Bombay High Court
Narayan Iranna Potkanthi vs State Of Maharashtra on 9 February, 1994
Equivalent citations: 1994CRILJ1752
ORDER
1. The Assistant Sessions Judge, Nanded, had convicted the present revision-petitioner of an offence punishable under S. 376 of the Indian Penal Code, in Sessions Case No. 37/1990 and had sentenced him to suffer R.I. for five years and to pay a fine of Rs. 1,000/-, in default, to suffer further R.I. for three months. An Appeal was carried in Criminal Appeal No. 46/90 to the Sessions Judge and the learned II Additional Sessions Judge, Nanded dismissed that appeal on 16-1-1993. The revision-petitioner was, then, taken in custody for undergoing the sentence. It was through Jail that he had sent a letter-cum-appeal to this Court for considering the matter because, according to him, the decision of the case was not correct according to the true facts and the Courts below had not given him a proper chance to submit his evidence. It was also contended that the decision was given without hearing his side and that the sentence was awarded merely on suspicion.
2. In view of the gravity of the offence, Shri. D. R. Pole, a senior advocate, was requested to appear for the present revision-petitioner and to argue the matter. In the course of his arguments, Mr. Pole, invited our attention to the points urged on behalf of the petitioner in the Courts below, namely, that the first information report in question was a delayed FIR and that neither the clothes of the petitioner nor the clothes of the victim girl were found to bear stains of semen. It was also pointed out that the learned Assistant Judge had committed, while recording the evidence, an error in omitting to record his satisfaction that the victim, who was a child witness was aware or was made aware of her duty to tell the truth though no oath could be administered to her on account of the fact that she was unable to understand the sanctity of oath. It was, therefore, submitted that these points deserved consideration at the hands of this Court while deciding the revision application. It was also submitted that the evidence adduced by the prosecution was not necessarily worthy of safe-reliance though, it was fairly conceded that if believed, the same could warrant a conviction of the revision-petitioner for the offence in question. Mr. Pole did not press the point that in view of the S. 6 of the Probation of Offenders Act, the petitioner deserved to be considered for under that Act, because, he rightly pointed out that under S. 376(2)(f) of the Indian Penal Code, the offence would be punishable with rigorous imprisonment for a term which was not less than 10 years, but which might extend to imprisonment for life. It was, however, submitted that looking to the young age of the petitioner, it may be considered, whether he deserved any leniency in the matter of quantum of sentence.
3. The learned A.P.P. supported the decision of the Court below.
4. It need not be stated that it is the settled law that while sitting in revision, this Court could not appreciate the evidence afresh as if it was a Court of Appeal unless it was shown that the appreciation of evidence was tending to be perverse or that there were procedural errors in the conduct of the trial. (See Vimal Sukumar Patil v. Sukumar Anna Patil, 1981 Mah LJ 82 : (1981 Cri LJ 210)), following the decision of the Supreme Court in the case of State of Orissa v. Nakula Sahu, .
Bearing this point in mind, we have gone through the entire evidence recorded in this case, with the assistance of Shri Pole as well as Shri A. S. Bajaj, the learned A.P.P. On considering the evidence as a whole along with the statement of the petitioner recorded under S. 313 of the Code of Criminal Procedure, we find that no procedural error has been committed by the learned Assistant Judge in recording the evidence nor has he committed any error on account of which it could be said that his appreciation of evidence was tending to be perverse.
