Fakeer Mohammad Khan and Ors. vs O R D E R

However, the Trial Court chose to brush aside the said unblemished testimony/ evidence of prosecutrix without proper application of mind. ii. Impugned judgment has been passed in a slipshod manner which is very cryptic and it appears that the court below was on pains to deliver the judgment and accord acquittal to the respondent by way of handing out a cryptic judgment. The impugned judgment, therefore, deserves to be set aside and quashed. iii. The Trial Court has not minutely gone through statement of prosecutrix as she was minor at the time of occurrence. iv. Prosecutrix was just 17 years of age and totally innocent, so it was highly improbable that she would make a false statement before the Trial Court, moreover, at the cost of her reputation and that of her family. The strength of prosecution case predominantly rests on statement of prosecutrix who was just minor when occurrence took place. Statement of prosecutrix is credible and reliance can safely be placed on her statement, v. The Trial court has neither appreciated the evidence nor has taken trouble of discussing the same while handing out the judgment. The Trial Court has not given credence to the statement of prosecutrix who was just 17 years old when she was brutally ad sexually assaulted by the accused and her statement nowhere absolves accused from criminal prosecution. The matter being of sensitive importance and there is national psyche against crimes against the women and in the face of such circumstances the court below has demonstrated insensitivity while dealing with the matter. vi. Impugned judgment is not in consonance with canons of Evidence Act as the Trial Court has not appreciated the prosecution evidence in its right perspective, thus the impugned judgment deserves to be set- aside. vii. A duty was cast upon the court below to abide by the concept of fair trial which requires the court to shield the society from the hazards of being exposed to the misadventures of a person having committed crime. The court in the present case has failed to accord a fair trial. The court while passing the impugned judgement has not adhered to the concept of fair trial rendering the impugned judgment bad in the 2 eye of law, making it imperative for this Court to set-aside the same. It appears from the impugned judgment that the court below was on pains to grant acquittal to respondent while embarking upon extraneous circumstances to the case in defence of respondent. viii. As per provisions of Section 344 Cr.P.C., once the recording of prosecution evidence in criminal case especially in sessions trial has started, same shall continue until all the witnesses are examined unless there are compelling circumstances for the Judge to adjourn the case for a long period but the Trial Court did not discharge its responsibility to seek their attendance which has caused miscarriage of justice. Both the said witnesses are government officials and as such it was incumbent upon even Trial Court to seek their attendance even by adopting coercive method inasmuch as it is trite that on failure of prosecution to produce witness, the Trial Court is dependent or otherwise of the prosecution evidence by the prosecution. It is also settled that the Court cannot throw entire responsibility on the prosecution agency for producing witnesses.

2. Briefly stating the facts of the case are that on the basis of a complaint filed by the father of the prosecutrix, FIR No. 6/2025 was registered against the respondent for offences punishable under Sections 363 and 376 RPC, alleging that while his daughter had gone to Bazar for purchasing certain essentials on 22.01.2025, she did not return back to home. On search, he came to know that she had been kidnapped by some unknown persons. On the said complaint, FIR (First Information Report) was registered, prosecutrix was recovered and statement of witnesses were recorded under Section 161 CrPC and during investigation it was concluded by the Investigating Officer that offences under Sections 363 and 376 RPC were established against the accused, and accordingly chargesheet was filed before the Magistrate. 3

3. Mr. Jahingeer A. Dar, learned GA, appearing for appellant, would stoutly aver that the Trial Court, after framing the charge against accused for commission of offences punishable under Section 363 and 376 RPC, record the evidence and decided the case notwithstanding the fact two only two witnesses had been recorded by it. According to Mr. Jahingeer, learned counsel for appellant, the Trial Court while closing the evidence, has not taken notice of the fact that only two witnesses out of 14 listed witnesses had been produced and examined and in absence of statements of 12 witnesses, the case ought not to have been decided. The Trial Court after recording the statement of two witnesses, concluded that there is no evidence against accused whereas it could have summoned the witnesses and bring them before it for recording their statement, but Trial Court did not undertake this pivotal exercise albeit having powers to do so.

