Dismissed

Bhanei Prasad @ Raju Prasad v. State of Hp

Himachal Pradesh HC3 Jul 2024CR.A/562/2019

Case brief

AI extract

What is this about?

The High Court dismissed the criminal appeal filed by a father convicted under POCSO and IPC for repeatedly raping his minor daughter. Upholding the trial court's conviction based on reliable child testimony and DNA evidence, the court affirmed the life sentence and directed better implementation of privacy and screening measures in POCSO trials.

What did the court decide?

Appeal dismissed; conviction and life sentence upheld; directions issued to POCSO courts in HP regarding screening and privacy.

Bhanei Prasad @ Raju Prasad Vs State… — Child Sexual Offences (POCSO) | Himachal Pradesh HC (2024)

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

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Cr. Appeal No. 562 of 2019 Reserved on: 25.06.2024 Decided on : 03.07.2024

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__________________________________________________________ Bhanei Prasad @ Raju …..Appellant Versus State of Himachal Pradesh ……Respondent __________________________________________________________

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…..Appellant Versus ……Respondent

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Coram

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Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge Hon'ble Mr. Justice Sushil Kukreja, Judge

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1 Whether approved for reporting? Yes.

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_____________________ For the appellant:	_________________ Mr. Sahil Malhotra, Counsel.	________________ Advocate as Legal Aid
For the respondent/State:	Mr. I.N. Mehta, Chauhan, Senior	Mr. Yashwardhan Additional Advocates
	General, with M	s. Sharmila Patial,
	Mr.Navlesh Verma	Additional Advocates
	General and Mr.	J.S. Guleria, Deputy
	Advocate General.

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Sushil Kukreja, Judge

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The instant appeal has been maintained by appellant/ accused/convict (hereinafter referred to as the accused) against judgment of conviction dated 24.09.2018 and order of sentence dated 26.09.2018, passed by learned Special Judge, Solan, H.P., in Sessions Trial No.7-S/7 of 2013, whereby the accused was convicted and sentenced to imprisonment for life and to pay a fine of Rs.50,000/- for

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1 Whether reporters of Local Papers may be allowed to see the judgment?

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commission of the offence punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short “POCSO Act”) and

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he was also sentenced to undergo imprisonment for a term of two years for commission of the offence punishable under Section 506 of the Indian Penal Code (for short “IPC”).

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The facts giving rise to the present appeal, as per the prosecution story, can be summarized as under:

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The accused is the father of minor child victim ‘S’ (name withheld). During the year 1986, he performed marriage and out of the wedlock, four children were born. Victim ‘S’, who was youngest amongst all the siblings, was born on 01.08.2002 and the wife of accused died after the birth of victim ‘S’. During the year 2010, the accused shifted alongwith his children from his village ‘D’ to village ‘A’ in the rented accommodation of one Rajinder Singh, where he started sexually assaulting his minor daughters, i.e. victim ‘V’ and victim ‘S’. On 08.01.2013 and 10.03.2013, the accused committed forcible sexual intercourse with victim ‘S” and threatened her with dire consequences in case she divulged the incidents to anyone. The victim ‘S’ remained hospitalized w.e.f. 12.03.2013 to 16.03.2013 in Government Ayurvedic Hospital, Rabon, Solan, District Solan, H.P., where she disclosed about the incidents to her elder sisters. On 18.03.2013, victim ‘S’ was

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discharged from the hospital and on the night of 18.03.2013, the accused again subjected victim ‘S’ to forcible sexual intercourse and on 19.03.2013, she went to the house of her eldest sister, where she divulged the incidents to her sister and ultimately the matter was reported to the police. Police recorded the statement of the victim under Section 154 Cr.P.C., whereupon FIR No.73 of 2013, dated 19.03.2013 was registered against the accused under Sections 376 and 506 IPC and Section 4 of POCSO Act. Victim ‘S’ was medically examined at Regional Hospital, Solan by Dr. Poonam Sharma. Scientific samples were preserved, sealed and handed over to the police for forensic examination and she was referred to Radiologist for determination of her age. The Radiologist, on the basis of radiological examination of victim ‘S’, opined her age between 12½ to 15½ years. On 20.03.2013, the police visited the house of the accused and effected recoveries of clothes of the child victim alongwith blanket/bed sheet and the accused was arrested. Police got conducted the medical examination of the accused. On 24.03.2013 blood samples of victim ‘S’ and accused were taken on FTA cards for DNA profiling, which were sent for analysis to SFSL, Junga. During further course of investigation, police procured date of birth record qua the victim, which revealed that the date of birth of the victim was 01.08.2002. Police prepared the spot map, recorded the statements of

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the witnesses and the accused was found involved in the crime, pursuant to the receipt of FSL and DNA Profiling reports. After completion of the investigation, police presented the charge-sheet before the learned trial Court.

