Judges Must Not Only Have A ‘Sensitive Heart’ But Also An ‘Alert Mind’ While Conducting Trial In Child Sexual Assault Cases: Delhi High Court

It is the duty of every judge to not only have a “sensitive heart” but also an “alert mind” while recording of witness statements and conducting trial in cases of sexual assault with children, the Delhi High Court has said.

Justice Swarana Kanta Sharma observed though the State and the administration can provide “necessary and modern infrastructure” to the judges, including vulnerable witness deposition complexes, “it cannot generate a sensitive heart of a judge.”

The court said that 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 counselor,” the court said.

Justice Sharma made the observations while dealing with an appeal moved by one Sanjeev Kumar, who was convicted for committing rape upon a 12 year old minor girl in 2008.

Kumar and one more individual were convicted under sections 363, 365, 376 and 34 of Indian Penal Code and were sentenced to undergo rigorous imprisonment for 10 years by trial court on September 25, 2010. Although Kumar moved the appeal in 2010, he expired in May 2021 during its pendency. However, his wife was granted leave to continue the appeal.

The trial court had based the conviction on the ground that the prosecutrix made consistent statement regarding her kidnapping by the two men. It was also observed that there was no need to conduct the Test Identification Parade of the two men since they were arrested in the presence of the prosecutrix and her statement was duly corroborated by circumstantial, forensic and medical evidence.

Setting aside the impugned order of conviction and sentence, Justice Sharma said that the prosecutrix had made several contradictory statements regarding the manner in which she was sexually assaulted.

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 counselor, 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 counseling 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 counselor was called for counseling 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.

Title: SANJEEV KUMAR v. THE STATE NCT OF DELHI

Citation: 2023 LiveLaw (Del) 383

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