4. Mr. Jahingeer, learned GA, in continuation to his arguments, also urges that impugned judgment smacks of the Trial court having not adhered to established doctrine of fair trial as Trial Court seems to have carved out a third case which should not have been; while an effort to disengage the truth from the falsehood and to sift or separate the grain from the chaff. It has taken an easy course of rejecting the entire prosecution case merely because there are, according to the Trial court, some embellishments; corroboration is not the sine qua non for conviction in a rape case. He also submits that in the setting of this society, refusal of act on the testimony of sexual assault in the absence of corroboration as a rule is adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual assault 4 be viewed with the aid of spectacles fitted with lens, tinted with doubt and disbelief or suspicion as has been done in the present case. To do so is to justify the charge of male chauvinism in male dominated society. He strenuously urges that a girl or a woman in tradition bound non-permissive society, in one of which the prosecutrix lives, would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity, had ever occurred. She would be conscious of the danger of being ostracized by the society or being looked down by the society including all her own family members, relatives, friends and neighbours and her maternal home; happiness being shattered. And when in the face of these factors the crime is brought to light, there is built-in assurance that the charge is genuine rather than fabricated. More so, in the face of the fact, in the present case, the prosecutrix in her testimony has in unequivocal terms testified about the fact of having been abducted and raped. It is further being stated by Mr. Jahingeer that principal evidence of a victim of sexual assault stands at par with evidence of an injured witness, just as a witness who has sustained an injury (which is not shown or believed to be as inflicted) is the best witness. It is only that the corroboration is required on physical assault cases and the same cannot be accepted in case of victim of sex offence. The probability factor as has been highlighted in the impugned judgment, even if genuine, which it is not, does not render it unworthy to credence as a general rule.

5. It would be clear from the record that out of 14 witnesses listed, only two witnesses have been examined. The Trial Court while passing 5 impugned judgement has gone through the evidence of the minor victim only. As far as her statement is concerned, it is undeniable that she was kidnapped. She was a minor at the time when alleged crime had taken place.

6. The Trial Court ought to have recorded the statement of the relevant witnesses in this case because there was evidence with regard to the kidnapping of the victim. Without doing so, the Trial Court in a hurry manner and even without appreciating the evidence of the victim, who was minor at the time of occurrence, has closed the evidence and passed judgement impugned. This is a case where Trial Court ought to have examined rest of the witnesses or should have asked the prosecution to produce them and in any case if prosecution was not in a position to produce them, the Trial Court ought to have issued process for their presence and examination.

7. The Supreme Court in the case of State of Punjab vs. Gurmit Singh, reported in (1996) 2 SCC 384, to which reliance has been placed by Mr. Jahingeer, learned counsel for appellant, while considering the reliability of the statement of the victim has held that “minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. Evidence of the victim of sexual assault was enough for conviction and does not require corroboration unless there were compelling reasons for seeking corroboration. The Court may look for some assurances of her statement to satisfy judicial conscience”. The same was reiterated in Pappu vs. State of Uttar Pradesh, 2022 SCC OnLine SC 176. 6

8. In the case of State (NCT of Delhi) vs. Pankaj Chaudhary, (2019) 11 SCC 575, it was observed and held that as a general rule, if credible, conviction of accused can be based on sole testimony, without corroboration. It was further observed and held that sole testimony of victim should not be doubted by Court merely on basis of assumptions and surmises.

9. In the case of Sham Singh vs. State of Haryana, (2018) 18 SCC 34, the Supreme Court has observed that testimony of the victim is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of the victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. It was further observed that seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury.

