Himachal Pradesh High Court
State Of Himachal Pradesh vs Bal Krishan on 7 September, 2016
Bench: Sanjay Karol, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No.: 399 of 2007
Reserved on: 22.08.2016
.
Decided on: 07.09.2016
State of Himachal Pradesh ....Appellant.
Versus
Bal Krishan ... Respondent.
of
Coram
The Hon'ble Mr. Justice Sanjay Karol, Judge.
rt
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 Yes.
For the appellant : Mr. Varun Chandel, Addl. AG with Mr. Punit
Rajta, Dy. AG.
For the respondent: Mr. Bimal Gupta, Sr. Advocate, with
Mr. Vineet Vashisht, Advocate.
Ajay Mohan Goel, Judge:
By way of the present appeal, the appellant-State has challenged the judgment passed by learned Sessions Judge, Kinnuar at Rampur Bushahr, in Session Trial No. 40-S/7 of 2005, dated 12.07.2007, vide which judgment, learned trial Court has acquitted the accused for commission of offences punishable under Section 376 of IPC, on the ground that there was no sufficient evidence on record to bring home the guilt of the accused and that the 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 21:10:45 :::HCHP 2prosecution had not been able to prove its case against the accused beyond reasonable doubt.
2. The case of the prosecution was that on 18.06.2005, at .
around 1:15 p.m., Tilka Devi made a report at Police Station Ani, District Kullu to the effect that she was married to Bir Singh about 10 years ago and after divorce she was residing with her parents at village Jabo. Prosecutrix, aged about 7 years was her youngest of daughter and was residing with her. Her elder daughter was residing with her maternal uncle at Shimla. As per complainant, on 05.06.2005, she had gone to bring grass from the field and her rt daughter (prosecutrix) was in her house. When she came back from the fields, at about 5:30 p.m., her daughter (prosecutrix) started weeping loudly and when she inquired from her then she (prosecutrix) told that her maternal uncle Bal Krishan had caught hold of her and took her inside the house and did something in her private parts, due to which, she felt severe pain. Complainant checked private parts of prosecutrix and found that blood was oozing out from the private parts of prosecutrix and there were blue marks on the adjoining parts. She could not believe this as accused was son of her uncle and was maternal uncle of the prosecutrix, so she did not discuss it with any person so that there might not be any social stigma to her family. Thereafter she went to the house of accused but he was not found there. Complainant thought of discussing the said incident with her real brother who was to come on Saturday, ::: Downloaded on - 15/04/2017 21:10:45 :::HCHP 3 however, he did not come on Saturday. In the meanwhile, the prosecutrix was not taking meal and appeared upset. Complainant was an illiterate lady and had no knowledge that she was required to .
report the matter in the Police Station immediately neither she was having telephone number. Swarup Chand, brother of complainant, came on 17.6.2005 at around 7:00 p.m. and she thereafter disclosed the entire episode to him who asked her as to why she did not report of the matter to the police. Thereafter, complainant went to Police Station, Ani, alongwith her brother Swarup Chand and the prosecutrix and the report was lodged, on the basis of which, case rt was registered against the accused under Sections 376 and 511 of Indian Penal Code (for short 'IPC'). Investigation was thereafter conducted. Prosecutrix was got medically examined and after the completion of investigation, charge-sheet was filed against the accused for having committed the offence under Section 376 of IPC and as a prima-facie case was found against the accused, accordingly he was charged for commission of offence punishable under Section 376 of IPC, to which he pleaded not guilty and claimed trial.
3. In order to substantiate its case, the prosecution has examined 8 witnesses.
4. Complainant Tilka Devi entered the witness box as PW2. She deposed that prosecutrix was 8 years of age. On 05.06.2005, at around 2:30 p.m. she had gone to collect grass/ ::: Downloaded on - 15/04/2017 21:10:45 :::HCHP 4 fodder and her daughter (prosecutrix) was alone in the house. She deposed that when she came back at 5:00 p.m., prosecutrix was weeping at that time and she told her that accused had laid her .
(prosecutrix) down and after opening his pant and trouser of prosecutrix, did bad thing with her. She also stated that she found blood and two black scars on the private part of the prosecutrix. This witness further deposed that Bal Krishan was her uncle's son. She of also deposed that she went to the house of accused but he was not there. She deposed that she was not aware that the matter was to be reported to the police and thereafter she fell ill. She further deposed rt that her brother Swarup Chand came from Shimla after 11 days and then she narrated the incident to him and thereafter they went to Police Station and reported the matter. In her cross examination, this witness has stated that adjoining to her house was the house of Jayasi Ram, Rama Nand and Ranjit and there were 30 houses in the locality. She also deposed that when she went to the house of accused, all the family members of the accused met her and she was informed that Bal Krishan was at Narkanda. She also stated that before lodging FIR, she had taken the prosecutrix to a government Doctor at Shawad for taking medicine as prosecutrix was not having food. She also stated that Doctor gave medicines for local application as well as for oral consumption. She also deposed that thereafter she got the prosecutrix admitted at Ani Hospital. In her cross examination she admitted it to be incorrect that prescription slips ::: Downloaded on - 15/04/2017 21:10:45 :::HCHP 5 were not given to the police. She admitted it to be correct that her grand father Mansa Ram had willed his property in the name of father of accused. She admitted it to be correct that after the .
execution of said Will by her grand father, her father Shyam Lal and father of accused Dekh Ram had severed all type of relations. She also stated that she was residing at her paternal house for the last 7- 8 years and before the said incident, she used to go to house to of accused. She also stated that when she lodged FIR, she did not state that accused had committed intercourse.
