In the matter P B Vs. State of West Bengal, the Calcutta High Court on 16.12.2021 upheld a Protection of Children from Sexual Offences Act (‘POCSO Act’) conviction even with minor discrepancies in the evidence of the victim girl and remarked that a survivor is the best judge of the incident.

It is the prosecution’s case that the defecto complainant is the victim’s mother, who married the accused. Sometimes during Durga Puja days in 2014 the victim told her that during midnight when everybody was sleeping the accused touched several sensitive parts of her body inappropriately. Upon altercation, an FIR was registered under the POCSO Act and took up the case for investigation. The Special Judge convicted the accused under Section 8 (Punishment for Sexual Assault) of the POCSO Act and sentenced to suffer imprisonment for five years with fine.

The accused filed an appeal against the decision on the ground that the victim and the victim’s mother are the only witnesses and that there are several discrepancies in their testimony.

 At the onset of the order, the Court stated 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 pervade 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.”

Justice Bibek Chaudhuri held that even though there are minor discrepancies in the victim testimony it cannot be held to affect the material testimony of the witness. The Hon’ble High Court observed that the Court must consider the incident from the victim’s perspective and that every child is in inheres an inept cognitive capacity, which is revised, reoriented and bolstered by acquired socio-cultural influences, familial sermans and scholastic education to discern a touch of love or affection from a vile act of indecency or abuse.

The Court further remarked that “The victim is the best judge of the incident. If she states that she was subjected to inappropriate touch by her stepfather, the court shall have to accept her feeling. 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.”

Thus, the Court upheld the conviction of the trial court and rejected the appeal.

In its parting remarks the Court observed a very ‘disturbing’ feature, that the minor victims’ names have been mentioned throughout the investigation and trial process contrary to law and precedent. Thus, the Court laid down the following guidelines for the same:

1. 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.
2. 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”.
3. In the column of witnesses in the charge-sheet the victim girl shall not be referred to by her name but as “victim.”
4. 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”.

5. 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”.
6. 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.
7. 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 envelope, if necessary during trial.
8. 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.
9. 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 envelope. The Appellate Court shall open the envelop case of the identity of the victim girl being made an issue.
10. In the judgment, the name of the victim girl shall never be stated or recorded by the learned Special Judge.
11.  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.

Justice Chaudhuri ordered distribution of the guidelines to relevant authorities in the state.

– Vaishali Jain, Advocate & Associate – Child Safety at Work