Patna High Court
Sanjay Kumar Khemka vs State Of Bihar on 22 February, 2012
Author: Aditya Kumar Trivedi
Bench: Sheema Ali Khan, Aditya Kumar Trivedi
CRIMINAL APPEAL (DB) NO.55 OF 2005
(Against the judgment of
conviction and order of sentence
dated 04.01.2005 passed by 3rd
Additional Sessions Judge,
Naugachia, Bhagalpur in Sessions
Trial No.590/1996)
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Sanjay Kumar Khemka, son of Mangal Chand Khemka, Resident of
Dharamshala Road, P.S. Naugachhia, district-Bhagalpur.
.... .... APPELLANT.
Versus
The State of Bihar .... .... RESPONDENT.
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For the Appellant : Mr. Akhileshwar Prasad Singh, Sr. Adv.
Mr. Abha Singh
Mr. Manish Kumar
Mr. Praveen Kumar
Mr. Satyendra Rai
Mr. Pramod Kumar Pandey
Mr. Gautam Kejriwal
Mr. Sanil Kumar
Mr. Gopal Prasad Gupta
For the Respondent : Mr. Ashwani Kumar, A.P.P.
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PRESENT
HON'BLE MRS. JUSTICE SHEEMA ALI KHAN
AND
HON'BLE MR. JUSTICE ADITYA KUMAR TRIVEDI
A.K. Trivedi, J.The sole appellant Sanjay Kumar Khemka who has been found and held guilty for an offence punishable under Section 376 of the I.P.C. and further been directed to undergo R.I. for life by 3rd Additional Sessions Judge, Naugachia, Bhagalpur vide judgment dated 4th January, 2005 in connection with Sessions Trial No.590/1996 filed instant appeal.
2. On 01.09.1990 at about 10 P.M. Deoki Nandan 2 Jalan, (P.W.4) gave his fardbeyan (exhibit 3) to the effect that at about 7 P.M. while he was returning to his house after closing his shop, he inquired about his daughter Amia, from his wife who disclosed that she has gone to the shop of Sanjay Kumar to purchase toffee. Hearing this he along with his wife proceeded towards shop of Sanjay and as soon as reached near his shop, Sanjay came out from his shop and slipped towards his house. Then he saw his daughter Amia @ Rekha Kumari aged about 4 years lying unconscious in the shop of Sanjay. The front door of shop was closed. Blood was oozing out from her private part. Her pant was soaked with blood. From the facts aforesaid he could decipher the Sanjay had raped his daughter. Thereafter he lifted his daughter and carried to his house in an unconscious condition. The informant changed his daughter pants. He has further disclosed the incident to other family members as well his neighbours.
3. On the basis of aforesaid fardbeyan, Naugachia P.S. Case No.212/1990 was registered under Section 376 of the I.P.C. where under cognizance was taken on the basis of submission of charge sheet that led commitment of the case, followed by a trial, which ultimately culminated in conviction of the sole accused/appellant in a manner as stated above.
4. The defence case as comes out from the mode of 3 cross-examination as well as from the statement recorded under Section 313 of the Cr.P.C. coupled with examination of D.W. is that accused is innocent and has fallen victim of false implication in the background of the fact that there was some strained relationship amongst the parties on the factum of tenancy, where under the prosecution party was tenant of accused and was forced to vacate the premises.
5. Altogether 10 P.W.s have been examined on behalf of the prosecution out of whom P.W.1 - Arun Kumar, P.W. 2
- Ram Prasad Sah, P.W. 3 - Ghanshyam Singhania, P.W. 4
- Deoki Nandan Jalan, P.W. 5 - Manju Devi, P.W. 6 - Om Prakash Sharma, P.W. 7 - Rekha Kumari (victim), P.W. 8 - Pokhal Mal Jalan, P.W. 9 - Dr. Ira Jha who had examined the victim and P.W. 10 - Saryug Chaudhuri. The prosecution had also exhibited Ext. 1 - Formal F.I.R., Ext. 2
- Signature of P.W.4 over fardbeayn, Ext. 3 - fardbeayn, Ext. 4 - Signature of seizure list witness P.W.8, Ext. 4/A - Signature of P.W.9, Ext. 5 - Serological and Chemical Examiner report, Ext. 6 - endorsement over fardbeyan, Ext. 7- formal F.I.R., Ext. 8 - Seizure list. Side by side defence has also examined four D.W.s out of whom D.W. 1 is Mohan Kedia, D.W. 2 is Sanjay Kumar Chaudhuri, D.W.3 Santosh Kumar Chirania, D.W. 4 is Sita Ram Ravi as well as also exhibited Ext. certified copy of voter list.
6. Now coming to status of the witnesses, P.W.1 4 happens to be formal in nature while P.W. 2, P.W.3, P.W.6 are hostile while P.W.8 happens to be hearsay witness. P.W.4 is informant, father of victim, P.W.5 Manju Devi, mother of victim, P.w.7 Rekha Kumari victim, P.W.9 Dr. Ira Jha and P.W. 10 - Saryug Chaudhuri is the Investigating Officer of this case.
7. The evidence of victim gets priority and so first of all we would like to deal with the evidence of P.W.7.
8. P.W.7 was examined on 15-01-2001, on which date she had claimed herself to be aged about 14 years. In examination-in-chief, she had deposed that on 01.09.1990 at about 6-7 P.M. she had gone to the shop of Sanjay to purchase toffee. Sanjay made her sit by his side. Thereafter, he took off her undergarments and then began to ruff, over her vagina. She tried to get rid of him and also raise alarm, which the informant prevented by closing her mouth and said that he will give more toffee to her. She felt pain. Blood had oozen out. Thereafter, she became unconscious. She was subjected to medical examination. After going through the cross-examination minutely, it is evident that accused had not cross-examined the witness on this score.