5. PW-3 Jyoti Ram, Panchayat Secretary, is a formal rt witness who produced on record copy of Parivar register.
6. Dr. Gian Thakur entered the witness box as PW-4 and stated that on 20.06.2005, he had medically examined Bal Krishan and as per him, there was nothing to suggest that he was not capable of performing sexual act.
7. Sher Singh entered the witness box as PW-5 and stated that complainant was his daughter and after a week of the incident, she told him that Bal Krishan had sexually assaulted the prosecutrix and thereafter prosecutrix had fallen ill and she did not go to school.
This witness also deposed that his daughter was illiterate. In his cross examination, this witness deposed that his statement was recorded by the police after 10-15 days and his daughter told him about the occurrence of the incident after 4-5 days. He stated that he did not ask the complainant to go to police. He further stated that he ::: Downloaded on - 15/04/2017 21:10:45 :::HCHP 6 cannot say with certainty whether complainant told the name of accused as Bal Krishan or Ram Krishan. He admitted it to be correct that his father had willed away 2/3rd of his property in favour of .
father and uncle of the accused and 1/3rd in his favour. He denied that after the execution of the Will, he had severed all type of relations with the family of accused. In his cross examination, this witness stated that in his statement Exhibit PW5/A, he had told the of police that accused had committed sexual intercourse with prosecutrix, which fact was told to him by his son. This witness was confronted with his statement Exhibit PW5/A wherein it was not rt recorded that Swarup Chand told him that the accused had committed sexual intercourse with prosecutrix but only this fact was recorded that accused had tried to commit rape. He stated that he told the complainant to take the prosecutrix to Medical Officer at Shawad and thereafter to hospital at Ani. In the later part of his cross examination, he admitted it to be correct that after his father willed away property in favour of father of accused, he was not having good relations with them.
8. PW6 Govind Singh, Head Teacher, Govt. Primary School, Fati Karana, entered the witness box as PW-6. He placed on record, date of birth certificate of prosecutrix, Exhibit PW6/A.
9. Inspector Manohar Lal entered the witness box as PW-7 and he stated that on 18.06.2005, complainant lodged FIR Exhibit PW-2/A and after the registration of the same, he sent the ::: Downloaded on - 15/04/2017 21:10:45 :::HCHP 7 prosecutrix for medical examination. He also deposed that he recorded the statement of witnesses under Section 161 of Code of Criminal Procedure (for short 'Cr.P.C') and during the course of .
investigation, he obtained copy of Parivar register and copy of date of birth certificate of the prosecutrix. In his cross examination, he stated that he did not get the accused identified from the prosecutrix. He stated that she had disclosed the name of accused as of she knew the accused. He stated that he did not notice any marks of blood or semen in the room in which the alleged occurrence took place nor did he notice any marks of blood and semen on the rt clothes.
10. Dr. Neelam Verma entered the witness box as PW-8 and she stated that prosecutrix was medically examined by her on 17.06.2005. According to her there were following injury marks on the private parts of the prosecutrix:
1. Superficial abrasion, 1.5 cm, obliquely placed, reddish brown scab present, 5cm above the left wrist.
2. Multiple small linear superficial abrasions with dried scab, brown coloured presented over the inner and upper aspect of the right thigh.
11. This witness also deposed as under:
"Labia Majora were adjacent to each other and closing the vaginal orifices. No swelling, tenderness, injury marks seen. No swelling, tenderness or injury marks present over of the labia minora.::: Downloaded on - 15/04/2017 21:10:45 :::HCHP 8
The hymen was intact, with the small round opening, margins uniform and continuous, not admitting little finger. No tenderness present. No discharge P/v visible at the time of examination. No .
mark of injury visible.
Based on the above examination, it was inferred that the possibility of the sexual intercourse could not be ruled out."
12. In her cross examination, this witness stated that injuries No. 1 and 2 were possible by scratching. She also deposed of that as per observation under specific local examination, mentioned at No. 2 and 3, it can be said that the prosecutrix was virgin. She rt also deposed that as per her examination, there was no complete penetration but partial penetration or attempt to commit rape cannot be ruled out. She also deposed that she had not noticed any black scars on the private part of the victim and injuries mentioned on second page of MLC at serial No. 3 are possible if child falls while playing. She further stated that because she had examined the patient after 13 days and thereafter she had giver her opinion that the possibility of rape cannot be ruled out.
