In order to ensure proper education and rehabilitation of a minor victim of aggravated sexual assault, the Circuit Bench of the Calcutta High Court at Port Blair has directed the Andaman & Nicobar administration to pay Rs. 5 lakh as compensation..The compensation was awarded pursuant to Section 357A of the Code of Criminal Procedure, 1973 and the Victim Assistance Scheme/Survivors of Sexual Assault/other Crimes, 2019. .Remarking that the formulation and notification of the scheme was a “laudable step”, the Court has further directed the District Legal Services Authority and the Government to give “wide publicity” to the Scheme amongst members of the public and legal fraternity for its “true fruition”..The directions form part of a judgment delivered by a Division Bench of Justices Abhijit Gangopadhyay and Joymalya Bagchi in an appeal against a trial court order convicting the appellant, Akhil Shil for offences under Section 6 of POCSO Act and Section 342 of IPC..The appellant was awarded ten years of rigorous imprisonment and a fine of Rs.10,000 for the offence under POCSO and six months rigorous imprisonment for the offence under IPC. As per the order, both the sentences were to run concurrently..As per the prosecution’s case, the appellant had called the three-year-old victim to his room on the pretext of giving tea. When the mother of the victim heard screams coming from the room of the appellant, she rushed to the spot and banged at the door which was closed from inside. After the appellant opened the door, the mother found that the appellant was naked and her daughter was undressed..The victim later informed the mother that the appellant removed her apparels and inserted his finger into her vagina. Consequently, on the same day, an FIR was registered against the appellant on a written complaint given by the mother..Before the High Court, the appellant argued that the prosecution case suffered from various inconsistencies. It was claimed that the victim could not coherently narrate the incident in court, while the mother’s statements before the Magistrate and in the FIR suffered from various contradictions..“In her statement before the Magistrate under section 164 Cr.P.C, PW.2 (mother) claimed that the appellant was lying in the verandah in a drunken condition. She also claimed that other persons had banged on the door at the time of the incident. These facts were significantly absent in her deposition in Court. It was her specific case that the victim was admitted in hospital for two days. Thereafter FIR was registered. On the contrary, it appears FIR was registered on the day of the alleged incident.”.The appellant also contended that the medical report was not conclusive of the act of penetrative sexual assault..State, on the other hand, defended its case as it pleaded that the evidence of the minor must be appreciated keeping in mind her age and other circumstances of the case..It was argued that the evidence of the victim was well corroborated by her parents and the medical evidence. Thus, minor contradictions in the evidence would not affect the credibility of the prosecution case..After hearing the parties, the Court acknowledged the tender age of the victim and the trauma associated with the alleged crime and said,.“Her evidence..is to be judged bearing in mind her immature years and it would amount to a travesty of justice if her evidence is tested with such exactitude and scrutiny as if she were an adult witness.”.The Court recorded that the victim had identified the appellant in Court while stating that he was not a good man and had removed her apparels..“What more can be expected of a three-year-old child who suffers secondary victimization in Court of being compelled to recount and narrate the utter trauma of sexual violence which befell her at such tender age?”.Her evidence resonates with the truthfulness of her innocence and ought to be given due respect it deserves, the Court remarked..Rejecting claims of contradictions, the Court stated that the mother had “laid the framework of the prosecution case on solid foundation”..The Court observed that the mother’s narration of events remained un-assailed in cross-examination and was corroborated by her husband as well as the medical officer who examined the victim..While dealing with the inconsistency with respect to the date of FIR, the Court stated,.“..variation in her version with regard to admission of the victim in the hospital prior to lodging of FIR may be due to poor recapitulation and would not affect the foundation of the prosecution case of penetrative sexual assault on the minor by the appellant on the fateful day.”.The Court also iterated that complete penetration was not a sine qua non for the offence of rape or penetrative sexual assault and penetration of any form was sufficient to attract the ingredients of such offences..It thus rejected the appellant’s plea that the case fell outside the ambit of ‘aggravated sexual assault’ as defined under Section 5 of the POCSO Act..