When court remained a mute spectator
Ihave gone through the judgments and the basic facts of the case. I feel that there have been lapses on the part of the investigation, the prosecution and the court which heard the case.
The police produces the chargesheet directly in the court in POCSO cases as per Section 173 of the CrPC. The court is called upon to examine the chargesheet for shortcomings, if any. It must satisfy itself that there are sufficient evidence in the form of documents and depositions before summoning the accused for trial. This process is called "taking cognisance of the case". That the investigating team had nothing apart from unsubstantiated statements is clear from the judgment. If the judge had indeed done a proper job of 'taking cognisance of the case' by applying his judicial mind, he would have returned the chargesheet to the police and asked it to produce scientific evidence that are warranted in trying rape and POCSO cases. The court's failure on this count is apparent.
A judge is not just a spectator or a referee during a criminal trial. He is an active participant in criminal trial to ensure that justice is done.
The judge is empowered by section S. I65 of the Indian Evidence Act to ask questions and to seek documents to ensure justice is done to both the parties. The judge had cited some contradictions in the in the oral evidence of witnesses in the judgment; he could have clarified them at the trial stage by asking questions if the prosecution had failed to conduct re -examination to clarify the contradictions in the cross- examination of the witnesses
It is easy to acquit the accused in a criminal case. There will be no criminal case where there are no shortcomings and no conflicting testimonies. A judge should be mindful of that he should not reject the prosecution case if there is ' a ring of truth in the main.'
"Let hundred guilty be acquitted but one innocent should not be convicted is an old dictum. It has given way to the new one: no innocent should be punished, no guilty should escape.