5. To state the facts briefly, the victim-Balmani was a girl aged about 7 years and she was playing outside her residence with her brother Suresh, aged about 8 and a half years and younger sister Bharati. On 5-1-1990 at about 3.00 p.m. Balmani was, in fact, cleaning the household utensils and her brother and younger sister were just in the vicinity. At about 3.00 p.m. the petitioner, who was, then, a boy of 19 years of age and who happened to be a neighbour of the family of the victim, called Balmani, her brother and Bharati to his house under the pretext that he would give them some flowers. When the three children went to his house, he asked Bharati and Suresh to go away from there and after they had gone, he took Balmani to the inner part of his house. There was a cot at the centre of the room on which the petitioner, then, allegedly spread bed-sheet and, then, he made Balmani to lie down on the cot. Thereafter, he undressed himself, fell on her person and raped her. Balmani raised cries and, then, the petitioner gave her coin of 10 paisas, asking her to get sweets for her out of that money and, then, allowed her to go. Before doing so, he took the frock which was on her person and washed it under the pretext that it was stained with mud. Balmani returned to her mother - Gangabai (PW 5) and reported the incident to her. The mother examined the private parts of the girl and found some swelling on her private parts. The father of the girl - Gangadhar (PW 1), who happened to be a clerk working in the Court at Mukhed, was living at Mukhed. Therefore, no immediate action could be taken. According to the prosecution in the same evening, the parents of the petitioner approached Gangabai (PW 5) and begged apologies for the misdeeds of the petitioner. By this time, a crowd had gathered near the house. PW 5, Gangabai proceeded to Mukhed early in the next morning and reported the incident to Gangadhar (PW 1) at about 7.30 a.m. Gangadhar took some time to obtain casual leave for his absence in the Court and, then, both of them returned to Dagloor. The incident was reported at the Police Station at Dagloor at about 5.30 p.m. 6-1-1990. Thereafter, the investigation started, but the petitioner was not found till 8-1-1990. In the meanwhile Balmani was sent for medical examination and it was found that her hymen was torn irregularly and was very tender. She was finding it difficult even to stand and walk. She had also complained that she had trouble in defecating. After the arrest of the petitioner, he was also got medically examined and it was found that he was capable of having sexual intercourse. However, no stains of semen etc. were found on his person nor were any injuries found on his genitals. Panchanama of the scene of offence, Panchanama of seizure of clothes of the victim and Panchanama of seizure of clothes of the petitioner, also were drawn in course of time. The articles were sent to chemical analyser, but the reports were negative from semen stains or blood stains. After concluding the investigation, the charge-sheet was submitted.
6. The star witness in the case was victim herself, namely, Balmani (PW 7). She happened to be a girl of seven years of age and the learned Assistant Judge found that she was too young to be administered an oath because, she did not know the sanctity of oath. The learned Assistant Judge, however, did not record there his formal certificate that she understood her duty to tell the truth before the Court or, that she was made aware of such a duty. The question, therefore, arises, whether or not, under such circumstances her evidence could be considered for the purposes of proving the alleged act of rape and what was the effect of the omission of the learned Assistant Judge in recording the formal certificate that the witness was made aware of her duty to tell the truth before the Court.
7. The point has been considered by the Supreme Court in Rameshwar Kalyan Singh v. State of Rajasthan, , as far back as in 1952. In that case also, a girl of seven years of age was the victim of rape and her evidence was recorded in the Sessions Court. Her evidence was recorded in the Sessions Court without certifying that the witness was made aware of her duty to tell the truth. The effect of such omission on the admissibility of evidence was considered by the Supreme Court. Pointing out that in that case also, the Judge had recorded the statement of a girl of seven years of age, had certified that she did not understand the sanctity of an oath and that, therefore, he had not administered oath to her, he had not certified that the child understood the duty of speaking the truth. Considering the provisions of S. 118 of the Evidence Act along with Ss. 5 and 13 of the Oaths Act, 1973, the Supreme Court held that an omission to administer an oath, even to an adult, goes only to the credibility of the witness and not his competency. The question of competency, it was pointed out, was dealt with by S. 118 of the Evidence Act only and not by S. 13 of Oaths Act. It was pointed out that under S. 13 of the Oaths Act, omission to take oath did not affect the admissibility of the evidence and that, therefore, the irregularity on the part of the Sessions Judge in recording a formal certificate aforesaid could not affect the admissibility of the evidence of the girl. The Supreme Court, however, pointed out to the desirability of Judges and Magistrates recording invariably their opinion that the child understood the duty of speaking the truth and stating why they think that otherwise the credibility of the witness might be seriously affected, so much so, that in some cases, it might be necessary to reject the evidence altogether. It was next pointed out that, whether or not, a Magistrate or a Judge was really of the opinion that the witness understood the duty of telling the truth before the Court, could be gathered from the circumstances when there was no formal certificate. It was possible even to presume that the Judge had that consideration in mind from the fact that he had examined the child after referring to a fact which arose out of the proviso.
