“In the present case, it may be that the prosecutrix (victim) had given a correct statement before the learned magistrate under Section 164 of the Criminal Procedure Code (Cr.PC). But while deposing in this court she has given a statement absolutely contrary to her earlier statement U/s 164 Cr.PC, then of course, a serious doubt arises about the credibility of such a witness. A witness who is not a truthful witness can never be relied upon. Not only is the prosecutrix not supporting the case of the prosecution, even her father and mother are not supporting the prosecution case.”

This is an extract from a Delhi Sessions court order acquitting a man accused of rape after the minor victim and her family members turned hostile during trial. Despite a large number of victims turning hostile during trial, the criminal justice delivery system has failed to address this issue, which also arises out of societal pressures, constructively or creatively. In their orders, Sessions judges do record that the victim has turned hostile and rebutted her previous statements before the police and the magistrate. They also record the victim’s new version of what transpired.

Though the option of prosecuting such witnesses for perjury (giving false evidence) under Section 344 of the Cr.PC and Section 195 of the Indian Penal Code exists, judges rarely use these. One former judicial officer said judges are constrained by the fact that victims or witnesses rarely tell the court that they are being threatened.

“We don’t pursue perjury proceedings against rape victims and their relatives who turn hostile because we understand the pressure they are under from family and society. Courts need to do something proactively to give witnesses and victims the courage to stay the course. Fast-tracking trial is the best option,” the former officer said.

At present, courts ensure that the accused in heinous offences remain in judicial custody during the pendency of trial and are known to cancel bail when allegations of threatening witnesses are made. The other option of a witness protection system is virtually non-existent in this country. The Delhi State Legal Services Authority is presently the competent authority for this, but its core competence is in providing legal aid and disseminating legal awareness.

“Often pressure on victims and witnesses to settle cases comes from relatives and friends of the accused even when the accused are in judicial custody. The courts where trials are progressing need to be empowered to direct police officers to give victims and witnesses protection in cases wherever the need is felt. The police never act on intimidation complaints unless something happens to a victim or witness or until advocates come into the picture,” a public prosecutor said. The long-felt need of a victim compensation scheme was met with the insertion of Section 357A to the Cr.PC in 2009. “Earlier, if fines could be realised from convicted persons, we tried and passed it to the victim. Now, we have the power to actively help and even offer interim compensation during pendency of trial for the rehabilitation of rape victims through 357A. It gives another reason for rape survivors to continue the fight against the rapists,” the former judicial officer said.

“Because of the pressure they are under from family and society”