Delhi District Court
Sc No. 1/07, Fir No. 889/06 1 State vs Arjun on 27 March, 2008
SC No. 1/07, FIR No. 889/06 1 State Vs Arjun
IN THE COURT OF SH. VINOD KUMAR
ADDITIONAL SESSIONS JUDGE, NEW DELHI
SC No. 1/07
FIR No. 889/06
PS Sangam Vihar
U/s 363/376/506 IPC
State Vs Arjun
S/o Surender Prasad
R/o 558, GBlock, Sangam Vihar,
New Delhi.
Present address
Vill. + P.O. Madhav Ganj,
District Hardoi, U.P.
Date of institution : 1.11.2006
Date of arguments : 25.3.2008
Date of judgement : 27.3.2008
JUDGEMENT
1. Prosecution case in brief is that the prosecutrix (PW3) aged about four years was sleeping with her father Ikramuddin (PW1) on the night of 5.9.2006. On next day i.e. 6.9.2006, when Ikramuddin woke up, he found his daughter missing. He tried to find her out in his house but in vain. He saw that the prosecutrix was coming from the outer street weeping and she was naked. He also saw that the vagina of the prosecutrix was bleeding. On inquiry SC No. 1/07, FIR No. 889/06 2 State Vs Arjun the prosecutrix told that one boy who lives in the neighbourhood picked her up and took her to his room and thereafter removed her clothes and committed rape. When prosecutrix started weeping out of pain, he left her. Thereafter the prosecutrix led PW1 to a room constructed in a plot in neighbourhood where the accused was sleeping. The prosecutrix pointed out to this accused as the person who committed rape upon her. Public collected there and had beaten him up. The wife of PW1 informed police at 100 number. This information was recorded as DD No. 41 and ASI Karamvir Singh (PW2) was sent to the spot, where he met the prosecutrix, her parents as well as the PCR Van. ASI Karamvir recorded the statement Ex.PW1/A of complainant (PW1) and sent accused to hospital for medical examination through HC Rajbir. A lady constable was called and the prosecutrix wa sent to hospital for her medical examination through her. After medical examination of the prosecutrix and the accused, Ct. Rajbir came back at the spot along with accused and the prosecutrix. PW2 wrote a rukka Ex.PW2/C and got FIR Ex.PW2/D registered. Accused was arrested. Statement of prosecutrix under Section 164 CrPC was got recorded. The exhibits were sent to FSL. The FSL report Ex.PW2/O was received later on during trial. After completion of investigation charge sheet was filed in the court.
SC No. 1/07, FIR No. 889/06 3 State Vs Arjun
2. On these accusations a charge under Section 363/376 IPC was framed against the accused to which he pleaded not guilty.
3. In order to prove its case prosecution examined as many as 8 witnesses. PW1 Ikramudin is the complainant and father of the prosecutrix. PW2 ASI Karamvir Singh is the Investigating Officer of the case. PW3 Gulub Shah is the prosecutrix. PW4 Dr. Sunay M. from AIIMS Hospital has proved the MLC Ex.PW2/G of accused Arjun on 6.9.2006. In his cross examination he has stated that there was no abrasion on the penis of accused nor there was any swelling. PW5 Ct. Banwari Lal had collected four pulandas and two sample seals on 28.9.2006 to deposit the same. PW6 Smt. Krishna is neighbour. PW7 Dr. Mohit Singla had examined patient Gulab Shah on 6.9.2006. He proved MLC Ex.PW7/A. PW8 Dr. K. Aparna had examined the prosecutrix on 6.9.2006 and prepared detailed MLC Ex.PW8/A.
4. Statement of accused under Section 313 CrPC was recorded. Accused denied all the accusations but he did not examine any witness in his defence.
5. Ld. Defence Counsel argues that the prosecutrix herself is the sole eye witness to the incident. It is argued that she is only about four years of age when she testified before this court. Ld. Defence Counsel argues that the witnesses of such tender age are SC No. 1/07, FIR No. 889/06 4 State Vs Arjun under the influence of their parents and can easily be tutored. Ld. Defence Counsel has drawn my attention to her testimony where she states in her cross examination in chief that she obeys all directions and instructions of her parents. Ld. Defence Counsel has referred to AIR 1933 Lahore 667 wherein it was held as under:
"Children are a most untrustworthy class of witnesses for, when of a tender age, they often mistake dreams for reality, repeat glibly as of their own knowledge what they have heard from others and are greatly influenced by fear of punishment, by hope of reward and by desire of notoriety. When considering evidence of child witnesses, these observations should not be lost sight of although each case would depend upon its particular facts and circumstances."
