The Punjab and Haryana High Court on Thursday required its Registrar General to circulate to all the Presiding Officers/Designated Courts dealing with cases of Crime like Sexual Assault against Women, in the States of Punjab, Haryana and the U.T., Chandigarh, its observations against “a lewd, filthy and an indecent question put to the prosecutrix” in a rape case, which, the court said, could not have been allowed by the trial Court.
Justice Arwind Singh Sangwan added that such conduct is in violation of the directions given by the Supreme Court in State of Punjab vs Gurmit Singh (1996), where the top court stipulated that while conducting the cross-examination of victims of sexual assault, the Court should be vigilant that defence counsel should not adopt a strategy of continuing questioning the prosecutrix as to the detail of the rape and the Court should not sit as a silent spectator while the victim of the crime is being cross-examined by the defence and it should effectively control the recording of the evidence to avoid her victimisation.
The Single Judge was hearing a set of appeals emerging out of the same judgment of conviction and order of sentence passed by the trial Court in a rape case.
The Single Bench pointed out that while conducting cross examination on behalf of the accused, their counsel had put certain questions which, “in opinion of this Court”, could not be asked to a rape victim to prove the innocence of the accused.
“One of the questions and its reply reads as under:- ‘Ques. Whether accused Ashraf Mir had sexual intercourse with you in his full satisfaction or not and whether the act of sexual intercourse was complete?
Ans. I removed my clothes and whatever a man does with a woman while committing sexual intercourse was completely done by accused Mohd. Ashraf Mir with me'”, extracted Justice Sangwan in his judgment.
The Single Bench proceeded to state that “the trial Court should not have allowed such questions to be put to the prosecutrix if the defense counsel could not shatter the testimony of a rape victim”.
The High Court observed that the defence was set up so strongly that in the cross examination of the prosecutrix, certain questions were put to her to the extent “Whether while having sexual intercourse with Mohd. Ashraf Mir (A-5), she (PW-1) was able to satisfy him”, which she replied. “One more question was put to her ‘Out of 02 persons, i.e. Mohd. Ashraf Mir (A-5) and one (C-20), who performed sexual intercourse first’. Again, PW-1 (W-1) replied that Mohd. Ashraf Mir (A-5) had sex first”, Justice Sangwan noted.
The bench expressed its shock that “Even, a perusal of the subsequent part of the cross examination of the prosecutrix shows that the defence counsel tried to impeach the character of the victim of sexual assault by asking various questions regarding her character to suggest that she had consensual sex with many other persons as she was into flesh trade”.
In his judgment, the Single judge quoted the operative part of the judgment in State of Punjab v. Gurmit Singh , which reads as under:-
“There has been lately, lot of criticism of the treatment of the victims of sexual assault in the court during their cross-examination. The provisions of Evidence Act regarding relevancy of facts notwithstanding, some defense counsel adopt the strategy of continual questioning of the prosecutrix as to the details of the rape. The victim is required to repeat again and again the details of the rape incident not so much as to bring out the facts on record or to test her credibility but to test her story for inconsistencies with a view to attempt of sexual assault to twist the interpretation of events given by her so as to make them appear inconsistent with her allegations. The Court, therefore, should not sit as a silent spectator while the victim of crime is being cross-examined by the defense. It must effectively control the recording of evidence in the Court.
While every latitude should be given to the accused to test the veracity of the prosecutrix and the credibility of her version through cross-examination, the court must also ensure that cross-examination is not made a means of harassment or causing humiliation to the victim of crime. A victim of rape, it must be remembered, has already undergone a traumatic experience and if she is made to repeat again and again, in unfamiliar surroundings, what she had been subjected to sexual assault, she may be too ashamed and even nervous or confused to speak and her silence or a confused stray sentence may be wrongly interpreted as “discrepancies and contradictions” in her evidence”.
Read the Judgement here: