2017 (3) TMI 1969 - HC - Indian Laws

POCSO identity protection is mandatory; disclosure of a child's identity in judgments breaches statutory mandate and privacy rights

HC held that statutory protections under POCSO (sections protecting identity, in-camera trials, recording evidence by measures to prevent exposure) must ... Sexual assault - prosecution case has been proved beyond reasonable doubt or not - contradiction in the manner in which the victim was subjected to sexual assault - HELD THAT:- Section 24(5) of the POCSO 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 '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 curtain 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. Evidence of the child may also be recorded by way of commission under section 284 of the Code of Criminal Procedure, if necessary. 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. Trial of a case concludes by delivery of judgment, hence, disclosure of identity of child in the judgment delivered by the Special Court would amount to breach of the aforesaid statutory mandate. The legislative mandate as interpreted by judicial pronouncements create a humanizing impact on the adversarial trial processes in child sex abuse cases and make it imperative that the privacy and other basic human rights of the child victim are scrupulously protected so as to achieve the goal of access to justice to the most vulnerable section of society, namely, children subjected to sexual abuse, in the truest sense. Concerned Legal Services Authority shall ensure that the interim/final compensations are paid to the victim from the Victim Compensation Fund or any other scheme/fund established under section 357A Cr.P.C. or the State government, as the case may be - Registrar General is directed to circulate a copy of the judgment to all Special Courts in the State of West Bengal for necessary implementation of aforesaid directions. The appeal is accordingly disposed of and the application being CRAN 4926 of 2016 is dismissed as infructuous. ISSUES PRESENTED AND CONSIDERED 1. Whether the prosecution proved beyond reasonable doubt the offence of sexual assault under Section 7 read with Section 8 of the Protection of Children from Sexual Offences Act, 2012 (POCSO) where the victim and witnesses gave varying accounts as to the precise part of the child's body touched. 2. Whether contradictions regarding the place from which the victim fetched water (house tube well versus school tube well) and minor variations in statements erode the credibility of the prosecution case. 3. Whether the medical evidence (intact hymen; statement to doctor indicating thigh-touch) negatives or materially weakens the charge of indecent touching under POCSO. 4. Appropriateness of sentence imposed by the trial court and whether modification is required in view of age, antecedents and facts. 5. Whether the Special Court is obliged to consider and award compensation to the child-victim under Section 33(8) POCSO read with Rule 7 of the Protection of Children from Sexual Offences Rules, 2012, and the scope and source of such compensation. 6. Whether disclosure of the child-victim's identity in the trial court's judgment contravenes statutory safeguards and what remedial/directional measures should follow to prevent recurrence. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Sufficiency of evidence to sustain conviction under Section 7/8 POCSO (sexual assault by touching) Legal framework: Section 7 POCSO defines 'sexual assault' to include touching of vagina, penis, anus or breast or touching any part of body with sexual intent without penetration; Section 8 prescribes punishment. Proof must establish physical contact with sexual intent. Precedent Treatment: The Court relies on statutory definition and principles of criminal proof; no prior decisions are materially overruled or distinguished, but principles of drawing inferences from consistent ocular testimony are applied. Interpretation and reasoning: The Court accepted consistent ocular testimony of the victim and family members and corroboration by independent local witnesses that the accused accosted the child, took her behind the school and indecently touched her. The Court held that the statutory ambit of sexual assault includes touching 'any part of her body with a sexual intent', so precise anatomical variation (vagina v. thigh v. general body) is not determinative where the touch was lascivious and unwanted. Ratio vs. Obiter: Ratio - conviction can be sustained where consistent evidence establishes touching with sexual intent even if witnesses differ as to exact body part touched; minor contradictions do not vitiate the core allegation. Obiter - observations on possible shame-based nondisclosure to the doctor explaining variance in descriptions. Conclusions: The ingredients of sexual assault under Section 7/8 POCSO were proved beyond reasonable doubt; conviction upheld as supported by consistent ocular evidence and acceptable corroboration. Issue 2 - Effect of contradictions about the place of fetching water and other minor discrepancies Legal framework: Credibility is judged by overall consistency and corroboration; minor discrepancies do not automatically lead to acquittal where core facts are steady. Precedent Treatment: Applied established evidentiary principles distinguishing material contradictions from minor variations; no precedent departure. Interpretation and reasoning: Although there was evidence of a tube well in the house, the victim's consistent account (corroborated by family and independent witnesses) that she went to the nearby school tube well was accepted. The Court found that the existence of another tube well at home did not improbabilise the prosecution case given the corroborated account of where she actually went. Ratio vs. Obiter: Ratio - minor or collateral contradictions (reason for going to particular tube well) do not negate a consistent and corroborated account of the offence. Obiter - none significant beyond