Decided on January 27,2020

Songtha Dkhar Appellant


Mohammad Rafiq,CJ. - (1.) This petition has been filed by Smt. Songtha Dkhar under Article 226 of the Constitution of India, inter alia, with the prayer that the respondents be directed to forthwith conduct and conclude the investigation in Jowai P.S. Case No. 184(08)2018 under Sections 7/8 enforcing all the relevant provisions of Protection of Children from Sexual Offences Act.
(2.) The background facts given in the petition are that on 06.07.2016, daughter of the petitioner who was a minor at the time of the incident and that respondent No. 5 Shri Hepsing Dhar pretending to be a doctor, took her daughter for medical examination to another room and committed rape upon her. An FIR was lodged against him by the petitioner which was registered as Jowai P.S. Case No. 184(08)2018 under Sections 7/8 of the POCSO Act. During the investigation of that FIR, respondent No. 5 was arrested by the police on 07.08.2018. The allegation is that the police conducted the investigation in a casual manner and no real efforts were made to complete the investigation in time. As a result, the respondent No. 5 was released on default bail on 22.10.2018 as the police failed to put up charge sheet within the prescribed statutory period. The Investigating Officer thereafter submitted a closure report without any proper investigation with the conclusion that there was lack of evidence.
(3.) The court of Special Judge (POCSO) in Jowai P.S. Case No. 184(8) 2018 (G.R. Case No. 213/2018) vide order dated 03.10.2019 rejected the closure report and directed further investigation. For facility of reference order dated 03.10.2019 is reproduced hereunder: 'C.R. put up today. I have carefully perused the materials on record and submissions of special P.P. Shri S.Changsan and Smt. Y. Shylla counsel for the informant. Special P.P. leave it to the discretion of the court relating to the final report submitted by I.O. It appears from record that the police had prepared medical requisition to take the victim for medical examination at Jowai Civil Hospital Ialong but the victim refused to go for medical examination as she was scared and afraid. Further it appears that three attempts were made by the investigating officer to record the statement of victim at her residence in plain clothes but the victim was afraid and ashamed on the ground that her friends might make fun of her on knowing about the case. I have perused the case diary meticulously and it appears that the investigating officer of the case has examined the informant and the same was reduced into writing. It is a common phenomena that the young and innocent victims may not be able to express and disclose to what had happened most probably because of internal conflict of shame, guilt and fear, not sure about the reaction of the family members and the society at large. Most of the victims took time to make sense as to what has happened. The victim may believe that she will not get help if she asked for it and that she may not know what and how to tell the investigating agency the kind of language she could use to describe what had actually happened. It appears that the victim could not disclose the incident to the investigating agency because she is afraid that it would stigmatize her future prospects. The effect was that she instilled fear in her so that she will not disclose it to any one and live with the trauma for a long time and could not muster the courage to reveal it to anyone. In this situation this court has to balance the principle of the best interest of the child and the right to protect the victim to deter the alleged accused from inflicting further harm to the victim. For reasons stated above, I am of the opinion that ample opportunity must be given to the victim in a better and conducive environment to confidently pursue justice against the accused. Final report submitted by I.O. in this instant case is hereby rejected. Further investigation is to be conducted into the matter. Supply copy of this order to the Officer Incharge of Jowai Women P.S. with direction to approach Child Welfare Committee to provide support person and counselling to the victim as and when required. Return Case diary to the Officer Incharge of Jowai Women P.S.';

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