9. P.W.4 is the informant. He had deposed that on 01.09.1990 at about 7 P.M. when he returned back to his house after closing his shop, he did not find Rekha @ Amiya over which he inquired from his wife who disclosed 5 that she has gone to the shop of Sanjay to purchase toffee. He thereafter proceeded towards the shop of Sanjay. As soon as he reached there, Sanjay slipped inside his house through northern door of his shop. Then he saw his daughter Rekha Kumar @ Amiya aged about 4 years lying unconscious over floor. Front door of shop was closed. Blood was oozing from her private part. Her panty was soaked with blood. Then he lifted his daughter and took her and changed her panty. Thereafter, he had given fardbeyan at police station, which he has identified and got it exhibited. He identified the accused. Again from his cross- examination it is evident that the defence had failed to cross-examine him on the facts what he had narrated, although in para-4 of his cross-examination an unsuccessful attempt has been made on this score which was categorically explained by this P.W.
10. P.W. 5 happens to be Manju Devi mother of victim. She had deposed that occurrence took place about 8-9 years ago. It at 7 P.M. when her husband returned from his shop, he inquired about Rekha @ Amiya, P.W.5 disclosed that she has gone to the shop of Sanjay to purchase toffees. Thereafter she along with her husband proceeded towards the shop of Sanjay which was closed from front side. Then they reached near northern Darwaja. At that very moment Sanjay hurriedly slipped towards his 6 house. She along with her husband had seen Amiyan, aged about 4 years, lying unconscious. Blood was coming from her private part. Her panty soaked with blood. She was unconscious. Then, they lifted her and carried their house. P.W.5 had made a statement before the police, as well as produced the blood stained panty. Her daughter was medically examined P.W.5. Identified the accused in dock. During cross-examination she had deposed in para-2 that she had not been seen any occurrence. With regard to other points again she was not cross-examined.
11. P.W. 8 had stated that daughter of Deoki Nandan Jalan was raped on 01.09.1990. He had also heard that the victim had gone to the shop of accused where she was allegedly raped. Police had seized blood stained cloth for which seizure list was prepared over which he put his signature.
12. Regarding other remaining P.W.s, as discussed above P.W.3 had supported the factum of rape but did not name the accused to be author of crime while P.W.2 disowned the participation of this appellant.
13. P.W.9 happens to be doctor who had examined the victim on 02.09.1990 at 12:30 hours. As per her evidence, no external or internal injury was found nor did he perceive any abnormality including her gait which was normal. There was no external or internal injury on he body 7 or private parts which would support the case of bleeding from her private parts. The pathological report received on 28.9.90 did not show present of spermatozoa The doctor opined that no sign of rape was present.
14. P.W.10 happens to be the Investigating Authority. He had deposed that on 01.09.1990 while posted at Naugachia Police Station as S.I. He heard rumour with regard to commission of rape over victim by Sanjay Kumar, he rushed to the house of Deoki Nandan Jalan, took his beyan in presence of Ghanshyam Singhania and Om Prakash Sharma, after which registered a case, and took up investigation. During course of investigation, on the same day Deoki Nandan Jalan had produced a panty soaked with blood, for which he had prepared production come seizure list, in presence of witness Ram Prakash Sah and Pokhalmal Jalan who have had also put their signature. The seizure list was exhibited in court. Then thereafter, he had sent it for chemical examination. He had visited the place of occurrence which happens to be the shop of accused and detailed of topography of the place of occurrence has been mentioned in the evidence of the I.O. He had taken statement of witnesses. Then he was confronted with statement of hostile witnesses. He had sent the victim for medical examination and obtained the report. After completing investigation, P.W. 10 submitted charge 8 sheet under Section 376 of the I.P.C.
15. It has been contended on behalf of the appellant- convict that the judgment of conviction and sentence recorded by the learned lower court is not at all tenable in the eye of law because of the fact that neither by oral testimony nor by documentary evidence, the witnesses have supported, the occurrence. It has further been submitted that none of the P.W.s are eye witnesses to the occurrence. The only evidence brought by the prosecution, through P.W.4 and 5 is to the extent that they had found the victim lying unconscious inside shop of appellant and blood was coming out from her private part. Although the party which was stained with blood was seized it was not sent for chemical examination, which is also a factor which ought to be taken into consideration. The court has no way of knowing that the blood stains in the panty matched with the blood of the victim girl. To explain the reason, it has been submitted that so many factors are responsible for oozing of blood. The aforesaid theme when is taken together with the version of victim P.W.7, it is evident that she had not complained regarding penetration of penis inside her vagina nor to the extent of even touching it. Whatever she deposed shows ruffing over private part. When the aforesaid disclosure is taken together with the evidence of doctor, there was no occasion to conclude that rape was 9 committed. At the other hand, the defence by examining four witnesses has tried to adduce the fact that the victim was made escape goat just to teach a lesson to the appellant as he had forced the prosecution party to vacate his house which he had taken on rent. So, submitted that the appeal is fit to be allowed.
16. At the other hand learned P.P. sticking with the finding submitted that unless and until there happens to be penetration blood could not came out that too from the private part of a victim aged about 4 years. Also submitted that for the purpose of attracting application of Section 376 of the I.P.C., slight penetration has been found to be sufficient.
