Bombay HC directs government to form guidelines for identifying culprits in POCSO cases, protecting victim’s identity

While setting aside the conviction of a man sentenced to life imprisonment for raping a six-year-old girl in 2018, the court observed that the police machinery and forensic experts have shown “utter disregard” to the guidelines and the same reflected in the “insensitive” attitude of all stakeholders. The court held that in the present case, the identity of the real culprit had not been established and the appellant, who was 21 years old at the time, was arrested on “weak material”.

The high court also directed the government to organise a periodic sensitisation programme for all the stakeholders, including the police, medical experts, forensic experts and prosecutors, highlighting the need to perform respective roles whenever they are participating and aiding each other during the investigation process.

The bench said that the stakeholders should be “sensitive to the need of proper collection, sampling, preservation and safe custody to rule out the possibility of diminishing and/or degrading the quality of evidence”.

The high court also said that the authorities need to be updated on the guidelines issued by the health and home ministries in that regard.

A division bench of Justice Vibha V Kankanwadi and Justice Abhay S Waghwase on December 19 passed a verdict in appeal by the man argued through senior advocate Rajendra Deshmukh, challenging the July 2019 order of a sessions court in Parbhani district convicting him for offences punishable under provisions of IPC, Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 and POCSO Act, 2012.

As per the prosecution, the minor victim, a Class 1 student, had appeared for her drawing exams and was walking back home when she was intercepted by an unknown person, who posed as her father’s friend, offered her a chocolate and a lift. He took her to an abandoned building near the government office and sexually assaulted her. After the girl returned home, her father enquired about her condition after which she narrated her ordeal and the father registered a police complaint.

The bench perused the material on record and observed that neither the father nor the victim had provided a detailed description of the real culprit, with no details of his age or other physical features.

The high court said it was “astonished” to find that a minor victim was made to appear in jail premises to identify the culprit amongst the line of dummies by making her touch the person.

The court also expressed “serious concern” on the procedure adopted by the special executive magistrate and noted that the precaution to avoid direct confrontation between accused and victim under the POCSO Act has not been taken, thereby frustrating the very object of the statute like the POCSO Act.

It also noted that medical experts and investigators failed to take due care to follow guidelines for collection, preservation and documentation of evidence, including the doctor who failed to distinctly seal the biological evidence samples.

The high court said the quality of the samples was questionable and their “failure affects the credibility of prosecution evidence” and acquitted the appellant

The bench also directed the District Legal Services Authority to enquire into the current status of the victim, check if she has received adequate compensation and suggest measures for her meaningful rehabilitation.