Prabir Bhuian Alias Prabir ... vs The State Of West Bengal
2021 Latest Caselaw 6369 Cal

                 IN THE HIGH COURT AT CALCUTTA
                CRIMINAL APPELLATE JURISDICTION
                          APPELLATE SIDE


The Hon'ble JUSTICE BIBEK CHAUDHURI


                            CRA 517 of 2017

                  Prabir Bhuian Alias Prabir Bhuinyan
                                   -Vs-
                        The State of West Bengal

      For the appellant:      Mr. Abhijit Basu, Adv.,
                              Mr.J.N. Pal, Adv.,
                              Mr. Arghya Kamal Das, Adv.

      For the Respondent/de facto complainant:

Mr. Sukanta Chakraborty, Adv., Mr. Zuber Ahmed, Adv., Mr. Anindya Halder, Adv.

      For the State:          Mr. Ranabir Roy Chowdhury, Adv.,
                              Mr. Mirza Firoj Ahmed Begg, Adv.


Heard on: December 09, 2021.
Judgment on: December 16, 2021.

BIBEK CHAUDHURI, J. : -

1. 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.

2. The defacto complainant lost her first husband in an accident.

While she was staying with her two children, the elder one, a girl child

and younger one is a boy, she had an acquaintance with one Prabir

Bhuia, the appellant herein. In course of time the appellant and the

defacto complainant developed a love relations his and she married to the

appellant for the second time. After marriage she started staying with the

appellant with her children from her first marriage.

3. Sometimes during Durga Puja days in 2014 her daughter told her

that during midnight when everybody was sleeping the appellant touched

several sensitive parts of her body inappropriately. Hearing this a hot

altercation ensued between the defacto complainant and the appellant

and during such altercation she was severely beaten by the appellant.

However, the matter was solved when the appellant had sought for

apology. On 29th November, 2014 the defacto complainant noticed that

her husband was sleeping on the adjacent room where her daughter used

to sleep by the side of her daughter keeping his hand on her body. She

asked her daughter about the incident when she told that she wanted to

sleep with her mother but the appellant forcibly seized her and resisted

her from going to the bed of her mother. Over the said incident there was

quarrel between the defacto complainant and her husband for a week.

Again on 6th December, 2014 the appellant knocked at the door of the

room of the daughter of the defacto complainant where she was sleeping.

The daughter of the defacto complainant used to sleep in the said

adjacent room closing the door from the inside on being directed by the

defacto complainant. He also called the daughter of the defacto

complainant over phone repeatedly. Then he tried to take the mobile

phone of his wife from below of her pillow. When she resisted the

appellant assaulted her severely. Defacto complainant raised hue and cry

and hearing her cry the daughter of the defacto complainant opened the

door and came out of her room. The appellant was about to proceed

towards her. The defacto complainant somehow entered into the room of

her daughter and closed the door from inside.

4. On the basis of the said complaint police registered Uttar Para P.S

Case No.426 of 2014 dated 7th December, 2014 under Section 7 and 12 of

the POCSO Act and took up the case for investigation.

5. On completion of investigation police submitted charge-sheet

against the appellant before the learned Special Judge under POCSO Act,

Hooghly. The learned Special Judge on perusal of the charge-sheet and

other related documents frame charged against the appellant under

Section 354 and Section 325 of the Indian Penal Code and Section 8 of

the Protection of Children From Sexual Offences Act. As the accused

pleaded not guilty, trial of the case commenced.

6. During trial, prosecution examined seven witnesses. Amongst them

PW1 is the daughter of the defacto complainant. PW2 is the learned

Judicial Magistrate, 3rd Court at Srirampur who recorded the statement of

the victim girl and the defacto complainant under Section 164 of the Code

of Criminal Procedure. PW3 is the defacto complainant and PW6 and PW7

are the Police Officers. PW4 Debasish Pal and PW5 Sailen Pal are the

residents of 20 B.B Street, Bhadrakali. They were cited as witnesses on

behalf of the prosecution but during their evidence they did not support

the prosecution case and were declared hostile.

7. The learned Special Judge under POCSO Act convicted the

appellant for committing offence under Section 8 of the POCSO Act and

sentenced to suffer imprisonment for five years with fine and default

clause.

8. The said judgment and order of conviction and sentence dated 7th

July, 2017 is under challenge in the instant appeal.