8. In Govind Natha v. State, , a Division Bench of the Gujarat High Court laid emphasis on the duty of the Court to ascertain the general intellectual capacity of the child to give evidence. It was pointed out that when a Court has got to deal with a child witness, before deciding that the witness was a competent witness, the Court must come to the conclusion that, by reason of his age, the child was not intellectually deficient. If the Court was satisfied about the general intellectual capacity of the child witness to give evidence, then the witness would be a competent witness and it would be the duty of the Court to assess the evidence of that child witness on the particular topics deposed to by him, and decide for itself if the child had sufficient intellectual capacity, to understand the matters deposed to by it and whether the evidence given by it was credible, reliable and trustworthy. It was pointed out that the law, as it stood, did not cast a duty upon a Judge, to ascertain by way of voire dire, the competency of every person to be a witness and in a large majority of cases, the presumption, would be that the person was a competent witness. But, it was pointed that when the Court had to deal with a child witness who was only five years of age, it would not be proper to rely on any such presumption and, in such cases it was desirable that the Judge should undertake a voire dire with a view to satisfying himself that the witness was a competent witness. It was also pointed out that the view of the Judge formed at such a preliminary inquiry would not always be the final view and it was open for the Judge to change that view if the examination and the cross-examination revealed his incompetency. Again it was, further laid down that in appealable cases as the view of the Appellate Court must finally prevail when the matter was to be dealt with by the Appellate Court and when the views of the Appellate Court did not depend upon the view of the trial Judge alone, it was desirable that, if any questions were asked by a Judge to the child witness to ascertain the intellectual capacity of that witness, a record of those questions should be kept so that the Appellate Court might not be handicapped in the discharge of its own duties. Pointing out, further, that the Judge had to satisfy himself, whether or not, a child witness understood the sanctity of oath and if the questions asked and answers given in such an inquiry, a record should be maintained of all these questions and answers. It was, however, made clear that even if the evidence of child below 12 years of age was not recorded on oath, the evidence was still admissible and it did not form part of the evidence. Though the procedure was indicated in details by the Gujarat High Court, it was laid down that non-observance of such a procedure could not affect in all cases, the reliability of the evidence of the child witness.
9. In the present case, the learned Assistant Sessions Judge was aware of the fact that when the Court was doubtful about the fact whether or not, the child witness understood the sanctity of oath, it was the duty of the Court to ascertain that and to record a certificate to that effect. It would have certainly been better if the learned Assistant Sessions Judge had, as indicated by the Gujarat High Court in the abovementioned ruling, maintained a memorandum of the questions and answers put by him to the child witness, on the basis of which he could record his satisfaction on the point. The learned Assistant Sessions Judge has not recorded the certificate at all about the intellectual capacity of the child or about the awareness of the duty of the child witness to tell the truth before the Court. As pointed out by the Supreme Court, presumptions may arise on this point which were in the favour of holding that the learned Judge was aware of the fact that he had satisfied himself about intellectual capacity of the child witness as well as the awareness of the child witness of duty to tell the truth before the Court.