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The prosecution, in order to prove its case, examined as many as twenty three witnesses. Statement of the accused was recorded under Section 313 Cr.P.C., wherein he pleaded not guilty. The accused did not examine any witness in his defence.

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The learned trial Court, vide impugned judgment dated 24.09.2018 and order of sentence dated 26.09.2018 convicted the accused under Section 6 of the POCSO Act and sentenced him to life imprisonment and also to pay a fine of Rs.50,000/- for the commission of the offence punishable under Section 6 of the POCSO Act and further sentenced him to undergo imprisonment for a term of two years for the commission of the offence punishable under Section 506, IPC.

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Being aggrieved and dissatisfied with the judgment of conviction and order of sentence passed by the learned trial Court, the appellantaccused approached this Court by way of instant appeal, praying therein for his acquittal after setting aside the aforesaid judgment of conviction and order of sentence.

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Learned legal aid counsel for the appellant contended that the trial Court has failed to appreciate the important aspects and ingredients of the alleged offences and there are material contradictions in the medical evidence. He also contended that it is highly improbable that for such a long time the incident remained hidden, as such, it is prayed that the instant appeal may be allowed and the impugned judgment and order of sentence passed by the learned trial Court be quashed and set-aside and the accused be acquitted.

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Conversely, the learned Senior Additional Advocate General contended that the trial Court has rightly and correctly appreciated the evidence in its true perspective. He further contended that there is more than sufficient material on record which clearly shows that the accused had committed sexual assault upon the victim, who is his own daughter. The evidence, which has come on record, is sufficient to convict the accused, hence the instant appeal be dismissed.

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We have heard the learned legal aid counsel for the appellant as well as learned Senior Additional Advocate General for the respondent/State and also meticulously examined the entire records.

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So far as the age of the victim is concerned, PW-9, the then Central Head Teacher (CHT), Government Primary School, deposed that she had issued certificate Ext. PW9/B regarding the date of birth of the

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victim, the perusal of which reveals that her date of birth is 01.08.2002. Thus, the evidence led by the prosecution is conclusive to prove that in the year 2013, the victim was below 12 years of age.

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Position of law regarding appreciation of the evidence of the child witness is well settled. A child witness, if found competent to depose to the facts and if her/her version is reliable, such evidence could be the basis of conviction. The only precaution which is to be taken by the Court while appreciating such evidence is to rule out any possibility of tutoring. If the Court is satisfied that the evidence of the child is not the tutored version and if it is found reliable, the same can be the sole basis for conviction.

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In Dattu Ramrao Sakhare and other Vs. State of Maharashtra, (1997) 5 SCC 341 , the Hon’ble Apex Court held as under:-

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“5…….. A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the evidence Act provided that such witness is able to understand the question and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored. There is no practice that in every case the evidence of such a witness be corroborated before a conviction can be allowed to stand but, however as a rule of prudence the court always finds it desirable to have the corroboration to such evidence from other dependable evidence on record……”

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In Panchhi & Ors. Vs. State of U.P., (1998) 7 SCC 177, the Hon’ble Apex Court while placing reliance upon a large number of its earlier judgments observed that the testimony of a child witness must find adequate corroboration before it is relied on. However, it is more a rule of practical wisdom than of law. It cannot be held that the evidence of a child witness would always stand irretrievably stigmatized. It is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring.

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In Suryanarayana Vs. State of Karnataka, (2001) 9 SCC 129, wherein it has been stated as under:-

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"5………The evidence of PW 2 cannot be discarded only on the ground of her being of tender age. The fact of PW 2 being a child witness would require the court to scrutinise her evidence with care and caution. If she is shown to have stood the test of cross-examination and there is no infirmity in her evidence, the prosecution can rightly claim a conviction based upon her testimony alone. Corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence. Some discrepancies in the statement of a child witness cannot be made the basis for discarding the testimony. Discrepancies in the deposition, if not in material particulars, would lend credence to the testimony of a child witness who, under the normal circumstances, would like to mix-up what the witness saw with what he or she is likely to imagine to have seen. While appreciating the evidence of the child witness, the courts are required to rule out the possibility of the child being tutored. In the absence of any allegation regarding tutoring or using the child witness for ulterior purposes of the prosecution, the courts

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have no option but to rely upon the confidence inspiring testimony of such witness for the purposes of holding the accused guilty or not.”