9. At the very beginning of the hearing of the instant appeal a question

arose if the defacto complainant or the victim is a necessary party to an

appeal under Section 374 from conviction. The above question is

conclusively decided by the Division Bench of this Court proceeded over

by the Hon'ble Chief Justice Thottathil B. Radhakrishnan (as his Lordship

then was) in CRA 228 of 2020 with CRA 26 of 2021 in the judgment dated

6th April, 2021.

10. It is held in the aforesaid judgment that the victim is not a

necessary party to a criminal appeal from conviction for offences against

women or child punishable under the provision of IPC or POCSO Act or

any other penal provision which will apply in relation to offence affecting

human body against any "woman" and or "child". No such appeal would

be defective in the absence of impleadment of victim.

11. It is submitted by Mr. Basu, learned Advocate for the appellant that

in the instant case apart from the victim girl and her mother being the

defacto complainant nobody supported the prosecution case. The

evidence of both the victim girl and her mother (PW3) is full of material

contradictions and their evidence cannot be relied upon in order to hold

the appellant guilty under Section 8 of the POCSO Act. In order to

substantiate his argument, learned Advocate for the appellant refers in

detail the evidence of PW1, PW3 and PW7 who is the Investigating Officer

of this case.

12. PW1, the victim of the alleged incident stated in her evidence that at

the relevant period of occurrence she used to reside at premises No.20 BB

Street, Hindmotor with her mother, younger brother and stepfather Prabir

Bhuia, appellant herein. Initially the appellant was very cordial to her and

she used to behave well with her but after registration of marriage

between the appellant and her mother, attitude of the appellant towards

her gradually started changing. The appellant on different pleas used to

touch various parts of her body including breast, face and other parts.

She did not like such attitude of the appellant. One day in the month of

August, she and her brother were sleeping in the room with her parents.

Sometimes in the midnight she felt that someone was touching her body.

She woke up from sleep and saw that her father was about to touch her

breast. She removed his hand and got up from the bed. Her mother and

brother were in deep sleep at that time. Subsequently also, he touched

various parts of her body and asked her not to tell such fact to her

mother. When she found that all such inappropriate act and behaviour of

her stepfather was continuing, she disclosed the incident to her mother. A

quarrel broke out between them and her mother instructed her to sleep in

another room closing the door. On the immersion day of Durga Puja of

2014 the appellant assaulted the defacto complainant over the said issue

and there was furious quarrel between them. Since then the victim

started to sleep in her room opening the door. On 29th November, 2014 at

midnight she suddenly woke up from her sleep and found her stepfather

sleeping beside her. He hugged her like a side pillow and touched her hip.

She tried to leave the bed to go to her mother but the appellant restrained

her by pressing her against bed. Then she raised an alarm which

attracted her mother. She rushed to her room and there was a quarrel

between mother and the appellant. Her mother again instructed her to

sleep in her room closing the door from inside and not to open the door

until she was called by her mother over phone.

13. In her statement recorded under Section 164 of the Code of

Criminal Procedure she stated that her stepfather used to touch different

parts of the body inappropriate and indecent manner since quite some

days before Puja Vacation. She informed the matter to her mother and the

appellant stopped touching her indecently for some time. However, one

day at midnight she suddenly woke up from sleep and found her

stepfather lying beside her and keeping one hand on her back. She tried

to leave and go to her mother but the appellant forced her to lie down by

his side. In the mean time her mother came to the room, made her free

from the clutches of the appellant. Her mother instructed her to sleep in

her room closing the door and not to open the door before receiving call

from her mother. Some days after at night, she woke up from her sleep

and saw that her stepfather was assaulting her mother severely. Her

mother somehow saved herself and took shelter in her room. Then the

appellant called her over phone repeatedly but she did not open the door.

14. It is submitted by the learned Advocate for the appellant that in her

statement recorded under Section 164 of the Code of Criminal Procedure

the victim stated that since sometime before the Puja holidays her

stepfather used to touch her inappropriately at various places of her body

and when she informed the matter to her mother, it was discontinued for

few days. In her evidence recorded on 29th September, 2015 the victim girl

stated on oath that initially her stepfather used to behave with her in

proper manner. However after registration of marriage between the

appellant and her mother there was a change in behaviour of his

stepfather. The appellant on different pleas used to touch the various

parts of her body including breast, face and other parts she did not like

such specific act of the accused.