13. The prosecutrix entered the witness box as PW-1 and she stated that at 4:00 p.m. her mother had gone to bring grass/fodder and at that time accused Bal Krishan came and he removed her trouser and also his pant and he put his organ of passing urine on her organ of passing urine after laying her on the gunny bag and thereafter she felt pain and started weeping and accused ran away. In her cross examination, this witness stated that ::: Downloaded on - 15/04/2017 21:10:45 :::HCHP 9 she narrated the said fact to her mother on the same day and thereafter her mother said nothing to her. This witness initially stated in her cross examination that there was no bleeding and .
thereafter she stated that blood came from place/part of the body from where urine is passed. She denied that there was any house in her neighbourhood. She stated that when her mother came back she was inside the room and she did not cry. She stated that thereafter of she continuously kept on attending the school. She admitted it to be correct that she had been asked by her mother and maternal uncle Swarup Chand to depose so in the Court. She also deposed that she rt received no other injury other than on her private parts. In fact what she deposed is quoted herein below:
"My mother took me to the doctor because I was having pain in my private part from where I urinate. I had not told the doctor."
14. On the basis of material so produced before it, learned trial Court held that the prosecution was not able to prove the guilt of the accused beyond reasonable doubt and there was not sufficient evidence on record in this regard and accordingly it acquitted the accused of charge framed against him.
15. Mr. Varun Chandel, learned Additional Advocate General has argued that the judgment of acquittal passed by learned trial Court was perverse and not sustainable in law. Mr. Chandel argued that the findings returned by learned trial Court to the effect that the story of the prosecution was not reliable as mother of the prosecutrix had not disclosed the occurrence of the incident to the ::: Downloaded on - 15/04/2017 21:10:45 :::HCHP 10 Doctor by whom the prosecutrix was examined before lodging of FIR was not sustainable as learned trial Court failed to appreciate that no parents of a girl would make such kind of incident public as the .
same would have had cast stigma on the future of the career of the girl. Mr. Chandel further argued that the findings arrived at by learned Court below to the effect that the statement of prosecutrix was not corroborated with medical evidence was contrary to the of material placed on record. As per Mr. Chandel, the testimony of Dr. Neelam was not appreciated by learned trial Court in its correct perspective. It was further submitted by Mr. Chandel that learned rt trial Court erred in concluding that there was enmity between the family of the prosecutrix and accused, ignoring the fact that PW5 Sham Singh had categorically stated that there was no enmity between his family and family of accused. It was further argued that even otherwise the judgment passed by learned trial Court was not sustainable because the findings arrived at by learned trial Court were based on conjectures and surmises and the testimony of the prosecution witnesses and other evidence produced on record by the prosecution had been brushed aside by learned trial Court without appreciating the same in its correct perspective. Accordingly, Mr. Chandel argued that the appeal be allowed and the judgment of acquittal passed by learned trial Court be set aside and accused be convicted for commission of offence punishable under Section 376 of IPC.
::: Downloaded on - 15/04/2017 21:10:45 :::HCHP 1116. On the other hand, Mr. Bimal Gupta, learned senior counsel appearing for the accused argued that there was no merit in the present appeal and the judgment and acquittal returned by .
learned trial Court in favour of respondent-accused did not warrant any interference because the findings so arrived at by learned trial Court were neither perverse nor there was any infirmity in the same.
Mr. Gupta submitted that it was apparent and evident from the of material which was placed by the prosecution on record that the guilt of the accused was not proved beyond reasonable doubt. Mr. Gupta argued that the conduct of the mother of the prosecutrix was rt highly suspicious as there was undue delay in lodging the FIR, which had gone unexplained on record and thus her testimony was not reliable at all. According to Mr. Gupta, even the testimony of prosecutrix could not be relied upon to convict the accused because she had categorically admitted in her cross examination that she was tutored by her mother and uncle to depose so in the Court. Mr. Gupta further argued that in fact prosecution had miserably failed to bring home the guilt of accused and therefore the judgment passed by learned trial Court in favour of accused be upheld and present appeal be dismissed.
17. We have heard learned counsel for the parties and have gone through the records of the case as well as the judgment passed by learned trial Court.
::: Downloaded on - 15/04/2017 21:10:45 :::HCHP 1218. Admittedly, there is no eye-witness who has seen the occurrence of the alleged incident except the prosecutrix, who is the victim in the present case. Besides this, prosecutrix is a minor.
.
According to prosecution, the alleged incident took place on 05.06.2005. Admittedly, the FIR was lodged on 18.06.2005. The explanation, which has been given by the mother of the prosecutrix as to why no FIR was lodged before 18.06.2005, is that she was an of illiterate lady and after the unfortunate incident took place, she had fallen ill and it is only after her brother Swarup Chand came from Shimla after about 11 days, that she narrated said incident to him rt who asked her as to why she had not lodged any FIR and thereupon the FIR was lodged. In her cross examination, this witness had admitted that the alleged incident was a serious incident. This witness has also stated that there were houses of Jaisi Ram, Rama Nand and Ranjit adjoining to her house and there were approximately 30 houses in the locality. This witness also stated that after the occurrence of the incident, she went to the house of accused but did not find him there. This witness also stated in her cross examination that before lodging the FIR she had taken her daughter to a government Doctor at Shawad who had given medicines because her daughter was not taking food. This witness deposed that thereafter she got her daughter admitted in the hospital at Ani. The prosecution has not placed on record any material from which it can be deciphered/inferred that the mother of the ::: Downloaded on - 15/04/2017 21:10:45 :::HCHP 13 prosecutrix either took her to any Doctor or the prosecutrix remained admitted in the hospital at Ani before lodging of FIR. This witness also stated that after the alleged incident, her daughter i.e. the .
prosecutrix remained at home for one month. She also stated that after the occurrence of the incident she had narrated this incident to her brother Swarup Chand after he came back from Shimla about 11 days post occurrence of the alleged incident. This witness in her of cross examination also admitted it to be correct that her grand father had willed his property in the name of father of accused and thereafter her father had severed all type of relations with the family rt of accused.