10. On perusal of the deposition of Balmani, it is clear that the witness did have a clear understanding and an adequate intellectual capacity to narrate before the Court what had happened on the fateful day in her context. The reading of her deposition, particularly the Marathi version thereof makes one to believe that she was able to narrate in a consistant manner, how she was handled or mishandled on that day and how she reacted to the occurrence in question. We have, therefore, no reason to entertain doubt of intellectual capacity of the witness nor have we any reason to suppose that the girl was narrating something that was not true or, that she was induced or influenced to tell before the Court something which was untrue. At the end of her cross-examination she was clear enough in telling that she was not deposing at anybody's insistence and that her father had never asked her to depose to the facts in a particular manner or otherwise. Under such circumstances, we do not think that the irregularity committed by the learned Asstt. Sessions Judge in omitting to record the certificate as indicated by the Supreme Court or by the Gujarat High Court in the abovementioned relations has seriously affected the admissibility or the weight of the evidence of the child witness - Balmani.
11. Balmani had narrated in her deposition how she was washing utensils outside the house, how she was called by the petitioner in his house along with her brother and younger sister. She told how the brother and the sister were, then, asked to leave the place and how the revision-petitioner led her to the inner room, induced her and committed the act of rape. She was particular in telling that after she started crying the revision-petitioner had released her from his clothes and, then, he had washed her frock, representing to her that it was stained with cow-dung. She brought that wet frock along with her to her house. Her mother Gangabai (PW 5) told that when she saw Balmani coming home crying and with a wet frock in her hand, she had asked her about what had happened. She told that Balmani (PW 7) had narrated to her how the revision-petitioner had committed a sexual attack on her and how he had washed her frock immediately thereafter. Gangabai's immediate reaction was to call two neighbouring women and to proceed to the house of the petitioner immediately. Balmani told that her mother abused the petitioner. Gangabai appears to be a young woman 25 years of age and not literate. She told that she could not understand where to lodge the first information report. She told that a number of persons from her village had gathered near her house. The fact that she could not name any of them did not necessarily mean that none of them had gathered. She also told that in the same evening, the parents of the accused had come to her and begged apologies for the act done by their son. She told that in the next morning, she went to Mukhed and reported the incident to her husband (PW 1) Gangadhar. (PW 1), Gangadhar explained how, after obtaining the causal leave, he and his wife returned to Degloor and how he reported the incident to the police.
12. The evidence of these two witnesses, thus, substantially corroborated the evidence of Balmani. The question, therefore, arises whether or not, in a case of this type where corroboration to the evidence of the child witness on every material particulars was a necessity as a matter of law. We have, again, to refer to the ruling in Rameshwar Kalyan Singh v. State of Rajasthan, , which has dealt with the point. The Supreme Court held :
"(b) The rule, which according to the cases has hardened into one of law is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it must be present to the mind of the Judge, and injury cases, must find place in the charge, before a conviction without corroboration can be sustained. The tender years of the child which is the victim of a sexual offence, coupled with other circumstances appearing in the case such, for example, as it demeanour, unlikelihood of tutoring and so forth, may render corroboration unnecessary but that is a question of fact in every case. The only rule of law is that this rule of prudence must be present to the mind of the Judge or the jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand."
The Supreme Court, further, held :-
"(c) It would be impossible, indeed it would be dangerous, to formulate the kind of evidence which should, or would, be regarded as corroboration. Its nature and extent must necessarily vary with the circumstances of each case and also according to the particular circumstances of the offence charged. But to this extent the rules are clear :-
(1) It is not necessary that there should be independent confirmation of every material circumstances in the sense that the independent evidence in the case, apart from the testimony of the complaint or the accomplice, should in itself be sufficient to sustain conviction. All that is required is that there must be some additional evidence rendering it probable that the story of the accomplice (or complainant) is true and that it is reasonably safe to act upon it.
(2) The independent evidence must not only make it safe to believe that the crime was committed but must be in some way reasonably connect or tend to connect the accused with it by confirming in some material particular the testimony, of the accomplice or complainant that the accused committed the crime.
(3) The corroboration must come from independent sources and thus ordinarily the testimony of one accomplice would not be sufficient to corroborate that of another.
(4) The corroboration need not be direct evidence that the accused committed the crime. It is sufficient if it is merely circumstantial evidence of his connection with the crime."