17. From the evidence as discussed above it is evident that whatever material facts has been placed by the prosecution, the same happens to be un-rebutted on account of non cross-examination by the appellant. How the aforesaid deficiencies is to be adjudged for which we would like to refer decision reported in A.I.R. 1961 Calcutta page- 359 the relevant para happens to be:-
(10) The law is clear on the subject. Wherever the opponent has declined to avail himself of the opportunity to put his essential and material case in cross-examination, it must follow that he believed that the testimony given could not be disputed at all.
It is wrong to think that this is merely a technical rule of evidence. It is a rule of essential justice. It 10 serves to prevent surprise at trial and miscarriage of justice, because it gives notice to the other side of the actual case that is going to be made when the turn of the party on whose behalf the cross-examination is being made comes to give and lead evidence by producing witnesses. It has been stated on high authority of the House of Lords that this much a counsel is bound to do when cross-examining that he must put to each of his opponent‟s witnesses in turn, so much of his own case as concerns that particular witness or in which that witness had any share. If he asks no question with regard to this, then he must be taken to accept the plaintiff‟s account in his entirety. Such failure leads to miscarriage of justice, first by springing surprise upon the party when he has finished the evidence of his witnesses and when he has no further chance to met the new case made which was never put and secondly, because such subsequent testimony has no chance of being tested and corroborated.
18. The aforesaid view has further find support from other judgments as incorporated under para-11, 12, 13 of the Judgment which is incorporated hereinafter:
(11) On this point the most important and decisive authority is Browne v. Dunn, reported in (1893) 6 R 67. It is a decision of the House of Lords where Lord Herschell, L.C., Lord Halsbury, Lord Morris and Lord Bowen were all unanimous on this particular point. Lord Chancellor Herschell, at page 70 of the report observed:
"Now, my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause where it is intended to suggest 11 that a witness is not speaking the truth on a particular point, to direct his attention to the fact, by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses."
(12) Lord Halsbury, the other member of the House of Lords, at page 76 of the same report said:
"My Lords, with regard to the manner in which the evidence was given in this case, I cannot too heartily express my concurrence with the Lord Chancellor as to the mode in which a trial should be conducted. To my mind nothing would be more absolutely unjust than not to cross-examine witnesses upon evidence which they have given, so as to give them notice, and to given them an opportunity of explanation, and an opportunity very often to defend their own character, and, not having given them such an opportunity, to ask the jury afterwards to disbelieve what they have said, although not one question has been directed either to 12 their credit or to the accuracy of the facts they have deposed to."
(13) In fact Lord Halsbury described the situation as a "perfect outrage" at page 77 of the said report. After quoting the evidence the learned Lord said:
"My Lords, it seems to me that it would be a perfect outrage and violation of the proper conduct of a case at Nisi Prius if, after the learned counsel had declined to cross-examine the witness upon that evidence, it is not to be taken as a fact that that witness did complain of the plaintiff‟s proceedings, that he did receive advice, that he went round to Mr. Dunn as a solicitor, and that he did sign that retainer, the whole case on the other side being that the retainer was a mere counterfeit proceeding and not a genuine retainer at all."
19. In the background of aforesaid settled principle when the evidence of P.W.4, informant, father of victim, P.W.5 mother of victim has been gone through, it is evident that the defence had not challenged the factum of oozing of blood from the private part of victim while she was seen by them lying unconscious in the shop of accused. Now remains the evidence of victim who had been P.W.7. From here examination-in-chief it is evident that she had not put an allegation against the appellant regarding commission of rape nor, attempt to committing rape nay there happens to be an allegation that appellant had undressed himself for that purpose rather she had disclosed that the appellant, 13 after taking off her panty put his hand over her vagina and ruffed it and during said course blood oozed out and she became unconscious. The aforesaid evidence has not been challenged during cross-examination of P.W.7.
20. This fact gets further strengthen from the evidence of doctor P.W.9 who had not found any injury external or internal over the person of victim nay spermatozoa was found during pathological examination. The victim happens to be four years of age and so if any penetration was likely to be, taking into account her physical feature on account of her tender age in comparison to the age of appellant, it might have given an injury over the private part of the victim. As such no offence under Section 376 I.P.C. is made out. Hence the conviction and sentence attributed against the appellant under Section 376 I.P.C. by the learned Lower Court is not at all maintainable and is accordingly set aside.
21. The other aspect as is coming out from the material available on the record has to be seen to come to conclusion whether an offence punishable under Section 354 I.P.C. is made out. Admittedly, the victim was aged about 4 years at the time of occurrence. Whether her tender age really attracts application of Section 354 I.P.C. For that reference may have AIR 1967 SC 63 wherein majority view speaks.
14
"The offence punishable under Section 354 is an assault on or use of criminal force to a woman with the intention of outraging her modesty or with the knowledge of the likelihood of doing so. The Code does not define „modesty‟. What then is a women‟s modesty?
..........The essence of a woman‟s modesty is her sex. The modesty of an adult female is writ large on her body. Young or old, intelligent or imbecile, awake or sleeping the woman possesses a modesty capable of being outraged. Whoever uses criminal force to her with intent to outrage her modesty commits an offence punishable under Section 354. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive, as, for example, when the accused with a corrupt mind stealthily touches the flesh of a sleeping woman. She may be an idiot, she may be under the spell of anesthesia, she may be sleeping, she may be unable to appreciate the significance of the act; nevertheless, the offender is punishable under the section.
A female of tender age stands on a somewhat different footing. Her body is immature, and her sexual powers are dormant. In this case, the victim is a body, seven-and-half months old. She has not yet developed a sense of shame and has no awareness of sex. Nevertheless from her very birth she posses the modesty which is the attribute of her sex."
