The Delhi High Court recently observed that it is the duty of every court to not only have a sensitive heart, but also an alert mind while conducting trials, especially in sexual assault cases [Sanjeev Kumar v. State].
While setting aside a trial court judgment convicting a man for rape, kidnapping and other offences, Justice Swarana Kanta Sharma noted that the material brought on record by the prosecution was insufficient to confirm his guilt.
“It is also the duty of every Court to not only have a heart which is sensitive but also a mind which is alert while recording and conducting trial, especially in sexual assault cases, so that the trial is not diverted to a direction which is totally unconnected, uncalled for and causes further trauma or humiliation or brings into public domain, the internal agony and trauma that a child might have discussed or shared with someone she had thought will keep to himself i.e., the counselor,” the order stated.
The Court said that though the State and administration can provide modern infrastructure to judges, it cannot generate a sensitive heart of a judge.
“It has to be developed by the judge himself as part of his duty bound by his oath to the constitution and service to the citizens of the country,” the Court added.
The Court was hearing a plea filed by the wife of the appellant, who had passed away in 2021. The trial court had based the conviction of the appellant on the ground that the prosecutrix made almost consistent statements regarding her kidnapping by the accused persons.
Before parting with the case, the Court was constrained to take note of certain ‘disturbing’ issues which were apparent from the record produced before it.
At first, the Bench noted with strong disapproval that the counselor, who was called to counsel the 12-year-old sexual assault victim immediately after the incident, was not only allowed to be examined as a defence witness. However, the confidential report on the conversation between the counselor and the victim child was brought in the public domain through an application moved by the accused for leading defence evidence.
“It is, thus, clear that this counseling had taken place, not for the purpose of recording statement of the witness or seeking assistance of the counselor to record her statement or to assist the investigating agency, but for the sole purpose of calming down the victim who was restless after the alleged incident of rape,” the Court held.
The Court observed that the investigating authority in the present case had failed to refer the prosecutrix to the Child Welfare Committee, and failed to disclose under what provision the counselor was called for counseling the entire family and thereafter the prosecutrix. The trial court also failed to record anything on this issue, the Court added.
The trial court had based its conviction on the ground that the prosecutrix made consistent statements regarding her kidnapping. Further it foudn that no Test Identification Parade was needed to be done of the alleged kidnappers, since they were arrested in the presence of the prosecutrix and her statement was duly corroborated by circumstantial, forensic and medical evidence.
However, the High Court noted that the prosecutrix had made several contradictory statements regarding the manner in which sexual assault was committed on her. Thus, the trial court verdict was set aside and the appeal was disposed of.
