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

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”.

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Judgment reviewed by Bipasha Kundu

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