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14. In State of Uttar Pradesh vs. Krishna Master & Ors.,

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(2010) 12 SCC 324, the Hon’ble Apex Court held as under:-.

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“36……..There is no principle of law known to this Court that it is inconceivable that a child of tender age would not be able to recapitulate facts in his memory witnessed by him long ago. This witness has claimed on oath before the Court that he had seen five members of his family being ruthlessly killed by the respondents by firing gunshots. When a child of tender age witnesses gruesome murder of his father, mother, brothers etc. he is not likely to forget the incident for his whole life and would certainly recapitulate facts in his memory when asked about the same at any point of time, notwithstanding the gap of about ten years between the incident and recording of his evidence.

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37.This Court is of the firm opinion that it would be doing injustice to a child witness possessing sharp memory to say that it is inconceivable for him to recapitulate facts in his memory witnessed by him long ago. A child of tender age is always receptive to abnormal events which take place in its life and would never forget those events for the rest of his life. The child would be able to recapitulate correctly and exactly when asked about the same in future…...”

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As can be culled out from the legal principles enumerated by

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the Hon’ble Apex Court in the aforesaid judgments, the testimony of the child witness has to be carefully scrutinized before the same is believed by the court and if the court comes to the conclusion that the testimony of the child is found reliable, trustworthy and truthful, then the same cannot be discarded on the mere premise that the witness happened to be a child witness.

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It is also the settled position of law that in the case of sexual

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assault, if the version of the prosecutrix is credible, consistent, inspires confidence and without any basic infirmity, same can be the sole basis for conviction. In support of this, we place reliance on the decision of the Hon’ble Apex Court in Dola Alias Dolagobinda Pradhan and another Vs. State of Odisha, (2018) 18 SCC 695, wherein the Hon'ble Apex Court summarized the general Rule and exceptions thereto, to base the conviction on the sole testimony of the prosecutrix, at paragraphs 6 to 9, which read as under:-

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"6. It is well settled law that if the version of the prosecutrix is believed, basic truth in her evidence is ascertainable and if it is found to be credible and consistent, the same would form the basis of conviction. Corroboration is not a sine qua non for a conviction in a rape case. The evidence of a victim of sexual assault stands at par with the evidence of an injured witness and is entitled to great weight, absence of corroboration notwithstanding. If the evidence of the victim does not suffer from any basic infirmity and the "probabilities factor" does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration, except from medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming. When a grown up and married woman gives evidence on oath in Court that she was raped, it is not the proper judicial approach to disbelieve her outright.

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7. In this regard it would be useful to quote certain observations of this Court in the case of Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat, [(1983) 3 SCC 217] wherein it is observed that:

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10. By and large these factors are not relevant to India, and the Indian conditions. Without the fear of making too wide a statement, or of overstating the case, it can be said that rarely will a girl or a woman in India make false allegations of sexual assault on account of any such factor as has been just enlisted. The statement is generally true in the context of the urban as also rural Society. It is also by and large true in the context of the sophisticated, not so sophisticated, and unsophisticated society. Only very rarely can one conceivably come across an exception or two and that too possibly from

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amongst the urban elites.Because: (1) A girl or a woman in the tradition bound non- permissive Society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. (2) She would be conscious of the danger of being ostracised by the Society or being looked down by the Society including by her own family members, relatives, friends and neighbors. (3) She would have to brave the whole world. (4) She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered. (5) If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family. (6) It would almost inevitably and almost invariably result in mental torture and suffering to herself. (7) The fear of being taunted by others will always haunt her. (8) She would feel extremely embarrassed in relating the incident to others being over powered by a feeling of shame on account of the upbringing in a tradition bound society where by and large sex is taboo. (9) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy. (10) The parents of an unmarried girl as also the husband and members of the husband's family of a married woman would also more often than not, want to avoid publicity on account of the fear of social stigma on the family name and family honour. (11) The fear of the victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her innocence. (12) The reluctance to face interrogation by the investigating agency, to face the court, to face the cross examination by Counsel for the culprit, and the risk of being disbelieved, acts as a deterrent. 11. In view of these factors the victims and their relatives are not too keen to bring the culprit to books. And when in the face of these factors the crime is brought to light there is a built-in assurance that the charge is genuine rather than fabricated. On principle the evidence of a victim of sexual assault stands on par with evidence of an injured witness. Just as a witness who has sustained an injury (which is not shown or believed to be self inflicted) is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a sex-offence is entitled to great weight, absence of corroboration notwithstanding. And while

