In today’s world, we are facing a big crisis in the form of crime. Crime is increasing day by day and at a greater level. It is necessary to emphasize here that crime rate against women is very high. Now in India, the women are not treated as Goddess (Devi) as it used to be earlier rather they are treated as toys and not even toys sometimes they are treated worse than toys.
In Indian society, as we are getting closer to the status of a developed country with the same pace we are criminal state especially crimes against women. When we talk about the crime against the women then it would be fruitful to point out that there are two sets of crimes against women, the first one is asexual offences and the second one is sexual offences. In sexual offence, the rape is defined under section 375, IPC. This definition is incorporated after Criminal Amendment Act, 2013 came into force. 1 This amendment came into force because of the famous Nirbhaya Case. 2 It is necessary to keep one thing in mind that not only the women or adults are the victims of the crime but also the girls as young as below the age of 16. In order to protect the society from such heinous crime, the government is trying its best by legislating new laws and extending the punishment of such crimes. POCSO is created in order to protect the children from sexual offences as the society is facing the emergency in the form of sexual offence against the young girls.
The said Act was enacted to protect the minor girls from offences like rape; sexual assault etc. in order to protect them the present Government came up with an ordinance declaring wherein that a person who commits rape on minor and if because of this act, the minor dies, then the offender will be punished with death penalty or life imprisonment. This step came up due to a very recent incident of Kathua Rape case wherein the victim was a small girl and she got raped and then she died, after this the whole country was very angry as the rapists were not getting the punishment they ought to get. Keeping this in mind, the government took this step towards the protection of minors.
It would be wrong to say that it is only the government which is taking steps for the protection of minor girls and women of the society. Nowadays, the court is also becoming an active participant in order to protect the women and minor girls against the sexual offences. In the same, the Calcutta High Court came up with few guidelines and the same is being dealt below.
FACTS OF THE CASE
The genesis of the case can be traced to a written complaint lodged by the father of the victim Hasem Mandal, who alleged that on 27.12.2013 his youngest daughter went missing at about 10.00 A.M. while she was playing on the roadside before their house. He searched for her but could not trace her out. A missing Diary was lodged at Nabadwip Police Station being G.D.E.No.1436 dated 27.12.2013. As he could not find his daughter in the neighbourhood, he started the search in other houses. They went to search the house of Sadar Mondal but his wife Reksona Bibi @ Eksona Bibi i.e. the appellant herein and her sons Fatick and Saiful restrained them from doing so. As a result, they kept vigil over the house of Sadar Mondal. It is further alleged that around 5.30 P.M. in the evening, one Manchur Mandal, P.W.2 saw the appellant heading alone towards a bamboo orchard with a sack and her sons were patrolling in front of the house. Manchur Mandal focused his torch towards the appellant and asked her what she was carrying. Hearing this, she dropped the sack. Manchur Mandal raised a hue and cry and everyone including Hasem Mandal came at the place of occurrence. The sack was taken to the roadside and in the light of the street lamp, the sack was opened and the dead body of the victim was recovered from the sack. On such complaint, First Information Report being Nabadwip Police Station Case No.724 of 2013 dated 27.12.2013 under Sections 376A/377/302/201/120B/34 of the Indian Penal Code was registered against the appellant and her minor sons. P.W.19 who conducted an investigation in the instant case came to the place of occurrence and seized the sack along with the dead body. He also seized a steel trunk from the residence of the appellant wherein the dead body was alleged to have been kept.
In conclusion of trial, the trial judge by its judgement and order dated 5th May, 2015 convicted the appellant for commission of offence punishable under Section 302/201 of the Indian Penal Code and sentenced her to suffer rigorous imprisonment for life and to pay fine of Rs.10,000/- in default to undergo rigorous imprisonment for six months more for the offence punishable under Section 302 of the Indian Penal Code and to suffer rigorous imprisonment for three years and to pay fine of Rs.5,000/-, in default, to undergo rigorous imprisonment for three months more for the offence punishable under Section 201 of the Indian Penal Code; both the sentences to run concurrent. 3
An acquittal of the victim where the witness does not support the prosecution and relevant pieces of evidence are not sent for chemical examination.
