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Report No. 172

Chapter VI

Miscellaneous Suggestions of Sakshi

6.1. The representatives of Sakshi have made three other suggestions which we have set out under items 11, 12 and 13 in chapter two of this Report. So far as suggestion under item 11 is concerned, we may refer to section 273 of the Criminal Procedure Code, which requires that "except as otherwise expressly provided, all evidence taken in the course of the trial or other proceeding, shall be taken in the presence of the accused or when his personal attendance is dispensed with, in the presence of his pleader".

We do not think that this general principle, founded upon natural justice, should be done away with altogether in trials and enquiries concerning sexual offences. In an appropriate case, it may be open to the prosecution to request the court to provide a screen in such a manner that the victim does not see the accused, while at the same time providing an opportunity to the accused to listen to the testimony of the victim and give appropriate instructions to his advocate for an effective cross-examination. However, with a view to allay any apprehensions on this score, a proviso can be added to section 273 of the Criminal Procedure Code to the following effect:

"Provided that where the evidence of a person below sixteen years who is alleged to have been subjected to sexual assault or any other sexual offence, is to be recorded, the court may, take appropriate measures to ensure that such person is not confronted by the accused while at the same time ensuring the right of cross-examination of the accused". The proviso can be placed above the Explanation to the Section.

6.2. The suggestion mentioned under item 12 is, in our opinion, impractical; it is not possible to accede to the said request. The same comment holds good with respect to the proposal under item 13. We are therefore unable to make any recommendation for the present in terms of or on the basis of the aforesaid requests of Sakshi.

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