“Insertion of finger in the vagina of a three-year-old girl which is supported by medical evidence leaves no doubt in my mind that the ingredients of the aforesaid offence are wholly established“, it said..Concluding that the prosecution case stood wholly established beyond doubt, the Court upheld the order of conviction and sentence..Apart from dismissing the appeal, the Court also recognized the necessity to give compensation to the three-year-old rape victim belonging to a humble background..It, thus, directed the Government to pay compensation of Rs. 5 lakh to the victim to ensure her education and rehabilitation..“Evolution of criminal law in the recent past has witnessed substantial changes. From a bipolar jurisprudence between the State and the offender, criminal justice delivery system has shifted to a multipolar dimension involving the victim as a prime participant in the said system encompassing restitutive justice…Keeping in mind such wholesome progress in law as well as the necessity to compensate a three-year-old rape victim belonging to a humble background, I consider it imperative to direct the State to pay compensation to the tune of Rs.5.00 lakhs to the minor victim in public law realm to ensure her proper education and rehabilitation. Such payment shall be paid by the State to the minor (PW.1) through her natural guardians (PW.2 and 3) within eight weeks from date.“.The Court further directed the District Legal Services Authority and the Government to spread awareness with respect to the formulation of the Victim Assistance Scheme/Survivors of Sexual Assault/other Crimes, 2019. .“..I direct the Administration as well as the District Legal Services Authority to give wide publicity to the said scheme amongst members of the public and legal fraternity. The District Legal Services Authority shall ensure that the said scheme is displayed in a prominent manner in its office as well as in the court premises for public awareness and effective implementation of the Scheme.”.The appellant was represented by advocate Krishna Rao..Government was represented by Senior Advocate SK Mandal with advocate SC Mishra..[Read Judgement].Bar & Bench is available on WhatsApp. For real-time updates on stories, Click here to subscribe to our WhatsApp.
In order to ensure proper education and rehabilitation of a minor victim of aggravated sexual assault, the Circuit Bench of the Calcutta High Court at Port Blair has directed the Andaman & Nicobar administration to pay Rs. 5 lakh as compensation..The compensation was awarded pursuant to Section 357A of the Code of Criminal Procedure, 1973 and the Victim Assistance Scheme/Survivors of Sexual Assault/other Crimes, 2019. .Remarking that the formulation and notification of the scheme was a “laudable step”, the Court has further directed the District Legal Services Authority and the Government to give “wide publicity” to the Scheme amongst members of the public and legal fraternity for its “true fruition”..The directions form part of a judgment delivered by a Division Bench of Justices Abhijit Gangopadhyay and Joymalya Bagchi in an appeal against a trial court order convicting the appellant, Akhil Shil for offences under Section 6 of POCSO Act and Section 342 of IPC..The appellant was awarded ten years of rigorous imprisonment and a fine of Rs.10,000 for the offence under POCSO and six months rigorous imprisonment for the offence under IPC. As per the order, both the sentences were to run concurrently..As per the prosecution’s case, the appellant had called the three-year-old victim to his room on the pretext of giving tea. When the mother of the victim heard screams coming from the room of the appellant, she rushed to the spot and banged at the door which was closed from inside. After the appellant opened the door, the mother found that the appellant was naked and her daughter was undressed..The victim later informed the mother that the appellant removed her apparels and inserted his finger into her vagina. Consequently, on the same day, an FIR was registered against the appellant on a written complaint given by the mother..Before the High Court, the appellant argued that the prosecution case suffered from various inconsistencies. It was claimed that the victim could not coherently narrate the incident in court, while the mother’s statements before the Magistrate and in the FIR suffered from various contradictions..“In her statement before the Magistrate under section 164 Cr.P.C, PW.2 (mother) claimed that the appellant was lying in the verandah in a drunken condition. She also claimed that other persons had banged on the door at the time of the incident. These facts were significantly absent in her deposition in Court. It was her specific case that the victim was admitted in hospital for two days. Thereafter FIR was registered. On the contrary, it appears FIR was registered on the day of the alleged incident.”