19. When we compare the statement of PW2 with the statement of prosecutrix and PW5, we find lot of inconsistencies and contradictions. Whereas as per PW2, prosecutrix remained at home for one month after the occurrence of the alleged incident, however, prosecutrix in her statement has deposed that she continuously kept on attending the school. As per PW2, the prosecutrix was taken to a Doctor at Shawad as she was not taking food, however, as per the prosecutrix, she was taken to the doctor because she was having pain in her private part. Further as per PW2, after the occurrence of the incident, she narrated this incident to her brother Swarup Chand after he returned from Shimla 11 days after the incident, whereas her father, who has entered the witness box as PW5, has deposed that the incident was disclosed to him by his daughter (complainant) ::: Downloaded on - 15/04/2017 21:10:45 :::HCHP 14 and he advised her to take prosecutrix to the Doctor and it was on his advice, that the prosecutrix was taken to Medical Officer at Shawad and thereafter to hospital at Ani. PW2 deposed in her .
statement that after the occurrence she fell ill, whereas her father PW5 stated that after the occurrence of the alleged incident, prosecutrix fell ill and she could not attend her school.
20. Incidentally and most crucially, brother of complainant of (PW2) i.e. Swarup Chand, who, in our considered view, was a very important witness, has not been examined by the prosecution. No cogent explanation has come forth from the prosecution as to why rt Swarup Chand was not examined by the prosecution. Keeping in view that the FIR, as per PW2, was got registered at the behest of Swarup Chand, in the absence of his testimony on record to corroborate as to what has been deposed by PW2, it cannot be said that delay in lodging of FIR was sufficiently explained by the prosecution.
21. On the above facts and circumstances which includes the inconsistencies of and contradictions in the testimonies of prosecution witnesses who mostly are interested witnesses, it cannot be said that on the basis of material produced on record by the prosecution, it had proved its case against the accused beyond reasonable doubt.
22. Now coming to the testimony of PW8, Dr. Neelam Verma who medically examined the prosecutrix, stated that the ::: Downloaded on - 15/04/2017 21:10:45 :::HCHP 15 prosecutrix was medically examined by her on 17.06.2005. In her cross examination, this witness has stated that injuries No. 1 and 2 which were found by her on the body of prosecutrix were possible by .
scratching. This witness also deposed that as per observation under specific local examination mentioned at No. 2 and 3 in the MLC, it can be said that the prosecutrix was virgin. She also stated that as per her examination, there was no complete penetration but partial of penetration or attempt to rape cannot be ruled out. She also stated that she had not noticed any black scars on the private parts of the victim and injury mentioned at Sr. No. 3 is possible if child falls rt while playing. This witness also stated that because she had examined the witness after 13 days, accordingly she had given the opinion that possibility of rape cannot be ruled out.
23. In our considered view, it cannot be conclusively held from the testimony of this witness that the prosecutrix was raped by the accused. The statement of this witness though raises a strong suspicion that the accused might have committed the offence for which he was charged, however, suspicion howsoever strong cannot substitute for proof. Therefore, it cannot be concluded beyond reasonable doubt from the testimony of PW8 that the prosecution was raped by the accused as is the case of the prosecution.
24. A perusal of the judgment passed by learned trial Court will demonstrate that all the relevant aspects of the matter have been taken into consideration by learned trial Court and after appreciation ::: Downloaded on - 15/04/2017 21:10:45 :::HCHP 16 of the evidence produced on record by the prosecution, it was concluded by learned trial Court that the prosecution could not prove its case against the accused beyond reasonable doubt. In our .
considered view, the findings so returned by the learned trial Court cannot be faulted with. According to us also, the material produced on record by the prosecution is not sufficient enough from which it can be concluded beyond reasonable doubt that the prosecutrix was of raped by accused. The material on record adduced by the prosecution at the most raised strong suspicion that the accused might have committed the offence for which he was charged, rt however, we are afraid that the prosecution was not able to prove beyond reasonable doubt this suspicion.
25. In Dattu Ramrao Sakhare v. State of Maharashtra (1997 (5) SCC 341) it was held:
'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 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 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 said Judge may ::: Downloaded on - 15/04/2017 21:10:45 :::HCHP 17 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 his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make beliefs. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after of 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."
26. rt It has been held by the Hon'ble Supreme Court that evidence of a child witness should find adequate corroboration before it could be accepted.
