Recording of Prosecutrix's Testimony Through Two-Way Video Conferencing Not Adverse, No Denial Of Right To Fair Trial Of Accused: Delhi High Court

The Delhi High Court has observed that recording of testimony of a prosecutrix in sexual assault cases through “two-way video conferencing facility” is not adverse nor does it amount to denial of accused's right to fair trial or effective cross-examination.

Justice Swarana Kanta Sharma said that recording of the victim's testimony will still have to be subjected to the “tradition parameters of reliability” and will be tested on the touchstone of credibility on the basis of cross-examination.

“This Court is of the view that the facility of video-conferencing through which the testimony of the prosecutrix can be allowed to be recorded, in the present case also, is not a one way facility of video- conferencing, but a two-way video-conferencing facility, which includes the element of participation of the accused, the victim, the learned prosecutor, learned defence counsel and the learned Trial Court Judge and following all the principles of criminal justice system,” the court said.

Justice Sharma was dealing with a plea moved by two accused persons who were facing trial in an alleged case of gang rape of a foreign national, alongwith a co accused. The sought physical presence of the prosecutix for her examination and cross-examination.

The prosecutrix, a 23 years old USA national, alleged that she was sexually assaulted by the three accused persons in 2019. 

Vide the impugned order, the trial court dismissed the plea of accused seeking physical presence of the prosecutrix for her examination and cross-examination.

While upholding the impugned order, the court however directed the trial court to ensure that the guidelines laid down by the Supreme Court are followed while recording statement of the prosecutrix.

“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 video conferencing facility instead of face-to-face confrontation,” the court said.

It added that in a case of sexual assault, the vulnerability of the witness is not in relation to her financial or educational background or her being from a developed or undeveloped country, but is in relation to her mental and physical trauma, which makes her vulnerable to the atmosphere and presence of the accused, which will make her re-live the traumatic experience by his sheer presence.

“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 traumatizing process, and the Courts must acknowledge and address such challenges,” the court said.

It added: “Thus, in the pursuit of justice, it is important for the Courts to consider the unique circumstances that surround cases involving victims of sexual assault, who are foreign citizens.”

Title: VINOD KUMAR & ANR. v. STATE (NCT OF DELHI) & ANR.

Citation: 2023 LiveLaw (Del) 1329

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