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corroboration in the form of eye witness account of an independent witness may often be forthcoming in physical assault cases, such evidence cannot be expected in sex offences, having regard to the very nature of the offence. It would therefore be adding insult to injury to insist on corroboration drawing inspiration from the rules devised by the courts in the Western World (Obeisance to which has perhaps become a habit presumably on account of the colonial hangover). We are therefore of the opinion that if the evidence of the victim does not suffer from any basic infirmity, and the "probabilities factors" does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming, subject to the following qualification: Corroboration may be insisted upon when a woman having attained majority is found in a compromising position and there is a likelihood of her having levelled such an accusation on account of the instinct of self- preservation. Or when the 'probabilities factor' is found to be out of tune". (emphasis supplied)

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8. In Sadashiv Ramrao Hadbe v. State of Maharashtra, [(2006) 10 SCC 92], this Court reiterated that the sole testimony of the prosecutrix could be relied upon if it inspires the confidence of the Court:

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"9. It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the court. If the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the court shall not act on the solitary evidence of the prosecutrix. The courts shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen."

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9. However, as is also evident from the observations above, such reliance may be placed only if the testimony of the prosecutrix appears to be worthy of credence. In this regard, it is also relevant to note the following observations of this Court in the case of Raju v. State of Madhya Pradesh, [(2008) 15 SCC 133], which read thus:

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"10. The aforesaid judgments lay down the basic

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principle that ordinarily the evidence of a prosecutrix should not be suspected and should be believed, more so as her statement has to be evaluated on a par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. Undoubtedly, the aforesaid observations must carry the greatest weight and we respectfully agree with them, but at the same time they cannot be universally and mechanically applied to the facts of every case of sexual assault which comes before the court.

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11. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration."

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Having due regard in our mind to the above-mentioned settled position in law, we have assessed the entire material on record meticulously."

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Reverting back to the case in hand, the allegations against

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the accused are that he committed repeated penetrative sexual assault

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upon his own minor daughter, i.e. victim ‘S’. Therefore, the evidence of the prosecution, more particularly the testimony of victim, has to be scrutinized in the light of the law laid down by the Hon’ble Supreme Court.

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PW-2 ‘V’, is the daughter of accused and she is elder to victim ‘S’. She deposed that she was a house wife, her date of birth was 01.03.1995 and they were three sisters and one brother. She further

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deposed that in the year 2013, they were residing alongwith their father at village ‘A’ in the rented house of Rajinder Singh. Her mother had already died and her elder sister got married, who was residing at her in-law’s house. On 08.03.2013 she had gone to the house of her elder sister. Her younger sister (victim ‘S’) was studying in 4^th class and her brother was studying in 8^th class. She got married on 24.10.2014. On 12.03.2013 she alongwith her elder sister, her Nanad (sister-in-law) and her motherin-law had gone to Ayurvedic Hospital, Rebon, Solan, where victim ‘S’ disclosed that on 08.01.2013 and 10.03.2013, her father had raped her and threatened her not to disclose the incident to any one. On 18.03.2013 she was discharged from hospital and went home, where her father again raped her and she disclosed the said fact to them on 19.03.2013.Thereafter victim ‘S’ was taken to the house of her eldest sister. This witness further deposed that her father also raped her (PW-2) twice and she disclosed this fact to her elder sister and thereafter she accompanied by her younger and elder sisters went to the Police Post, Saproon, where they lodged the complaint and then she and her sister (victim ‘S’) were taken for medical examination and the police visited their house.

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Victim ‘S’, while appearing in the witness-box as PW-3, deposed that in the year 2013, she was residing with her father in village

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‘A’ and at that time she was studying in 4^th class. They were three sisters and one brother and she was youngest amongst them. Her eldest sister got married in the year 2012, who was residing at village ‘G’. In the year 2013, they were residing in a rented house of Rajinder at village ‘A’ and on 08.01.2013, when her elder sister and brother were not in the house, her father committed rape upon her during night and on 10.03.2013, he again committed rape upon her during night time and also threatened her not to disclose this fact to anyone, otherwise she would be killed. On 12.03.2013 she was admitted in Ayurvedic Hospital at Rebon, Solan, where she remained admitted upto 16.03.2013 and on 12.03.2013 her sisters visited the hospital and she disclosed them the fact regarding commission of rape by her father. On 18.03.2013, her father again raped her during night time and thereafter on 19.03.2013, she alongwith her brother after school time went to village ‘G’, where she disclosed the fact of rape to her sister and on the same day, she alongwith her elder sisters went to Police Post, Saproon and the matter was reported. Her elder sister (PW-2) also disclosed that she was raped by her father twice. Thereafter, they were taken to the hospital by the police, where their medical examination was conducted.