10. In Mahender Chawla and others v. Union of India and others, 2019 (14) SCC 615, the Supreme Court has observed that in an adversarial system, which is prevalent by India, the court is supposed to decide the cases on the basis of evidence produced before it. This evidence can be in the form of documents. It can be oral evidence as well, i.e., the deposition of witnesses. The witnesses, thus, play a vital role in facilitating the court to arrive at correct findings on disputed questions of facts and to find out where the truth lies. They are, therefore, backbone in decision making process. Whenever, in a dispute, the two sides come out with conflicting version, the witnesses become important tool to arrive at right conclusions, thereby advancing justice 7 in a matter. This principle applies with more vigor and strength in criminal cases inasmuch as most of such cases are decided on the basis of testimonies of the witnesses, particularly, eye-witnesses, who may have seen actual occurrence/crime. It is for this reason that Bentham stated more than 150 years ago that “witnesses are eyes and ears of justice”. Thus, witnesses are important players in the judicial system, who help the judges in arriving at correct factual findings. The instrument of evidence is the medium through which facts, either disputed or required to be proved, are effectively conveyed to the courts. This evidence in the form of documentary and oral is given by the witnesses. A witness may be a partisan or interested witness, i.e., a witness who is in a near relation with the victim of crime or is concerned with conviction of the accused person. Even his testimony is relevant, though, stricter scrutiny is required while adjudging the credence of such a victim. However, apart from these witnesses or the witnesses who may themselves be the victims, other witnesses may not have any personal interest in the outcome of a case. They still help the judicial system. In the words of Whittaker Chambers, a witness is "a man whose life and faith are so completely one that when the challenge comes to step out and testify for his faith, he does so, disregarding all risks, accepting all consequences.

11. In Krishna Mochi v. State of Bihar (2002) 6 SCC 81, the Supreme Court observed as under: “31. It is a matter of common experience that in recent times there has been a sharp decline of ethical values in public life even in developed countries much less developing one, like ours, where the ratio of decline is higher. Even in ordinary cases, witnesses are not inclined to depose or their evidence is not found to be credible 8 by courts for manifold reasons. One of the reasons may be that they do not have courage to depose against an accused because of threats to their life, more so when the offenders are habitual criminals or high-ups in the Government or close to powers, which may be political, economic or other powers including muscle power.”

12. The Supreme Court in Zahira Habibullah Sheikh v. State of Gujarat, (2006) 3 SCC 374, highlighted the problem with the following observations: “40. “Witnesses” as Bentham said: “are the eyes and ears of justice”. Hence, the importance and primacy of the quality of trial process. If the witness himself is incapacitated from acting as eyes and ears of justice, the trial gets putrefied and paralysed, and it no longer can constitute a fair trial. The incapacitation may be due to several factors, like the witness being not in a position for reasons beyond control to speak the truth in the court or due to negligence or ignorance or some corrupt collusion. Time has become ripe to act on account of numerous experiences faced by the court on account of frequent turning of witnesses as hostile, either due to threats, coercion, lures and monetary considerations at the instance of those in power, their henchmen and hirelings, political clouts and patronage and innumerable other corrupt practices ingeniously adopted to smother and stifle truth and realities coming out to surface.... Broader public and societal interests require that the victims of the crime who are not ordinarily parties to prosecution and the interests of the State represented by their prosecuting agencies do not suffer.... There comes the need for protecting the witness. Time has come when serious and undiluted thoughts are to be bestowed for protecting witnesses so that the ultimate truth presented before the court and justice triumphs and that the trial is not reduced to a mockery.... 41. The State has a definite role to play in protecting the witnesses, to start with at least in sensitive cases involving those in power, who have political patronage and could wield muscle and money power, to avert trial getting tainted and derailed and truth becoming a casualty. As a protector of its citizens it has to ensure that during a trial in court the witness could safely depose the truth without any fear of being haunted by those against whom he had deposed. Every State has a constitutional obligation and duty to protect the life and liberty of its citizens. That is the fundamental requirement for observance of the rule of law. There cannot be any deviation from this requirement because of any extraneous factors like caste, creed, religion, political belief or ideology. Every State is supposed to know these fundamental requirements and this needs no retaliation (sic repetition). We can only say this with regard to the criticism levelled against the State of Gujarat. Some legislative enactments like the Terrorist and Disruptive Activities (Prevention) Act, 1987 (in short "the TADA Act") have taken note of the reluctance shown by witnesses to depose against people with 9 muscle power, money power or political power which has become the order of the day. If ultimately truth is to be arrived at, the eyes and ears of justice have to be protected so that the interests of justice do not get incapacitated in the sense of making the proceedings before the courts mere mock trials as are usually seen in movies.”

