Calcutta HC upholds POCSO conviction, says ‘Victim best judge of incident’, lays down guidelines

The Court opined that if a victim stated that she was subjected to inappropriate touch by her stepfather, the Court must accept the same.

The Calcutta High Court upheld a conviction under the Protection of Children from Sexual Offences (POCSO) Act even with minor discrepancies in the evidence of the minor girl. The court remarked that a survivor is the best judge of the incident.

Single judge Bench of Justice Bibek Chaudhuri while hearing an appeal from an order where a Special Judge had convicted the stepfather of a minor girl under Section 8 (sexual assault of a minor) of the Act said that “the Court must always be alive to consider the incident of sexual act from victim’s perspective,” Bar and Bench reported.

The Court opined that if a victim stated that she was subjected to inappropriate touch by her stepfather, the Court must accept the same.

“In order to apprise the cases under the POCSO Act the robustness of masculine judicial system must give way to the feminine feeling of the embodiment of lady Justice,” the Court said, added the report.

The appellant contended that as a father he can lovingly touch on the back, sleep beside and hug his daughter. Also, that the matter is being turned into a sexual assault incident by the girl.

As only allegation against the appellant was that he patted the girl’s back, and this was not sufficient for a conviction under Section 8 of the Act.

The court disagreed and observed that the victim girl at every stage of the investigation was consistent in her statement that her stepfather used to touch inappropriately different parts of her body.

At the very outset, Justice Bibek Chaudhuri said, “Sexual perversity is not only a personal disease, but also a social menace. The act itself is not merely a solitary harrowing experience of the victim. The trauma and the ensuing stigmatization pervades every aspect of her social life. The effect of trauma and insecurity in the mind of the victim are more pervading when she is sexually harassed and assaulted by her stepfather.”

Therefore, finding that there was no reason to disbelieve the victim or her mother, the Court found no infirmity in the order of conviction. However, the Court highlighted a “very disturbing feature on record” which was inconsistent with the statute and a series of judgments, Bar and Bench reported.

The court pointed out inconsistency with the statutes and a series of judgements. The name of the minor girl was not kept concealed throughout the trial and the investigation. Therefore to protect the identity of children under the POSCO Act, the court had issued certain guidelines in addition to the Supreme Court guidelines.

·         The Officer-in-Charge of every police station shall ensure that in the written complaint the name of the victim girl shall not be stated. The victim girl shall be identified by her age, her father’s name and other particulars sufficient to identify the victim during investigation without disclosing her name.

·         In the formal FIR and charge-sheet the name of the victim girl shall not be stated by the Investigating Officer. On the other hand, she shall be described as a “victim”.

·         In the column of witnesses in the charge-sheet the victim girl shall not be referred to by her name but as “victim.”

·         In her statement recorded under Section 161 of the Code of Criminal Procedure, the Investigating Officer shall not record the name of the victim. The said statement shall be referred to as “statement of the victim”.

·         Similarly, while recording the statement of the victim under Section 164 of the Code of Criminal Procedure, the learned Judicial Magistrate shall not record her name. On the other hand, she shall record the statement as “the statement of the victim”.

·         In order to identify the victim, she shall take help of the parents of the victim. He shall also endorse such identification of the victim by her parents at the top of the statement of the victim recorded under Section 164 of the Code of Criminal Procedure.

·         The Judicial Magistrate shall obtain the signature or LTI of the victim on a separate page after her statement is read over and explained to the victim by him. The signature of the victim along with the certificate of the learned Magistrate in separate pages shall be kept separately in a sealed cover and the learned Special Judge shall be entitled to open the said sealed envelope, if necessary, during trial.

·         In the deposition sheet of the victim girl, the learned Special Judge shall not record the name of the victim. He/she shall be identified as “victim” in the deposition sheet.

·         The signature of the victim witness in her deposition shall be taken by the learned Special Judge in a separate sheet and the said sheet of paper with signature and certificate by the learned Special Judge shall be kept in the record in a sealed envelope. The Appellate Court shall open the envelope case of the identity of the victim girl being made an issue.

·         In the judgment the name of the victim girl shall never be stated or recorded by the learned Special Judge.

·         The Medical Officer shall not record the name of the victim girl in the Medical Examination Document. On the other hand, the victim girl shall be identified as the “victim” in the Medical Examination Report. Similarly, in forensic reports the victim’s identity by taking her name is prohibited.”