Whether court can permit the accused's identification by victim in the court by showing his photograph to her?

 Firstly, we would like to appreciate the submission of the

learned counsel as to whether identification of both the accused by

the “victim” was proper identification or not because they were

identified by the “victim” in the Court from their photographs. {Para 66}

67. The first information report would show that apart from

penal provisions of the Indian Penal Code, the Investigation Officer

also registered the offence under Section 6 of the POCSO Act, 2012.

Similarly, the charge was also framed against both the accused for

the offence punishable under Section 6 of the POCSO Act. Clause

(d) of Section 2 of the POCSO Act defines “child” and according to

the said provision, the “child” means – “any person below the age of

eighteen years.”

 68. In the earlier part of this judgment, we have already

dealt with the issue of age and has recorded a finding that the victim

was a “child” under the provisions of the POCSO Act. The trial was

conducted in the Court of learned Special Judge, Buldhana as Special

(POCSO) Case No. 27/2019.

69. The POCSO Act was enacted to protect the children from

the offence of sexual assault, sexual harassment and pornography

and provide for establishment of Special Courts for trial of such

offences and for matters connected therewith or incidental thereto.

Chapter V of the POCSO Act deals with the procedure for reporting

of cases. Chapter VI of the said Act deals with the procedure for

recording the statement of the child ; and Chapter VIII of the Act

deals with the procedure and powers of the Special Courts of

recording of evidence.

70. Section 36 of the POCSO Act is reproduced hereunder :

“Section 36 – Child not to see at the time of testifying -

(1) The Special Court shall ensure that the Child is

not exposed in any way to the accused at the time

of recording of the evidence, while at the same

time ensuring that the accused is in a position to

hear the statement of the child and communicate

with his advocate.

(2) For the purposes of sub-section (1), the Special

Court may record the statement of a child through

video conferencing or by utilizing single visibility

mirrors or curtains or any other device.”

Sub-section 1 of Section 36 mandates the Special Court

that the said Court shall ensure that the child is not exposed in any

way to the accused at the time of recording of evidence, while at the

same time ensuring that the accused is in a position to hear the

statement of the child and communicate with his advocate. Subsection 2 of Section 36 also permits the Special Court to record

statement of the child through video conferencing.

71. In our view, in order to give complete meaning to subsection

1 of Section 36 of the POCSO Act, the learned Special Judge

was absolutely right in recording evidence of the “victim” in respect of identification of accused persons by allowing the learned prosecutor to show their photographs. Further it was never the case of any of the accused either during trial or even before this Court that the photographs of the accused were not shown to the victim. Even it was not their case either during trial or even before this Court that the accused persons were not having opportunity to hear the statement of the child i.e. “victim” and they were unable to

communicate with their advocate in that behalf. In view of this, we

have no hesitation in our mind to reject the submission made by the

learned counsel that the identification of accused persons in the

Court by the “victim” is vitiated because they were identified by the

“victim” through photographs.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

: NAGPUR BENCH : NAGPUR.

CRIMINAL CONFIRMATION CASE NO. 01 OF 2020

 State of Maharashtra, Vs  Sagar Vishwanath Borkar,

CORAM : V. M. DESHPANDE and AMIT B. BORKAR, JJ.

Dated: SEPTMEBER 07, 2021

JUDGMENT [Per V. M. Deshpande, J.]

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