15. The learned Advocate for the appellant next refers to the evidence of

PW7 who is the Investigating Officer of the case. From his cross

examination it is ascertained that the victim girl did not state her that

after registration of marriage with her mother there was a change in the

behaviour of the appellant. In course of evidence, the Investigating Officer

stated that the victim girl did not state before him that one day in the

month of August, 2014 when she was sleeping with her brother in the

room of her parents she felt that somebody was touching her body and

she woke up and found that the appellant was about to touch her breast

but she removed his hand and got up from the bed. She also did not state

to the Investigating Officer that even afterwards he used to touch the

various parts of her body and asked her not to tell such indents to her

mother. However she disclosed the incident to her mother and as per her

instruction she started sleeping in her room closing the door. She also did

not state to the I.O that on 29th November, 2014 in the midnight she

suddenly woke up from her sleep and found her father was sleeping

beside her and he hugged her like a side pillow touching her hip. She also

did not state the said fact to the learned Judicial Magistrate who recorded

her statement under Section 164 of the Code of Criminal Procedure.

16. Thus, according to the learned Counsel for the appellant the victim

went on gradually developing her case to implicate the accused/appellant

in an offence under the POCSO Act. Such exaggeration, embellishment

and development of the prosecution case during the evidence amounts to

material contradiction and the learned trial judge failed to consider such

contradictions to discard the evidence of PW1.

17. It is further submitted by the learned Advocate for the appellant

that in the FIR the defacto complainant stated that during Durga Puja

days her daughter told her that sometimes at midnight the appellant

touched several sensitive parts of her body in order to arose his sexual

last. The second incident allegedly took place on 29th November, 2014. On

that date at night the defacto complainant found her husband lying by

the side of her daughter in her room. Her daughter also told her that the

appellant touched numerous parts of her body. Last incident allegedly

happened on 6th December, 2014 at night when the appellant knocked

repeatedly at the door of the defacto complainant's daughter's room. He

also took away her mobile phone lying under her pillow to call the victim.

The defacto complainant resisted her from making any phone call to her

daughter from her mobile phone. At this the appellant physically

assaulted the defacto complainant. The defacto complainant then took

shelter in the room of her daughter and closed the door from inside. In

her evidence in chief, the victim girl stated that on the immersion day of

Durga Puja of 2014 her father assaulted her mother during a quarrel

which broke out between them as he touched various parts of her body.

With regard to the incident dated 29th November, 2014 it was stated by

the victim that she suddenly woke up from sleep at midnight and found

that his father was sleeping beside her. He hugged her like the side pillow

and touched her hip. She tried to call her mother but the appellant

restrained her by pressing her on the bed. She raised alarm which

attracted her mother and then quarrel between them and the appellant

left the room. She was absolutely silent with regard to the incident which

allegedly took place on 6th December, 2014.

18. It is argued by the learned Advocate for the appellant that the

victim girl tried to give sexual colour to the incident dated 29th November,

2014. A father can lovingly touch the back of his daughter. He can sleep

beside his daughter. He also can hug her. All these are instances of

paternal love and affection shown by the appellant to the daughter of the

defacto complainant.

19. It is submitted by the learned Advocate for the appellant that in

spite of the contradictions, if the evidence of the victim and her mother is

believed, the only allegation against the accused is that he touched the

victim who is her stepfather and patted on her back. As per Webster's

Dictionary the word "back" means rear part of human body, especially

from the neck to the end of the spine. If a father pats the back of his

child, he cannot be held to be guilty for committing offence under Section

8 of the POCSO Act.

20. In a criminal trial, the previous statement of a witness can be used

by the accused for the limited purpose mentioned in Section 162 of the

Code of Criminal Procedure as provided for in Section 145 of the Evidence

Act. Therefore, on a reading of Section 162 of the Code of Criminal

Procedure bearing in mind the object of the said section and Section 145

of the Evidence Act, it is clear that an accused in a criminal trial has the

right to make use of the previous statements of a witness including the

statements recorded by the investigating agency during the course of

investigation for the purpose of establishing a contradiction in the

evidence of a witness or to discredit the witness. A former statement,

though seemingly inconsistent with the evidence need not necessarily be

sufficient to amount to contradiction. Only such of the inconsistent

statement which is liable to be contradicted would affect the credit of the

witness. Section 145 of the Evidence Act also enables the cross-examiner

to use any former statement of the witness, but it cautions that if it

intended to "contradict" the witness the cross-examiner is enjoined to

comply with the formality prescribed therein. Section 162 of the Code of

Criminal Procedure also permits the cross-examiner to use the previous

statement of the witness (recorded under Section 161 of the code) for the

only limited purpose, i.e., to "contradict" the witness. It will not be out of

place to mention that discrepancy has to be distinguished from

contradiction. Whereas contradiction in the statement of the witness is

fatal for the case, minor discrepancy or variance in evidence will not make

the prosecution's case doubtful. The normal course of human conduct

would be that while narrating the particular incident, there may occur

minor discrepancies, such discrepancies may render credential to the

depositions. Parrot like statements are disfavoured by the Courts. In order

to ascertain as to whether the discrepancy pointed out was minor or not

or the same amounted to contradiction, regard is required to be had to

the circumstances of the case by keeping in view the social status of the

witnesses and the environment in which such witness was making the

statement.