22. The next question under wimple whether 15 the evidence of victim can be relied upon as she was examined in court much after the date of alleged occurrence. The day on which she was examined, she happens to be aged about 14 years and there is no adverse remark against her by the learned lower court. At this juncture, it is better to cite the principle whatever been laid down by the Hon‟ble Apex Court as reported in 2011 Cr.L.J. page 2297 (relevant para 10,11 and 12).
"10. 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 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 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)".
"11. 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 16 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 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".
"12. 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 Punjab (2006) 13 SCC 516)".
23. Moreover, Section 159 of the evidence Act removes cloud over any kind of adverse inference to be attached with the evidence of a witness on account of delay as an opportunity is there to refresh memory and thus takes care thereof 17
24. It is tune of the law that the evidence as a whole has to be read without having it bifurcated in segments and for that reliance may have as reported in 2011 Cr.L.J. page 4281 (paragraph 12) as well as 2011 Cr.L.J. 4225 (paragraph 9), which reads as follows:-
"12. The evidence, essentially, must be viewed collectively. The statement of a witness must be read as a whole. Reliance on a mere line in the statement of the witness, out of context, would not serve the ends of justice and the conclusion of the Court based on such appreciation of evidence could be faulted".
"9 The learned counsel appearing for the appellant has hardly been able to bring to our notice any material contradictions in the statements of the prosecution witnesses. Every small discrepancy or minor contradiction which may erupt in the statements of a witness because of lapse of time, keeping in view the educational and other background of the witness, cannot be treated as fatal to the case of the prosecution. The court must examine the statement in its entirety, correct perspective and in light of the attendant circumstances brought on record by the prosecution".
25. Thus, taking into account the entire evidence having on record, much less of victim, it is found and held that a case under Section 354 IPC is made out 18 and accordingly the appellant is found guilty therefor. The judgment of conviction recorded by learned lower court is modified accordingly. So far sentence is concerned, Section 354 I.P.C. prescribes maximum sentence of two years or fine or with both which the appellant has already suffered on account of being under custody, more than that, hence the appellant is directed to be released forthwith if not wanted in any other case. The appeal is dismissed with aforesaid modification.
(Aditya Kumar Trivedi, J. ) Sheema Ali Khan, J. I have the advantage of reading the judgment delivered by my learned brother. I agree with major part of the conclusions reached at by my brother judge, but differ with the findings when he holds that the appellant is guilty for the offences under Section 354 of the Indian Penal Code. I, therefore, must record my reasons for coming to the said conclusion. I would also like to distinguish the law relied upon by my learned brother in his judgment.
2. The short facts of this case are that Deoki Nandan Jalan P.W. 4, the informant learnt from his wife that his daughter had gone to buy sweets from the shop of Sanjay Khemka. The informant also proceeded towards the 19 shop of Sanjay Khemka and when he reached at the shop, it is said that Sanjay Khemka ran towards his house. When he entered the shop, he found that his daughter Amia @ Rekha Kumari was unconscious and was bleeding from her private part. Her undergarment was stained with blood. He picked up his daughter and took her home.
3. On the basis of the aforesaid Fard-e-beyan of the informant, the trial has proceeded. In all, the prosecution has examined ten witnesses. Arun Kumar is a formal witness who has proved the handwriting of Saryug Chaudhary recorded the First Information Report. P.Ws. 2, 3 and 6 have been declared hostile as they deny any knowledge of the occurrence. P.W. 4 is the father of the victim girl and the informant of this case whereas P.W. 5 is the mother of the victim girl. P.W. 7 is the victim girl. P.W. 8 is a seizure list witness. P.W. 9 is the doctor and P.W. 10 is the Investigating Officer of this case.
4. The appellant has examined four witnesses on his behalf, to raise a defence that there was enmity between Deoki Nandan Jalan, P.W. 4 (father of the victim) and the appellant. The witnesses have stated that Deoki Nandan Jalan was a tenant in the house of Sanjay Khemka. Sanjay Khemka forcibly evicted him, which has led to bad feeling between the parties, and as such, he has been made an accused in a completely false case. This defence of the 20 appellant has been put to all the witnesses by way of suggestion.
5. I will begin with the evidence of the doctor to determine as to whether there were any physical sign of rape. The doctor has examined the victim girl on 2.9.1990 and has found no external injury on her body. The doctor has also specifically mentioned that she was not looking ill. She was fully conscious, walking, standing and sitting, her gait was normal. There was no blood seminal stain present in her clothes. Examination of her private parts revealed that there was no injury in and around the valva. The hymen was intact and the doctor found no seminal discharge etc. after pathological examination. It has been said that her mother complained that the baby had frequent motions. The doctor found no sign of rape.
6. In this background, I will now proceed to consider the evidence of the witnesses. The father and mother i.e. P.Ws. 4 and 5 who have supported the factum of rape by alleging that their daughter was found in an unconscious condition, there was bleeding from her private parts and that her undergarment was stained with blood. Both PWs 4 and 5 have also stated that their daughter remained unconscious for about 1 - 2 hours. The natural conduct would be that the parents would rush her to the hospital for treatment. Their conduct throws doubt 21 regarding the veracity of their statements.
