The Calcutta High Court has upheld the life sentence imposed on a man for repeatedly raping his minor daughter, observing that the offence assumes particular gravity when the person who is expected to provide a child with “care, affection and security” instead abuses that relationship to exercise fear and control.

A Division Bench of Justice Shampa Sarkar and Justice Prasenjit Biswas, sitting at the Circuit Bench at Jalpaiguri, dismissed an appeal filed by Jiwan Rai against his conviction under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).

The Special POCSO Court at Kalimpong had sentenced Rai to imprisonment for life, meaning imprisonment for the remainder of his natural life, besides imposing a fine of ₹1 lakh.

The prosecution case was that Rai repeatedly sexually assaulted his daughter when she was around 15 years old. The victim subsequently became pregnant and gave birth to a male child.

“Father ordinarily occupies a position of trust, authority and protection”

While examining the victim's conduct and her failure to immediately disclose the sexual assaults, the High Court emphasised the particular psychological impact of an offence allegedly committed by a parent.

“The circumstance that the appellant was the father of the victim is of particular significance,” the Bench observed.

The Court noted that a father ordinarily occupies a position of “trust, authority and protection” in the life of a minor child, who is expected to look towards him for care, affection and security.

“If that very relationship is abused and converted into a means of exercising fear and control, the psychological consequences for the child may be profound,” the Court said.

The Bench stressed that the victim was allegedly subjected to the acts by a person upon whom she was dependent and from whom she was entitled to expect protection.

The Court observed: “The victim was not merely confronted with a physical act; she was allegedly subjected to such conduct by a person upon whom she was dependent and from whom she was entitled to expect protection.”

The Bench further noted that the alleged offender being the victim's father was relevant while assessing why the minor did not immediately disclose the assaults.

“Home, which ought to be safest environment, became place of fear”

The Court rejected the argument that the victim's failure to scream or immediately seek help rendered her testimony doubtful.

It noted that the victim had specifically stated that her father would beat and threaten her whenever she resisted or attempted to disclose the incidents.

The Bench said that a minor victim's response to trauma cannot be judged according to an artificial standard of expected conduct.

“A child may respond to fear and violence by becoming silent, submissive or psychologically overwhelmed,” the Court observed.

The Court added that the trauma could be particularly profound when the alleged perpetrator was a close family member.

“The home, which ought to be the safest environment for a child, is alleged to have become the place where she experienced fear and violation,” the Bench said.

It observed that the person who should have been the child's protector was alleged to have used his parental authority to subject her to sexual assault and thereafter silence her through physical abuse and threats.

The Bench found the testimony of the victim, who was the prosecution's principal witness, clear and consistent.

She had stated that her father would enter her room at night, forcibly undress her and sexually assault her. She stated that the assaults occurred on three or four occasions and that she remained silent because of the threats and physical violence.

The Court noted that her testimony had not been materially shaken during cross-examination.

Her account was also supported by the evidence of her maternal uncle and aunt, who stated that they came to know of the sexual assaults after noticing that the victim's stomach had begun to bulge.

The victim disclosed to them that her father had raped her and that she had become pregnant as a result.

Medical evidence subsequently established that the victim was pregnant at the time of her examination. She later gave birth to a male child.

The appellant argued that the prosecution case should fail because no DNA profiling had been conducted.

Rejecting the argument, the High Court relied upon the Supreme Court's decision in Sunil v. State of M.P., observing that failure to conduct a DNA test does not automatically result in failure of the prosecution case.

The Bench held that the Court must assess the quality and probative value of the evidence actually available.

In the present case, the victim's direct testimony, the evidence of her relatives and the medical evidence were sufficient to establish the prosecution case.

The Court therefore refused to treat the absence of DNA evidence as a fatal deficiency.

The appellant had also challenged the prosecution's proof of the victim's age.

The High Court rejected this contention, noting that the prosecution had produced a birth certificate issued by the Gram Panchayat recording the victim's date of birth as December 22, 2002.

The victim herself had stated her date of birth before the Court, while the examining doctor assessed her age as around 15 years.

The Bench held that the documentary, oral and medical evidence formed a consistent chain establishing that she was below 18 years of age at the relevant time.

“Mere possibility of influence cannot take place of proof”

The Court also rejected the appellant's challenge to the victim's subsequent stay at CINI, Hakimpara.

The Bench held that placing a minor victim of sexual assault in the care and protection of a child-care organisation could not, by itself, create an adverse inference against the prosecution.

It noted that the POCSO Rules contemplate protective intervention where a child may not be safe within the family environment.

There was no material to establish that CINI had tutored or manipulated the victim. “Mere possibility of influence cannot take the place of proof,” the Court held.

The High Court ultimately found that the prosecution had established the charge beyond reasonable doubt and that there was no material basis to interfere with the Trial Court's findings.

The appeal was dismissed and the conviction and sentence were affirmed.

The Bench, however, expressed serious concern that the victim's name and identity had been disclosed during the trial and had also appeared in the Trial Court's judgment.

It directed the Trial Court to ensure that the identity and particulars of minor victims of sexual offences are strictly protected in all future proceedings.

The Court directed that no document, order, judgment or other proceeding should contain particulars from which the identity of the victim could be revealed, except where disclosure is expressly authorised by law.

Case: Jiwan Rai Vs. The State of West Bengal

Case No: CRA (DB) 04 Of 2022

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