21. In the instant case the statement of the victim girl in all stages of

investigation and trial was consistent on one aspect that the appellant

being his stepfather used to touch inappropriately different parts of her

body. The mother of the defacto complainant in the FIR stated that the

appellant used to touch sensitive parts of her body. The victim in her

evidence stated that the appellant tired to touch her breast and other

parts of the body. There may be some discrepancy with regard to

description of the parts of body where she had experienced indecent touch

of the appellant, but she is consistent in her evidence that the appellant

touched her body inappropriately and on another occasion he

surreptitiously slept by the side of the victim and touched her back

inappropriately.

22. Long argument was made by the learned Advocate for the appellant

to impress upon this Court that father's touch of his daughter does not

amount to sexual harassment. It is not for the court to impose its opinion

at the time of appreciation of evidence of a case of sexual abuse. The court

must always be alive to consider the incident of sexual act from victim's

perspective. Every child in inheres an inept cognitive capacity, which is

revised, reoriented and bolstered by acquired socio-cultural influences,

familial sermans and scholastic education to discern a touch of love or

affection from a vile act of indecency or abuse. The victim is the best judge

of the incident. If she states that she was subjected to inappropriate

touch by her stepfather, the court shall have to accept her feeling. In

order to apprise the cases under the POCSO Act the robustness of

masculine judicial system must give way to the feminine feeling of the

embodiment of lady Justice.

23. Thus, though there are minor discrepancies in the evidence of the

victim such discrepancies cannot be held to be material contradictions

affect the credit of the witness. The evidence of the victim was

corroborated by her mother, defacto complainant. The victim stated in

most clear terms that her stepfather used to touch her different parts of

body inappropriately. This Court has no reason to disbelieve the evidence

of the victim and her mother.

24. The fact that even after the incident the appellant took the victim to

various schools for collecting admission forms for class XI does not matter

most because the victim was allowed to go with the appellant being

accompanied by her brother. This is the most unfortunate part of the

story when a little brother was engaged in the act of policing to prevent

their stepfather from committing any indecent act upon the victim.

25. Now, it is for the court to decide as to whether the specific act of

accused amounts to an offence of sexual assault within the meaning of

Section 7 of the POCSO Act. Section 7 defines sexual assault in the

following words:-

"Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault."

26. In the instant appeal it is important to consider the meaning of the

words "thus can any other act with sexual intent which involves physical

contact without penetration". It is already observed here-in-before that

whether a specific act amounts to an offence of sexual assault or not, is a

question of fact to be determined from victim's point of view. A girl

attaining the age of 15-16 years only understands whether any touch on

her body is appropriate or inappropriate act. She can only understand

whether a person touches her with sexual intent or not. In the instant

case the victim girl more than once stated that her stepfather touched

different parts of her body inappropriately. On one occasion, during her

sleep she woke up and found that her stepfather was trying to touch her

breast and she removed the hand of the appellant.

27. The appellant denied the allegations made against him by the victim

girl. On the other hand he tired to prove that the mother of the victim girl,

i.e., the defacto complainant is a lady of questionable character. On close

scrutiny of the entire evidence on record this court is of the view that the

prosecution was able to establish the charge against the

accused/appellant beyond any shadow of reasonable doubt.

28. When foundational fact in an offence under the POCSO Act is prove,

burden of proofing the contrary shifts upon the accused which he failed to

discharge under Section 29 of the POCSO Act. At the same time it is open

for the court to raise presumption of culpable mental state of the

appellant while committing such offence.

29. For the reasons stated above this Court does not find any infirmity

in the judgment and order of conviction and sentence passed by the

learned Additional Sessions Judge, 2nd Court at Hooghly in ST (SPL)

No.17/15 and SC (Spl.) No.109/14 (CIS No.214/14).

