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Victim of an assault is the best judge of the incident: Calcutta High Court

Victim of assault is the best judge of the incident in a case involving sexual assault by stepfather who was earlier convicted by trial court under section 354 and 325 of IPC and section 8 of POSCO Act.This ruling is provided by Calcutta High Court consisting of Justice Bibek Chaudhuri, learned single judge in the matter of Prabir Bhuiyan alias Prabir Bhuinyan v. The State of West Bengal in CRA 517 of 2017 decided on 16.12.2021.

The facts of this case are that the mother of the victim remarried the appellant after her first husband passed away in an accident, leaving her with two children, a boy and a girl.The elder girl child is the victim in this case. After her second marriage, the mother started staying with the appellant along with her children.In 2014, there were instances when the appellant inappropriately touched the sensitive parts of the victim’s body during midnight and forcibly resisting her to sleep with her mother and sleeping with her instead with his hands on her body.Both the incident lead to quarrel between the spouses and the appellant ended up beating the mother brutally.On 6th December 2014, the appellant forcibly tried to enter the adjacent locked room where the victim was sleeping.He repeatedly called her to enter the roon but to no avail. Later,he started to physically assault the mother when she denied to aid him in entering the room.This led to loud noises which compelled the victim to open the door.The appellant proceeded towards the victim but the mother somehow managed to enter the room and locked it again from inside to prevent him from entering.An FIR was filed the next day.The learned special judge of the trial court convicted the appellant of the same and sentenced him to imprisonment of five years with fine along with a default clause.This order of conviction is under challenge in this case.

The counsel on behalf of the appellant contended that no inappropriate touch to the victim took place and no arguments or fights ensued between them regarding it ever.All these instances complained of only involved hugs and touch out of  “paternal love and affection shown by the appellant to the daughter” of the mother.There were also material contradictions provided by the statements and evidences of the mother and victim.All the accusations are mere embellishments and exaggerations to implicate the appellant.

Prabir_Bhuian_v_State_of_WB CHCThe counsel on behalf of the De-facto Complainant contended that section 33 of the POSCO Act provides for compensation to a child who is a victim of any physical or mental trauma experienced by her and the trial court did offer the same.He contended that the amount of compensation being only rupees five thousand is not proportionate to the mental trauma

The Calcutta High Court held that there will naturally be certain discrepancies in the evidence provided by the minor girl child victim.But it is important to consider the instance of sexual assault on minor from the victim’s perspective as the victim is the best judge of the incident.The judgement authored by learned single commences as Sexual perversity is not only a personal disease, but also a social menace. The act itself is not merely a solitary harrowing experience of the victim. The trauma and the ensuing stigmatization pervades every aspect of her social life. The effect of trauma and insecurity in the mind of the victim are more pervading when she is sexually harassed and assaulted by her stepfather.”

This case also issued 11 news additions to  guidelines provided in cases discussed within the judgement, which are Ravishankar Alias Baba Vishwakarma vs. State of Madhya Pradesh reported in (2019) 9 SCC 689, Lalit Yadav vs. State of Chhattisgarh (2018) 7 SCC 499 and Nipun Saxena & Another vs. Union of India & Others reported in (2019) 2 SCC 703.These guidelines are for the effective compliance of Section 33(7) of the POCSO Act:-

  1. The Officer-in-Charge of every police station shall ensure that in the written complaint the name of the victim girl shall not be stated. The 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.
  2. In the formal FIR and charge-sheet the name of victim girl shall not be stated by the Investigating Officer. On the other hand, she shall be described as “victim”.

iii. In the column of witnesses in the charge-sheet the victim girl shall not be referred to by her name but as “victim.”

  1. In her statement recorded under Section 161 of the Code of Criminal Procedure, the Investigating Officer shall not record the name of the victim. The said statement shall be referred to as “statement of the victim”.
  2. Similarly, while recording the statement of the victim under Section 164 of the Code of Criminal Procedure, the learned Judicial Magistrate shall not record her name. On the other hand she shall record the statement as “the statement of the victim”.
  3. In order to identify the victim, she shall take help of the parents of the victim. He shall also endorse such identification of the victim by her parents at the top of the statement of the victim recorded under Section 164 of the Code of Criminal Procedure.

vii. The Judicial Magistrate shall obtain the signature or LTI of the victim on a separate page after her statement is read over and explained to the victim by him. The signature of the victim along with the certificate of the learned Magistrate in separate page shall be kept separately in a sealed cover and the learned Special Judge shall be entitled to open the said sealed envelop, if necessary during trial.

viii. In the deposition sheet of the victim girl, the learned Special Judge shall not record the name of the victim. He/she shall be identified as “victim” in the deposition sheet.

  1. The signature of the victim witness in her deposition shall be taken by the learned Special Judge in a separate sheet and the said sheet of paper with signature and certificate by the learned Special Judge shall be kept in the record in sealed envelop. The Appellate Court shall open the envelop case of the identity of the victim girl being made an issue.
  2. In the judgment the name of the victim girl shall never be stated or recorded by the learned Special Judge.
  3. The Medical Officer shall not record the name of the victim girl in the Medical Examination Document. On the other hand, the victim girl shall be identified as the “victim” in Medical Examination Report. Similarly, in forensic report victim’s identity by taking her name is prohibited.”

 

 

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