What Delhi High Court Said On Allowing Sexual Assault Survivor To Testify Virtually

Allowing a sexual-offence survivor to testify through "two-way video-conferencing" is not against an accused's right to a fair trial, but refusing her such a facility would deny her access to justice, the Delhi High Court has said while upholding a trial court decision not to seek before it the physical presence of a gang-rape survivor who is a foreign national.

Justice Swarana Kanta Sharma said "two-way video-conferencing" ensures the participation of all -- the accused, the victim, the prosecutor, the defence counsel as well as the judge -- and follows all principles of the criminal justice system. Its use cannot be held to be denying a fair trial to the accused, the judge added.

"It can be safely held that allowing the recording of evidence of the prosecutrix through two-way video-conferencing would not amount to denying the petitioners' right to a fair trial. However, denying the same may amount to denial of a fair right of access to justice to the victim," the court said in a recent order.

The court was hearing a petition filed by two gang-rape accused who challenged the trial court order dismissing their plea to call the survivor, a US citizen who was 23 years old at the time of the alleged incident in 2019, physically to the court for her examination and cross-examination.

Justice Sharma said in cases like the present one, the court has to keep in mind the psychological impact of incidents of sexual assault on the survivor.

The court observed that asking the survivor to repeatedly travel back to a country where the assault occurred can inflict further emotional trauma as it noted that there are rules that provide the option for virtual examination of vulnerable witnesses, including witnesses of sexual assault, rather than recording their evidence in person.

"The impact of sexual assault is universally devastating, but for a victim who is a foreign citizen seeking justice in another country, the emotional toll can be particularly acute. The act of recounting the traumatic experience in a foreign courtroom can be a distressing and traumatising process, and the courts must acknowledge and address such challenges," the judge said.

The court also rejected the accused's contention that hailing from a developed country, the prosecutrix could not be considered a "vulnerable witness" under the relevant rules to get the benefit of virtual proceedings.

The court held that the vulnerability is not in relation to financial or educational background or being from a developed country, but in relation to the mental and physical trauma that makes the survivor vulnerable to the atmosphere and presence of the accused.

"In instances where a woman experiences a traumatic event on a foreign soil, such as in India in the present case, the court must remain aware of the potential re-traumatisation that may result from requiring the survivor's physical presence on such foreign land for the purpose of trial," it said.

"The trauma of testifying in a sexual assault case of a foreign citizen in another country, in this court's opinion, is a sufficiently critical factor to justify the use of the video-conferencing facility instead of face-to-face confrontation. The two-way video-conferencing-assisted testimony is not adverse nor does it amount to denial of the accused's right to effective cross-examination," the court added.

It also observed that the trial court did not commit any error in pointing out that the accused or their lawyers never earlier objected to the issuance of summons to the prosecutrix for her appearance either physically or virtually and to even depose via video-conferencing. 

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