30. Mr. Sukanta Chatterjee, learned Advocate for the defacto

complainant submits that Sub-Section (8) of Section 33 of the POCSO Act

empowers Special Court to pass an order directing payment of

compensation to the child for any physical or mental trauma experienced

by her or for immediate rehabilitation of such child in appropriate cases.

In the impugned judgment the learned trial judge directed to pay the find

amount imposed upon the appellant towards her compensation.

According to Mr. Chatterjee, the said amount of Rs.5000/- if at all

released and paid to the victim, the said amount is not proportionate to

the mental trauma which the victim suffered in the hand of the accused.

31. It is needless to say that the Special Court is empowered to pass an

order of compensation inappropriate cases. Compensation is paid to a

victim who have suffered loss or injury as a result of the crime and

requires rehabilitation. In the instant case the victim did not suffer any

physical injury for which enhanced compensation is required to be paid.

She also does not require any compensation for rehabilitation. Therefore, I

do not find any reason to pass an order of enhanced compensation in

favour of the victim.

32. So for as the conviction and sentence under Section 323 of the

Indian Penal Code, the learned Advocate for the appellant has not made

any submission, whatsoever. From the evidence of the defacto

complainant and the victim it is clear that the defacto complainant was

subjected to physical assault by the appellant on various occasions.

33. Thus, considering entire facts and circumstances of the case, I do

not find any reason to interfere with the findings made by the learned trial

judge in the instant appeal.

34. The appeal is therefore dismissed on contest.

35. The judgment and order of conviction and sentence is affirmed.

36. Before I part with I am constrained to state a very disturbing

feature on record which is inconsistent with the statute and series of

judgments delivered by the Hon'ble Supreme Court. Sub-Section (7) of

Section 37 of the POCSO Act states:-

"The Special Court was ensure that the identity of the child is not

disclosed at any time during the course of investigation or trial:

Provided that for reasons to be recorded in writing, the special court

may permit such disclosure if in its opinion such disclosure is in the

interest of child."

37. In Nipun Saxena & Another vs. Union of India & Others reported

in (2019) 2 SCC 703 the Hon'ble Supreme Court observed as hereunder

in Paragraph 9 to 12.

"9. Sub-section (1) of Section 228A, provides that any person who makes known the name and identity of a person who is an alleged victim of an offence falling under Sections 376, 376- A, 376-AB, 376-B, 376-C, 376-D, 376-DA. 376-DB or 376-E commits a criminal offence and shall be punishable for a term which may extend to two years.

10. What is however, permitted under subsection (2) of Section 228-A IPC is making known the identity of the victim by printing or publication under certain circumstances described therein. Any person, who publishes any matter in relation to the proceedings before a Court with respect to such an offence,

without the permission of the Court, commits an offence. The Explanation however provides that printing or publication of the judgment of the High Courts or the Supreme Court will not amount to any offence within the meaning of the IPC.

11. Neither the IPC nor the CrPC define the phrase 'identity of any person'. Section 228-A IPC clearly prohibits the printing or publishing "the name or any matter which may make known the identity of the person". It is obvious that not only the publication of the name of the victim is prohibited but also the disclosure of any other matter which may make known the identity of such victim. We are clearly of the view that the phrase "matter which may make known the identity of the person" does not solely mean that only the name of the victim should not be disclosed but it also means that the identity of the victim should not be discernible from any matter published in the media. The intention of the law makers was that the victim of such offences should not be identifiable so that they do not face any hostile discrimination or harassment in the future.

12. A victim of rape will face hostile discrimination and social ostracisation in society. Such victim will find it difficult to get a job, will find it difficult to get married and will also find it difficult to get integrated in society like a normal human being. Our criminal jurisprudence does not provide for an adequate witness protection programme and, therefore, the need is much greater to protect the victim and hide her identity. In this regard, we may make reference to some ways and means where the identity is disclosed without naming the victim. In one case, which made the headlines recently, though the name of the victim was not given, it was stated that she had topped the State Board Examination and the name of the State was

given. It would not require rocket science to find out and establish her identity. In another instance, footage is shown on the electronic media where the face of the victim is blurred but the faces of her relatives, her neighbours, the name of the village etc. is clearly visible. This also amounts to disclosing the identity of the victim. We, therefore, hold that no person can print or publish the name of the victim or disclose any facts which can lead to the victim being identified and which should make her identity known to the public at large."

38. The finally in Paragraph 50.1 the Hon'ble Supreme Court was

pleased to direct -

"No person can print or publish in print, electronic, social media, etc. the name of the victim or even in a remote manner disclose any facts which can lead to the victim being identified and which should make her identity known to the public at large."

