Safeguards of Child Testimony

The Court recognised the need and importance of setting up facilities that create a safe environment for recording the evidence of vulnerable witnesses. It provided directions for the setting up of centres for vulnerable witnesses (including minors). It was clarified that the definition of “vulnerable witness” contained in Clause 3(a) of the ‘Guidelines for Recording…

Para 5; Pages 2, 3

The Court held that the sanguine purpose is to safeguard the interest and well-being of the children at every stage of the judicial proceeding. It should provide for a child-friendly procedure and the atmosphere as commanded by the provisions of the POSCO Act has to be congenial. The protection of the dignity of the child…

Para 23; Page 23

The Court recognized the difficulties of survivors of trafficking with respect to travelling long distances for the purpose of giving evidence in trial courts, especially during the COVID-19 Pandemic and adopted a Standard Operating Procedure (‘SOP’) for the effective recording of the child’s testimony through video conference. The SOP suggested that testimony of children, who…

Para 4 and 9; Page 4, 5 and 7

The Supreme Court issued directions for vulnerable witnesses in cases of sexual assault. The guidelines state that in holding a trial in the case of child sex abuse or rape: (i) a screen or some such arrangements may be made where the victim or witnesses do not see the body or face of the accused;…

Para 34; Page 28

The court reiterated the guidelines laid down in Sakshi v Union of India and mandated their implementation by January 2018. It emphasized the necessity of creating a conducive environment for vulnerable witnesses to provide their statements with special guidelines for child survivors of sexual abuse. It directed that special centres for the examination of vulnerable…

Para 11, 12; Page 3, 4

The court held that a statement under the POCSO Act can be made only to a police officer or magistrate. Counsellors and NGOs can merely play a facilitative role and cannot take a statement from the child. Further, the court clarified that the notes of the counsellor or the expert are confidential and cannot be…

Para 6-8, 10, 12, 14-17, 19-21, 77-78, 87-89, 93-94

The court interpreted Section 118 of the Indian Evidence Act, 1872 (“IEA”) in reference to POCSO cases and held that evidence of child survivors cannot be rejected per se but merits close scrutiny by the court as a rule of prudence. The court further discussed the various aspects of determining the competence of child survivor,…

Para 45, 46, 47, 48, 49, 50-52, 57, 58

The court held that the child’s statement recorded under Section 164 of the CrPC in the course of investigation cannot be considered as substantive evidence under Section 35 of the POCSO Act. The court further held that the requirement of expeditious recording of a child victim’s evidence under Section 35 of the POCSO Act is…

Para 21-27, 41- 44, 49, 50, 56-61

Applications for recalling a child survivor under Section 311 of the Code of Criminal Procedure, 1973 (“CrPC”) are subject to Section 33(5) of the POCSO Act on the principle of generalia specialibus non-derogant. The conflicting rights of the accused and the survivor have to be balanced when considering such an application.

Para 25; Page 17