MERIT OF THE CASE
The Calcutta High Court has issued a slew of directions to be followed during the investigation and trial of cases involving the murder or rape of minor children and other vulnerable persons.
A Division Bench comprising Hon’ble Justices Joymalya Bagchi and Rajarshi Bharadwaj felt that such intervention was imperative after observing serious lapses on the part of the prosecution during the conduct of a case involving the rape and murder of a minor girl.
The court said that “I, however, feel extremely distressed at the casual and callous manner in which the investigation and prosecution in the instant case relating to murder and rape of a four-year aged child were conducted. Seized articles like the sack and trunk which could have provided important link evidence were not sent for chemical examination. The most vital witness, namely, P.W 2 Manchur Mandal who did not support the prosecution case in Court was not declared hostile and cross-examined. No doubt that suspicion, howsoever strong, cannot take the place of proof and, therefore, in the face of such flimsy and weak evidence, I have no alternative but to acquit the appellant on the anvil of the benefit of the doubt. 4
However, acquittal in such cases where one cannot deny the homicidal death of a vulnerable victim like a child of four years leaves behind an unpleasant and brooding thought in one’s mind that the crime remains undetected and the offender goes unpunished. There is no closure in the minds of the hapless parents as the offender is unpunished and the State forfeits its sovereign commitment to uphold the rule of law and punish the guilty.
In order to pre-empt future recurrences of similar nature, I feel the need to pass the following directions in the matter of conducting of investigation and/or trial in cases involving murder and/or rape of minor children or other vulnerable victims”.
The Court was hearing an Appeal filed by one Ms. Reksona Bibi, who, along with her two minor sons, had been found guilty of rape and murder of a four-year-old girl. She had now submitted that the prosecution had failed to establish the case against them beyond the reasonable doubt.
During the hearing, the Court noted “with deep anguish” that even though one of the prime witnesses had refused to support the prosecution case, he had not been declared hostile and cross-examined. The remaining witnesses, it opined, do not help the prosecution to connect the Appellant with the crime.
It then went on to express anguish over the “casual and callous manner” in which the prosecution and investigation in the case had been conducted. It noted that it was compelled to acquit the accused, observing, “No doubt that suspicion, howsoever strong cannot take the place of proof and, therefore, in the face of such flimsy and weak evidence, I have no alternative but to acquit the appellant on the anvil of the benefit of doubt.”
For the same, the court gave few guidelines which are given below:
GUIDELINES GIVEN BY THE COURT
- In cases involving grave offences like murder and/or rape of minor children or other vulnerable victims, statement of vital witnesses must be recorded under section 164 Cr.P.C.;
- The forensic examination of seized articles including DNA examination, if necessary, which may provide vital link evidence to establish the guilt be mandatorily conducted;
- Adequate protection be extended to witnesses to ensure that they are not won over and do not resile from their previous statements during a trial by implementing effective Witness Protection Programmes in that regard;
- Public Prosecutors of the district must regularly review the manner in which the Public Prosecutor in Charge of sensitive cases are conducting the trial on a periodic basis and reports are filed in that regard to the Directorate of Prosecution, Legal Remembrancer and the Principal Secretary, Home Department for their appraisal and guidance. 5
In the present case, the judgment is given by the Hon’ble Calcutta High Court is absolutely alright and with sound reasoning in the sense that the person who saw the appellant with the sack in which the body of the victim was found, her statement was not in support of the case of the prosecution and therefore, it raises a doubt against the prosecutor. Another thing, which the court rightly pointed out here that the sack or the trunk which were the two most important pieces of evidence were not sent to forensic lab for the chemical examination as it is necessary to find out its credibility and admissibility; and if the pieces of evidence are not sent for the chemical examinations then it could raise the question against admissibility by the court and not only this, the person against whom it has to be used can get the benefit of the same.
The guidelines given by this Hon’ble Court is very impressive. These guidelines are necessary for the sake of justice and it will in future definitely help the courts to reach the end of the justice.
1. As per the Report of Justice JS Verma on Criminal Law, 2013.
2. Delhi Gang Rape Case, 2012.
3.Judgment of the present case.
4. Read more at http://www.livelaw.in/calcutta-hc-issues-directions-investigation-trial-cases-involving-vulnerable-victims-read-judgment/