Partially blind girl had ‘capacity to identify’ abuser: Gauhati High Court backs 20-year jail for stepfather who raped minor

The stepfather had challenged the trial court’s order of February 2023 sentencing him to 20 years’ rigorous imprisonment along with a fine of Rs 5,000 under the Protection of Children from Sexual Offences (POCSO) Act.

Complaint filed by accused’s sister

• The prosecution’s story is that the informant, who is the elder sister of the accused, lodged a First Information Report (FIR) in June 2019, stating that the accused had married a woman who had a 14-year-old daughter.
• The accused was alleged to have sexually assaulted his stepdaughter, as a result of which she became pregnant.
• It was claimed that when the residents of the locality learned of the incident, the accused, his wife, and the minor fled their residence.
• The accused and his wife allegedly left the girl in the house of the accused’s uncle.
• It was further added that the accused’s uncle and grandmother later left the minor at his sister’s house, as he did not want to take the responsibility of looking after her.
• The trial court subsequently convicted the stepfather of the charges under POCSO.
• Aggrieved by the same, he moved the Gauhati High Court.

‘Minor was not tutored’

• The Gauhati High Court pointed out that the testimony of a survivor who was sexually assaulted has the evidentiary value equivalent to the evidence of an injured witness.
• It mentioned that unless highly compelling circumstances are established by an accused casting a “reasonable doubt” over the survivor’s statement, the statement of the injured witness can be safely relied upon to convict an accused person.
• The Gauhati High Court emphasised that, in the present case, there is nothing to show that the minor was “tutored” or had a reason to “fabricate a false case” against her stepfather.
• The court further clarified that a different view on how cross-examination should have been conducted does not mean that the legal aid provided to the accused was ineffective.
• It found the survivor’s testimony to be cogent, consistent and trustworthy, and sufficient to sustain the conviction.
• Dismissing the appeal, the Gauhati High Court upheld the trial court’s order of conviction.

‘No proof’ of child’s paternity

Appearing for the petitioner, amicus curiae Azad Ahmed submitted that the challenge made to the conviction of the accused by the trial court is on the ground that the age of the survivor was beyond 18 years at the time of the alleged crime.

It was added that, as such, the POCSO Act is not attracted to this case, and the trial court has not proved the age of the girl at the time of her alleged rape.

There is no DNA test report proving that the child born to the survivor was fathered by the stepfather, it was argued.

The survivor, being partially blind, could not have identified the accused as the perpetrator of the crime, the counsel alleged.

He also submitted before the Gauhati High Court that no effective legal aid had been provided to the accused during the trial proceedings.

It was alleged that the necessary questions required to be put to the prosecution witnesses during trial had not been raised during cross-examination by the accused’s counsel.

Girl identified accused

Additional public prosecutor B Bhuyan submitted before the Gauhati High Court that no challenge had been made by the accused with regard to the age of the survivor at any time during the trial proceedings.

Though the DNA test report was not produced by the prosecution during the trial, the evidence adduced by the survivor and the doctor proved that the accused had committed penetrative sexual assault on her, which attracted charges under the POCSO Act, the counsel stated.

The evidence adduced by the girl showed that she had identified the accused as the one who had raped her, it was submitted.

It was also argued that effective legal aid was provided to the appellant during the trial.