13. In Sakshi v. Union of India (2004) 5 SCC 518, menace of witnesses turning hostile was again described in the following words: “32. The mere sight of the accused may induce an element of extreme fear in the mind of the victim or the witnesses or can put them in a state of shock. In such a situation he or she may not be able to give full details of the incident which may result in miscarriage of justice. Therefore, a screen or some such arrangement can be made where the victim or witnesses do not have to undergo the trauma of seeing the body or the face of the accused. Often the questions put in cross-examination are purposely designed to embarrass or confuse the victims of rape and child abuse. The object is that out of the feeling of shame or embarrassment, the victim may not speak out or give details of certain acts committed by the accused. It will, therefore, be better if the questions to be put by the accused in cross-examination are given in writing to the presiding officer of the court, who may put the same to the victim or witnesses in a language which is not embarrassing. There can hardly be any objection to the other suggestion given by the petitioner that whenever a child or victim of rape is required to give testimony, sufficient breaks should be given as and when required. The provisions of sub-section (2) of Section 327 CrPC should also apply in inquiry or trial of offences under Sections 354 and 377 IPC.”

14. The Supreme Court in State v. Sanjeev Nanda (2012) 8 SCC 450, the Supreme Court reiterated the growing disturbing trend concerning witnesses turning hostile by saying that: “99. Witness turning hostile is a major disturbing factor faced by the criminal courts in India. Reasons are many for the witnesses turning hostile, but of late, we see, especially in high profile cases, there is a regularity in the witnesses turning hostile, either due to monetary consideration or by other tempting offers which undermine the entire criminal justice system and people carry the impression that the mighty and powerful can always get away from the clutches of law, thereby eroding people's faith in the system. 100. This Court in State of U.P. v. Ramesh Prasad Misra [State of U.P. v. Ramesh Prasad Misra, (1996) 10 SCC 360 : 1996 SCC (Cri) 1278] held that it is equally settled law that the evidence of a hostile witness could not be totally rejected, if spoken in favour of the prosecution or the accused, but it can be subjected to closest scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted. In K. 10 Anbazhaganv. Supt. of Police [K. Anbazhagan v. Supt. of Police, (2004) 3 SCC 767 : 2004 SCC (Cri) 882], this Court held that if a court finds that in the process the credit of the witness has not been completely shaken, he may after reading and considering the evidence of the witness as a whole, with due caution, accept, in the light of the evidence on the record that part of his testimony which it finds to be creditworthy and act upon it. This is exactly what was done in the instant case by both the trial court and the High Court [Sanjeev Nanda v. State, 2009 SCC OnLine Del 2039 : (2009) 160 DLT 775] and they found the accused guilty. 101. We cannot, however, close our eyes to the disturbing fact in the instant case where even the injured witness, who was present on the spot, turned hostile. This Court in Manu Sharma v. State (NCT of Delhi) [Manu Sharma v. State (NCT of Delhi) , (2010) 6 SCC 1 : (2010) 2 SCC (Cri) 1385] and in Zahira Habibullah Sheikh (5) v. State of Gujarat [Zahira Habibullah Sheikh (5) v. State of Gujarat, (2006) 3 SCC 374 : (2006) 2 SCC (Cri) 8] had highlighted the glaring defects in the system like non-recording of the statements correctly by the police and the retraction of the statements by the prosecution witness due to intimidation, inducement and other methods of manipulation. Courts, however, cannot shut their eyes to the reality. If a witness becomes hostile to subvert the judicial process, the court shall not stand as a mute spectator and every effort should be made to bring home the truth. Criminal judicial system cannot be overturned by those gullible witnesses who act under pressure, inducement or intimidation. Further, Section 193 IPC imposes punishment for giving false evidence but is seldom invoked.”

