Name Of Sexual Assault Victim Not To Be Disclosed In Deposition Sheets; Signature Of Prosecutrix To Be Taken On 'Separate Sheet': Orissa High Court

The Orissa High Court has expressed anguish over disclosure of names of victims of sexual offences in case records/deposition sheets despite clear statutory mandate against mentioning the same, which has been endorsed and reiterated by the authoritative pronouncements of the Supreme Court time and again.

While pointing out the error committed by the trial Court Judge, the Single Bench of Justice Sangam Kumar Sahoo observed –

“…it is felt necessary to point out a very disturbing feature on record that in spite of repeated pronouncement of judgments by the Hon'ble Supreme Court on section 228-A of the I.P.C. and in view of the provision under section 33(7) of the POCSO Act, not to disclose the identity of the child at any time during course of investigation or trial, the name of the victim is mentioned in the deposition sheet.”

Factual Background

The Court was hearing two appeals preferred by the appellants against the judgment and sentenced imposed by the Additional Sessions Judge-cum-Special Judge, Keonjhar for commission of offences under Sections 376D/450/506/34 of the IPC and Section 6 of the POCSO Act.

It was the prosecution case that the two appellants broke open the window of the house of the minor victim, while she was sleeping with her minor cousin and brother and entered into the house. Subsequently, they gagged her mouth and took her away to a different place where she was gang-raped by them one after another.

The trial Court perused the school admission register and ossification test report of the victim and came to the conclusion that she was a minor at the time of commission of the alleged offences. Further, from the medical evidence, the Court came to know that the victim was subjected to forcible sexual intercourse.

Thus, it found both the appellant guilty under the aforementioned provisions and awarded the sentence of twenty year imprisonment for commission of gang-rape.

Bar On Disclosure Of Identity Of Sexual Assault Victims

Before delving into the merit of the case, the Court underlined that as per the provisions of Section 228A of the IPC and Section 33(7) of the POCSO Act, the trial Court is duty bound not to disclose the identity of the victim of sexual assault. However, despite such prohibition, the trial Judge mentioned it on the deposition sheet.

The Court went on to cite the following observation made by the Apex Court in the case of Sangitaben Shaileshbhai Datanta v. State of Gujarat:

“The concern of the legislature in protecting the identity of the victim is further evident from the provisions of POCSO Act. Section 33(7) of the same casts a duty on the Special Court to ensure that identity of the victim is not disclosed at any time during the course of investigation or trial. Further, Section 23 of POCSO Act provides restriction on any form of media to disclose the identity of the victim which tends to lower her reputation or infringes upon her privacy. No disclosure of any particular(s) is allowed which can eventually lead to disclosure of the identity of the victim”

It also relied upon the decision of the top Court in Nipun Saxena & Anr. v. Union of India & Ors., wherein it was observed as follows:

"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.”

Having regard for the aforesaid, the Court made it clear that the name of the victim should not be recorded in the deposition sheet or anywhere in the record or judgment. Rather, he/she should be indicated as 'victim'.

Justice Sahoo also clarified that the signature of the victim in his/her deposition should not be taken on the deposition sheet but should be taken in a 'separate sheet' by the trial Judge and the said sheet of paper with the signature and certificate of the Judge with date shall be kept in 'sealed cover'.

“A noting should be given in the deposition sheet so also in the order sheet of that day regarding taking of signature of the victim in a separate sheet and keeping the same in sealed cover. The said procedure should also be followed while recording statement of the victim under section 164 of Cr.P.C. In the judgment, the name of the victim should never be mentioned by the Judge,” he added.

The Court also directed the Registry to place the judgment before the Chief Justice for circulation of the same amongst the judicial officers of the State for compliance of the procedure narrated hereinabove.

Decision On Merit

After a conjoint reading of the school admission register and ossification test, the Court was satisfied that she was indeed a minor while the incident took place. Further taking into account the version of the minor victim as well as the medical report, the Bench was of the firm view that she was subjected to forcible sexual intercourse by both the appellants.

So far as delay in lodging of the FIR was concerned, the Court held that the prosecution has satisfactorily explained the reason for the minor delay. It also discarded the defence plea that a false case is foisted upon the appellants as they caught the victim red-handed in compromising position with two other persons.

Accordingly, the appeals were dismissed being devoid of any merit and order of the trial Court was upheld.

Case Title: Dabu @ Santosh Kumar Munda v. State of Odisha & tagged matter

Case No: JCRLA No. 14 of 2021 & CRLA No. 135 of 2021

Date of Judgment: March 28, 2024

Counsel for the Appellants: Mr. Bibhuti Ranjan Mohanty, Amicus Curiae; Mr. Satyajit Mukherjee, Advocate

Counsel for the State: Mr. Rajesh Tripathy, Addl. Standing Counsel

Citation: 2024 LiveLaw (Ori) 22

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