The Delhi High Court has implored judges to have a "sensitive heart" and an "alert mind" while dealing with sexual assault cases so that the trial does not go in an unconnected direction and no further trauma or humiliation is caused to the victim.
Justice Swarana Kanta Sharma said the State can provide the necessary and modern infrastructure, including vulnerable witness deposition complexes, but it cannot generate a sensitive heart of a judge.
The court's observation came on an appeal by an accused against a trial court order sentencing him for 10 years for several offences under the Indian Penal Code, including rape, in 2010.
The appellant accused passed away in 2021 and the appeal was continued by his wife.
The court, in a recent order, discharged the accused on account of "several material inconsistencies and contradictions" in the statement of the victim while taking note of "certain disturbing crucial issues" in relation to the examination of the victim, a minor at that time, during the trial.
The court noted "with strong disapproval" that the counsellor, who had counselled the 12-year-old, had been allowed to be examined as a defence witness and the confidential report regarding the counselling was brought in the public domain.
"This Court by way of this judgment once again reiterates that, though the State and administration can provide the necessary and modern infrastructure to the judges as well as vulnerable witness deposition complexes, it cannot generate a sensitive heart of a judge. It has to be developed by the judge himself as part of his duty bound by his oath to the Constitution and service to the citizens of the country," said the court.
"It is also the duty of every Court to not only have a heart which is sensitive but also a mind which is alert while recording and conducting trial, especially in sexual assault cases, so that the trial is not diverted to a direction which is totally unconnected, uncalled for and causes further trauma or humiliation or brings into public domain, the internal agony and trauma that a child might have discussed or shared with someone she had thought will keep to himself i.e., the counsellor," the court stated.
The court observed that the victim here was asked questions from the confidential report in which she had narrated being sexually exploited by her father when the trial court was bound to the golden principle of sensitivity and protection of the prosecutrix from further harassment or distress.
"This court itself feels the anxiety and the discomfort that the child of 12 years of age would have felt. Even in case her father was exploiting her, she was under tremendous pressure of being beaten by her father," remarked the court as it asserted that the judges should not forgot how to deal with vulnerable and child witnesses.
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