Victim best judge of incident: Calcutta High Court upholds POCSO conviction, lays down guidelines

The Calcutta High Court has upheld a conviction under the Protection of Children from Sexual Offences (POCSO) Act despite minor discrepancies in the evidence of the minor girl, reasoning that a survivor is the best judge of the incident (Prabir Bhuian Alias Prabir Bhuinyan vs. State of West Bengal)..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.".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..These observations came in response to the appellant’s contention that the case of the victim and her mother was full of material contradictions and their evidence was unreliable for a conviction under the POCSO Act.“According to the learned Counsel for the appellant, the victim went on gradually developing her case to implicate the accused/appellant in an offence under the POCSO Act. Such exaggeration, embellishment and development of the prosecution case during the evidence amounts to material contradiction,” the Court recorded the submission of the accused..The appellant contended that the girl attempted to give a sexual colour to the incident, stating that a father can lovingly touch the back of his daughter, can sleep beside and hug her.“All these are instances of paternal love and affection shown by the appellant to the daughter of the defacto complainant.”It was argued that the only allegation against the appellant was that he patted the victim’s back and this was not sufficient for a conviction under Section 8 of the Act..However, the Court disagreed and found that the victim at all stages of the investigation and trial was consistent in her statement on one aspect: her stepfather used to touch different parts of her body inappropriately.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.It was pointed out that the name of the minor girl was not kept concealed throughout the investigation and trial proceedings..Therefore, in addition to the Supreme Court’s guidelines laid down, Justice Chaudhuri also issued the following guidelines to protect the identity of children under the POCSO Act.“i. 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.ii. In the formal FIR and charge-sheet the name of victim girl shall not be stated by the Investigating Officer. On the other hand, she shall be described as “victim”.iii. In the column of witnesses in the charge-sheet the victim girl shall not be referred to by her name but as “victim.”iv. 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”.v. 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”.vi. 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.vii. 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 page shall be kept separately in a sealed cover and the learned Special Judge shall be entitled to open the said sealed envelop, if necessary during trial.viii. 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.ix. 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 sealed envelop. The Appellate Court shall open the envelop case of the identity of the victim girl being made an issue.x. In the judgment the name of the victim girl shall never be stated or recorded by the learned Special Judge.xi. 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 Medical Examination Report. Similarly, in forensic report victim’s identity by taking her name is prohibited.”.The single-judge also directed that the judgment containing these guidelines be sent to all relevant authorities in the State for their information and compliance..Advocates Abhijit Basu, JN Pal and Arghya Kamal Das appeared for the appellant. The complainant was represented by advocates Sukanta Chakraborty, Zuber Ahmed and Anindya Halder and the State was represented by advocates Ranabir Roy Chowdhury and Mirza Firoj Ahmed Beg..[Read Judgment]