27. Rule of caution requires that conviction should not be based on the uncorroborated testimony of a child witness. Though there is no bar in acting upon the uncorroborated testimony of a child witness yet prudence requires that it should be corroborated on the material particulars. It is a sound rule of practice not to act upon the uncorroborated testimony of a child whether sworn or not. But this is a rule of caution and not rule of law. This is because testimony of a child witness cannot be discarded at all together and if testimony is truthful and not shaken in the cross-examination, the same can be accepted. The Hon'ble Supreme Court has held in Ratansinh Dalsukhbhal Nayak Vs. State of Gujarat, AIR 2004 ::: Downloaded on - 15/04/2017 21:10:45 :::HCHP 18 Supreme Court 23, that if the testimony of a child witness is found to be a satisfactory, conviction can be based on the same.
28. Hon'ble Supreme Court in State of Madhya Pradesh .
versus Ramesh and Another, (2011) 4 Supreme Court Cases 786 has held as under:
" In Rameshwar S/o Kalyan Singh v. The State of Rajasthan, AIR 1952 SC 54, this Court examined the of provisions of Section 5 of Indian Oaths Act, 1873 and Section 118 of Evidence Act, 1872 and held that every witness is competent to depose unless the court considers that he is prevented from understanding the question put to rt him, or from giving rational answers by reason of tender age, extreme old age, disease whether of body or mind or any other cause of the same kind. There is always competency in fact unless the Court considers otherwise.
The Court further held as under:
".....It is desirable that Judges and magistrates should always record their opinion that the child understands the duty of speaking the truth and state why they think that, otherwise the credibility of the witness may be seriously affected, so much so, that in some cases it may be necessary to reject the evidence altogether. But whether the Magistrate or Judge really was of that opinion can, I think, be gathered from the circumstances when there is no formal certificate...."
In Mangoo & Anr. v. State of Madhya Pradesh, AIR 1995 SC 959, this Court while dealing with the evidence of a child witness observed that there was always scope to tutor the child, however, it cannot alone be a ground to come to the conclusion that the child witness must have been tutored. The Court must determine as to whether the ::: Downloaded on - 15/04/2017 21:10:45 :::HCHP 19 child has been tutored or not. It can be ascertained by examining the evidence and from the contents thereof as to whether there are any traces of tutoring.
.
In Panchhi & Ors. v. State of U.P., AIR 1998 SC 2726, this Court while placing reliance upon a large number of its earlier judgments observed that the testimony of a child witness must find adequate corroboration before it is relied on. However, it is more a rule of practical wisdom than of law. It cannot be held that of "the evidence of a child witness would always stand irretrievably stigmatized. It is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. The law is that evidence of a child witness must be rt evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring."
In Nivrutti Pandurang Kokate & Ors. v. State of Maharashtra, AIR 2008 SC 1460, this Court dealing with the child witness has observed as under:
"10. '...7...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. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established principle that child witnesses are dangerous witnesses as they are ::: Downloaded on - 15/04/2017 21:10:45 :::HCHP 20 pliable and liable to be influenced easily, shaped and moulded, 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."
The evidence of a child must reveal that he was able to discern between right and wrong and the court may find out from the cross-examination whether the defence lawyer could bring anything to indicate that the child could not of differentiate between right and wrong. The court may ascertain his suitability as a witness by putting questions to him and even if no such questions had been put, it may be gathered from his evidence as to whether he fully rt understood the implications of what he was saying and whether he stood discredited in facing a stiff cross-
examination. A child witness must be able to understand the sanctity of giving evidence on a oath and the import of the questions that were being put to him. (Vide: Himmat Sukhadeo Wahurwagh & Ors. v. State of Maharashtra, AIR 2009 SC 2292).
In State of U.P. v. Krishna Master & Ors., AIR 2010 SC 3071, this Court held that there is no principle of law that it is inconceivable that a child of tender age would not be able to recapitulate the facts in his memory. A child is always receptive to abnormal events which take place in his life and would never forget those events for the rest of his life. The child may be able to recapitulate carefully and exactly when asked about the same in the future. In case the child explains the relevant events of the crime without improvements or embellishments, and the same inspire confidence of the Court, his deposition does not require any corroboration whatsoever. The child at a tender age is incapable of having any malice or ill will against any person. Therefore, there must be something on record to satisfy the Court that something had gone wrong between ::: Downloaded on - 15/04/2017 21:10:45 :::HCHP 21 the date of incident and recording evidence of the child witness due to which the witness wanted to implicate the accused falsely in a case of a serious nature.
.
Part of the statement of a child witness, even if tutored, can be relied upon, if the tutored part can be separated from untutored part, in case such remaining untutored part inspires confidence. In such an eventuality the untutored part can be believed or at least taken into consideration for the purpose of corroboration as in the case of a hostile witness. (Vide: Gagan Kanojia & Anr. v. State of of Punjab, (2006) 13 SCC 516).
In view of the above, the law on the issue can be summarized to the effect that the deposition of a child witness rt may require corroboration, but in case deposition inspires the confidence of the court and there is his no embellishment or improvement therein, the court may rely upon his evidence. The evidence of a child witness must be evaluated more carefully with greater circumspection because he is susceptible to tutoring. Only in case there is evidence on record to show that a child has been tutored, the Court can reject his statement partly or fully. However, an inference as to whether child has been tutored or not, can be drawn from the contents of his deposition."
