Courts Should Exercise Empathy, Sensitivity While Dealing With Sexual Offences Involving Minors: Delhi HC

It said courts must remain sensitive to the emotional and psychological state of such victims as they may struggle to provide precise details of the incident due to trauma.

The court ordered preservation of the relevant CCTV footage and the CDR.

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New Delhi: The FIRs in sexual offence cases involving minors are not mere printed papers but their trauma writ large, and such a stressful and life-turning experience faced by a victim should not be dealt with mechanically by courts, the Delhi High Court has said.

It said courts must remain sensitive to the emotional and psychological state of such victims as they may struggle to provide precise details of the incident due to trauma.

The court's observations came while setting aside a trial court order rejecting a minor victim's plea for preservation of CCTV footage and call data record of the accused on the ground of discrepancy in her statements with respect to the date of the alleged incident.

Justice Swarana Kanta Sharma said that the victim, who was allegedly gang-raped by her brother-in-law and his two friends, was experiencing mental trauma due to which she was unable to recollect the correct date of the alleged incident to police, and the trial court should have "exercised sensitivity and empathy" in such a case.

The alleged victim was under the care of the Institute of Human Behaviour and Allied Sciences (IHBAS) and, after improvement in her mental health, she clarified the confusion over the dates she was assaulted and filed an application for issuance of necessary directions to the investigating officer to collect the CCTV footage and CDR of the correct date, noted the court.

"Regrettably, in the present case, the learned Trial Court had declined the request to preserve a critical piece of evidence i.e. the CCTV footage of the actual date of alleged incident, as well as the Call Detail Records of the accused persons, on the sole ground that the victim had mentioned a different date of incident in her initial complaint," said the court in a recent order.

"The FIRs in cases involving sexual assault and rape, committed upon minors, are not mere printed papers, but a trauma writ large, experienced by a living human being, which is difficult to be portrayed on a piece of paper... In cases of sexual assault of minor victims, such as the present one, the extreme stressful situation and lifeturning experience faced by a victim should not be dealt with in mechanical manner by the courts," the high court said.

The court observed that the victim, who was about 16 years of age at the relevant time, was allegedly raped by her brother-in-law and two others after they stealthily entered into her house. They even recorded a video of the alleged incident and threatened her that they will make it public, leading to her seeking treatment at IHBAS.

The court ordered preservation of the relevant CCTV footage and the CDR as the absence of such crucial evidence could result in her losing hope about getting justice.

Once the evidence is destroyed by lapse of time or due to lapse on part of the investigating agency or due to any hyper technical approach, it gets lost forever, cautioned the court.

Justice Sharma emphasised that courts are the "supportive pillars of hope for justice", and by understanding the mental distress and trauma of a victim of sexual assault, they can foster an environment where such victims feel heard.

"The courts must understand the same themselves as they, too, are bound to their oath of duty...In essence, the Court's purpose is not only to interpret the law, but also to serve as a bastion of sensitivity and empathy while adjudicating cases of sexual assault," the court stated.

"While adjudicating cases of sexual assault, the courts must remain mindful of, and sensitive to, the emotional and psychological state of the victim that such a victim may, at times, struggle to provide precise details of the incident while struggling with the trauma of sexual assault suffered by her, especially in cases such as the present one, where the victim was allegedly sexually assaulted by her own brother-in-law and his two friends," it added. 

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