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We have carefully scrutinized the entire evidence on record. Victim ‘S’ as well as her elder sister ‘V’ have clearly deposed that the

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accused had committed rape upon them repeatedly and he threatened the victim to do away with her life in case the matter was reported to anyone. The child victim (PW-3) as well as her elder sister (PW-2) were cross-examined at length by the learned defence counsel, however, nothing favourable could be elicited from their lengthy crossexaminations. Their statements as referred to above are clear, consistent and categorical not only with regard to criminality committed by the appellant upon them, but also regarding the manner of occurrence. There is nothing on record on the basis of which credibility of the victim could be doubted or to disbelieve her statement, referred to above. The statements of victim ‘S’ as well as her elder sister ‘V’ are quite natural and confidence inspiring. PW-7 Dr. Poonam Sharma, who had medically examined the victim ‘S’ corroborated her version. She deposed that after medical examination of victim ‘S’, she was of the opinion that there was nothing to rule out the possibility of recent sexual intercourse and she reserved her opinion till the receipt of forensic report. As per report of FSL Ext. PW7/E, human semen was detected over the clothes and vaginal slides of the victim and as per DNA report Ext. PW7/F, the DNA profile matched completely with DNA of prosecutrix and the accused. Hence, in her opinion, recent intercourse had taken place.

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The POCSO Act, 2012 is a special enactment brought in to effect with the intention to secure the freedom and dignity of tender aged children and from protecting their childhood and youth against exploitation and abuse, by providing all safeguards for their proper development in a healthy manner, also to ensure their right of privacy and confidentiality and to safeguard their best interest and well being for all round development in the society.

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The Act enables the special court to presume that the accused has committed the offence in question unless the contrary is proved by him. This presumption under Section 29 of the Act operates once the prosecution is successful in placing sufficient material to prove commission of the offence under Sections 3, 5, 7 and Section 9 of the Act. When once the Special Court presumes commission of any of these offences by the accused, it is for him to rebut the same. No doubt the accused can rebut the presumption by shattering the version of prosecution witnesses during cross examination or by demonstrating before the court that the version of the prosecution is not probable, either by stepping in to the witness box or by examining any witness or by placing any material in support of his defence.

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The learned counsel for the accused-appellant contended that he has falsely been implicated by his daughters. The appellant has

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taken plea in his statement under Section 313, Cr.P.C that his elder daughter ‘V’ wanted to perform marriage against his wishes and therefore, the victim ‘S’ connived with her elder sister ‘V’ to falsely implicate him and she performed marriage after his arrest. Therefore, the onus shifts upon him to prove such fact. However, he has not produced any evidence in his defence to support his version. Neither any material has been brought on record by the accused, nor any witness has been examined in his defence to rebut the presumption under Section 29 of the POCSO Act. It is hard to accept the contention of appellant/accused that victim ‘S’ connived with her elder sister ‘V’ to get him falsely implicated as she wanted to perform marriage against his wishes. Victim ‘S’ had clearly stated that the accused had committed rape upon her repeatedly on 08.01.2013, 10.0.3.2013 & 18.03.2013 and also threatened her not to disclose the matter to anyone. There is no reason for victim to give false evidence against her own father. No daughter can be expected to lodge a false criminal case for offence of rape against her own father. Court cannot ignore the trauma undergone by her by such inhuman act. The victim ought to have undergone lot of mental agony and shock by this act of accused. The evidence led by the prosecution clearly discloses the commission of the offence by the accused punishable under Section 6 of the POCSO Act.

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Section 6 of the POCSO Act as it stood before the amendment by Act No.29 of 2019, provided for rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and also fine. The trial Court imposed sentence on the accused for the offence punishable under Section 6 of the POCSO Act to undergo imprisonment for life with fine of Rs.50,000/- and he was also sentenced to undergo imprisonment for a term of two years for commission of the offence punishable under Section 506 of IPC.

