Judges trying child sexual assault cases must have a 'sensitive heart': Delhi HC

New Delhi, May 9 The Delhi High Court has said that it is the responsibility of every judge to act with both an "alert mind" and a "sensitive heart" when recording witness statements and conducting trial in cases of child sex abuse.

Although the state and the administration can give judges access to "necessary and modern infrastructure," including vulnerable witness deposition complexes, Justice Swarana Kanta Sharma held that "it cannot generate a sensitive heart of a judge".

"A sensitive heart has to be developed by the judge himself or herself as part of his or her duty to be bound by the oath and service to the citizens of the country.

"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 counsellor," the court said.

Justice Sharma made the observations while addressing an appeal filed by Sanjeev Kumar, who was convicted of raping a 12-year-old girl in 2008.

On September 25, 2010, the trial court sentenced Kumar and another to a 10 year jail term after convicting under Sections 363, 365, 376, and 34 of the Indian Penal Code. Kumar filed the appeal in 2010, but he passed away in May 2021 while it was pending. His wife, though, was given permission to pursue the appeal.

The prosecutrix's repeated claims that the two men had kidnapped her were the foundation upon which the trial court built the conviction. Additionally, it was noted that the two men's Test Identification Parade was unnecessary because they were detained in the prosecutor's presence, and her account was amply supported by circumstantial, forensic, and medical evidence.

Justice Sharma set aside the impugned order of conviction and imprisonment because the prosecutrix had given multiple contradictory accounts of how she had been sexually attacked.

Taking note of certain "disturbing crucial issues" apparent from the record of the case, Justice Sharma said that the trial court record showed that no reasons were stated in the application moved for leading defence evidence as to for what purpose the defence witnesses were being called, except for mentioning their name.

"Be that as it may, this Court notes with strong disapproval that the counsellor, who had been called to counsel the 12 years old sexual assault victim immediately after the incident in question at the request of the SHO concerned, had been not only been allowed to be examined as a defence witness, but the confidential report regarding the counselling and as to what had transpired between the counselor and the victim child was brought in the public domain through an application moved by the accused for leading defence evidence," the court said.

It also observed that the police officer or the investigating agency failed to refer the prosecutrix to the Child Welfare Committee and that nothing was produced on record to explain under what provision the counsellor was called for counselling the entire family and thereafter the prosecutrix.

Justice Sharma said that the material brought on record by the prosecution was insufficient to return a finding of guilt against Kumar and it failed to establish the case beyond reasonable doubt.

spr/vd