15. The Supreme Court in Mahender Chawla (supra) has given its imprimatur to the Scheme, viz. Witness Protection Scheme, 2018, prepared by Union of India by approving it and giving it effect from the date of issuance of the said judgement itself. The Union of India as well as States and Union Territories were directed to enforce the Witness Protection Scheme, 2018 in letter and spirit and by also directing that it shall be the law under Article 141/142 of the Constitution till the enactment of suitable Parliamentary and/or State Legislations on the subject. The Supreme Court has enjoined upon Districts Courts in India that all vulnerable witness deposition complexes would be set up by the States and Union Territories. This should be achieved within a period of one year, i.e., by the end of the year 2019 and the Central 11 Government should support this endeavour of the States/ Union Territories by helping them financially and otherwise. The approval given by the Supreme Court to the Witness Protection Scheme, 2018, which is also reproduced in the judgement at Para 25, reads as under: “25) At this stage, we reproduce Witness Protection Scheme, 2018 as filed, in its entirety: “Witness Protection Scheme, 2018 PREFACE Aims & Objective: The ability of a witness to give testimony in a judicial setting or to cooperate with law enforcement and investigations without fear of intimidation or reprisal is essential in maintaining the rule of law. The objective of this Scheme is to ensure that the investigation, prosecution and trial of criminal offences is not prejudiced because witnesses are intimidated or frightened to give evidence without protection from violent or other criminal recrimination. It aims to promote law enforcement by facilitating the protection of persons who are involved directly or indirectly in providing assistance to criminal law enforcement agencies and overall administration of Justice. Witnesses need to be given the confidence to come forward to assist law enforcement and Judicial Authorities with full assurance of safety. It is aimed to identify series of measures that may be adopted to safeguard witnesses and their family members from intimidation and threats against their lives, reputation and property. Need and justification for the scheme: Jeremy Bentham has said that "Witnesses are the eyes and ears of justice." In cases involving influential people, witnesses turn hostile because of threat to life and property. Witnesses find that there is no legal obligation by the state for extending any security. Hon'ble Supreme Court of India also held in State of Gujrat v. Anirudh Singh (1997) 6 SCC 514 that: "It is the salutary duty of every witness who has the knowledge of the commission of the crime, to assist the State in giving evidence." Malimath Committee on Reforms of Criminal Justice System, 2003 said in its report that "By giving evidence relating to the commission of an offence, he performs a sacred duty of assisting the court to discover the truth". Zahira Habibulla H. Shiekh and Another v. State of Gujarat 2004 (4) SCC 158 SC while defining Fair Trial said "If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial''. First ever reference to Witness Protection in India came in 14th Report of the Law Commission of India in 1958. Further reference on the subject are found in 154th and 178th report of the Law Commission in India. 198th Report of the Law Commission of India titled as "Witness Identity Protection and Witness Protection Programmes, 2006" is dedicated to the subject. Hon'ble Supreme Court observed in Zahira case supra, "country can afford to expose its morally correct citizens to the peril of being harassed by anti-social elements like rapists and murderers". The 4th National Police Commission Report, 1980 noted 'prosecution witnesses are turning hostile because of pressure of accused and there is need of regulation to check manipulation of witnesses." Legislature has introduced Section 195A IPC in 2006 making Criminal Intimidation of Witnesses a criminal offence punishable with seven years of imprisonment. Likewise, in statues namely Juvenile Justice (Acre and Protection of Children) Act, 2015, Whistle Blowers Protection Act, 2011, Protection of Children from Sexual Castes and Tribes (Prevention of Atrocities) Act, 1989 also provides for safeguarding witnesses again the 12 threats. However no formal structured programme has been introduced as on date for addressing the issue of witness protection in a holistic manner. In recent year's extremism, terrorism and organized crimes have grown and are becoming stronger and more diverse. In the investigation becoming and prosecution of such crimes, it is essential that witnesses, have trust in criminal justice system. Witnesses need to have the confidence to come forward to assist law enforcement and prosecuting agencies. They need to be assured that they will receive support and protection from intimidation and the harm that criminal groups