor inconsistencies concerning collateral details do not discredit an otherwise reliable account; reliance was placed on Sham Singh v. State of Haryana , (2018) 18 SCC 34.

The Court also applied the principle that defective investigation or non-compliance with procedural requirements does not automatically warrant acquittal unless it causes material prejudice or creates reasonable doubt regarding the prosecution case.

The Court found that the two proceedings concerned distinct sexual offences against two different children, occurring in different circumstances and locations, notwithstanding that the allegations surfaced during the same investigative period; consequently, neither Article 20(2) nor Section 300 CrPC barred the separate prosecutions.

It treated the evidence of PW-1 and PW-3 as consistent on the core facts: the appellant took the children to the area near the school, sexually assaulted PW-1, threatened both children and later assaulted PW-3 at home.

The discrepancies concerning exact dates, clothing and chronology were regarded as peripheral, particularly in view of the victims’ young age, the traumatic nature of the allegations and the threats allegedly causing delayed disclosure.

The oral evidence was corroborated by the medical findings of genital trauma indicative of forceful penetration and by documentary proof of the victim’s minority.

The Court held that the failure to forward forensic kits to the CFSL and the alleged failure to examine additional neighbours did not outweigh the credible ocular and medical evidence, nor did the appellant demonstrate prejudice or miscarriage of justice.

Having found the foundational facts proved, the Court invoked Section 29 of the POCSO Act and held that the appellant’s denial and suggested motive of domestic hostility did not rebut the statutory presumption.

It held that the separate FIRs and trials did not constitute double jeopardy; the inconsistencies and delay were not material; the testimony of the child victims, supported by medical and age evidence, proved the charged offences; and the investigative and procedural defects did not cause a failure of justice.

The conviction under Sections 5(1)(m) and (n) read with Section 6 of the POCSO Act and Sections 376 and 506 IPC, together with the sentence of twenty years’ rigorous imprisonment and fine of ₹50,000, was affirmed.

Both appeals were dismissed, and the trial court records were directed to be returned for necessary compliance.