POCSO Conviction: Sentence Suspended U/S 389 CrPC Citing Victim's Recantation, DNA as Sole Evidence; Rajasthan HC Laments Victim Identity Disclosure - 2024-04-08

Rajasthan High Court Suspends Sentence in POCSO Case, Citing Victim 's Retraction and Sole Reliance on DNA Evidence; Expresses Distress Over Victim Identity Disclosure

Kota, Rajasthan – The Rajasthan High Court, presided over by Justice Anoop KumarDhand , has suspended the sentence of an appellant, Rohit Bairwa , convicted in a Protection of Children from Sexual Offences (POCSO) Act case. The suspension was granted primarily due to the victim recanting her allegations during cross-examination, lack of corroborative testimony from her parents, and the conviction resting solely on a DNA report. The Court also voiced significant concern over repeated failures by authorities to protect the identity of child victims, mandating sensitization programs.

Case Background and Suspension Order

The appellant, Rohit Bairwa , was convicted by the Special Judge, POCSO Act Cases No.3, Kota, in Sessions Case No.68/2023, by a judgment dated 27.10.2023. He appealed this conviction and sought suspension of his sentence under Section 389 of the Criminal Procedure Code (Cr.P.C.) pending the appeal's disposal.

The prosecutrix, denoted as "A" to protect her identity as per the Court's order, had initially leveled allegations of rape against Bairwa in her Examination-in-Chief. However, the appellant's counsel argued that crucial shifts occurred during the trial:

Victim 's Retraction: During cross-examination, PW-1 "A" denied the allegations of rape against the appellant.

Parental Testimony: The victim's parents, PW-2 Ramavtar and PW-3 Gayatri, did not support the allegation of sexual assault against the appellant.

Sole Reliance on DNA: The conviction, counsel contended, was based solely on the DNA report. The appellant's counsel cited Ganesh v. State of Rajasthan (D.B. Criminal Appeal No.255/2022) , where a Division Bench held that an accused cannot be convicted solely on a DNA report.

Custody and Appeal Pendency: The appellant has been in custody since his arrest, and the appeal's final disposal is expected to take time.

The Public Prosecutor and the counsel for the complainant opposed the application for suspension of sentence.

After hearing arguments and perusing the record, Justice Dhand observed: "Considering the arguments put forward by counsel for the appellant and looking to the fact that in the cross-examination victim PW-1 "A" has denied the allegation of sexual assault against the appellant and the parents of the victim have not alleged the allegation of rape against the appellant and solely on the basis of DNA report, the appellant has been found to be guilty of the offences and considering the fact that the appellant is in custody since the date of his arrest and looking to the fact that the disposal of the appeal is likely to take time, therefore, this Court is of the opinion that it is a fit case for suspending the substantive sentence awarded to the accused-appellant."

The Court allowed the application, suspending Bairwa 's sentence subject to him depositing the fine amount imposed by the trial court and furnishing a personal bond of Rs. 1,00,000/- with two sureties of Rs. 50,000/- each. Conditions for bail include regular appearances before the trial court and High Court, and notification of any change in residence.

Court Expresses "Pain" Over Disclosure of Victim 's Identity

In a significant portion of the order, Justice Dhand expressed deep concern and "pain" over the recurrent failure of authorities to comply with mandatory provisions for protecting the identity of victims in sexual offence cases, particularly under the POCSO Act.

The Court noted that in the present case: "...while recording the statements of the victim under Sections 161 and 164 Cr.P.C. and even during the course of trial her name is mentioned everywhere and her identity has been disclosed. The Investigating Officer as well as the Judicial Magistrate have failed to follow the mandatory provisions..."

The judgment highlighted key legal safeguards:

* Section 24(5) of the POCSO Act: Mandates police to protect the child's identity from public media unless directed otherwise by the Special Court in the child's interest.

* Section 33(7) of the POCSO Act: Requires the Special Court to ensure the child's identity is not disclosed at any time during investigation or trial.

* Section 228A of the Indian Penal Code (IPC): Criminalizes the disclosure of a victim's identity in sexual abuse cases, punishable with imprisonment up to two years.

The Court cited the Supreme Court's decision in Nipun Saxena and Another v. Union of India and Others (2019 (2) SCC 703) , which emphasized that protecting a victim's identity is crucial to prevent hostile discrimination or harassment and that disclosure is permissible only in rare circumstances when in the child's best interest.

Directives for Sensitization and Compliance

Finding that these mandatory provisions and Supreme Court directives were "flouted" in this instance, Justice Dhand underscored the urgent need for systemic improvement: "In this background, this Court feels that an exercise of sensitization of the Police Officers and Judicial Officers is required to be undertaken so as to ensure strict compliance of these mandatory provisions of law and its requirements."

Consequently, the Court directed: 1. A copy of the order to be forwarded to the Registrar General for placing before the Hon'ble Chief Justice for appropriate orders. 2. A copy to be sent to the Additional Chief Secretary, Department of Home, Government of Rajasthan, and the Director General of Police, with directions to conduct sensitization programs for police officers through the Police Academy to ensure victim identity protection during investigations.

This order not only grants relief to the appellant pending appeal but also serves as a stern reminder to law enforcement and judicial machinery about their non-negotiable duty to protect the identities of child victims of sexual offences.