might seek to inflict upon them in order to discourage them from co- operating with the law enforcement agencies and deposing before the court of law. Hence, it is high time that a scheme is put in place for addressing the issues of witness protection uniformly in the country. Scope of the Scheme: Witness Protection may be as simple as providing a police escort to the witness up to the Courtroom or using modern communication technology (such as audio video means) for recording of testimony. In other more complex cases, involving organised criminal group, extraordinary measures are required to ensure the witness's safety viz. anonymity, offering temporary residence in a safe house, giving a new identity, and relocation of the witness at an undisclosed place. However, Witness protection needs of a witness may have to be viewed on case to case basis depending upon their vulnerability and threat perception. 1. SHORT TITLE AND COMMENCEMENT: (a) The Scheme shall be called "Witness Protection Scheme, 2018" (b) It shall come into force from the date of Notification. Part I 2. DEFINITIONS: (a) "Code" means the Code of Criminal Procedure, 1973 (2 of 1974); (b) "Concealment of Identity of Witness" means and includes any condition prohibiting publication or revealing, in any manner, directly or indirectly, of the name, address and other particulars which may lead to the identification of the witness during investigation, trial and post-trial stage; (c) "Competent Authority" means a Standing Committee in each District chaired by District and Sessions Judge with Head of the Police in the District as Member and Head of the Prosecution in the District as its Member Secretary. (d) "Family Member" includes parents/guardian, spouse, live-in partner, siblings, children, grandchildren of the witness; (e) "Form" means "Witness Protection Application Form" appended to this Scheme; (f) "In Camera Proceedings" means proceedings wherein the Competent Authority/Court allows only those persons who are necessary to be present while hearing and deciding the witness protection application or deposing in the court; (g) “Live Link” means and include a live video link or other such arrangement whereby a witness, while not being physically present in the courtroom for deposing in the matter or interacting with the Competent Authority; (h) "Witness Protection Measures" means measures spelt out in Clause 7, Part-III, Part-IV and Part V of the Scheme. (i) “Offence” means those offences which are punishable with death or life imprisonment or an imprisonment up to seven years and above and also offences punishable punishable under Section 354, 354A, 354B, 354C, 354D and 509 of IPC. (j) “Threat Analysis Report” means a detailed report prepared and submitted by the Head of the Police in the District Investigating the case with regard to the seriousness and credibility of the threat perception to the witness or his family members. It shall contain specific details about the nature of threats by the witness or his family to their life, reputation or property apart from analyzing the extent, the or persons making the threat, have the intent, motive 13 and resources to implement the theats. It shall also categorize the threat perception apart from suggesting the specific witness protection measures which deserves to be taken in the matter; (k) “Witness” means any person, who posses information or document about any offence; (l) “Witness Protection Application” means an application moved by the witness in the prescribed form before a Competent Authority for seeking Witness Protection Order. It can be moved by the witness, his family member, his duly engaged counsel or IO/SHO/SDPO/Prison SP concerned and the same shall preferably be got forwarded through the Prosecutor concerned; (m) “Witness Protection Fund” means the fund created for bearing the expenses incurred during the implementation of Witness Protection Order passed by the Competent Authority under this scheme; (n) "Witness Protection Order" means an order passed by the Competent Authority detailing the witness protection measures to be taken (o) “Witness Protection Cell” means a dedicated Cell of State/UT Police or Central Police Agencies assigned the duty to implement the witness protection order. Part II 3. CATEGORIES OF WITNESS AS PER THREAT PERCEPTION: Category 'A': Where the threat extends to life of witness or his family members, during investigation/trial or thereafter. Category 'B': Where the threat extends to safety, reputation or property of the witness or his family members, during the investigation/trial or thereafter. Category 'C': Where the threat is moderate and extends to harassment or intimidation of the witness or his family member's, reputation or property, during the investigation/trial or thereafter. 