CALCUTTA HIGH COURT
Bibek Chaudhuri, J.
Prabir Bhuian alias Prabir Bhuinyan – Appellant
versus
State of West Bengal – Respondent
CRA 517 of 2017
Decided on 16.12.2021

IMPORTANT POINTS
(1) Court must always be alive to consider incident of sexual act from victim’s perspective – Victim is best judge of incident.
(2) It is duty of Special Court under POCSO Act to see that name of victim is never disclosed in course of investigation and if same is disclosed, it is his statutory duty to stop such disclosure.
(3) Discrepancy has to be distinguished from contradiction.

Headnote:

(A) Protection of Children from Sexual Offences Act, 2012 – Section 8 – Indian Penal Code, 1860 – Sections 354 and 325 – Sexual assault on step-daughter – Conviction and sentence – Statement of victim girl in all stages of investigation and trial was consistent on one aspect that appellant being his stepfather used to touch inappropriately different parts of her body – There may be some discrepancy with regard to description of parts of body where she had experienced indecent touch of appellant, but she is consistent in her evidence that appellant touched her body inappropriately and on another occasion he surreptitiously slept by side of victim and touched her back inappropriately – It is not court to impose its opinion at the time of appreciation of evidence of a case of sexual abuse – Court must always be alive to consider incident of sexual act from victim’s perspective – Every child inheres an inept cognitive capacity, which is revised, reoriented and bolstered by acquired socio-cultural influences, familial sermons and scholastic education to discern a touch of love or affection from a vile act of indecency or abuse – Victim is best judge of incident – If she states that she was subjected to inappropriate touch by her stepfather, court shall have to accept her feeling – In order to apprise cases under POCSO Act robustness of masculine judicial system must give way to feminine feeling of embodiment of lady Justice – When foundational fact in an offence under POCSO Act is proved, burden of proving contrary shifts upon accused which he failed to discharge under Section 29 of POCSO Act – At the same time it is open for court to raise presumption of culpable mental state of appellant while committing such offence – Conviction and sentence upheld. (Paras 21, 22, 38 and 29)

(B) Protection of Children from Sexual Offences Act, 2012 – Section 33(7) – Non-disclosure of identity of victim of sexual assault on – It is duty of Special Court under POCSO Act to see that name of victim is never disclosed in course of investigation and if same is disclosed, it is his statutory duty to stop such disclosure – Officer-in-Charge of every police station shall ensure that in written complaint name victim girl shall not be stated – 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 formal FIR and charge-sheet name of victim girl shall not be stated by Investigating Officer – On other hand, she shall be described as “victim” – Detailed Guidelines issued.

Held: Section 33(7) of the POCSO Act not only directs the Special Court to ensure that the identity of the child is not disclosed in print electronic, social media etc but also at any time during the course of investigation or trial. Thus, it is the duty of the Special Court under the POCSO Act to see that the name of the victim is never disclosed in course of investigation and if the same is disclosed, it is his statutory duty to stop such disclosure. 42. Unfortunately enough the name of the victim is disclosed by the defacto complainant in the written complaint. In the formal FIR her name is recorded in the relevant column where brief fact of the case is recorded by the Police Officer. During investigation her name is often recorded in her statements under Section 161 of the Code of Criminal Procedure and even under Section 164 of the Code recoded by the learned Judicial Magistrate. All such documents are supplied to the accused in compliance of Section 207 of the Code of Criminal Procedure. During trial victim’s name is recorded on the deposition sheet. She is asked to put her signature on her deposition after the same being recorded. The copies of the said statements received by the accused in compliance of Section 207 of the Code of Criminal Procedure are transferred from hand to hand to the learned Advocate for the accused the law clerks and others. The name of the victim is also recorded by the Medical Officer in his Medical Examination Report. During trial the witnesses including the parents of the child unknowingly state the name of the victim and the trial court records such deposition without adhering to the dictum of Section 33(7) of the POCSO Act. While recording the evidence of the victim, her name is recorded on the deposition sheet and her signature or LTI is taken thereon. The certified copies of all such evidence is available not only to the accused but also to others on filing of an application and payment of requisite fees. Therefore, in spite of statutory protections and several guidelines of the Hon’ble Supreme Court, victim’s name is not kept concealed. Finally all the documents, copies of evidence and exhibits are collated in the paper book of criminal appeal and while preparing such paper book the name of the victim is made public to the employees of the court, the learned Advocates for the parties and others.

Therefore, in addition to solemn guidelines of the Hon’ble Supreme Court in the aforementioned cases, this Court is of the view that the following guidelines are to be issued for effective compliance of Section 33(7) of the POCSO Act. (Paras 41 and 43)

(C) Criminal Procedure Code, 1973 – Section 162 – Indian Evidence Act, 1872 – Section 145 – Previous statement – Accused in a criminal trial has right to make use of previous statements of a witness including statements recorded by investigating agency during course of investigation for the purpose of establishing a contradiction in evidence of a witness or to discredit the witness – A former statement, though seemingly inconsistent with evidence need not necessarily be sufficient to amount to contradiction – Only such of inconsistent statement which is liable to be contradicted would affect credit of witness – Discrepancy has to be distinguished from contradiction – Whereas contradiction in statement of witness is fatal for case, minor discrepancy or variance in evidence will not make prosecution’s case doubtful – Normal course of human conduct would be that while narrating particular incident, there may occur minor discrepancies, such discrepancies may render credential to depositions – Parrot like statements are disfavoured by Courts – In order to ascertain as to whether discrepancy pointed out was minor or not or same amounted to contradiction, regard is required to be had to circumstances of case by keeping in view social status of witnesses and environment in which such witness was making statement.

Held: In a criminal trial, the previous statement of a witness can be used by the accused for the limited purpose mentioned in Section 162 of the Code of Criminal Procedure as provided for in Section 145 of the Evidence Act. Therefore, on a reading of Section 162 of the Code of Criminal Procedure bearing in mind the object of the said section and Section 145 of the Evidence Act, it is clear that an accused in a criminal trial has the right to make use of the previous statements of a witness including the statements recorded by the investigating agency during the course of investigation for the purpose of establishing a contradiction in the evidence of a witness or to discredit the witness. A former statement, though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Only such of the inconsistent statement which is liable to be contradicted would affect the credit of the witness. Section 145 of the Evidence Act also enables the cross-examiner to use any former statement of the witness, but it cautions that if it intended to “contradict” the witness the cross-examiner is enjoined to comply with the formality prescribed therein. Section 162 of the Code of Criminal Procedure also permits the cross-examiner to use the previous statement of the witness (recorded under Section 161 of the code) for the only limited purpose, i.e., to “contradict” the witness. It will not be out of place to mention that discrepancy has to be distinguished from contradiction. Whereas contradiction in the statement of the witness is fatal for the case, minor discrepancy or variance in evidence will not make the prosecution’s case doubtful. The normal course of human conduct would be that while narrating the particular incident, there may occur minor discrepancies, such discrepancies may render credential to the depositions. Parrot like statements are disfavoured by the Courts. In order to ascertain as to whether the discrepancy pointed out was minor or not or the same amounted to contradiction, regard is required to be had to the circumstances of the case by keeping in view the social status of the witnesses and the environment in which such witness was making the statement. (Para 20)

Result: Guidelines issued.