29. Hon'ble Supreme Court in K. Venkateshwarlu Versus State of Andhra Pradesh, (2012) 8 Supreme Court Cases 73 has held as under:
"The trial court acquitted the appellant basically on the ground that the victim and her mother did not speak anything about the rape and the child witnesses stated that they were kept by the police in police station prior to giving evidence and therefore, their evidence cannot be relied upon. The trial court observed that the appellant is entitled ::: Downloaded on - 15/04/2017 21:10:45 :::HCHP 22 to benefit of doubt. An appeal was carried by the State of Andhra Pradesh to the High Court. The High Court came to a conclusion that there was no appreciation of evidence at all by the trial court. The High Court re- appreciated the .
evidence and recorded a finding that the prosecution has proved its case beyond reasonable doubt. The High Court set aside the trial court's order and convicted the appellant as aforesaid, which has led to this appeal.
We have heard learned counsel for the appellant. He submitted that the High Court erred in setting aside the of order of acquittal which was based on a correct appreciation of evidence. Counsel submitted that by no stretch of imagination the order of acquittal passed by the Sessions rt Court can be characterized as perverse warranting interference by the High Court. Counsel submitted that PW-1 Anjaiah and PW-3 Padma, father and mother of the victim have not supported the prosecution case. PW-2 Aruna the victim has also not stated that she was sexually assaulted by the appellant. The child witnesses have admitted that they were at the police station for considerable period before they were brought to the court. It is evident, therefore, that they were tutored by the police. Counsel submitted that though medical evidence suggests that PW-2 Aruna had been sexually assaulted, there is no evidence on record to conclude that it is the appellant who had committed the heinous crime. Counsel submitted that the view taken by the trial court is a reasonably possible view which ought not to have been disturbed by the High Court. Learned counsel for the State supported the impugned order.
The High Court has set aside order of acquittal. This court has repeatedly stated what should be the approach of the High Court while dealing with an appeal against acquittal. If the view taken by the trial court is a reasonably possible view, the High Court cannot set it aside and substitute it by its own view merely because that view is ::: Downloaded on - 15/04/2017 21:10:45 :::HCHP 23 also possible on the facts of the case. The High Court has to bear in mind that presumption of innocence of an accused is strengthened by his acquittal and unless there are strong and compelling circumstances which rebut that .
presumption and conclusively establish the guilt of the accused, the order of acquittal cannot be set aside. Unless the order of acquittal is perverse, totally against the weight of evidence and rendered in complete breach of settled principles underlying criminal jurisprudence, no interference is called for with it. Crime may be heinous, morally repulsive and extremely shocking, but moral considerations of cannot be a substitute for legal evidence and the accused cannot be convicted on moral considerations. The present appeal needs to be examined in light of above principles. rt Several child witnesses have been relied upon in this case. The evidence of a child witness has to be subjected to closest scrutiny and can be accepted only if the court comes to the conclusion that the child understands the question put to him and he is capable of giving rational answers (see Section 118 of the Evidence Act). A child witness, by reason of his tender age, is a pliable witness. He can be tutored easily either by threat, coercion or inducement. Therefore, the court must be satisfied that the attendant circumstances do not show that the child was acting under the influence of someone or was under a threat or coercion. Evidence of a child witness can be relied upon if the court, with its expertise and ability to evaluate the evidence, comes to the conclusion that the child is not tutored and his evidence has a ring of truth. It is safe and prudent to look for corroboration for the evidence of a child witness from the other evidence on record, because while giving evidence a child may give scope to his imagination and exaggerate his version or may develop cold feet and not tell the truth or may repeat what he has been asked to say not knowing the consequences of his deposition in the court. Careful evaluation of the evidence of a child witness ::: Downloaded on - 15/04/2017 21:10:45 :::HCHP 24 in the background and context of other evidence on record is a must before the court decides to rely upon it.
The Evidence of child witnesses PW-4 D. Marry, PW-
.
5 Swapna, PW-6 Ch. Vijaya and PW-7 Ch. Borraiah have made prosecution case suspect. It must be mentioned here that statements of these witnesses were recorded by PW-14 K. Prasad Rao, JFCM, Kodad, under Section 164 of the Code. But, these statements also cannot be relied upon because there is intrinsic evidence to show that all these witnesses were under the pressure of the police. PW- 4 D. of Marry did not say anything about the appellant. She stated that she gave a statement before the Magistrate at Kodad but she could not state what statement she had given. Because she was unable to answer the questions she was rt discharged. PW-5 Swapna also admitted that she was at the police station at Garidapalli for six days along with PWs 1 to 3 and others and she gave a statement before the Magistrate at the instance of the police. The defence has produced a certificate (Annexure-P/8) from RCM High School, Vepalasingaram, where PW-4 and PW-5 were studying, which states that they did not attend the school from 30.10.2000 to 7.11.2000 and 27.10.2000 to 06.11.2000 respectively. PW-6 Ch. Vijaya Kumar and PW-7 Ch. Borraiah narrated the incident in the examination-in- chief, but the similarity in their narration suggests tutoring by the police. PW-6's effort to disown that he was detained at the police station along with others is belied by evidence of other witnesses. PW-7 Ch. Borraiah stated in the cross-
examination that all of them were at the police station since last Tuesday. From the evidence of the child witnesses it is clear that they were detained by the police at the police station. Once this is established, the inevitable conclusion that they were tutored by the police must follow.