6. Ld. Defence Counsel has referred to 1961 Cut. LT 169 wherein it was observed as under:
The evidence of children is notoriously dangerous unless immediately available and unless received before any possibility of coaching is eliminated. There should be closer scrutiny of the evidence of child witness before the same is accepted by a Court of law. Though children are less fraudulent than adults, they are more imaginative. Children are a most untrustworthy class of witnesses ; they often when of a tender age, mistake dreams for reality, repeat glibly as of their own knowledge what they have heard from others, and are greatly influenced by fear of punishment, by hope of reward, SC No. 1/07, FIR No. 889/06 5 State Vs Arjun and by desire of notoriety. They are both "suggestible" and even "auto suggestible". Thus a child witness is not a safe witness."
7. Ld. Defence Counsel has drawn my attention to the statement under Section 164 CrPC of the prosecutrix wherein she has testified that when accused took her to jungle, he stated to her to bring liquor and also showed her two big knives and put the same on her neck and told that he would kill all her sisters there and kill them. Thereafter he spoke indecent abuses in the name of her mother and sisters. Ld. Defence Counsel argues that this statement clearly shows as to what extent PW3 is living in a make believe world and to what extent she is amenable to imaginations and to being tutored. Ld. Defence Counsel argues that the prosecutrix has not spoken even a word about these things in her testimony before this court. Ld. Defence Counsel argues that on account of these reasons, it would be highly unsafe to convict the accused on the basis of such incompetent and unreliable witnesses.
8. Ld. Defence Counsel has referred to 1961 Mys. L. J. 697 wherein it was held as under:
"There is no more dangerous witness than children. Any mistakes or discrepancies in their statements are ascribed to innocence or failure to SC No. 1/07, FIR No. 889/06 6 State Vs Arjun understand, and undue weight is often given to what is merely a well taught lesson. Children have good memories and no conscience. They are easily taught stories and live in a world of makebelieve so that they often become convinced that they have readily seen the imaginary incident which they have been taught to relate. The evidence of a child should, therefore, be accepted with great caution."
9. Ld. Defence Counsel has also referred to AIR 1952 SC 54 and AIR 1981 SC 1122 in which Supreme Court declined to place reliance on the credibility of a child witness.
10. I have considered the case law cited by Ld. Defence Counsel. It would be appropriate to understand the law regarding the competence of a child witness to testify. In Ratansingh Dalsukhbhai Nayak Vs. State of Gujarat 2004 SCC (Crl.) 7, it was held as under:
"6. Pivotal submission of the appellant is regarding acceptability of PW 11's evidence. The age of the witness during examination was taken to be about 10 years. The Indian Evidence Act, 1872 (in short "The Evidence Act") does not prescribe any particular age as a determinative factor to treat a witness to be a competent one. On the contrary, Section 118 of the Evidence Act envisages that all persons shall be competent to testify, unless the court considers that they are prevented from questions, because of tender years, extreme old age, disease -
SC No. 1/07, FIR No. 889/06 7 State Vs Arjun whether of mind, or any other cause of the same kind. A child of tender age can be allowed to testify if he has intellectual capacity to understand questions and given rational answers thereto. This position was concisely stated by Brewer, J. In Wheeler V. United States. The evidence of a child witness is not required to be rejected per se, but the court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereo and reliability can record conviction, based thereon. (See Suryanarayana v. State of Karnataka).
7. In Dattu Ramrao Sakhare v. State of Maharashtra it was held as follows: (SCC p. 343, para 5) "A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational that such witness is able to understand the questions and ale to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent SC No. 1/07, FIR No. 889/06 8 State Vs Arjun witness and there is no likelihood of being tutored.
The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial judge who notices his manners, his apparent possession or lack of intelligence, and the said judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. The precaution is necessary because child witnesses are amenable to tutoring and often live in a world of makebelieve. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaken and molded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness."
