‘Silence due to fear’: Calcutta High Court upholds father’s life term for daughter’s rape

“Human reactions to traumatic experiences cannot be reduced to a fixed formula. There may be circumstances in which a victim cries for help or immediately discloses the incident; there may equally be circumstances in which a victim remains silent because of fear, threats, shame or psychological shock. Particularly in cases involving a minor and a close family member, the absence of an immediate outcry cannot be treated as a decisive test of credibility,” the August 28 order read.

According to the judgment, a complaint was filed by a man in a police station, which alleged that the survivor had told him that her father had subjected her to penetrative sexual assault on various occasions because of which she became pregnant, and on the date of filing the complaint, she was carrying a pregnancy of about five to six months.

The survivor had alleged that whenever she tried to resist her father, he assaulted her physically and threatened her with consequences if she disclosed the incident to anybody, and because of such threats she remained silent for some time. The survivor also claimed that on November 11, 2017, she gave birth to a male child who was subsequently given for adoption.

After the investigation was completed, the father was charged for ‘aggravated penetrative sexual assault’ under Section 6 of the Protection of Children from Sexual Offences (POCSO) Act. The trial court found the father was guilty of sexually harassing the daughter and, by judgment and conviction orders of September 27, 2021, and September 28, 2021, sentenced him to rigorous imprisonment for life with a fine of Rs 1 lakh.

‘No medical test done’

Advocates Sourabh Ganguly and Abishek Sarkar, representing the convict, argued that the prosecution failed to establish the age of the victim as being below 18 years as no medical or scientific test for determination of the age of the survivor was conducted and, therefore, “there was no legally sufficient basis to conclude that the victim was below 18 years of age”.

Advocate Rima Sarkar, appearing for the survivor, submitted that it was established that the survivor was below 18 years of age at the relevant point of time. The counsel contended that the determination of age of the survivor could not be confined to a medical or ossification test alone when the age of the victim is otherwise satisfactorily established by reliable documentary and oral evidence and that the mere fact that no separate medical test for determination of age was conducted does not make their case doubtful.

‘Psychologically overwhelmed’

On the argument that no DNA test was conducted and that, in the absence of scientific evidence, the prosecution case must be viewed with suspicion, the high court was of the view that “the mere fact that DNA profiling was not conducted cannot, by itself, lead to the conclusion that the prosecution has failed to establish the charge, particularly when there is other cogent, reliable and legally admissible evidence available on record which merit independent consideration”.

The high court noted that the survivor had had herself explained why she did not raise an alarm at the time of the incident. She had clearly stated that “she was beaten and threatened by her father and, owing to such assault and intimidation, she did not scream. Her conduct has to be assessed in the context of the circumstances in which she was placed, particularly her tender age, her vulnerability, the trauma she had suffered and the fact that the alleged perpetrator was her own father”.

According to the court it was unexpected of a minor survivor to react according to any established standard of conduct as “a child may respond to fear and violence by becoming silent, submissive or psychologically overwhelmed. The capacity to resist, raise an alarm or immediately seek assistance depends upon several factors, including age, emotional maturity, the degree of intimidation and the relationship between the victim and the alleged perpetrator”.

The high court observed that “the psychological impact of such an occurrence upon a minor cannot be underestimated” and that “the child may not possess the maturity to comprehend the enormity of what was happening or the ability to formulate an immediate course of action. The trauma may manifest itself through silence rather than resistance”. Hence, the court held that it would be inappropriate to draw a negative inference only because the survivor did not scream at the time of the incident.

While upholding the life imprisonment of the convict, the high court was of the view that “the person who should have been her protector used his parental authority to subject her to sexual assault and thereafter silence her through physical abuse and threats”.