| DB admits state appeal, deplores trial court for naming rape victim | | |
Early Times Report
Jammu, Dec 24: A Division Bench of J&K High Court comprising Chief Justice (A) Rajesh Bindal and Justice Sanjay Dhar while hearing an acquittal appeal in rape case, directed Trial Courts of Jammu, Kashmir & Ladakh not to disclose the name of the victim in judgement and also directed all the health professionals of Union Territory of Jammu & Kashmir, and Union Territory of Ladakh to strictly desist from undertaking "two finger test" known as "per-vaginum examination" on the rape survivors.
In an appeal filed by Govt against the acquittal of Mohd Imran Khan through AAG Aseem Sawhney in which AAG Assem Sawhney submitted that the case of the prosecution is that on 13.12.2014, the prosecturix went missing and in this regard a complaint was lodged before the police by the maternal grandfather of the prosecutirx. It was found that the prosecutrix had been kidnapped and taken away by the respondent in a car. FIR No.196/2014 for offences under Section 366 RPC was registered and investigation was set into motion. On 15.12.2014, the prosecutrix was recovered from the custody of the respondent/accused. The statement of the prosecutrix under Section 164-A Cr.P.C. was recorded. After investigation of the case, it was found that the prosecutirx, after being kidnapped, was raped by the respondent and accordingly, charge-sheet for offences under Sections 363/376 RPC was laid before the trial Court.
Division Bench observed that AAG Aseem Sawhney who submitted that the prosecutrix, in the instant case, was minor at the time of the occurrence and she had in her statement recorded before the Court fully supported the prosecution case. According to the learned counsel, the learned Trial Court has disbelieved the statement of the prosecutrix on technicalities and for flimsy reasons.
Keeping in view the contentions raised by the learned AAG, a prima facie case for grant of leave to file appeal is made out. Accordingly, the application is allowed and the leave to appeal against the impugned judgment is granted in favour of the petitioner.
Before parting with the order, Division Bench observed that it is necessary to comment on certain things, which we have noticed from a perusal of the impugned judgment. The trial Judge has mentioned the name of the prosecutrix at several places in the said judgment, which is impermissible in law and Section 228A of IPC prohibits disclosure of identity of the victim of certain offences, which includes offence under Section 376 IPC. In pari materia to the aforesaid provision is Section 228A of the J&K Ranbir Penal Code, which was applicable to the case at hand at the relevant time.
DB further observed that although, prohibition contained in Section 228A may not strictly apply to the judgment of a Court, yet the Courts must avoid disclosing the name(s) of prosecutrix in their orders and judgments, so as to avoid embarrassment and humiliation to a victim of rape.
DB further observed that another issue that has come to our notice from the reading of the Trial Court record and the impugned judgment is that the prosecutrix in this case has been subjected to "two finger test".
DB observed that after perusal of the guidelines, it is clear that "two finger test", which, as per the medical term is called per-vaginum examination, has been strictly prohibited under the guidelines and protocols issued by the Ministry of Health and Family Welfare, Government of India.
With these observations, Division Bench directed all the Courts in the Union Territories of Jammu & Kashmir, and Ladakh to avoid disclosing identity of rape survivors in their proceedings and judgments. DB also directed all the health professionals of Union Territory of Jammu & Kashmir, and Union Territory of Ladakh to strictly desist from undertaking "two finger test" known as "per-vaginum examination" on the rape survivors. JNF |
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