11. This question was also the subject matter of a recent judgement of the Supreme Court in Acharaparambath Pradeepan & Anr. Vs. State of Kerana 2007 [1]JCC 828. Relevant portion of the judgement reds as under: "48. Section 118 of the Indian Evidence Act seeks to exclude evidence of those who may suffer from intellectual weaknesses. It reads as under:
SC No. 1/07, FIR No. 889/06 9 State Vs Arjun "Who may testify. All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind."
49. In terms of the said provision therefore, all persons shall be competent to testify unless by reason of tender years, the court considers that they are incapable of understanding the questions put to them and of giving rational answers. It is for the judge to satisfy himself as regards filfillment of the requirement o the said provision. The opinion of the learned judge had been recorded and, thus, it satisfies the test laid down by this Court in Rameshwar S/o. Kalyan Singh v. The State of Rajasthan [AIR 1952 SC 54].
50. It is not the case of the appellants that the court had failed to comply with the statutory obligations in this behalf. It is also not the case of the appellants that their testimonies otherwise should not have been accepted.
51. A child indisputably is competent to testify if he understands the question(s) put to him and gives rational answer thereto. None of th witnesses have been found to be suffering from any intellectual incapacity to understand the questions SC No. 1/07, FIR No. 889/06 10 State Vs Arjun and give rational answers thereto.
52. Indisputably, certain factors are required to be considered as regards reliability of the testimony of the child witnesses but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of child witnesses."
12. In nutshell the law regarding a child witness can be summarized as under:
(a) It is the duty of the court to decide whether or not a child witness is competent to testify.
(b) A child is a competent witness and can be relied upon provided the likelihood of its being tutored is ruled out and the child is able to understand the questions and testify about the incident in question.
(c) To be on safer course, the trial court should seek for some independent corroboration, though this rule would not be strictly applicable to each and every case.
13. I would like to prefer to a very old case law as to what type of corroboration is required in support of the testimony of a child witness. In 1972 Cut. L. T. 428, it was held as under:
"It is impossible to formulate the kind of evidence which should, or would, be regarded as corroboration because its nature and extent must necessarily with the circumstances of each case and SC No. 1/07, FIR No. 889/06 11 State Vs Arjun also according to the particular circumstances of the offence charged. Nonetheless, the following principles have to be borne in mind while seeking for such corroboration:
(1) It is not necessary that there should be independent conformation of every material circumstances in the sense that the independent evidence in the case, apart from the testimony of the child witness, should in itself be sufficient to sustain conviction. All that is required is that there must be some additional evidence rendering it probable that the story of the child witness is true and it is reasonably safe to act upon it.
(2) The independent evidence must not only make it safe to believe that the crime was committed but it must in some way reasonably connect or tend to connect the accused with it by confirming in some material particular to the testimony of the child witness that the accused committed the crime.
(3) The corroboration must come from independent sources and thus ordinarily the testimony of one child witness would not be sufficient to corroborate that of another. But of course, the circumstances may be such as to make it safe to dispense with the necessity of corroboration and in those special circumstances a conviction so based would not be illegal.
(4) The Corroboration need not be direct evidence that the accused committed the crime. It is sufficient if it is merely circumstantial evidence of SC No. 1/07, FIR No. 889/06 12 State Vs Arjun his connection with the crime.
14. Now this court would deal the testimony of the prosecutrix aged about four years on the basis of three principles delineated in para no. 12 of this judgement. In view of her tender age, I was of the opinion that she did not understand implications and solemnity of the oath and therefore the oath was not administered to her. This witness was examined by myself in camera trial in presence of Ld. Additional Public Prosecutor, Ld. Defence Counsel and the accused. I put various preliminary questions to this witness and I gave a specific finding that the prosecutrix understands the questions and has answered in very intelligent and rational manner. I gave a specific finding that she is a competent witness to testify in the present case. Ld. Defence Counsel neither objected to my findings at that time nor he has assailed my findings regarding the competence of this witness at the stage of final arguments. In these circumstances the only question to be considered is as to whether the prosecutrix is a tutored witness. Ld. Defence Counsel has drawn my attention to the cross examination of this witness wherein she has stated that she obeys the directions of her parents and she follows what is asked by her parents. Ld. Defence Counsel has drawn my attention to the testimony of this witness in cross examination wherein she SC No. 1/07, FIR No. 889/06 13 State Vs Arjun has testified that police aunty told her as to what she has to testify before Magistrate. On the other hand Ld. APP has drawn my attention to the testimony of this witness in cross examination wherein she testifies that today no one had told her as to what she has to state in the court and that her mother did not tell her as to what statement has to be given in the court. Ld. APP argues that this portion rules out the possibility of her being tutored.
