Sunday, December 4th, 2022 21:44:49

POCSO Courts For Protection Of Identity Of Rape : Sexual Offences Victims

By Sanjeev Sirohi
Updated: September 29, 2022 5:42 pm

It is really most refreshing, most reassuring and most reinvigorating to learn that none other than the Himachal Pradesh High Court itself has in a most learned, laudable, landmark and latest judgment titled State of Himachal Pradesh vs Shiv Lal Champi in Criminal Appeal No. 152 of 2021 pronounced as recently as on September 13, 2022 has issued certain directions to the Special POCSO Courts so as to ensure that the identity of the child victim shall not be disclosed at any time, during the course of investigation or trial. The Division Bench of Justice Tarlok Singh Chauhan and Justice Virender Singh issued these commendable directions while dealing with an appeal that was preferred by the State Government against the acquittal of the accused under Sections 363, 366, 376 of the Indian Penal Code and Section 4 of the POCSO Act. While upholding the acquittal order in favour of the accused, the Court did not shy away from recording its grave concern about the manner in which the proceedings were conducted before the trial Court in the matter. The Court noted distressingly that in the judgment, the name of the mother of the child victim was mentioned  and that the proceedings of the case were not conducted in camera which is mandated by Section 37 of the POCSO Act.

At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Mr Justice Virender Singh for a Division Bench of the Himachal Pradesh High Court comprising of Hon’ble Mr Justice Tarlok Singh Chauhan and himself sets the ball rolling by first and foremost putting forth in para 1 that, “State of Himachal Pradesh has preferred the present appeal under section 378 of the Code of Criminal Procedure (her in after referred to as CrPC’) against the judgement, dated 20th November, 2020, passed by the learned Additional District & Sessions Judge, Fast Track Special Court Solan, District Solan, H.P. (hereinafter referred to as ‘the trial Court’).”

Put simply, the Division Bench then states in para 2 that, “By virtue of the judgment, dated 20th November, 2020 (hereinafter referred to as ‘the impugned judgment’), respondent Shiv Lal Champi (hereinafter referred to as ‘the accused’) has been acquitted from charges framed against him, for the commission of offences punishable under Sections 363, 366, 376 of the Indian Penal Code (hereinafter referred to as ‘IPC’) and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as ‘POCSO Act’).”

To put things in perspective, the Division Bench then envisages in para 3 that, “Brief facts, as emerge from the report under Section 173 (2) of the CrPC, are summed up as under:

On 25th August, 2014, the complainant approached the In-charge, Police Post Kishangarh with the complaint that her daughter (name withheld) (hereinafter referred to as ‘the child victim’) had left the home without informing her. The efforts to trace the child victim were made but, her whereabouts could not be ascertained. The complainant had expressed her suspicion that the accused had enticed away the child victim. Lastly, she had stated that the age of the child victim was about 17 years and prayed that the action be taken. The said complaint was forwarded to SHO, Police Station Kasauli, District Solan, where the case under Sections 363 and 366A IPC was registered. Thereafter, the police machinery swung into motion.”

Be it noted, the Division Bench then points out in para 4 that, “As per the documentary evidence collected by the prosecution, the date of birth of the child victim was found to be 22nd February, 1997. Efforts to trace the child victim were made but, her whereabouts could not be ascertained. Thereafter, on 5th October, 2014, the child victim was found alongwith her new born baby at Dhakru Majra in the rented accommodation of the accused.”

While continuing in the same vein, the Division Bench then discloses in para 5 that, “Thereafter, the statement of the child victim was recorded and Section 376 IPC and Section 4 of the POCSO Act were added in this case. The accused was arrested on 6th October, 2014. During the investigation, the DNA profiling of the child victim, accused and their new born baby was got conducted and the statement of the child victim was got recorded under Section 164 CrPC.”

Furthermore, the Division Bench then reveals in para 6 that, “After the investigation, the police submitted the charge sheet against the accused under Sections 363, 366, 376 IPC and Section 4 of the POCSO Act.”

