RAJIV SHAKDHER, J

1. Rape is abominable. What makes it worse is when a child is subjected to it. The Prosecutrix's injury and humiliation is compounded when it is her own father who is the perpetrator of the crime. There are scores of children in our cities, towns, and villages who are subjected to unwanted physical contact by adults. Most of it does not get reported. When it does get reported, they are subjected to the same gruelling process of testimony and cross-examination in an unfamiliar, unfriendly and often unnerving court room atmosphere to which a hardened criminal is exposed. The result is incoherent testimony which is then torn to shreds by a skilful lawyer trained to pick holes and point out inconsistencies and contradictions; cast doubts about the prosecution's case and probalise his innocence. It is the time that the legislature considers bringing about changes, at least in certain areas as regards the role of judges, and therefore courts from being umpires in a typically adversarial system to donning an inquisitorial role. Offences against children may perhaps be an area to bring about this change. There is an imminent need for the legislature to look closely at the following issues, in respect of, offences related to children:-

i) The role of defence lawyers - should it be reduced to a bare minimum, perhaps restricted to only questions of law.

ii) Should the investigations in respect of offences against children be court driven.

iii) Is there a need for a specialised agencies to deal with investigation related to offences against children.

iv) Should the specialised agency have access to an expert--such as a child psychologist.

v) Should we not have courts which deal exclusively with offences against children.

1.1 A beginning could be made by re-visiting the provisions of Section 25 of The Commissions for Protection of Child Rights Act, 2005, (in short the „Child Rights Act') wherein the State Governments are mandated to establish Children's Courts. It may perhaps be wholesome to enlarge the scope and ambit of the Child Rights Act to bring within its fold offences against children as prescribed in the IPC.

2. In the instant matter, the prosecution case is thus:- Smt. Bimla, who is wife of the accused, on 19.09.2005 in the course of altercation was thrown of the roof of the house by the accused. Smt. Bimla left the house along with two of her three daughters; the prosecutrix who is the youngest was left behind. To be noted that the accused was booked for the said offence under Section 107/151 of the Cr.P.C. and kept in custody. The oldest child, that is, the son had left the house much earlier due to the unbearable behaviour of the accused. In the night of 19.09.2005, it is alleged the accused came home drunk. The prosecutrix being alone and vulnerable, was an easy prey. The accused forced himself on the prosecutrix and committed rape. Smt. Bimla (PW2), that is the mother, was informed the next day by the prosecutrix. Out of shame, Smt. Bimla (PW2) found it difficult to discuss the incident. Finally, after two months, she informed her brothers, which is when the incident was reported to the police. The prosecutrix was sent for medical examination. The medical examination revealed that prosecutrix's hymen was torn. Based on the complaint, a FIR was registered on 27.11.2005. On 08.12.2005, the prosecutrix was presented before the learned Magistrate for recording her statement under Section 164 of the Cr.P.C.; which was not recorded, since the learned Magistrate was of the view that the prosecutrix was tutored by Smt Bimla (PW2), i.e., the mother. Much has been made out of this aspect of the matter. I shall deal with this at a later stage.

3. Finally, on 03.01.2006, prosecutrix's statement was recorded by the learned Magistrate under Section 164 of the Cr.P.C. After completion of investigation, a charge sheet was filed.

4. Prosecution examined six witnesses. The main witness