15. I have considered the rival submissions and I am of the opinion that the question of a child witness being tutored should not be decided in the manner as argued by Ld. Additional Public Prosecutor and by Ld. Defence Counsel. The fact of witness being a tutored one should be reflected from the over all style of deposition and all the attending circumstances. A tutored witness testifies in a parrot like manner. This is not the case here. A tutored witness normally sticks to his earlier statement very faithfully. This is also not the case in the present matter because the testimony of the witness before the court is silent about a few facts like showing of knife etc. and giving abuses and threats by the accused (which she deposed before Ld. Metropolitan Magistrate in her statement under Section 164 CrPC). She even omits to testify that she had told her father that one boy had taken her away and that she would identify SC No. 1/07, FIR No. 889/06 14 State Vs Arjun him and his house. She also omits to testify that she took her father to the house of accused and had identified him. I make it clear that I had found this witness a very intelligent child and in her cross examination she was not only able to tell the names of her school books but she also testified that she was able to memorize her lessons. It was very easy to tutor this witness as her memory appears to be very good. I may clarify that the above stated omissions in her testimony should not be taken to discredit this witness. Rather these omissions rule out that she has been tutored. In her cross examination she fairly admits that the lady police officer had told her as to what she has to testify before Magistrate (i.e. at the time of recording her statement under Section 164 CrPC). Had she been a tutored witness, she would have not testified in this manner. I have seen this child testifying before this court and for the above stated reasons, I am convinced that this witness is not a tutored witness and is testifying truthfully. I find no hesitation in placing reliance upon her testimony, which is reproduced as under:
On the night of incident, I was sleeping outside my house with my father. Accused present in the court namely Arjun had picked me up and taken away and had taken me in the jungle. He raped me ( In Hindi she states that he had inserted his private part in her own private part). Accused took me from jungle to his house and when he slept, I came SC No. 1/07, FIR No. 889/06 15 State Vs Arjun back to my house. Since I was bleeding from my private parts. I was taken by my mother to hospital. I told everything to my parents. Even today I feel pain in my private parts. Accused had taken out the frock and the Kachchi worn by me and had placed the same in his own underwear after commission of rape. I came back to my house totally naked. I had made a statement to a Madam in the court.
Xxxxxxx by Sh S.K. Saxena, advocate, Amicuscurie.
I obey the directions or instructions of my parents. I also follow whatever is asked by my parents. My mother was sleeping inside the house and no one else was sleeping outside the house. Accused himself told his name as Arjun when he was taking me away. I used to deliver milk to some person, at that time accused used to see me. ( On court questioning, she states that her father sells milk ). I am studying in the school for quite a long time. Some people themselves used to come and purchase milk and sometimes we also used to deliver milk at the houses of some of the persons. I cannot tell for how much time I knew accused. He used to see me while standing on the gate of his house. There is electricity light in my street. Many more people also reside near the house of the accused. Police aunty told me as to what I have to testify before the Magistrate. Today no one has told me as to what I have to state in the court. No one told me in the house to name accused who committed rape upon me. I can tell the name of my books such as Maths, GK, Hindi, English. I memorize my lesson when I commit these lessons to my memory. My mother also did not tell me as to what statements I have to give in the court. I can write my name in Hindi. (this question was asked by this court to know as to whether she can sign or not ).
RO&AC ASJ/20.4.07
SC No. 1/07, FIR No. 889/06 16 State Vs Arjun
16. Perusal of the entire testimony would show that prosecutrix has specifically testified that
(i) she was raped
(ii) she was raped by the accused
17. Prosecution corroborates the factum of rape upon the prosecutrix by examining PW8 Dr. A. Aparna Sharma, AIIMS Hospital. She had examined the prosecutrix vide MLC Ex.PW8/A. I reproduce the relevant portion of her testimony, which is as under:
"................................................................. The child is complaining of bleeding per vaginum and inability to pass urine with pain abdomen. On examination there are no marks of injuries on breast or abdomen. Perineum and external genitalia are mud stained with occasional blood stain. Hymen is torn and labiaminora is abraded (i.e. local injury). No active bleeding per vaginum at the time of examination."
