Saturday, 4 June 2022

legal opinion- disclosing rape victim identity

                               SHORT NOTE ON COUNSELLING 

FACTS:

Kanchan a rape victim has been summoned to appear in the court to depose as witness in support of the prosecution case filed on her complaint. She is nervous & is in double mind. She is very much conscious of her identity being known to the world & she is worried as to its adverse effect on her marriage, whose negotiation are in progress.

ISSUE:

Whether she can drop the case as she is conscious of  her identity being known to public or there is any provision in law so that she can witness without disclosing her identity.

LEGAL ASPECT:

Law provide harassment free & time bound investigation in the case of rape. Section 154(1) of the code of Criminal Procedure provided that the information given by a women against whom an offence of sexual assault has been committed. Such information shall be recorded by a women police officer or any women officer. Section 157 of Code of Criminal Procedure provided that the statement of the victim in relation to the offence of rape shall be conducted at the residence of the victim or in the place of her choice by a women police officer in the presence of her parents or guardian. 

Statement of the Rape victim shall be recorded by women magistrate in the chamber of women magistrate under section 164 (5-A) of Code of Criminal Procedure. If the victim or witness is mentally or physically disabled than analizer, educator, interpreter or socializer shall be appoint to decode the sign language of the victim or witness. It is recommended that any offence related to sexual assault shall be tried as far as practicable by the court presided over by a women magistrate or judge. 

Rape victim has right to trial with full dignity, speed & protection. No question should be asked that resulted into the character assassination, no question should be asked related to prior sexual history of the rape victim or witness. 

Section 327 of code of Criminal Procedure provided that the inquiry into and the trial of rape victim shall be conducted in cameras as far as practicable by a women judge or magistrate. Section 327 (3) of Code of Criminal Procedure do not allow publication of the proceeding subject to maintaining confidentiality of name & address of the parties. If a person want the recording of the proceeding, required written permission from the judge or magistrate stating reason for what purpose recording shall be used. 

Section 173(1A) of the code of Criminal Procedure prescribed that the investigation shall be completed within 2 months from the date on which the information was recorded. Under section 309(1) of Code of Criminal Procedure prescribed that trial to be completed in 2 months from the date of filing of the charge sheet. The rape victim has the right to check on the court schedule program of 2 months trial duration under section 230 of Code of Criminal Procedure.

 In the case state of Kerala V. Rasheed (2019) Supreme Court held that witness should not be manipulated by the accused or anyone for that reason police should take care of full protection of the victim or witness from courtroom to their Home. No confrontation between the parties should be allowed for that matter individual waiting rooms in the court shall be allotted to both the parties. In case of threat police can install Cameras in the house of the victim & witness or relocate witness and victim to secret location in required.  In the case of Mahendra Chawala V. UOI (2018) witness protection scheme has been released which contain guidelines for the protection of witness in the cases of heinous crimes.

As far as identity of witness is concerned, if the witness did not want to disclose his/her identity, they shall be assigned with an new identity by the court.  

Evidence should be present in the court in the presence of accused, accused shall be informed about the evidence by electronic form if required. 

OPINION:

In my opinion Kanchan should not drop the case but witness the trail without disclosing her identity. She shall be assigned a new identity in that way she can avoid threats and she is unknown to the world. 

                 


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