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From the aforesaid discussion and analysis, it is found to be proved beyond reasonable doubt that the appellant committed aggravated penetrative sexual assault upon victim ‘S’, who is his own minor daughter. The appellant is a father to three daughters and these unfortunate daughters were already deprived of their mother. The father is supposed to protect the dignity and honour of his daughter but to gratify his lust, he committed rape upon his own minor daughter repeatedly. There cannot be more serious crime than a rape of a minor child and such an offence assumes a degree of severity when committed by none else than the father of the victim. Considering the overall facts and circumstances of the case, we are of the view that there is no illegality, perversity and infirmity in the impugned judgment of conviction and the order of sentence passed by the learned trial Court, which

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otherwise have been passed on proper appreciation of evidence as well as the law, as such, the same are upheld. Accordingly, the present appeal is dismissed.

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Pending miscellaneous application(s), if any shall also stand disposed of.

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Before parting with the case, we observe with utmost displeasure that the identity of the victim has been disclosed by the trial Judge while recording her statement. The privacy of child victim has been sought to be protected in the course of investigation and trial of cases under the various provisions of the Act. Section 23 of the Act lays down an embargo on any report or comment made or photograph published in any media disclosing the identity of the child including his/her name, address, photograph, family details, school, neighbourhood or any other particulars in relation thereto. Contravention of the said provision is made punishable under sub- section (4) thereof. Section 24(5) of the Act, inter alia, provides that police officer shall ensure that the identity of the victim shall be protected from public media. Section 33(7) enjoins the Special Court to ensure that the identity of the child is not disclosed at any time during the course of investigation or trial unless for reasons recorded in writing the Court permits such disclosure in the interest of the child. For the purpose of the said section, identity of the child is defined to include

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"the child's family, school, relatives, neighbourhood or any other information by which the identity of the child may be revealed”. Section 36 of the said Act permits the child to give evidence in such manner that he or she is not exposed to the accused at the time of recording evidence and permits such child to record statement through video conferencing or by utilizing single visibility mirror or curtains to achieve such purpose. Section 37 of the Act mandates that trial in cases under the Act shall be held in camera in the presence of the parents of the child or any other person in whom the child has trust or confidence. The aforesaid provisions, therefore, make it clear that the functionaries under the Act, namely, the investigating agency, the prosecutors and the court must take appropriate measures to ensure that the identity of the child is not disclosed to his/her prejudice in the course of investigation and trial. In Sakshi Vs. Union of India & others, (2004) 5 SCC 518 , safeguards were laid down with regard to trial in cases of child sexual abuse and the privacy safeguards were also extended to cases under section 354 and 377, IPC and the Hon’ble Apex Court laid down the following safeguards in child sex abuse cases:-

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"34............

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(1) The provisions of sub-section (2) of Section 327 CrPC shall, in addition to the offences mentioned in the sub-section, also apply in inquiry or trial of offences under Sections 354 and 377 IPC.

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(2) In holding trial of child sex abuse or rape:

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(i) a screen or some such arrangements may be made where the victim or witnesses (who may be equally vulnerable like the victim) do not see the body or face of the accused; (ii) the questions put in cross-examination on behalf of the accused, insofar as they relate directly to the incident, should be given in writing to the presiding officer of the court who may put them to the victim or witnesses in a language which is clear and is not embarrassing;

¶118

(iii) the victim of child abuse or rape, while giving testimony in court, should be allowed sufficient breaks as and when required."

¶119

In the instant case, there is nothing on record to suggest that the procedure of screening the victims from the accused as provided under Section 36 of the Act has been followed by the trial Court while recording their evidence. As already observed, the identity of the victim, her sisters, mother as well as name of her village & school during the course of trial has been disclosed which amounts to breach of the statutory mandate. Hence, all the Special Courts (POCSO) and all other courts dealing with cases under POCSO Act within the state of H.P. are directed to take all measures to ensure that the identity of the child victim is not disclosed to his/her prejudice during the course of investigation and trial and to hold the trial of the case in camera as per Section 37 of the Act by following the procedure of screening the victim from the accused as per Section 36 of the Act. Registrar General of this Court is directed to circulate a copy of this judgment to all the District & Sessions Judges as well as Special Courts (POCSO) within the State of

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2024:HHC:4342

¶122

H.P. for effective implementation of the POCSO Act and the rules made thereunder. A copy of this order be also forwarded to the Member Secretary, HP State Legal Services Authority as well as H.P. State Judicial Academy for wider deliberation.

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( Tarlok Singh Chauhan )

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Judge

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( Sushil Kukreja ) Judge

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July 3^rd , 2024 (VH)

Bhanei Prasad @ Raju Prasad v. State of Hp

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Bhanei Prasad @ Raju Prasad v. State of Hp

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