18. The torn hymen and the perineum and external genitalia which were stained with mud and occasional blood stain fully corroborates the testimony of the prosecutrix that she was raped. The prosecutrix in her testimony has testified that after commission of rape the accused had placed her frock and kachhi in her own underwear. This fact is corroborated by testimony of PW4 Dr. Sunay M. AIIMS Hospital, New Delhi wherein he deposed that on local examination of the accused, one girl's frock and one yellow girl's underwear (kachhi) was found in his pants. This SC No. 1/07, FIR No. 889/06 17 State Vs Arjun evidence strongly corroborates the testimony of the prosecutrix and unmistakably points out that accused himself had committed rape upon her. PW4 Dr. Sunay M. has further testified that the girl's frock, kachhi and the pant of accused were sealed and blood gauze of accused was taken and sealed and these sealed pulandas were handed over to Investigating Officer with the sample seal. PW2 ASI Karamvir has testified that that these pulandas which were duly sealed with the seal of AIIMS were seized. He further testified that these exhibits were sent to FSL through Ct. Banwari Lal. As per the FSL report Ex.PW2/O (admissible per se under Section 293 CrPC) the gauze containing human blood of accused was of B group. This blood of accused was taken on a gauze by Dr. Sunay M. as discussed above. However as per this report the human blood of A group was found on the pants of the accused. It is clear that this blood of A group found on the pants of the accused belongs to a person other than the accused. Ld. Defence Counsel argues that prosecution has been unable to prove that the prosecutrix was having A blood group. I am of the opinion that this is a lacuna in investigation but at the same time the accused cannot be absolved from explaining as to how his pants were having a different blood group than his own blood group. This is a strong circumstance against the accused.
SC No. 1/07, FIR No. 889/06 18 State Vs Arjun
19. Therefore the testimony of the prosecutrix that accused had committed rape upon her is fully corroborated by independent evidence and circumstances mentioned above by me. PW1 is the father of the prosecutrix and he has testified that when he awoke at 5:00 am in the morning, he found that her daughter was not on the cot. He started the search for her and found her coming from the opposite side of his house in complete naked position. At that time she was weeping. He also noticed that the blood was coming from the private parts of the prosecutrix. The prosecutrix narrated the incident to him and took him to the place where she was raped by the accused. She also pointed towards the accused as the person who committed rape upon her. PW1 further testified that accused is the resident of the same locality. The testimony of this witness is corroborated by an independent witness namely PW6 Smt. Krishna. She has testified that on 6.9.2006, she was taking water from a tap. At about 5:00 am she saw the prosecutrix coming out of the plot situated in front of her house in a nude condition. After sometime the parents of the nude girl took her towards the plot of accused where she pointed out towards the plot and accused was apprehended from there. PW6 is an independent witness and she has no reason to testify falsely. Therefore the prosecution case is fully supported by the testimony of independent witness, scientific SC No. 1/07, FIR No. 889/06 19 State Vs Arjun evidence as well as circumstantial evidence.
20. In view of above discussions I am of the opinion that prosecution has proved this case beyond reasonable doubt. I therefore convict him under Section 376 IPC.
Announced in the open court on 27.3.2008.
(VINOD KUMAR) Additional Sessions Judge Patiala House Courts New Delhi SC No. 1/07, FIR No. 889/06 20 State Vs Arjun IN THE COURT OF SH. VINOD KUMAR ADDITIONAL SESSIONS JUDGE, NEW DELHI SC No. 1/07 FIR No. 889/06 PS Sangam Vihar U/s 376 IPC State Vs Arjun ORDER ON SENTENCE 27.3.2008 Present: Ld. APP for the state.
Convict from J.C. with counsel Sh. Sandeep Srivastava, adv.
Arguments on sentence heard. Ld. Additional Public Prosecutor argues that in the present case the prosecutrix was only four years old and therefore convict should be awarded imprisonment for life.
On the other hand Ld. Defence Counsel prays for a lenient view.
I have considered all facts and circumstances of the case and I sentence the convict to rigorous imprisonment for ten years and a fine in the sum of Rs.100/. In default of payment of fine he shall further undergo simple imprisonment for seven days.
Copy of judgement be supplied free of cost to the convict. Sentence warrant be prepared for sufferance of sentence by the convict. File be consigned to record room.
Announced in the open court on 27.3.2008.
(VINOD KUMAR) Additional Sessions Judge Patiala House Courts New Delhi