39. In Lalit Yadav vs. State of Chhattisgarh : (2018) 7 SCC 499, the

Hon'ble Supreme Court held as follows:-

2. We, however, notice from the judgments of both, the trial court and the High Court that the victim in the present case who was examined as PW2 has been named all through. Such a course is not consistent with Section 228-A IPC though the explanation makes an exception in favour of the judgments of the superior court. Nonetheless, every attempt should be made by all the courts not to disclose the identity of the victim in terms of said Section 228-A IPC. It has been so laid down by this Court in State of Punjab v. Ramdev Singh .

3. While dismissing the present matter, we direct the Registry of the High Court to place the record of the appeal in the High

Court before the learned Judge for causing appropriate changes in the record including passing appropriate practice directions so that the trial courts in the State comply with the mandate and spirit of Section 228- A IPC.

40. Subsequently in Ravishankar Alias Baba Vishwakarma vs. State

of Madhya Pradesh reported in (2019) 9 SCC 689, the Hon'ble Supreme

Court was pleased to hold that the mandate of not disclosing identities of

the victims of sexual offences should be followed by al courts including

the Supreme Court. Keeping in view the social object of preventing social

victimization or ostracisms of the victim of a sexual offence for

which Section 228-A has been enacted, it would be appropriate that in

the judgments, be it of High Court or lower Court, the name of the victim

should not be indicated. We have chosen to describe her as ' victim' in the

judgment.

41. Section 33(7) of the POCSO Act not only directs the Special Court to

ensure that the identity of the child is not disclosed in print electronic,

social media etc but also at any time during the course of investigation or

trial. Thus, it is the duty of the Special Court under the POCSO Act to see

that the name of the victim is never disclosed in course of investigation

and if the same is disclosed, it is his statutory duty to stop such

disclosure.

42. Unfortunately enough the name of the victim is disclosed by the

defacto complainant in the written complaint. In the formal FIR her name

is recorded in the relevant column where brief fact of the case is recorded

by the Police Officer. During investigation her name is often recorded in

her statements under Section 161 of the Code of Criminal Procedure and

even under Section 164 of the Code recoded by the learned Judicial

Magistrate. All such documents are supplied to the accused in compliance

of Section 207 of the Code of Criminal Procedure. During trial victim's

name is recorded on the deposition sheet. She is asked to put her

signature on her deposition after the same being recorded. The copies of

the said statements received by the accused in compliance of Section 207

of the Code of Criminal Procedure are transferred from hand to hand to

the learned Advocate for the accused the law clerks and others. The name

of the victim is also recorded by the Medical Officer in his Medical

Examination Report. During trial the witnesses including the parents of

the child unknowingly state the name of the victim and the trial court

records such deposition without adhering to the dictum of Section 33(7) of

the POCSO Act. While recording the evidence of the victim, her name is

recorded on the deposition sheet and her signature or LTI is taken

thereon. The certified copies of all such evidence is available not only to

the accused but also to others on filing of an application and payment of

requisite fees. Therefore, in spite of statutory protections and several

guidelines of the Hon'ble Supreme Court, victim's name is not kept

concealed. Finally all the documents, copies of evidence and exhibits are

collated in the paper book of criminal appeal and while preparing such

paper book the name of the victim is made public to the employees of the

court, the learned Advocates for the parties and others.

43. Therefore, in addition to solemn guidelines of the Hon'ble Supreme

Court in the aforementioned cases, this Court is of the view that the

following guidelines are to be issued for effective compliance of Section

33(7) of the POCSO Act:-

i. 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.

ii. 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."

iv. 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".

v. 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".

vi. 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.

ix. 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.

x. In the judgment the name of the victim girl shall never be

stated or recorded by the learned Special Judge.

xi. 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.

44. A copy of this judgment containing the above guidelines be sent to

the Director General of Police, Government of West Bengal, Commissioner

of Police, Calcutta and other Commissionerate in the State of West

Bengal, Secretary to the Government of West Bengal, Department of

Health and Family Welfare, Secretary Department of Women and Child

Welfare, government of West Bengal, learned Sessions Judges in the State

of West Bengal, Learned Special Judges under the POCSO Act for their

information, compliance and adherence of the above guidelines forthwith.

45. The learned Registrar (Judicial Service), High Court Appellate Side

Calcutta shall circulate the copies of this decision to the above named

authorities at the earliest.

(Bibek Chaudhuri, J.)