application of the principle. Conclusions: The contention based on the presence of an in-house tube well and other minor discrepancies failed; such contradictions did not destroy the prosecution's case. Issue 3 - Role and weight of medical evidence Legal framework: Medical evidence is a part of the proof matrix but absence of injury or intact hymen does not preclude finding of sexual assault where touching occurred; victim's statement to medical officer is relevant but not conclusive. Precedent Treatment: Consistent with established approach that medical findings must be read with ocular testimony and circumstances; medical silence on certain details can be explained by embarrassment or reporting choices of the victim. Interpretation and reasoning: The doctor recorded that the victim said she was touched on the thigh and found hymen intact; the Court held this does not contradict the charge of sexual assault because Section 7 includes touching other body parts with sexual intent and because victims may downplay or describe the assault differently to medical personnel out of shame. Medical evidence corroborated absence of penetration but did not negate indecent touching. Ratio vs. Obiter: Ratio - intact hymen and doctor's note of thigh-touch do not preclude conviction for sexual assault by touching; medical evidence must be considered in the context of the whole evidence. Obiter - explanatory note on embarrassment affecting reporting to doctor. Conclusions: Medical evidence did not materially weaken prosecution; it was consistent with non-penetrative sexual assault and therefore did not displace conviction. Issue 4 - Sentence appropriateness and modification Legal framework: Sentencing under POCSO must account for statutory minima/maxima, age of accused, antecedents, and mitigating circumstances; period of detention to be set off under Section 428 Cr.P.C. Precedent Treatment: Court exercised appellate sentencing power to modify excessive sentence in light of youth and absence of criminal antecedents, consistent with sentencing principles. Interpretation and reasoning: Trial court imposed rigorous imprisonment for five years and fine. On appeal, considering the appellant's age (~19) and lack of antecedents, the Court reduced substantive imprisonment to three years and increased the fine to Rs.10,000 with default clause, and directed set-off of detention already undergone. Ratio vs. Obiter: Ratio - appellate court may modify sentence balancing gravity of offence and mitigating personal circumstances even while upholding conviction. Obiter - guidance on set-off provisions. Conclusions: Conviction maintained; sentence reduced to three years' rigorous imprisonment with specified fine; period of detention to be set off. Issue 5 - Duty to award compensation under Section 33(8) POCSO and Rule 7 Rules, 2012; source and quantum Legal framework: Section 33(8) POCSO empowers Special Court to direct payment of compensation for physical/mental trauma or immediate rehabilitation; Rule 7 prescribes parameters, interim compensation, and payment from State Victim Compensation Fund (Section 357A CrPC) or other State schemes. Precedent Treatment: The Court interpreted Rule 7(3) factors and State schemes as enabling broader judicial discretion to award reasonable compensation beyond statutory minima; relied on analogy with Victim Compensation Fund and prior jurisprudence protecting victims' rights. Interpretation and reasoning: The Court held that Special Court may award interim/final compensation from State Victim Compensation Fund or other State schemes and is not restricted to minimum limits in the Fund. The Court exercised discretion, considering the victim's age (11) and trauma, and awarded Rs.75,000 to be paid by the State via State Legal Services Authority within one month. Ratio vs. Obiter: Ratio - Special Court has power to award interim/final compensation under Section 33(8) POCSO read with Rule 7, drawing on State Victim Compensation Fund but not confined by its minima. Obiter - explanatory comments on purpose of State-funded reparation and interpretation of scheme limits. Conclusions: Compensation of Rs.75,000 awarded payable by State within the prescribed mechanism and timeline; Special Court's duty to consider and record reasons where compensation not granted was reiterated. Issue 6 - Prohibition on disclosure of victim identity and consequential directions Legal framework: Sections 23, 24(5), 33(7), 36 and 37 POCSO (and analogous provisions in CrPC/IPC jurisprudence) prohibit disclosure of child-victim identity and require in-camera trials and protective measures for evidence recording. Precedent Treatment: Court invoked earlier Supreme Court dicta (e.g., anonymity and protective procedures in child sex trials) as interpretive support for statutory safeguards. Interpretation and reasoning: The Court found that the trial judge disclosed the child's identity in the trial judgment, breaching statutory mandate. Emphasizing the privacy-protective purpose of POCSO, the Court issued detailed mandatory directions to police, prosecutors, Special Courts, Legal Services Authorities and administrative bodies to ensure registration, medical aid, in-camera trials, screening, recording of evidence in child-friendly manner, non-disclosure of identity (including in judgments), prompt compensation processes, and expeditious trial preferably within one year. Ratio vs. Obiter: Ratio - disclosure of child identity in judgments contravenes POCSO and is impermissible unless Court records reasons in interest of the child. Obiter - comprehensive operational directions to implement statutory safeguards and sensitize authorities (administrative guidance though binding as directions of the Court in the present judgment). Conclusions: Breach remedied by issuance of binding directions to investigating agencies, Special Courts and State authorities to prevent disclosure and to implement child-protective procedures; circulation of judgment to relevant authorities ordered.