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Report No. 198

5.17 Sakshi case (2004)

The Supreme Court in Sakshi v. Union of India 2004 (6) SCALE 15 referred to the argument of the petitioner that in case of child sexual abuse, there should be special provisions in the law to the following effect:-

(i) permitting use of videotaped interview of the child's statement by the judge (in the presence of a child support person).

(ii) allowing a child to testify via closed circuit television or from behind a screen to obtain a full and candid account of the acts complained of.

(iii) that the cross examination of a minor should only be carried out by the judge based on written questions submitted by the defence upon perusal of the testimony of the minor.

(iv) that whenever a child is required to give testimony, sufficient breaks should be given as and when required by the child.

During the pendency of the case in Sakshi, the Supreme Court requested the Law Commission to examine the question as to the expansion of the definition of rape. The Commission gave its 172 nd Report dealing with various aspects of the problem. Details of the Report have been set out in Chapter IV para 4.5.

The Supreme Court in Sakshi, after receipt of the Report of the Law Commission (172 nd Report, Chapter VI), did not accept the above said arguments of the petitioner in view of section 273 of the Code of Criminal Procedure as, in its opinion, the principle of the said section of examining witnesses in the presence of the accused, is founded on natural justice and cannot be done away with in trials and inquiries concerning sexual offences.

The Supreme Court however pointed out that the Law Commission had observed that 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 and at the same time provide an opportunity to the accused to listen to the testimony of the victim and the Court could give appropriate instructions to his counsel for an effective cross examination. The Law Commission had also suggested that with a view to allay any apprehensions on this score, a proviso could be placed above the Explanation to section 273 Cr.P.C to the following effect:

"Provided that where the evidence of a person below 16 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". In para 31 and 32 the Supreme Court observed as follows:

"31. The whole inquiry before a Court being to elicit the truth, it is absolutely necessary that the victim or the witnesses are able to depose about the entire incident in a free atmosphere without any embarrassment. Section 273 Cr.P.C. merely requires the evidence to be taken in the presence of the accused. The Section, however, does not say that the evidence should be recorded in such a manner that the accused have full view of the victim or the witnesses.

Recording of evidence by way of video conferencing vis-à-vis Section 272 Cr.P.C. has been held to be permissible in a recent decision of this Court in State of Maharashtra v. Dr. Praful B. Desai 2003(4) SCC 601. There is a major difference between substantive provisions defining crimes and providing punishment for the same and procedural enactment laying down the procedure of trial of such offences. Rules of procedure are hand-maiden of justice and are meant to advance and not to obstruct the cause of justice. It is, therefore, permissible for the Court to expand or enlarge the meaning of such provisions in order to elicit the truth and do justice with the parties.

32. The mere sight of the accused may induce an element of extreme fear in the mind of the victim or the witnesses or can put them in a state of shock. In such a situation he or she may not be able to give full details of the incident which may result in miscarriage of justice. Therefore, a screen or some such arrangement can be made where the victim or witnesses do not have to undergo the trauma of seeing the body or the face of the accused. Often the questions put in cross-examination are purposely designed to embarrass or confuse the victims of rape and child abuse.

The object is that out of the feeling of shame or embarrassment, the victim may not speak out or give details of certain acts committed by the accused. It will, therefore, be better if the questions to be put by the accused in cross-examination are given in writing to the Presiding Officer of the Court, who may put the same to the victim or witnesses in a language which is not embarrassing. There can hardly be any objection to the other suggestion given by the petitioner that whenever a child or victim of rape is required to give testimony, sufficient breaks should be given as and when required. The provisions of sub-section (2) of section 327 Cr.P.C. should also apply in inquiry or trial of offences under Section 354 and 377 IPC."

The Court in Sakshi referred to State of Punjab v. Gurmit Singh 1996(2) SCC 384 where the Supreme Court had highlighted the importance of section 327(2) and (3) of the Cr.P.C. which require evidence to be recorded in camera in relation to holding rape and other sexual offences. The Court gave the following directions, in addition to those given in Gurmit Singh's case, namely,

(1) The provisions of sub-section (2) of section 327 Cr.P.C. shall, in addition to the offences mentioned in that sub-section, would also apply in inquiry or trial of offences under sections 354 and 377 IPC.

(2) In holding trial of child sex abuse or rape:

(i) a screen or some such arrangements may be made where the victim or witnesses (who may be equally vulnerable like the victim) do not see the body or face of the accused;

(ii) the questions put in cross-examination on behalf of the accused, in so far as they relate directly to the incident, should be given in writing to the Presiding Officer of the Court who may put them to the victim or witnesses in a language which is clear and is not embarrassing;

(iii) the victim of child abuse or rape, while giving testimony in court, should be allowed sufficient breaks as and when required.

Finally, the Court in Sakshi added that cases of child abuse and rape are increasing with alarming speed and appropriate legislation in this regard is, therefore urgently required. They observed:

"We hope and trust that the Parliament will give serious attention to the points highlighted by the petitioner and make appropriate suggestions with all the promptness which it deserves."

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