4. STATE WITNESS PROTECTION FUND: (a) There shall be a Fund, namely, the Witness Protection Fund from which the expenses incurred during the implementation of Witness Protection Order passed by the Competent Authority and other related expenditure, shall be met. (b) The Witness Protection Fund shall comprise the following:- i. Budgetary allocation made in the Annual Budget by the State Government; ii. Receipt of amount of costs imposed/ordered to be deposited by the courts/tribunals in the Witness Protection Fund; iii. Donations/contributions from Charitable Institutions/ Organizations and individuals permitted by Central/State Governments. iv. Funds contributed under Corporate Social Responsibility. (c) The said Fund shall be operated by the Department/Ministry of Home under State/UT Government. 5. AUTHORITY: The application for seeking protection order under this scheme can be filed in the prescribed form before the Competent Authority of the concerned District where the offence is committed, through its Member Secretary along with supporting documents, if any. 6. PROCEDURE FOR PROCESSING THE APPLICATION: (a) As and when an application is received by the Member Secretary of the Competent Authority, in the prescribed form, it shall forthwith pass an order for calling for the Threat Analysis Report from the ACP/DSP in charge of the concerned Police Sub-Division. (b) Depending upon the urgency in the matter owing to imminent threat, the Competent Authority can pass orders for interim protection of the witness or his family members during the pendency of the application. (c) The Threat Analysis Report shall be prepared expeditiously while maintaining full confidentiality and it shall reach the Competent Authority within five working days of receipt of the order. FILING OF APPLICATION BEFORE COMPETENT 14 (d) The Threat Analysis Report shall categorize the threat perception and also include suggestive protection measures for providing adequate protection to the witness or his family. (e) While processing the application for witness protection, the Competent Authority shall also interact preferably in person and if not possible through electronic means with the witness and/or his family members/employers or any other person deemed fit so as to ascertain the witness protection needs of the witness. (f) All the hearings on Witness Protection Application shall be held in-camera by the Competent Authority while maintaining full confidentiality. (g) An application shall be disposed of within five working days of receipt of Threat Analysis Report from the Police authorities. (h) The Witness Protection Order passed by the Competent Authority shall be implemented by the Witness Protection Cell of the State/UT or the Trial Court, as the case may be. Overall responsibility of implementation of all witness protection orders passed by the Competent Authority shall lie on the Head of the Police in the State/UT. However the Witness Protection Order passed by the Competent Authority for change of identity and/or relocation shall be implemented by the Department of Home of the concerned State/UT. (i) Upon passing of a Witness Protection Order, the Witness Protection Cell shall file a monthly follow-up report before the Competent Authority. (j) In case, the Competent Authority finds that there is a need to revise the Witness Protection Order or an application is moved in this regard, and upon completion of trial, a fresh Threat Analysis Report shall be called from the ACP/DSP in charge of the concerned Police Sub- Division. 7. TYPES OF PROTECTION MEASURES: The witness protection measures ordered shall be proportionate to the threat and shall be for a specific duration not exceeding three months at a time. They may include: (a) Ensuring that witness and accused do not come face to face during investigation or trial; (b) Monitoring of mail and telephone calls; (c) Arrangement with the telephone company to change the witness's telephone number or assign him or her an unlisted telephone number; (d) Installation of security devices in the witness's home such as security doors, CCTV, alarms, fencing etc; (e) Concealment of identity of the witness by referring to him/her with the changed name or alphabet; (f) Emergency contact persons for the witness; (g) Close protection, regular patrolling around the witness's house; (h) Temporary change of residence to a relative's house or a nearby town; (i) Escort to and from the court and provision of Government vehicle or a State funded conveyance for the date of hearing; (j) Holding of in-camera trials; (k) Allowing a support person to remain present during recording of statement and deposition; (l) Usage of specially designed vulnerable witness court rooms which have special arrangements like live video links, one way mirrors and screens apart from separate passages for witnesses and accused, with option to modify the image of face of the witness and to modify the audio feed of the witness' voice, so that he/she is not identifiable; (m) Ensuring expeditious recording of deposition during trial on day to day basis without adjournments; (n) Awarding time to time periodical financial aids/grants to the witness from Witness Protection Fund for the purpose of re-location, sustenance or starting a new vocation/profession, if desired; (o) Any other form of protection measures considered necessary. 