Audio-visual recording of statements of victims in sexual offence cases
- Despite provisions of the POCSO and directions by the Hon’ble Delhi High Court, the police are not ensuring proper recording of victims’ statements in POCSO and other sexual offence cases. We understand that in many cases victims’ statements recorded under Section 161 of the CrPC and Section 26(1) of the POCSO are not being recorded verbatim. Further, statements once recorded are not being read out to the victim for confirmation, and in many cases of child sexual abuse, statements are being recorded without the presence of the child’s guardian, despite there being a clear statutory mandate to no do so under Section 157(1) (b) of Cr.P.C. and Section 26(1) of POCSO.
- The directions issued by the Hon’ble Delhi High Court in Virender v. State of NCT of Delhi, where Gita Mittal J. directed that the following guidelines be implemented immediately:
(i). On a complaint of a cognisable offence involving a child victim being made, concerned police officer shall record the complaint promptly and accurately.
(ii). Upon receipt of a complaint or registration of FIR for any of the aforesaid offences, immediate steps shall be taken to associate a scientist from Forensic Science Laboratory or some other Laboratory or department in the investigations. The Investigating Officer shall conduct investigations on the points suggested by him also under his guidance and advice.
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(iv). The statement of the victim shall be recorded verbatim.
(v). The officer recording the statement of the child victim should not be in police uniform.
(vi). The statement of the child victim shall be recorded at the residence of the victim or at any other place where the victim can make a statement freely without fear.
(vii). The statement should be recorded promptly without any loss of time.
(viii). The parents of the child or any other person in whom the child reposes trust and confidence will be allowed to remain present.
(ix). The Investigating Officer to ensure that at no point should the child victim come in contact with the accused.
(x) The child victim shall not be kept in the police station overnight on any pretext, whatsoever, including medical examination.
(xi). The Investigating Officer recording the statement of the child victim shall ensure that the victim is made comfortable before proceeding to record the statement and that the statement carries accurate narration of the incident covering all relevant aspects of the case.
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(xvi). The investigation of the cases involving sexually abused child may be investigated on a priority basis and completed preferably within ninety days of the registration of the case. The investigation shall be periodically supervised by senior officer/s.
(xvii). The Investigating Officer shall ensure that the identity of the child victim is protected from publicity.
(xviii). To ensure that the complainant or victim of crime does not remain in dark about the investigations regarding his complaint/FIR, the complainant or victim shall be kept informed about the progress of investigations. In case the complainant gives anything in writing and requests the I.O., for investigations on any particular aspect of the matter, the same shall be adverted to by the I.O. Proper entries shall be made by I.O. in case diaries in regard to the steps taken on the basis of the request made by the complainant. The complainant, however, shall not be entitled to know the confidential matters, if any, the disclosure of which may jeopardize the investigations.
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(xxi). The material prosecution witnesses cited in any of the aforesaid offences shall be ensured safety and protection by the SHO concerned, who shall personally attend to their complaints, if any.
(xxii). Wherever possible, the IO shall ensure that the statement of the child victim is also video recorded.
- RECORDING OF STATEMENT BEFORE MAGISTRATE
(i). The statement of the child victim shall be recorded promptly and at the earliest by the concerned Magistrate and any adjournment shall be avoided and in case the same is unavoidable, reasons to be recorded in writing.
(ii). In the event of the child victim being in the hospital, the concerned Magistrate shall record the statement of the victim in the hospital.
(iii). To create a child friendly environment separate rooms be provided within the Court precincts where the statement of the child victim can be recorded.
(iv). The child victim shall not be separated from his/her parents/guardians nor taken out from his/her environment on the ground of “Ascertaining voluntary nature of statement” unless the parents/guardian is reported to be abusive or the Magistrate thinks it appropriate in the interest of justice.
(v). Wherever possible, the IO shall ensure that the statement of the child victim is also video recorded.
(vi). No Court shall detain a child in an institution meant for adults.
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(i) To create a child friendly environment separate rooms be provided within the Court precincts where the statement of the child victim can be recorded.
(ii) In case of any disability of the victim or witness involving or impairing communication skills, assistance of an independent person who is in a position to relate to and communicate with such disability requires to be taken.
(iii) The trials into allegations of commission of rape must invariably be in camera. No request in this behalf is necessary.
(iv) The Committal Court shall commit such cases to the Court of Sessions preferably within fifteen days after the filing of the chargesheet.
(v). The child witness should be permitted to testify from a place in the courtroom which is other than the one normally reserved for other witnesses.
(vi) To minimise the trauma of a child victim or witness the testimony may be recorded through video conferencing or by way of a close circuit television. If this is not possible, a screen or some arrangement be made so that the victims or the child witness do not have to undergo seeing the body or face of the accused. The screen which should be used for the examination of the child witness or a victim should be effective and installed in such manner that the witness is visible to the trial judge to notice the demeanour of the witness. Single visibility mirrors may be utilised which while protecting the sensibilities of the child, shall ensure that the defendant’s right to cross examination is not impaired.
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(xi) The court should be satisfied that the victim is not scared and is able to reveal what has happened to her when she is subjected to examination during the recording of her evidence. The court must ensure that the child is not concealing portions of the evidence for the reason that she has bashful or ashamed of what has happened to her.
(xii) It should be ensured that the victim who is appearing as a witness is at ease so as to improve upon the quality of her evidence and enable her to shed hesitancy to depose frankly so that the truth is not camouflaged on account of embarrassment at detailing the occurrence and the shame being felt by the victim.
(xvi) Unless absolutely imperative, repeated appearance of the child witness should be prevented…..”
- The Hon’ble Court’s guidelines set out above are not being complied with by the police. The GoM thus recommends that the NCTD should ensure the strict implementation of Section 157(1) of the CrPC and Section 26(4) of POCSO and should put in place measures for recording of a victim’s statement (especially where the victim is a child) by audio visual mean by magistrate and police officer. If it is recorded in audio-visual means, the child can be prevented from the trauma of repeating the statement again and again. It will also be helpful when the child turns hostile due to adverse circumstances. The statement recorded in audio visual means will be a proof of the fact that the statement made by the child was voluntary narration of facts.
 See Proviso to Section 157(1) CrPC:
“Provided further that in relation to an offence of rape, the recording of statement of the victim shall be conducted at the residence of the victim or in the place of her choice and as far as practicable by a woman police officer in the presence of her parents or guardian or near relatives or social worker of the locality.”
 Judgment of the Delhi High Court dated September 29, 2009 in Criminal Appeal No. 121 of 2009.