7. The most important witness in this case is the victim herself. She has stated in her evidence that Sanjay Khemka, the accused took of her panties and began to finger her, she protested and the accused to pacify her gave her a toffee. She claims that she began to bleed and became unconscious. Suggestion has been given to her that Deoki Nandan Jalan was the tenant in the house of the accused. The accused had evicted them from the house for the reason that P.W. 4 had not paid the rent. This suggestion is the defence of the accused, which has been denied by the informant, P.Ws. 5 and 7, the victim. PW 7 has given a vivid description of the place of occurrence i.e. the shop of Sanjay Khemka but has not been able to specify the items sold in the shop just adjacent to the shop of the accused. An attempt has been made on behalf of the defence to show to the Court that the victim, who was 15 years of age at the time of her deposition, is not a reliable witness and has been tutored. It has been argued that in fact it is not possible for a four years old child to recall the events that took place 10-11 years ago. This Court has to examine as to whether the evidence of this witness can be relied upon.
8. It has been argued that PW 7 being a very young child at the time of the occurrence could not have 22 recalled the occurrence, unless she was tutored and the whole incident was repeated to her by her parents. It may be kept in mind that while dealing with the evidence of a child witness, the Court has to be cautious and examine the evidence carefully. The evidence cannot be discarded off hand. The test is to examine the evidence to see whether there is any infirmity in the evidence. P.W. 7 in her chief has given a pat account of the occurrence which would in part lead this court to believe that she being hardly 4 - 5 years of age, at the time of the occurrence could not have recalled the exact events. Regarding this aspect of the matter the court may only comment, in a given set of facts the victim may not be conscious of the implications of the events that took place on 1.9.1990 or recall exactly what happened with her but she may remember that she had faced some threat of a traumatic situation without recalling the exact incident.
9. In the present case, her evidence in chief raises doubts on account of the fact that she states that she did not make any statement before her father regarding the manner of occurrence. In fact she says that she had fainted and remained in that condition for several hours. Therefore, it is not believable that she could have narrated in detail the alleged occurrence.
10. PW 4 is the father of the victim girl who had 23 reached the place of occurrence when he was told that his daughter had gone to the shop of the appellant and found her bleeding from her private parts. The father and the mother i.e. PWs 4 and 5, are not the eye witness, rather, their evidence is based on the supposed physical condition in which they found their daughter. The under-garment of the girl was not sent for examination or presented before the Officer-in-charge to substantiate the fact that PW 7 was bleeding when her father came to the shop of the appellant and recovered her from the shop. Thus, the evidence of PWs 4 and 5 are relevant for the purposes of supporting the evidence of PW 7 or the findings of the doctor.
11. The specific case of the prosecution is that P.W. 7 had been raped. In a case of rape, penetration is not necessary. Anything that violates physically the private parts of a female would amount to rape. As far as the case of rape is concerned, I come to the conclusion in view of the definite opinion of the doctor that there was no penetration as her vagina was intact. I will refer to the book of Modi‟s Medical Jurisprudence Toxicology under chapter 18 (21st edition). It has been specifically stated that when the victim is a Nubile Virgin the hymen would be lacerated, having one or more radiate tears, the edges of which are red swollen and painful on touch. Where the hymen is intact, as in the present case the circumference of the hymen need 24 to be measured. In this case, it was 1 m.m. In small children, "the hymen is not usually ruptured but may become red and congested along with the inflamation and brusing of the Labia". The specific case of rape by inserting a finger will obviously fall through in the circumstances that the hymen was found intact and the vaginal oriphis is 1 m.m. in diameter which does not indicate physical abuse of the victim. Swab from valva also did not give any indication to the factum of rape. The inference as to whether rape was committed where the victim is a child, would have to be deciphered from the circumstances of the case. The oral evidence led in this case as well as the medical evidence, leads to the conclusion that no offence under section 376 of the Penal Code is made out against the appellant. To this extent I agree with my learned brother.
12. However, I feel compelled to distinguish the case laws referred to by my brother for the purpose of holding that the evidence of the child witness cannot be discarded, whether it is for the purpose of conviction under sections 376 or 354 of the Penal Code, especially in the facts of this case.
13. The learned Judge while referring to the credibility of the child witness has taken into consideration that the trial court has not passed any adverse remarks 25 while recording the evidence of PW 7, the victim girl. The fact that the trial court has not made a comment, with respect to the demeanor of the witness, would not draw an adverse inference, as the evidence has to be examined as a whole and tested along with the medical evidence and the evidence of other witness. While referring to the procedure for adjudging the reliability of the evidence of a child witness, my learned brother has referred to the decisions rendered in the case of State of M.P. vs. Ramesh, 2011 Cr.LJ 2296 (S.C.).
14. An appeal was filed in the Supreme court against judgment of acquittal by the High Court in a case where the trial court had convicted the accused under section 302 of the Penal Code. One of the question which arose before the Apex Court was whether the High Court could have rejected the evidence of PW 1 Rannu Rai, daughter of the deceased aged eight years. The short facts of the case were that Bhaggo Bhai, wife of the deceased had lodged an FIR that her husband died after falling down due to a spell of dizziness. Munna Lal, PW 2 along with Rannu Bhai (PW 1), daughter of the deceased also lodged a case alleging murder of Chatra, the deceased. The trial court came to a conclusion that Ramesh, the deceased had an illicit relationship with Bhaggo Devi, wife of the deceased. The High court disbelieved the statement of PW 1 on the 26 ground that she had been tutored by PW 2. While dealing with the issue the Apex court, after considering several decisions has come to the conclusion, that the evidence of child witness cannot be rejected per se, rather it has to be considered in the facts of each case and evaluated with greater circumspect. In the case before the Supreme Court, the court took into consideration the fact that evidence of the child witness was corroborated by the statement of other witness, the circumstances, and the medical evidence. In the present case, the materials on record do not support the evidence of the child witness.
