[POCSO] Absence of medical report of victim would go in favour of rape accused: Calcutta High Court

The Calcutta High Court recently dropped charges of rape and penetrative sexual assault under the Protection of Children from Sexual Offences (POCSO) Act, 2012 against an accused owing to the absence of a medical examination report of the victim (Subrata Pradhan v. State of West Bengal)..Justice Bibek Chaudhuri held in the judgment that the victim had denied to have herself medically examined and the same would go in favour of the accused."If a girl of 13 years is violated by a grownup person like the accused, Subrata Pradhan, there must be marks of violence and injury on her private part. The said mark of injury would be visible at the time of medical examination of the victim. However, the victim denied to have examined medically. Thus, the absence of any report of medical examination of the victim would go in favour of the accused and he is entitled to get benefit of doubt," the Court held..The Court also found that there were material contradictions in the statements of the victim and evidence of the witnesses, and that there were lacunae in the prosecution case..As per the prosecution case, the appellant tried to propose marriage to the minor girl several times. In December 2017, he allegedly kidnapped her from a bus stand. A complaint was filed by the girl's uncle, and a day later, the police arrested the appellant and brought him and the girl to the police station. At the station, the girl made allegations of forced sexual intercourse against the appellant and three others. She also alleged that she was forced to wear a sari and the appellant put vermilion on her forehead and conch bangles on her hands.The appellant was eventually convicted by the trial court for offences under Section 376 (rape) 363 (kidnapping, abducting or inducing woman to compel her marriage) and 120 B (criminal conspiracy) of the Indian Penal Code as well as Section 4 (penetrative sexual assault) of the POCSO Act. He then approached the High Court in appeal against the conviction..The Court set aside the conviction for the following reasons:The statement made in the FIR itself was in the nature of hearsay. In the FIR, it was alleged that the victim girl was kidnapped on her way to school. However, she stated on oath that the accused picked her up when she was returning home from school and took her somewhere by a vehicle; The victim girl refused to get examined medically after she was produced before the medical officer. In her examination-in-chief, she stated on oath that she declined to get herself medically examined as there was no female doctor in the hospital. Assigning a reason for her refusal to get herself examined medically amounts to material contradiction in the case; In her evidence, the victim girl stated that the accused had taken away her medical documents from her school bag. This was not stated by her before the investigating officer. This amounted to material contradiction in view of the fact that the specific case of the accused is that the accused and the victim girl had developed a relationship and the accused helped the victim girl in her medical examination; The victim girl stated in her evidence that the accused brought her to the local police station. On the other hand, the investigating officer stated that he arrested the accused and the victim girl; The prosecution did not try to collect the birth certificate of the victim girl or the school leaving certificate or any other documents to prove that she was a minor. The prosecution also failed to place her before the medical board for ascertaining of her age. In the absence of such evidence, she cannot be held to be a minor and charge under Section POCSO Act cannot stand..The Court also noted that in such cases, evidence of the victim is the best evidence and conviction can be based on her sole testimony, provided the evidence is held to be trustworthy, cogent, believable and unblemished. However, in this case, Justice Chaudhuri found that the evidence of the victim girl suffered from various infirmities.It further said that it is the duty of the prosecution to prove that there was penetration, and the same was not proved in this case. Thus the charges of rape and penetrative sexual assault were not proven, the Court held..The Bench also set side the conviction of the appellant under Section 366, noting,"She stated in her evidence that the accused, Subrata Pradhan, Prasanta Das and Sampa Das nee Pradhan kidnapped her and took her to a house. Prasanta and Sampa compelled her to wear a saree and Subrata put vermilion on her forehead and conch bangles on her hands. In order to prove the charge under Section 366, the investigating officer did not seize the saree which the victim girl wore on the date of occurrence. He also failed to seize the conch bangles."The Court, however, held that the evidence on record proves the commission of an offence under Section 363 (punishment for kidnapping), for which the maximum sentence is seven years in prison..With regard to sentencing, the Court observed,"It is found from the record that the alleged incident took place in the year 2017. The appellant is facing trial for last 7 years. He is a young man working as compounder under a medical practitioner. The prosecution has failed to establish any criminal antecedent of Subrata Pradhan. Therefore, I am of the view that incarceration in the correctional home in association with the seasoned criminals may turn him to a hardcore criminal."The Court thus took a lenient view of the case and sentenced him to rigorous imprisonment of one year with fine of ₹10,000..Appellants were represented by advocates Phiroze Edulji, Ajit Kumar Mishra and Abhishek Acharya. The State was represented by Public Prosecutor Saswata Gopal Mukherjee and advocates Faria Hossain and Anand Keshari..[Read Judgment]