.The appellant also contended that the medical report was not conclusive of the act of penetrative sexual assault..State, on the other hand, defended its case as it pleaded that the evidence of the minor must be appreciated keeping in mind her age and other circumstances of the case..It was argued that the evidence of the victim was well corroborated by her parents and the medical evidence. Thus, minor contradictions in the evidence would not affect the credibility of the prosecution case..After hearing the parties, the Court acknowledged the tender age of the victim and the trauma associated with the alleged crime and said,.“Her evidence..is to be judged bearing in mind her immature years and it would amount to a travesty of justice if her evidence is tested with such exactitude and scrutiny as if she were an adult witness.”.The Court recorded that the victim had identified the appellant in Court while stating that he was not a good man and had removed her apparels..“What more can be expected of a three-year-old child who suffers secondary victimization in Court of being compelled to recount and narrate the utter trauma of sexual violence which befell her at such tender age?”.Her evidence resonates with the truthfulness of her innocence and ought to be given due respect it deserves, the Court remarked..Rejecting claims of contradictions, the Court stated that the mother had “laid the framework of the prosecution case on solid foundation”..The Court observed that the mother’s narration of events remained un-assailed in cross-examination and was corroborated by her husband as well as the medical officer who examined the victim..While dealing with the inconsistency with respect to the date of FIR, the Court stated,.“..variation in her version with regard to admission of the victim in the hospital prior to lodging of FIR may be due to poor recapitulation and would not affect the foundation of the prosecution case of penetrative sexual assault on the minor by the appellant on the fateful day.”.The Court also iterated that complete penetration was not a sine qua non for the offence of rape or penetrative sexual assault and penetration of any form was sufficient to attract the ingredients of such offences..It thus rejected the appellant’s plea that the case fell outside the ambit of ‘aggravated sexual assault’ as defined under Section 5 of the POCSO Act..“Insertion of finger in the vagina of a three-year-old girl which is supported by medical evidence leaves no doubt in my mind that the ingredients of the aforesaid offence are wholly established“, it said..Concluding that the prosecution case stood wholly established beyond doubt, the Court upheld the order of conviction and sentence..Apart from dismissing the appeal, the Court also recognized the necessity to give compensation to the three-year-old rape victim belonging to a humble background..It, thus, directed the Government to pay compensation of Rs. 5 lakh to the victim to ensure her education and rehabilitation..“Evolution of criminal law in the recent past has witnessed substantial changes. From a bipolar jurisprudence between the State and the offender, criminal justice delivery system has shifted to a multipolar dimension involving the victim as a prime participant in the said system encompassing restitutive justice…Keeping in mind such wholesome progress in law as well as the necessity to compensate a three-year-old rape victim belonging to a humble background, I consider it imperative to direct the State to pay compensation to the tune of Rs.5.00 lakhs to the minor victim in public law realm to ensure her proper education and rehabilitation. Such payment shall be paid by the State to the minor (PW.1) through her natural guardians (PW.2 and 3) within eight weeks from date.“.The Court further directed the District Legal Services Authority and the Government to spread awareness with respect to the formulation of the Victim Assistance Scheme/Survivors of Sexual Assault/other Crimes, 2019. .“..I direct the Administration as well as the District Legal Services Authority to give wide publicity to the said scheme amongst members of the public and legal fraternity. The District Legal Services Authority shall ensure that the said scheme is displayed in a prominent manner in its office as well as in the court premises for public awareness and effective implementation of the Scheme.”.The appellant was represented by advocate Krishna Rao..Government was represented by Senior Advocate SK Mandal with advocate SC Mishra..[Read Judgement].Bar & Bench is available on WhatsApp. For real-time updates on stories, Click here to subscribe to our WhatsApp.