Having perused the evidence of all the witnesses, we find it difficult to rely on them. We feel that the trial court had rightly discarded their evidence as unworthy of ::: Downloaded on - 15/04/2017 21:10:45 :::HCHP 25 reliance and the High Court erred in taking it into consideration. This, in our opinion, is a case where neither the evidence of parents of victim PW-2 Aruna nor the evidence of PW- 2 Aruna, nor the evidence of child .
witnesses, who claim to have witnessed the incident, nor the medical evidence supports the prosecution case. Besides, all the pancha witnesses have turned hostile, a fact which we have noted with some anguish. A needle of suspicion does point out to the appellant because he is a police constable and in a small village where the incident took place, witnesses may be scared to depose against him of because of his clout. There are certain circumstances which do raise suspicion about the appellant's involvement in the crime. The children were playing on the terrace of the appellant. The appellant was not arrested by police till rt 4.9.1998. The demeanour of PW-2 Aruna, the tears in her eyes, her walking out of the court after looking at the appellant, pricks the judicial conscience. But convictions cannot be based on suspicion, conjectures and surmises. We are unable to come to a conclusion that the trial court's judgment is perverse. For want of legal evidence we will have to set aside the appellant's conviction and sentence. But we make it clear that we are doing so only by giving him benefit of doubt."
30. Hon'ble Supreme Court in Munna Versus State of Madhya Pradesh, (2014) 10 Supreme Court Cases 254, has held as under:
"........We are conscious that testimony of the prosecutrix is almost at par with an injured witness and can be acted upon without corroboration as held in various decisions of this Court. Reference may be made to some of the leading judgments.
In Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat, this Court held as under :
"9. In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the ::: Downloaded on - 15/04/2017 21:10:45 :::HCHP 26 absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with .
lenses tinged with doubt, disbelief or suspicion? To do so is to justify the charge of male chauvinism in a male dominated society. We must analyze the argument in support of the need for corroboration and subject it to relentless and remorseless cross examination. And we must do so with a logical, and not an opinionated, eye in the light of probabilities of with our feet firmly planted on the soil of India and with our eyes focussed on the Indian horizon. We must not be swept off the feet by the approach made in the western world which has its own social rt milieu, its own social mores, its own permissive values, and its own code of life. Corroboration may be considered essential to establish a sexual offence in the backdrop of the social ecology of the western world. It is wholly unnecessary to import the said concept on a turnkey basis and to transplant it on the Indian soil regardless of the altogether different atmosphere, attitudes, mores, responses of the Indian society, and its profile. The identities of the two worlds are different. The solution of problems cannot therefore be identical.
10. Without the fear of making too wide a statement, or of overstating the case, it can be said that rarely will a girl or a woman in India make false allegations of sexual assault ........ The statement is generally true in the context of the urban as also rural society. It is also by and large true in the context of the sophisticated, not so sophisticated, and unsophisticated society. Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites. Because (1) A girl or a woman in the tradition-bound non-permissive society of India would be extremely reluctant even to admit that any ::: Downloaded on - 15/04/2017 21:10:45 :::HCHP 27 incident which is likely to reflect on her chastity had ever occurred. (2) She would be conscious of the danger of being ostracized by the society or being looked down by the society including by her own .
family members, relatives, friends, and neighbours.
(3) She would have to brave the whole world. (4) She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered. (5) If she is unmarried, she would apprehend that it would be difficult to secure an of alliance with a suitable match from a respectable or an acceptable family. (6) It would almost inevitably and almost invariably result in mental torture and suffering to herself. (7) The fear of being taunted by rt others will always haunt her. (8) She would feel extremely embarrassed in relating the incident to others being overpowered by a feeling of shame on account of the upbringing in a tradition-bound society where by and large sex is taboo. (9) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy. (10) The parents of an unmarried girl as also the husband and members of the husband's family of a married woman, would also more often than not, want to avoid publicity on account of the fear of social stigma on the family name and family honour. (11) The fear of the victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her innocence. (12) The reluctance to face interrogation by the investigating agency, to face the court, to face the cross examination by counsel for the culprit, and the risk of being disbelieved, acts as a deterrent."
In State of Maharashtra vs. Chandraprakash Kewalchand Jain, this Court held as under :
"15. It is necessary at the outset to state what the approach of the court should be while evaluating ::: Downloaded on - 15/04/2017 21:10:45 :::HCHP 28 the prosecution evidence, particularly the evidence of the prosecutrix, in sex offences. Is it essential that the evidence of the prosecutrix should be corroborated in material particulars before the court .
bases a conviction on her testimony? Does the rule of prudence demand that in all cases save the rarest of rare the court should look for corroboration before acting on the evidence of the prosecutrix? Let us see if the Evidence Act provides the clue. Under the said statute 'Evidence' means and includes all statements which the court permits or requires to be of made before it by witnesses, in relation to the matters of fact under inquiry. Under Section 59 all facts, except the contents of documents, may be proved by oral evidence. Section 118 then tells us rt who may give oral evidence. According to that section all persons are 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.