8. MONITORING AND REVIEW: Once the protection order is passed, the Competent Authority would monitor its implementation and can review the same in terms of follow-up reports 15 family members received in the matter. However, the Competent Authority shall review the Witness Protection Order on a quarterly basis based on the monthly follow- up report submitted by the Witness Protection Cell. Part III 9. PROTECTION OF IDENTITY :- During the course of investigation or trial of any offence, an application for seeking identity protection can be filed in the prescribed form before the Competent Authority through its Member Secretary. Upon receipt of the application, the Member Secretary of the Competent Authority shall call for the Threat Analysis Report. The Competent Authority shall examine the witness or his family members or any other person it deem fit to ascertain whether there is necessity to pass an identity protection order. During the course of hearing of the application, the identity of the witness shall not be revealed to any other person, which is likely to lead to the witness identification. The Competent Authority can thereafter, dispose of the application as per material available on record. Once, an order for protection of identity of witness is passed by the Competent Authority, it shall be the responsibility of Witness Protection Cell to ensure that identity of such witness/his including name/parentage/occupation/address/digital footprints are fully protected. As long as identity of any witness is protected under an order of the Competent Authority, the Witness Protection Cell shall provide details of persons who can be contacted by the witness in case of emergency. Part IV 10. CHANGE OF IDENTITY:- In appropriate cases, where there is a request from the witness for change of identity and based on the Threat Analysis Report, a decision can be taken for conferring a new identity to the witness by the Competent Authority. Conferring new identities includes new name/profession/parentage and providing supporting documents acceptable by the Government Agencies. new identities should not deprive the witness from existing educational/ professional/property rights. Part V 11. RELOCATION OF WITNESS: In appropriate cases, where there is a request from the witness for relocation and based on the Threat Analysis Report, a decision can be taken for relocation of the witness by the Competent Authority. The Competent Authority may pass an order for witness relocation to a safer place within the State/UT or territory of the Indian Union keeping in view the safety, welfare and wellbeing of the witness. The expenses shall be borne by the Witness Protection Fund. Part VI 12. WITNESSES TO BE APPRISED OF THE SCHEME: Every state shall give wide publicity to this Scheme. The IO and the Court shall inform witnesses about the existence of "Witness Protection Scheme" and its salient features. 13. CONFIDENTIALITY AND PRESERVATION OF RECORDS: All stakeholders including the Police, the Prosecution Department, Court Staff, Lawyers from both sides shall maintain full confidentiality and shall ensure that under no circumstance, any record, document or information in relation to the proceedings under this scheme shall be shared with any person in any manner except with the Trial Court/Appellate Court and that too, on a written order. All the records pertaining to proceedings under this scheme shall be preserved till such time the related trial or appeal thereof is pending before a Court of Law. After one year of disposal of the last Court proceedings, the hard copy of the records can be weeded out by the Competent Authority after preserving the scanned soft copies of the same. 14. RECOVERY OF EXPENSES: In case the witness has lodged a false complaint, the Home Department of the concerned Government can initiate proceedings for recovery of the expenditure incurred from the Witness Protection Fund.” 16

16. Since in the present case, the Trial Court has failed to exercise its jurisdiction in accordance with law that too in a case where the victim was a minor and allegations were with regard to her kidnapping. In such circumstances and in the interest of justice, the impugned judgment dated 09.12.2021 of the Trial Court is set-aside and the case is remanded back to the Trial Court which shall record evidence of other prosecution witnesses. The case shall be taken up by the Trial Court for trial and the prosecution shall ensure production of the witnesses positively on the dates notified.

17. The Trial Court, without granting unnecessary adjournments to either of the parties, shall decide the case expeditiously.

18. Disposed of. (VINOD CHATTERJI KOUL) JUDGE SRINAGAR 04.07.2025 Shabroz Whether approved for reporting? Yes/No 17