Victim- Witness Protection Systems – ANTI TRAFFICKING
Broad Overview of the Victim/ witness protection systems
There are several constitutional, legal and administrative provisions in India for ensuring the rights and protection of witness/victim. Some of these are listed below which can be of ready reference to the law enforcement agencies:
- Right to anonymity is a legal right (S.C in Smt Sudesh Jakhu vs Narender Verma 2004).
- In camera trial, u/s 327 CrPC is essential in rape crimes. The provisions of in camera trial have been extended to all crimes of sexual assault against children (refer Sakshi judgement) Therefore in camera trial should be invoked in all crimes of trafficking of children for CSE.
- Video Conference is allowed in the trial of crimes (refer Praful Desai judgt). This ensures not only anonymity but also protection to thevictims and witnesses.
- Provision of free atmosphere: In Sakshi vs UOI, it was held that “the whole inquiry before a court is 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. ….A screen or some such arrangements be made where the victim or witnesses do not have to undergo the trauma of seeing the body or the face of the accused”.
- Recess during court proceedings: In Sakshi vs UOI the Supreme Court directed that whenever a child or a victim of rape is required to give testimony, sufficient brakes should be given as and when required.
- Legal representation is a legal right. In Delhi Domestic Working Women’s Forum vs UOI, 1995 (1) SCC 14.) The requirement of legalrepresentation and counseling has been extended to the victim rightfrom the Police Station itself.
- Victim can have Private Lawyers who can assist the Public Prosecutor and even submit written arguments, nevertheless functioning under the public prosecutor, vide Section 301(2) CrPC.
- Victim is never an accomplice (Gurcharan Singh vs Haryana, AIR 1972 SC 2661).
- Right of accused to cross examine the victim/witness, though a legal right, is restricted by Sakshi judgt, in such a way that in a case of sexual assault of children, the defence cannot question the victim directly, but has to furnish the questions to the court and the court will, in turn, communicate it to the victim.
- Compensation is an entitlement of the victim for injury/loss, u/s 357 CrPC.
- Compensation can be awarded to the victim from the convicted person even if there was no fine as part of the sentence (Boddhi Sattwa Gautam vs SubraChakroborty, 1996 1 SCC 490).
- Compensation can be awarded to the victim even without conviction and even during pendency of trial (Delhi Domestic Working Women’sForum vs UOI).
- Age assessment of the victim should be done, when in doubt, in favour of the victim. In State of Karnataka vs Majamma, it was held that even if the prosecution has not proved that the girl was less than 16 years, her own statement should be trusted and accepted.
- Delay in reporting of the case will not affect the case if reasonable explanation is given/brought out during investigation (Harpal Singh vs HP, 1981(1) SCC 560).
- Defective Investigation: Flawed investigation is no ground to deny justice to the victim. “It would not be right to acquit an accused person solely on account of defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective” (Karnal Singh vs MP, 1995 5 SCC 518 and Zahira Habibullah vs Gujarat, 2004 (4) SCC 158.
- Prosecutrix need not be examined: in State of Himachal Pradesh vs Mohan Misra, 1995 CrLJ 3845, the Supreme Court held that “merelybecause the victim girl is not examined, this can never be a ground toacquit an accused if there is evidence otherwise available proving thecriminal act of the accused.
- Character and antecedents of the victim has no bearing or relevance…and can never serve either as mitigating or extenuating circumstance. No stigma should be implied against the victim/witness. ‘After all it is the accused and not the victim of sex crime who is on trial in the court’. (Haryana vs Prem Chand and others, 1990 (1) SCC 249, Maharashtra vs Madhukar Narayen Marvikar, AIR 1991 SC 207, State of Punjab vs Gurmit Singh, AIR 1996 SC 1393).
- On reliability: The evidence of a victim of sexual offence is entitled to a great weight, absence of corroboration notwithstanding (Punjab vs Gurmeet Singh) The rule of prudence that the evidence of a victim of sexual assault must be corroborated in material particulars has no application (Maharashtra vs CPK Jain, AIR 1990 SC 658).
- On corroboration: In Punjab vs Gurmeet Singh it was held that the statement of the rape victim who was between 15-17 years, inspired confidence for acceptance and, therefore corroboration of evidence was not needed. Held that there is no legal compulsion to look for corroboration of the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted (Himachal Pradesh vs Raghubir Singh) There is no rule of practice that there must in every case be corroboration before a conviction can be allowed to take place (Rameshwar vs Rajasthan, AIR 1952 SC 54).
- On discrepancy in the statement of victim/witness: In cases involving sexual assault minor contradictions or insignificant discrepancies in the statement of the witnesses should not affect the case (Punjab vs Gurmeet Singh, AIR 1996 SC 1393 and Andhra Pradesh vs Gangula Satyamurthy, JT 1996 (10) SC 550). It was held that the court must appreciate the evidence in totality of the background of the entire case and not in isolation.
- On medical report: In Rampal vs State of Haryana, 1994 Supp(3) SCC 656, conviction was based on the sole testimony of theprosecutrix. Though the doctor did not find any visible injuries, thecourt held that, there was no reason to suspect the testimony of the victim and upheld the conviction of the accused.
- Expeditious trial is an essential ingredient of reasonable, fair and just procedure guaranteed by Article 21 (Menaka Gandhi vs State, 1978 (1) SCC 248). It is the constitutional obligation of the state to devise such a procedure as would ensure speedy trial (Sheela Barse vs UOI, 1986 (3) SCC 632).
- Courts need to take participative role to deliver justice to victim. “The Courts have to take a participative role in a trial. They are not expected to be tape recorders to record whatever is being stated by the witnesses. S.311 of CrPC and S.165 of Ev. Act confer wide and vast powers on presiding officers of Court to elicit all necessary materials by playing an active role in the evidence collecting process” (Zahira Habibullah vs Gujarat, 2004 (4) SCC 158).
- Witnesses to turn up in trial: In order to ensure fair trial, a duty has been cast on the prosecution to produce witnesses on time. “The presence of the Investigating Officer at the time of the trial is must. It is his duty to keep the witness present. If there is a failure on the part of the witness to remain present, it is the duty of the court to take appropriate action” (Shailendra Kumar vs Bihar, 2002 (8) SC 13).
- Right to be rescued: Section 16 ITPA provides powers to Executive Magistrates and Judicial Magistrates for directing any police officer of the rank of SI and above to rescue a person based on information received from any source. This accrues a right to the victim to notify the Magistrate, by whichever means possible, and a duty is cast on the Magistrate to ensure steps for rescue.
- Right to restoration to a safe place after rescue: Section 17 ITPA provides that a rescued person shall not be restored to or placed in the custody of a person who may exercise a harmful influence over the person. This section of law calls for Home verification to verify whether the original home of the rescued person is safe enough for her return.