15. The next case on which my learned brother has relied upon is the case of State of U.P. vs. Krishna Master (AIR 2010 SC 3071). The apex court considered the evidence of a child witness Madan Lal aged six years who witnessed the murder of his father and four members of his family by hiding under the bed in his house. At the time when the occurrence took place, two other children, hid themselves at different places. The High Court rejected the evidence of Madan Lal, besides others on the ground that it was not probable that his two brothers, who were in the same room, were killed whereas Madan Lal escaped the notice of the assailant. It was in this context that the Supreme court overruled the findings of the High court and held that a child witness could recall an event which was 27 witnesses by him years back, because of the deep impact the occurrence would have on a person, be it a child, who witnesses the murder of five members of his family. The facts of the present case are distinguishable to the facts of the case of Krishna Master. There are no surrounding circumstances to substantiate the findings under sections 376 or 354 of the Penal Code.
16. My learned brother has also referred to the case of Om Prakash vs. State of Haryana (2011 Cr.LJ 4225). The facts of the case were that Om Prakash and Jai Prakash were convicted under section 368 and 376 (2) (g) of the Penal Code. Both the accused were convicted by the trial court. The High court upheld the order of the trial court. The facts were that Jai Prakash took away the daughter of complainant on a bicycle. She was dropped in the next morning at the house of one Bali Ram. The daughter of the complainant informed him that Jai Prakash had raped her after threatening her with a knife at the home of Om Prakash. Ultimately, the Apex court acquitted Om Prakash for the offence under section 376 (2) (g) of the Penal Code but his conviction under section 368 of the Penal Code was upheld. Amongst others, a plea was raised that the complaint/FIR was lodged after a delay. In this context the Apex court has held as quoted in the order of the learned single Judge.
28
"There is some delay in lodging the FIR but that delay has been well explained. A young girl who has undergone the trauma of rape is likely to be reluctant in describing those events to anybody including her family members. The moment she told her parents, the report was lodged with the police without any delay. Once a reasonable explanation is rendered by the prosecution then mere delay in lodging of a first information report would not necessarily prove fatal to the case of the prosecution."
17. While discussing whether the case is made out under Section 354 of the Indian Penal Code, my learned brother has come to the conclusion that "whatever material facts have been placed by the prosecution, the same happens to be unrebutted on account of cross-examination by the appellant". For the purpose of reaching this conclusion the learned Judge has relied on the case of A.E.G. Carapiet Vs. A.Y. Derderian ( AIR 1961 Calcutta 359).
18. Before discussing the law laid down aforesaid on the subject I may refer to the provisions relating to cross examination of witnesses. Section145 of the Evidence Act reads as follows:
"145. Cross-examination as to previous statements in writing.- A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those 29 parts of it which are to be used for the purpose of contradicting him."
19. Therefore, this section envisages that a witness may be cross-examined as to his previous statements made in writing or reduced in writing and relevant questions may be asked based on the written evidence given by him or her. If the prosecution intends to rely on this statement then his attention must be drawn to those facts. The purpose of cross-examination is to illicit from the witness all the facts or such of them as he can testify in order to prove the case of the party questioning him. The facts which have been stated by a witness have to be tested in the context of what has to be proven to hold a person guilty of an offence. The object of cross-examination is to show that the witness is not telling the truth or is exaggerating and making out a new case during his oral evidence in Court or that he was not in a position to testify regarding the facts of the case. The evidence of the witness has to be tested and corroborated by judging the evidence of other witnesses. Thus, it has been held by the Supreme Court in the case of Madhusudan Singh & Anr. Vs. State of Bihar [(1996) 11 SCC 248] that the First Information Report by itself is not a substantive evidence. It can be used to contradict or corroborate the maker in the manner provided under the Evidence Act. In this particular case the Court 30 has to take into consideration whether the informant and the victim has been able to prove that P.W. 7 was raped.
20. For the purposes of proving rape the evidence of the victim has to be tested in order to find out whether her evidence is reliable. The cross-examination in this particular case would demonstrate that Amia @ Rekha Kumari, who was a child of four years could not have recalled the occurrence in the vivid manner in which she has stated unless she was tutored, especially in view of the findings of the doctor. The defence has tried to show that there were no circumstances which would lead the Court to believe the witnesses‟ competency to speak about the facts as alleged.
21. The facts disclose that in fact certain questions were put surrounding the circumstances regarding the occurrence which would lead this court to hold that in fact the evidence was not unrebutted. In this context I would like to refer to the principles laid down by Justice Buller In the case of R. v. Hardy [24 St. Tr. 199, at col. 755] "you may lead a witness upon cross examination to bring you directly to the point as to the answer, but you cannot go to the length of putting into the witness‟s mouth the very words which he will echo back again". In other words, if a witness was to be asked as to whether she was, as in the present case, locked up in the room and the 31 appellant fingered her which led to bleeding; she would in reply state as she did in her chief. Such questions would destroy the appellant‟s chance of showing or proving that he is innocent. The cross examiner must put before the witness circumstances surrounding the occurrence. In this case PW 7, the alleged victim has supported her case in chief. The defence has tried to discredit her evidence and succeeded in eliciting that she had given no statement regarding the manner in which the occurrence had taken place. She states as follows:
"SANJAY KA DUKAN HAI. 2-3 DUKAN KE BAGAL MAIN SANJAY KI DUKAN HAI. HALWAI TATHA SANJAY KI DUKAN KE BEECH MAIN 3-4 DUKAN HAI, MAGAR KYA BIKTA HAI, MAIN NAHI JANTI HOO. PAPA JI MUJHE DUKAN SE GHAR LEY GAYE. MAIN NAHIN JANTI HOON KI WHO GHAR SE KAHAN LE GAYE. MUJHE HOSH 2-3 GHANTA KE BAAD GHAR PAR HUA. MAMMI PAPA TATHA POLICE THI TAB HOSH MUJHE HUA. HOSH HONE PAR MAIN KUCH NAHIN BATAI. ASPATAL OOS DIN RAAT MAIN GAI YA NAHIN MAIN NAHEEN JANTI HOON. MUJHE YAAD NAHIN HAI KI MERE CLASS MIN FIRST OOS SAMAY KAUN KARTA THA".
