Sikkim High Court Asks SSLSA To Sensitize Legal Aid Counsels; Suggests Rehabilitation Mechanism For Sexual Assault Victims Under 12

The appeal before the High Court was filed by the appellant, who was convicted for an offence under Sections 5(m) and 5(n), punishable under Section 6 of the Protection of Children from Sexual Offences (POCSO) Act, 2012. He was ordered to undergo rigorous imprisonment for 20 years.

Considering that the defence counsel in the present matter had substantially confined the cross-examination to putting suggestions and obtaining denials, the Bench of Chief Justice A. Muhamed Mustaque and Justice Bhaskar Raj Pradhan ordered, “The Sikkim State Legal Services Authority (SSLSA), which engages Legal Aid Counsel, has the responsibility to supervise and monitor the manner in which Legal Aid Counsel conduct such cases. The SSLSA shall obtain a report from the Trial Court regarding the performance of all the Legal Aid Counsel of such cases. The SSLSA shall also undertake appropriate training and sensitisation of the Legal Aid Counsel, particularly with regard to effective cross-examination and the manner of defending an accused in a criminal trial.”

“Another aspect which requires consideration is that, where the victim is a child below twelve years of age, unless an effective system put in place by the SSLSA to provide assistance and support in appropriate form, such victims may face a bleak future, including fear, psychological trauma, difficulty in reintegration and reluctance to return to mainstream society. An adequate support and rehabilitation mechanism for the victim, therefore, requires to be established, with appropriate mechanisms to ensure continued care, assistance and support to the victim”, it ordered.

Legal Aid Counsel R. C. Sharma represented the Appellant while Additional Public Prosecutor S. K. Chettri represented the Respondent.

Factual Background

It was alleged that the victim, who was eight years old, had gone to the house of the accused, who is the victim’s uncle, to meet her grandmother, who lived with the accused. The grandmother was not at home, and only the accused was present. Taking advantage of the circumstances, the accused committed the offence of penetrative sexual assault against the victim. The victim’s mother noticed blood stains in the toilet and took the victim to the Pakyong Primary Health Centre for medical assistance. The victim revealed that the accused had raped her and also narrated that similar incidents had occurred on previous occasions. Accordingly, the mother of the victim reported the incident to the Police Station. It was in such circumstances that the accused was convicted.

Reasoning

The Bench first dealt with the contention about the proof of the age of victim and clarified that the mere fact that the particular person who made the original entry in the Birth Register was not examined could not by itself render the evidence regarding the age of the victim unreliable, particularly when the official witness, namely the Registrar of Births and Deaths was examined and the date of birth was also supported by the school record.

The Bench further found that the victim in her cross examination stated that she knew the accused for a long time and that she used to call him fapang/kaka. “As seen from the records, during her examination-in-chief, the victim was found crying and the Court gave her some time to relax before proceeding with her deposition. The victim categorically stated that the accused had forced his penis into her private part, the vagina, and that she felt pain at that time. She also narrated that the accused had committed the same act on two previous occasions”, it added.

The Bench found no reason to disbelieve the testimony of the victim child witness. The identity of the accused was also not in dispute, as the accused was the victim’s uncle. The Bench noted that the evidence lent credence & corroborated the testimony of the victim and of her mother.

“The victim and the accused are related to each other. The incident occurred when no other person was present in the house. Therefore, the absence of an eyewitness to the occurrence is not, by itself, material and no one can be expected to testify to the presence of the accused. The accused was not a stranger to the victim. The circumstances afforded the accused an opportunity to commit the offence when no other person was present in the house. The medical examination also does not indicate any inability on the part of the accused to perform the sexual act”, it held.

Thus, finding no reason to differ with the findings of the Trial Court, the Bench dismissed the application.

Cause Title: Ashok Subba v. State of Sikkim (Case No.: Crl. A. No.01 of 2024)

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