Bharatiya Nagarik Suraksha Sanhita, 2023
Section 308
Evidence to be taken in presence of accused
Except as otherwise expressly provided, all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in the presence of his advocate including through audio-video electronic means at the designated place to be notified by the State Government: Provided that where the evidence of a woman below the age of eighteen years who is alleged to have been subjected to rape or any other sexual offence, is to be recorded, the Court may take appropriate
measures to ensure that such woman is not confronted by the accused while at the same time ensuring the right of cross-examination of the accused. Explanation.—In this section, “accused” includes a person in relation to whom any proceeding under
Why this exists
The general rule, evidence taken in the accused's presence, protects the fundamental right of an accused person to see and test the evidence against them, a cornerstone of a fair trial. But lawmakers recognised that forcing a child victim of sexual violence to testify face-to-face with her alleged abuser can cause serious additional trauma, discouraging victims from testifying at all. The special protection tries to balance both concerns: shielding the young survivor from direct confrontation while preserving the accused's right to cross-examination through other means, such as screens or video links.
Common misconceptions
- Myth: Special arrangements for child victims mean the accused loses the right to question them.
Fact: The accused's right to cross-examine the witness is specifically preserved; only the face-to-face confrontation is what gets modified.