Calcutta High Court: While expressing that, 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, Bibek Chaudhuri, J., laid down additional guidelines with regard to non-identification of sexual victim’s identity as the same was disclosed in the instant case
In the present matter, the defacto complainant lost her first husband in an accident and while she was staying with her two children she had an acquaintance with one Prabir Bhuia the appellant.
Later the appellant developed love relations with defacto complainant and married for the second time.
In 2014 her daughter told her that during midnight when everybody was sleeping the appellant touched several sensitive parts of her body inappropriately. On hearing this a hot altercation ensued between the de facto complainant and the applicant during which she was severely beaten by the appellant however the matter got solved after receiving an apology from the appellant.
In November, 2014 the defacto complainant noticed that her husband was sleeping in the adjacent room where her daughter used to sleep by the side of her daughter keeping his hand on her body. She asked her daughter about the incident when she said that she wanted to sleep with her mother, but the appellant forcibly seized her and resisted her from going to the bed of her mother. Over the said incident there was a quarrel between the defacto complainant and her husband for a week.
In December 2014, the appellant knocked at the door of the room of the daughter of the defacto complainant where she was sleeping. The daughter used to sleep in the adjacent room closing the door from inside on being directed by her mother. Further, he also called the daughter of the defacto complainant over the phone repeatedly and he tried to take the mobile phone of his wife from below her pillow and when she resisted, the appellant assaulted her severely.
Defacto complainant also raised hue and cry and on hearing the same, the daughter opened the door and came out of her room. Though the defacto complainant somehow entered the room of her daughter and closed the door from inside.
Police registered the case under Sections 7 and 12 of the POCSO Act and took up the case for investigation.
Special Judge framed charge against the appellant under Sections 354 and 324 of the IPC and Section 8 of the POCSO Act.
The above-said decision was challenged.
Analysis, Law and Decision
In the present matter, the statement of the victim girl was consistent on one aspect that the appellant being his stepfather used to touch inappropriately different parts of her body and even the mother of the defacto complainant in the FIR stated that the appellant used to touch-sensitive parts of her body.
Though, there were minor discrepancies in the evidence of the victim but such discrepancies cannot be held to be material contradictions. Evidence of the victim was corroborated by her mother, defacto complainant.
The victim stated in most clear terms that her stepfather used to touch her different parts of body inappropriately.
Hence, Court had no reason to disbelieve the evidence of the victim and her mother.
The fact that even after the incident the appellant took the victim to various schools for collecting admission forms for class XI did not matter most because the victim was allowed to go with the appellant being accompanied by her brother.
The above-said was the most unfortunate part of the story when a little brother was engaged in the act of policing to prevent their stepfather from committing any indecent act upon the victim.
Whether the specific act of the accused amount to an offence of sexual assault within the meaning of Section 7 of the POCSO Act?
A girl attaining the age of 15-16 years only understands whether any touch on her body is appropriate or inappropriate act. She can only understand whether a person touches her with sexual intent or not.
In the present matter, the victim girl more than once stated that her stepfather touched different parts of her body inappropriately and on one occasion during her sleep, she woke up and found that her father was trying to touch her breast and she removed the hand of the appellant.
High Court opined that the prosecution was able to establish the charge against the accused/appellant beyond any shadow of reasonable doubt.
Therefore, no infirmity was found in the decision of the Additional Sessions Judge.
Identity of the Victims
Keeping in view the social object of preventing social victimization or ostracisms of the victim of a sexual offence for which Section 228-A has been enacted, it would be appropriate that in the judgments, be it of High Court or lower Court, the name of the victim should not be indicated.
We have chosen to describe her as ‘ victim’ in the judgment.
It is the duty of the Special Court under the POCSO Act to see that the name of the victim was never disclosed in course of the investigation and if the same was disclosed, it was his statutory duty to stop such disclosure.
The Court stated that unfortunately the name of the victim was disclosed by the defacto complainant in the written complainant and in the formal FIR her name was recorded and during the investigation also her name was often recorded in her statements under Section 161 of the Code of Criminal Procedure and even under Section 164 of the Code recorded by the Judicial Magistrate.
Inspite of the statutory protections and several guidelines of the Supreme Court, the victim’s name was not kept concealed.
In view of the above, in addition to the guidelines of the Supreme Court, this Court was of the view that the following guidelines were to be issued for effective compliance of Section 33(7) of the POCSO Act:
- 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 victim girl shall not be stated by the Investigating Officer. On the other hand, she shall be described as “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 Magistrate in separate page shall be kept separately in a sealed cover and the Special Judge shall be entitled to open the said sealed envelop, if necessary during trial.
- In the deposition sheet of the victim girl, the 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 Special Judge in a separate sheet and the said sheet of paper with signature and certificate by the 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.
- In the judgment the name of the victim girl shall never be stated or recorded by the 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 Medical Examination Report. Similarly, in forensic report victim’s identity by taking her name is prohibited.
[Prabir Bhuian v. State of West Bengal, 2021 SCC OnLine Cal 3063, decided on 16-12-2021]
Advocates before the Court:
For the appellant: Mr Abhijit Basu, Adv., Mr J.N. Pal, Adv., Mr Arghya Kamal Das, Adv.
For the Respondent/de facto complainant: Mr Sukanta Chakraborty, Adv., Mr Zuber Ahmed, Adv., Mr Anindya Halder, Adv.
For the State: Mr Ranabir Roy Chowdhury, Adv., Mr Mirza Firoj Ahmed Begg, Adv.