Even in the case of an accomplice Section 133 provides that he shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.
However, illustration (b) to Section 114, which lays down a rule of practice, says that the court 'may' presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars. Thus under Section 133, which lays down a rule of law, an accomplice is a competent witness and a conviction based solely on his uncorroborated evidence is not illegal although in view of Section 114, illustration (b), courts do not as a matter of practice do so and look for corroboration in material particulars. This is the conjoint effect of Sections 133 and 114, illustration (b).::: Downloaded on - 15/04/2017 21:10:45 :::HCHP 29
16. A prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is .
corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no of more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the rt court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence. We have, therefore, no doubt in our minds that ordinarily the evidence of a prosecutrix who does not lack understanding must be accepted. The degree of ::: Downloaded on - 15/04/2017 21:10:45 :::HCHP 30 proof required must not be higher than is expected of an injured witness. For the above reasons we think that exception has rightly been taken to the approach of the High Court as is reflected in the .
following passage:
"It is only in the rarest of rare cases if the court finds that the testimony of the prosecutrix is so trustworthy, truthful and reliable that other corroboration may not be necessary."
With respect, the law is not correctly stated. If we may say so, it is just the reverse. Ordinarily the of evidence of a prosecutrix must carry the same weight as is attached to an injured person who is a victim of violence, unless there are special circumstances which call for greater caution, in rt which case it would be safe to act on her testimony if there is independent evidence lending assurance to her accusation.
17. We think it proper, having regard to the increase in the number of sex violation cases in the recent past, particularly cases of molestation and rape in custody, to remove the notion, if it persists, that the testimony of a woman who is a victim of sexual violence must ordinarily be corroborated in material particulars except in the rarest of rare cases. To insist on corroboration except in the rarest of rare cases is to equate a woman who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her story of woe will not be believed unless it is corroborated in material particulars as in the case of an accomplice to a crime. Ours is a conservative society where it concerns sexual behaviour. Ours is not a permissive society as in some of the western and European countries. Our standard of decency and morality in public life is not the same as in those countries. It is, however, unfortunate that respect for womanhood in ::: Downloaded on - 15/04/2017 21:10:45 :::HCHP 31 our country is on the decline and cases of molestation and rape are steadily growing. An Indian woman is now required to suffer indignities in different forms, from lewd remarks to eve-teasing, .
from molestation to rape. Decency and morality in public life can be promoted and protected only if we deal strictly with those who violate the societal norms. The standard of proof to be expected by the court in such cases must take into account the fact that such crimes are generally committed on the sly and very rarely direct evidence of a person other of than the prosecutrix is available. Courts must also realise that ordinarily a woman, more so a young girl, will not stake her reputation by levelling a false charge concerning her chastity."
rt Similar observations were made in State of Punjab vs. Gurmit Singh, as under :
"8......The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases 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 a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be ::: Downloaded on - 15/04/2017 21:10:45 :::HCHP 32 reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who .
complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon of corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more rt reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self-inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken ::: Downloaded on - 15/04/2017 21:10:45 :::HCHP 33 as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable."
(emphasis in original) Thus, while absence of injuries or absence of raising .
alarm or delay in FIR may not by itself be enough to disbelieve the version of prosecutrix in view of the statutory presumption under Section 114A of the Evidence Act but if such statement has inherent infirmities, creating doubt about its veracity, the same may not be acted upon. We are conscious of the sensitivity with which heinous offence under Section 376, IPC has to be treated but in the present of case the circumstances taken as a whole create doubt about the correctness of the prosecution version. We are, thus, of the opinion that a case is made out for giving benefit of doubt to the accused."
rt
31. In Golla Yelugu Govindu vs. State of Andhra Pradesh (2008) 16 SCC 769, the Apex Court has held as under:-
"11. 6.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 understanding the questions put to them or from giving rational answers to these questions, because of tender years, extreme old age, disease- 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 give rational answers thereto. This position was concisely stated by Brewer J in Wheeler v. United States (159 U.S. 523). 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 thereof and reliability can record conviction, based thereon.::: Downloaded on - 15/04/2017 21:10:45 :::HCHP 34
(See Surya Narayana v. State of Karnataka (2001 (1) Supreme 1).
32. Accordingly, in view of discussion held above and the .
ratio laid down in the abovementioned cases, while upholding the judgment passed by the learned trial Court, we dismiss the appeal filed by the appellant being devoid of any merit. Pending application(s), if any, also stands disposed of.
of
(Sanjay Karol)
Judge
7th September, 2016
rt (Ajay Mohan Goel)
Judge
(narender)
::: Downloaded on - 15/04/2017 21:10:45 :::HCHP
35
.
of
rt
::: Downloaded on - 15/04/2017 21:10:45 :::HCHP