As we see, the Division Bench then propounds in para 7 that, “After complying with the provisions of Section 207 CrPC, the learned trial Court found a prima facie case against the accused for commission of offences punishable under Sections 363, 366, 376 IPC read with Section 4 of the POCSO Act.”

Needless to say, the Division Bench then states in para 8 that, “The accused was accordingly charge-sheeted.”

Going forward, the Division Bench then specifies in para 9 that, “When the charges, so framed, were put to the accused, he had pleaded not guilty and claimed to be tried. Since, the accused had not admitted his guilt, as such, the prosecution was directed to adduce the evidence. Consequently, the prosecution has examined as many as 12 witnesses.”

What’s more, the Division Bench then lays bare in para 10 that, “After the closure of the evidence, the entire incriminating evidence, appearing against the accused, was put to him, in his statement recorded under Section 313 CrPC. The accused has denied the entire prosecution case and took the defence that he is innocent. However, the accused has not opted to adduce any evidence in his defence.”

Moving on, the Division Bench then discloses in para 11 that, “The learned trial Court, after hearing the arguments of the learned Public Prosecutor, as well as the learned defence counsel, has acquitted the accused from the charges framed against him vide the impugned judgment, dated 20th November, 2020.”

As anticipated, the Division Bench then further discloses in para 12 that, “Feeling aggrieved, the State has preferred the present appeal before this Court challenging the impugned judgment, inter alia, on the grounds that the learned trial Court has not considered the evidence in the right perspective and has wrongly discarded the testimony of the prosecution witnesses.”

To be sure, the Division Bench then states in para 13 that, “Highlighting the statement of the mother of the child victim (the complainant) and the fact that the child victim was found in the room of the accused alongwith a baby in her lap, the main ground of attack by the appellant is that the complainant had specifically deposed that the child victim had left the house without telling anything whereupon, the missing report Ex. PW1/B was lodged. According to the appellant, these facts have not rightly been considered by the learned trial Court in the present case.”

As happens usually, the Division Bench then points out in para 14 that, “Placing much reliance on the DNA report, it has been argued by Mr. J.S. Guleria, learned Deputy Advocate General, that the judgment of acquittal may kindly be set aside by convicting the accused, for the commission of offences, for which, he has been charge-sheeted in this case.”

On the contrary, the Division Bench then mentions in para 15 that, “The prayer, so made by the learned Deputy Advocate General, has been opposed by Mr. Mukul Sood, learned counsel appearing for the accused, on the ground that there is no evidence on record to even connect the accused with the alleged crime, what to talk about proving the case by the prosecution beyond any shadow of doubt.”

In addition, the Division Bench then notes in para 16 that, “The contention of the learned Deputy Advocate General has also been opposed on the ground that there is nothing on the file to show that it was the accused, who had enticed away the child victim from her home.”

Apart from all this, the Division Bench then also states in para 17 that, “Lastly, supporting the impugned judgment of acquittal, it has been argued that no conviction can be based solely on the DNA report, as the child victim has represented/misrepresented to the accused that she is major and her statement, on oath, has not even been controverted by the learned Public Prosecutor, by cross-examining the child victim.”

Simply put, the Division Bench then holds in para 18 that, “We have heard the learned counsel for the parties and perused the record carefully.”

Quite significantly, the Division Bench mandates in para 37 that, “In this case, it can be said that there is no evidence to connect the accused with the crime, for which, he has been charge-sheeted, in this case, as the mother of the child victim has disowned the contents of the complaint Ex. PW-1/A and she has successfully exonerated the accused by stating that she was not aware as to who had taken away the child victim. The child victim, whose date of birth has been proved from the documentary evidence as 22nd February, 1997, has also not supported the case of the prosecution. She has solemnized the marriage with the accused.”

