Keep gun-toting guards, inmates away for TIP by children: HC

Delhi High Court has directed Tihar Jail authorities to ensure a "congenial and conducive environment" during participation of child witnesses of below 12 years of age by keeping them away from inmates and "gun- toting guards" in the main prison complex.

"Face-to-face" confrontation of children with criminals has to be strictly avoided and deployment of female officers to accompany girl child witnesses has to be followed as far as possible, the high court said while also making it clear that policemen should not be seen in uniform when a child enters TIP room along with an officer not below the rank of deputy superintendent.

Laying down a series of measures to be strictly followed by Tihar Jail for identification of accused by child witnesses, the high court also said such witnesses are entitled to be accompanied by their parents, guardians or any of their close relatives so that they feel comfortable.

These directions were passed by the court while dealing with a case in which a girl child, the sole eyewitness to the murder of her mother, got frightened within the atmosphere of the jail where she was surrounded by gun-toting policemen and came across criminals participating in the test identification parade (TIP), a process in criminal law where a witness visually identifies the offender.

"We deem it necessary to give certain directions to the Director General (Prisons), Delhi, for (providing) congenial and conducive environment for conducting TIP proceedings in a case where the witness happens to be a child below the age of 12 years," a bench of justices Kailash Gambhir and Sunita Gupta said.

"There may be many child witnesses like the one in the facts of the present case, who may get frightened and traumatised (due) to the unfriendly and unfamiliar environment of a jail where at every step there is deployment of police and paramilitary forces firstly to reach the room meant for conducting TIP proceedings, after passing through several entry points," it said.

"No normal child can be expected to remain undeterred or uninfluenced in such kind of frightening atmosphere surrounded by gun-toting police officials and then ultimately coming across the criminals engaged for participation in the TIP," the court said.

"It is very normal for a child to get apprehensive and frightened as has happened in the present case where the child was of below 12 years of age and she got frightened on seeing the atmosphere of the jail and when she was asked to take three rounds so as to identify the accused person, she started weeping bitterly and then tried to run out of the room," it said.

In the instant case, the court upheld the conviction of Rakesh Kumar based on the testimony of the child witness, who was also injured in the incident, and on the fact that he was found in possession of the gold articles worn by the victim who was killed in her flat at Lajpat Nagar in south Delhi in 1994. The girl was aged nine years at the time of the crime.

The court which laid down the measures rejected Rakesh's contention that the girl's testimony was not reliable as she had not identified him during the TIP.

It held that according to established legal position, "the failure to hold TIP by itself cannot discredit testimony of an eyewitness, where it finds sufficient corroboration from the other credible evidence proved by the prosecution".

In the present case, the minor girl had been unable to complete the TIP held within the prison premises as she felt scared and started crying. She had, however, identified the accused during the proceedings in the trial court.

The various measures laid down by the high court, which are to be adopted by prison authorities, also included that the TIP process be conducted "in the court rooms attached with the main Tihar Jail so that the child does not enter the main jail complex".

The court also directed that semi-reflective screen or any other screen or mechanism be installed in rooms where TIP proceedings are conducted so that the child witness is not brought face-to-face with the criminals.

It also said that no officer below rank of deputy superintendent shall accompany the child witness at the time of TIP and Jail Superintendent shall try to deploy a female officer to accompany the child witness if it is a girl.

The court also directed that "No police official shall be seen in uniform right from the stage when the child enters the TIP room and till he/she leaves the premises after the completion of TIP proceedings.

"The child witness shall be entitled to accompany his/her parents/guardians or any close relative so as to make the child comfortable."

The court further directed the prison authorities to ensure that a "friendly atmosphere be created in a room where the child is brought first and the stay of the child will be made most comfortable so that the child finds the place to be attractive and conducive to his/her requirements.

"Necessary arrangements for light refreshment to the general liking of children below the age of 12 years shall also remain in place to keep the mood of the child upbeat," the court added.