5-Yr-Old Can’t Look Like An Adult; Best Evidence Before POCSO Special Court Is Child Produced As Prosecution Witness: Sikkim HC
The Sikkim High Court issued a notice to show cause to a man accused of raping his own daughter as to why his sentence under Section 376 of the Indian Penal Code (IPC) alone shall not be enhanced to Section 376AB of IPC and Sections 5(l), 5(m), and 5(n) of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).
The Court noted that a child of 5 years will physically appear so and cannot look like an adult of 18 years and above.
A Division Bench comprising Justice Meenakshi Madan Rai and Justice Bhaskar Raj Pradhan observed, “We are of the view that insofar as the age of a minor victim is concerned the best evidence available before the Special Court is the child produced as prosecution witness. A child of 5 years will definitely physically appear so and cannot look like an adult of 18 years above. It is only in such cases where the court cannot assess the minority of the child victim from her or his physical appearance that it would be difficult for the Special Court to record observation as required under Section 94(1) of the JJ Act.”
The Bench emphasised that the procedure for the Board or the Committee to follow to determine the age of the person should be followed by the Special Court as well.
Advocate Gulshan Lama appeared for the appellant/prisoner while Additional Public Prosecutor (APP) Yadev Sharma appeared for the respondent/State.
In this case, the appellant was convicted for the offence under Section 375 IPC and sentenced under Section 376 IPC for the alleged commission of rape on his own daughter (victim). He was aggrieved by the same and hence, assailed the judgment of the Special Judge, POCSO Act. An FIR was lodged by the victim’s aunt wherein it was stated that the victim was overheard telling her cousin that she was raped by her father multiple times at night at the residence.
It was also stated in the FIR that the victim had bled due to the alleged act and when she cried, the appellant had covered her mouth and told her not to tell anyone and threatening to kill her if she did. It was alleged that the victim was five years old at the time of the incident.
The High Court after hearing the contentions of the counsel, said, “The observation of the learned Special Judge on record at paragraph 15 of the impugned judgment that the victim appears to be a minor would lend assurance to the other evidences placed by the prosecution to establish the minority of the victim. If the defence then wants to contest the minority of the victim it must do so and establish her majority either from the prosecution evidence or by bringing forth any other evidence for the consideration of the learned Special Judge.”
The Court further said that its observation must not be misunderstood by the prosecution and the investigating agencies. It noted that, they have a primary duty to place credible and conclusive evidence before the Special Court to establish the age of the victim.
“It is the primary duty of the investigating agencies to collect all such evidence that would go to prove the minority of the victim. It is the duty of the prosecution to ensure that the evidence collected during investigation by the investigating agencies is proved conclusively before the learned Special Judge. Even if on appearance the victim is a minor child investigating agencies and the prosecution must ensure all credible evidences must be produced and proved before the Special Court”, it added.
The Court also enunciated that, determination of the age of the victim is crucial for prosecution under the POCSO Act and the Special Judge must ensure that the same is conclusively done. It noted that the Supreme Court has repeatedly held that the duty of the Presiding Judge of a criminal trial is not to watch the proceedings as a spectator or a recording machine but he has to participate in the trial by evincing intelligent active interest by putting questions to witnesses to ascertain the truth.
“The Judge has uninhibited power to put questions to the witness either during the chief-examination or cross-examination or even during re-examination for this purpose. If a Judge feels that a witness has committed an error or slip, it is the duty of the Judge to ascertain whether it was so, for, to err is human and the chances of erring may accelerate under stress of nervousness during cross-examination”, it said.
The Court concluded that in this case, the Special Court, who was required to be in absolute control of the trial, could not conclusively determine and conclude the minority of the victim who according to his own observation was a minor. It, therefore, held that the Special Judge had failed to appreciate the evidence in its correct perspective and by doing so, acquitted the appellant for the charges under the POCSO Act on the sole ground that the prosecution had failed to prove that the victim was a child.
Accordingly, the High Court issued a show cause notice to the appellant.
Cause Title- XXXXX v. State of Sikkim
Appearance:
Appellant: Advocate Gulshan Lama
Respondent: Addl. PP Yadev Sharma and Assistant PP Sujan Sunwar.