It also cannot be glossed over that the Division Bench then observes in para 41 that, “There is no dispute with regard to the age of the child victim. There is not even a word in the depositions of PW-3 as well as her mother, from which, an inference could be drawn that child victim left the house at the instance or even the suggestion of the accused. Whatsoever act has been committed by the accused with the child victim, which has resulted into her pregnancy, those acts seem to be done under the bonafide belief that child victim is major. It is not the defence of the accused that the child victim was major, but, it has voluntarily been deposed by the child victim that she had represented herself to be major before the accused. The child victim had passed her matriculation examination. She is not illiterate, and the fact, that she had accompanied the accused voluntarily, is a fact which demonstrates her own desire to be the wife of the accused. Not only this, she has represented/ mis-represented before the accused that she has attained the majority.”

Quite ostensibly, the Division Bench then directs in para 44 that, “The appeal is accordingly dismissed. Bail bonds discharged.”

Briefly stated, on a parting note, the Division Bench then hastens to add in para 46 that, “Before parting with the judgment, this Court must record its deep concern about the manner, in which, the proceedings were conducted before the learned trial Court. The POCSO Act has been enacted by the legislature to protect the interest of child victims by including certain safeguards in it. Those safeguards were incorporated in the Act to protect the child victim as well as her family from exposure, as sometimes, the child victim, as well as their parents, do not prefer to go the police station and to report the crime. Reporting such crimes to the police are still considered to be stigmatic in the tradition bound conservative society of our country. That is why, certain duties have been cast upon the Special Courts to ensure that the identity of the child victim shall not be disclosed, at any time, during the course of investigation or trial. No doubt, a relaxation has been given where such disclosure is in the interest of the child. Section 33 of the Act contains those procedures and powers of the Special Courts.”

Alarmingly, the Division Bench notes in para 49 that, “Perusal of the order sheets, passed in this case, right from 4th July, 2016, when the charges were framed against the accused till the arguments were heard, reveals that the proceedings were never conducted in “camera”. Even, while recording the evidence of PW-1, who is complainant as well as mother of the child victim, and PW-3, the child victim, the mandatory provisions of Section 33(7) of the POCSO Act have not been complied with. Rather, in a casual manner, the complete address of the complainant as well as her daughter (child victim), displaying/demonstrating their identity, has been mentioned in their deposition.”

Finally and far most significantly, the Division Bench then concludes by holding most elegantly, eloquently and effectively in para 50 that, “In such a situation, this Court is constrained to issue the following directions:-

(i) Every effort should be made by the Special Judge(s), as well as, by the police, to ensure that during the course of investigation or trial, the identity of the child victim shall not be disclosed, unless it is in the interest of the child.

(ii) The trial of the case should be held in camera, as mandated by Section 37 of the POCSO Act.

(iii) While recording the statement(s), the Special Judge(s) shall ensure that the identity of the child victim, as well as the identity of his/her family, school, relatives or neighborhood or any other information by which his/her identity could be revealed, shall not be disclosed.

(iv) While recording the statement(s) of the child victim, his/her relatives, the Special Judge(s) would be at liberty to give a fictitious name(s) to them and before doing so, the Special Judge(s) is at liberty to satisfy itself about the identity of the child victim as well as the witnesses from the report under Section 173(2) of the Code of Criminal Procedure. Such satisfaction should be recorded in the proceedings of the case.

(v)          As per Instructions No. HHC/Admn./ Instructions/2018-33, dated 12th July, 2018, issued by the High Court of Himachal Pradesh, all the judgments are to be uploaded on the website of the District Court(s). As such, the Special Judge(s), dealing with the cases under POCSO Act, are directed to ensure that the judgments, so rendered by them, do not contain the particulars, from which the identity, as mandated in terms of Section 33 (7) of the POCSO Act, of the child, could be ascertained.

(vi)       It is expected from the Special Judge(s), dealing with the cases under POCSO Act, that they will strictly adhere to the provisions of the POCSO Act, in letter and spirit.”

No doubt, what all the Division Bench comprising of Hon’ble Mr Justice Tarlok Singh Chauhan and Hon’ble Mr Justice Virender Singh has directed must be implemented forthwith and in totality. This alone will best serve the interest of justice in the longer run. No denying it!

By Sanjeev Sirohi

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