22. The appellants have tried to demonstrate, the credibility of evidence of P.W. 7, by putting questions which indicate that although she was still living in the same 32 village, she could not disclose as to what was sold in the shops. This witness also does not recall what took place after she was allegedly recovered. Ultimately it is the prosecution who has to prove that the occurrence took place in the manner alleged and it is the Court which has to be satisfied that evidence led by the prosecution is such which could only lead to one conclusion that the accused are guilty of the offence. Thus, it cannot be said that the evidence was not rebutted.
23. I may clarify the facts in the case of A.E.G. Carapiet (supra). This case related to probate of a Will executed by the testator on 28.12.55. The propounder of the Will was the wife. The testator bequeathed his property to his wife after deducting certain amount for his sister. After the death of his wife, he has further bequeathed his property for the education of orphans. The Will ended by saying that since the testator had suffered a recent stroke on the right side he could not sign and, therefore, he put his left thumb impression in presence of two witnesses. A challenge was made to the Will and the Court dismissed the probate case relying on the evidence of one Rev. Venkata Ramiah which in the opinion of the High Court was not justified. According to the evidence of Rev. Venkata Ramiah he found that the testator was unfit physically and not in a mental condition to prepare a Will and, therefore, it 33 was done under influence. The High Court overruled the judgment on the ground that the opponent had declined to cross-examine the doctor and the nurse who were the most competent persons to state as to whether the testator was in a good physical and mental condition and whether he had executed the Will without undue influence. As well known, the main challenge to the probate of the Will is the physical and mental condition of the testator and under these circumstances the High Court has held that "whenever the opponent have declined to avail himself of the opportunity to put his essential material case in cross- examination it must follow that he believed that the testimony given could not be disputed at all."
24. In the present case, the factum of rape required to be proved and the testimony of the child witness had to be examined in the light of the facts of the case, as such the law as laid down in A.E.G. Carapiet (supra) case, although not disputed, would not be applicable to the facts of the present case. Similar is the view held by our High Court in the case of Nathuni Mian & Ors. Vs. Amir Hussain & Ors. [1992 (1) PLJR 292] relating to a suit for declaration of title on the basis of a sale deed executed by Sarifan Bibi in favour of the plaintiffs. I would also refer to a judgment of the Supreme Court in the case of Juwarsingh & Ors. Vs. State of Madhya Pradesh (AIR 1981 SC 373). It was a case 34 under Sections 148, 458, 322/34 of the Indian Penal Code. The accused had examined three defence witnesses. All of them stated that on the night of the occurrence that Ganga Ram‟s house was burnt in the night. The defence witnesses were not subjected to any cross-examination and, therefore, it was argued that their evidence should be unhesitantly accepted. While discussing this aspect of the matter, the Supreme Court said as follows :
"Cross-examination is not the only method of discrediting a witness. If the oral testimony of certain witnesses is contrary to prove facts, their evidence might well be discarded on that ground. If their testimony is on the very face of it unacceptable because Courts are not bound to accept their testimony merely because there was no cross-examination". While discussing the question of importance of cross-examination, I may refer to certain judgments delivered by various Courts in India.
25. In the case of Karnidan Sarda & Anr. Vs. Sailaja Kanta Mitra & Anr. [AIR 1940 Pat 683] the question was whether the deed of hypothecation was a deed of assignment within the meaning of Section 130 of the T.P. Act while dealing with the evidence. One of material exhibits was a „hatchitha‟. The counsel appearing for the appellants had argued that there were certain discrepancies in the „hatchitha‟ and pointed out that the Court ought to 35 have drawn the inference from „hatchitha‟ itself that the sums of money alleged to be advanced by the plaintiffs to the defendant no. 1 were non-existent. Their Lordships rejected the contention of the appellants for the reason, that if there was anything in the „hatchitha‟ account which was questionable or raised doubt in any sense of the term, the only person who could explain those matters was the plaintiff or his witnesses. The plaintiff and his witnesses were examined at length, but were not questioned on this aspect. It was further held, that as far as the appellants‟ case depends on a question of fact, it must be decided in the same sense as the Court below has decided the matter. In this context their Lordships held that "It cannot be too strongly emphasized that the system of administration of justice allows of cross-examination of opposite party‟s witnesses for the purpose of testing their evience, and it must be assumed that when the witnesses were not tested in that way, their evidence is to be accepted unless of course there are inherent improbabilities" (emphasis mine). It must, therefore, be concluded that if parties intend to rely on a particular piece of evidence, they must cross examine the party or his witnesses regarding the contents of the material exhibits. Even then, the Courts can examine and take into account such evidence, if there are glaring improbabilities. The conclusion is that the Courts 36 powers are not fettered. Once it comes to a finding that the evidence led is improbable and does not satisfy the Court regarding its veracity. To apply the law as laid down, above, would depend upon the facts of a particular case and relief sought.
