Vulnerability factors include crime nature, threats, fear of reprisal, age, disability and gender identity
WAJAHAT SHABIR
SRINAGAR: The High Court of Jammu & Kashmir and Ladakh has approved the updated model guidelines for recording of evidence of vulnerable witnesses in the Union Territory of Jammu & Kashmir and Union Territory of Ladakh.
The purpose of this protocol is to present guidelines and recommendations to improve the response of the justice dispensation system towards vulnerable witnesses.
The vulnerability of a witness may emerge from a range of circumstances which include, but are not limited to nature of crime, threats and intimidation, fear of reprisal, age, developmental Levels, gender identity, sexual minorities, ethnicity, religious identity, caste, physical and/or mental disability, lack of infrastructural support, language barriers, geographical location etc.
A circular in this regard has been issued by the High Court of Jammu and Kashmir and Ladakh, a copy of which lies with The News Now.
Every vulnerable witness shall be presumed to be competent to testify as a witness, unless the court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions due to tender years, disability, either of body or mind, and illness, or any other cause of the same in accordance with Section 124 of the Bharatiya Sakshya Adhiniyam, 2023.
Vulnerable witnesses shall be allowed a pre-trial court house tour or tour of the civil court of Juvenile Justice Board, etc., along with the support person or a para-legal volunteer, as the case may be, to enable such witnesses to familiarize themselves with the layout.
The Judge may meet a vulnerable witness suo motu on reasons to be recorded or on an application of either party in the presence of the prosecution and defence lawyer, or in their absence before the witness gives their evidence, for explaining the court process in order to help them to understand the procedure and give their testimony, free of fears and concerns.
The court shall ensure that proceedings relevant to the testimony of a vulnerable witness or witness are conducted in language that is simple and comprehensible to the witness.
The concerned court shall facilitate the right of a child victim under the POCSO Act to take assistance of a legal counsel of their choice.
The court shall inform vulnerable witnesses that they may take the assistance of a Support Person during the trial. In cases under the POCSO Act, 2012, the concerned court shall take into consideration the role of the Support Persons as provided in Rule 4(9), POCSO Rules, 2020.
The courts shall ensure that a waiting area for vulnerable witnesses with the support person, and the lawyer of the vulnerable witness, if any, is separate from waiting areas used by other persons. 43 Care shall be taken to ensure that the waiting room is used only by the vulnerable witness and the non-offending family members and support persons. The waiting area should be accessible to all vulnerable witnesses, including those with disability.
Vulnerable witnesses shall receive high priority and shall be dealt with as expeditiously as possible, minimizing unnecessary delays and adjournments to avoid repeated appearance of the witness in the Court.
Judges and court administrators should ensure that the developmental needs of vulnerable witnesses are identified, recognized and accommodated in the management of the courtroom and recording of the testimony.
In case of sexual offences judges should avoid asking vulnerable witnesses to demonstrate intimate touching on their own body, during the recording of testimony and vulnerable witnesses can instead be asked to point to a body outline diagram.
Judges should be flexible in allowing the vulnerable witnesses to have a Support Person present while testifying and should guard against unnecessary sequestration of Support Persons or any other persons permitted to be present during the testimony of witness.
The mandatory requirement of in camera trials as per section 366 B.N.S.S and Section 37 of the POCSO Act shall be ensured and recorded in the orders passed in such cases.