26. The next important case which is relevant for this issue is the decision in the case of Jayalakshmidevamma Vs. Janardhan Reddy [AIR 1959 Andhra Pradesh 272]. The general election held in 1957 to the Andhra Praesh Legislature Assembly from a single member constituency of Rampur in Mahaboob Nagar district was under challenge on various grounds. Once the grounds non-observance of certain provisions of the Constitution or the Act, specifically it was alleged that there was use of corrupt practices. In this context it was held by the Supreme Court in "Harish Chandra Bajpai & Anr. Vs. Triloki Singh & Anr. [AIR 1957 SC 444] charges of corrupt practices are quasi-criminal in character, and the allegations relating thereto must be sufficiently clear and precise and must be proved by evidence of a conclusive nature." In the present case there are sufficient reasons for this Court to conclude that the evidence regarding the occurrence is not sufficient to lead this Court to the conclusion that the offence as alleged was committed.
27. Since both my learned brother and I have 37 come to the conclusion that no case of rape is made out, the question is whether the appellant would be guilty of section 354 of the Penal Code? The point of distinction between an offence to commit rape and to commit indecent assault is that there should be some action on the part of the accused which would show that he was going to have sexual connection with the victim.
28. In this case the presence of the child in the shop of the appellant is sought to be established by the evidence of P.W. 4, P.W. 5 and P.W. 7 (i.e. the victim girl). The Investigating Officer or the other witnesses have not stated a word regarding the fact that they were present when the girl was recovered from the shop. It has been argued that the prosecution has not been able to show that the appellant had indulged in any overt act constituting an attempt to rape, and the entire case has been instituted in order to take revenge for the fact that the appellant had ousted the father of PW 7 as a tenant from his house. It has also been argued that the occurrence took place in the vicinity of the market area, where there was more than one shop, yet not a single person has come forward to support the prosecution version regarding the recovery of the girl from the shop of the appellant and as such the entire case is improbable, absolutely false and fabricated.
29. I may refer to the case of Sachindranath 38 Chatterjee Vs. Sm. Nilima Chatterjee [AIR 1970 Cal. 38] to indicate that there is no difference in the standard of proof in a divorce case whether it is in a civil Court or criminal Court. Explaining this aspect in a case where a husband sought to divorce his wife on the grounds of adultery, it was held that "the standard of proof must be to the satisfaction of the Court beyond reasonable doubt."
30. Having discussed the law laid down on the subject by different judgments, I conclude that all the Courts have taken into account the „lis‟ and the law regarding the subject matter and concluded that each case has to be judged on its over merit, keeping in mind the probabilities, the law regarding the subject matter and the facts of the case, and what the parties seek to prove in support of their case.
31. I would again refer, to the issue, and the law as interpreted by my learned brother, and reason for differing with proposition of law laid down by him. There cannot be any dispute about the proposition, that if relevant questions are not put in cross-examination, the statement would be treated as unrebutted, however, this proposition has to be applied, taking into account the facts and law. The question to be asked is what is required to be proved in a particular case? In the case of A.E.G. Carapiet (supra) it is well settled in order to grant probate, the 39 beneficiary has to prove that will was executed without coercion, and the testator should be of sound mind. If those circumstances are not proved, the probate case will have to fail. In a case of rape or in a case under Section 354 of the Indian Penal Code. The prosecution has to prove the privacy of the girl/women was violated by accused.
32. My learned brother has referred to the case of State of Punjab vs. Major Singh [AIR 1967 SC 63] to conclude that the appellant is guilty of an offence under section 354 of the Penal Code and has held that since the appellant has undergone, more than the maximum punishment, he may be released on bail.
33. The dispute in the aforesaid case arose when the High Court held that the accused appellant is guilty of causing injury to a 6 ½ month old baby girl. The problem arose because of the words "outrage her modesty" in section 354 of the Penal Code. In this context it has been held as quoted in the judgment of my learned brother that:
"The offence punishable under Section 354 of the Indian Penal Code is an assault on or use of criminal force to a woman with the intention of outraging her modesty or with the knowledge of the likelihood of doing so. The Code does not define „modesty‟. What then is a women‟s modesty?"
"12. Part of the statement of a child witness, even 40 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 Punjab (2006) 13 SCC 516)."
34. It is relevant to refer to the facts of the case aforesaid which are that at about 9.30 P.M. the man (accused) walked into the room, stripped himself naked, and gave vent to his lust, in process injuring the vegina of the baby causing a tear ¾" long inside her vegina, The Apex court naturally came to the conclusion that the modesty of the child was outraged. The factum of the injury inflicted in the child was never in doubt. In the present case the injury has not been proved. Thus, the oral evidence is the sole criteria for testing whether an offence under section 354 of the Penal Code is made out against the appellant.
35. However, having considered the entire evidence this court comes to the conclusion that since I have disbelieved that the child was raped, I cannot agree with the finding of my learned brother that a case is made out under Section 354 of the Indian Penal Code. The reason for coming to this conclusion is that the specific case of the prosecution is that the appellant had fingered 41 the victim which resulted in bleeding staining her clothes, this aspect of the case has been rejected by both of us, therefore, I find that there is insufficient evidence to hold that the appellant guilty of an offence under Section 354 of the Indian Penal Code.
36. In the result, this appeal is allowed. The appellant is directed to be released forthwith, if not wanted in any other case.
(Sheema Ali Khan,J.) PATNA HIGH COURT DATED, THE 22nd FEBRUARY, 2012 A.F.R./PRAKASH NARAYAN/HAQUE