Dated 10th February, 1994.
13. One of the contentions urged on behalf of the petitioner was that the evidence of the child witness, Balmani, is not corroborated on all material particulars and that, therefore, the same could not be considered as reliable for the purposes of conviction of the revision-petitioner. In this context, it may be noted that as soon as the incident had taken place, Balmani had raised cries which had attracted a crowd; Balmani had reported the matter to her mother immediately and had told how the petitioner had penetrated his penis in her private part and how she had sustained injuries on her private parts. The petitioner was sent to the medical officer for medical examination and the report did indicate that there was swelling in the inner part of her vagina and that the hymen was torn irregularly. The suggestion made on behalf of the revision-petitioner that the hymen could have been torned because of manipulation and the same was rightly ruled out by the Courts below. In the case of a child like Balmani, such a thing could not have been imagined in the absence of any material to that effect on record. The matter was, then, reported on the following day to Gangadhar (PW 1), the father of Balmani, and the first information report was lodged on the same day at about 3.30 p.m. It was contended in the context of the first information report that, though the incident had taken place on 5-1-1990, the incident was reported at the police station only on 6-1-1990 and that too, as late as at about 3.30 p.m. True it is that there was some delay in lodging the first information report, but, this delay has been properly explained, both by Gangabai and Gangadhar (PW 1). PW 5, Gangabai was an illiterate woman and it appears from her evidence that on account of the shock sustained by her due to the sexual violence meted out to her child, she had broken in tears immediately. One can imagine how she must have taken some time to take some decision in the matter. Her reaction in not approaching the public officials till the matter was informed to her husband also was quite eloquent and natural. PW 1, Gangadhar explained how Gangabai reported the matter to him early at about 7.30 a.m. at Mukhed and how he required some time to obtain casual leave from his officials and to come to Degloor for reporting the matter to the police. As soon as the matter was reported, the Panchanama of the scene of offence was drawn, but the revision-petitioner could not be arrested then and there because, he was not found at his residence. He was arrested on 8-1-1990 and that was the reason why he could not be referred earlier to medical officer for his medical examination. This delay in the arrest and in referring him to the medical officer also is, thus, properly explained by the prosecution. It cannot be said that such delay could be read as want of prompt and material corroboration to the evidence of victim-Balmani.
14. The next point urged in that context, was that no stains of semen etc. were found, either on the clothes of victim-Balmani or, on the clothes of the revision-petitioner. In this context, it is relevant to note that the revision-petitioner was himself very cautious, even in washing the frock which was then on the person of victim-Balmani. If he was so cautious about washing even her clothes before she could leave the scene of offence, he must have been more careful about washing himself and his clothes before he could be traced out by the police and before his clothes could be seized or before he could be sent to the Medical Officer for medical examination. Therefore, absence of semen stains or absence of smegma on his private part, is not a circumstance which can be read as a circumstance against the prosecution on given facts of the case. The prosecution has examined also PW 4, Suresh Gangadhar, the older brother of victim-Balmani, who told how the accused had called Balmani and himself to his house along with Bharati and how before indulging into the criminal act in question, the revision petitioner had asked the two others to leave the place. PW 3, Laxman Punjaji is a neighbour and he also told how the incident of rape was reported immediately by Gangadhar to him as well as to others in the crowd. He had himself seen the private part of the victim and had told that when accosted, the revisions petitioner had made an extra-judicial confession before him that he had committed a mistake in indulging in the sexual violence. Though according to this witness, the revision-petitioner had not used the words indicating sexual violence, the immediate conduct of the revision-petitioner in admitting the mistake could have reference to nothing else but to the sexual violence in which he had indulged himself. Thus, on most of the material particulars, the prosecution case is corroborated by substantial evidence. It is not the rule of the law that every material particulars in the evidence of the victim should stand corroborated by the evidence that was adduced. Under such circumstances, we find no substance in the contention that evidence of the child witness could not be relied upon in the absence of corroboration on all material particulars.
15. Thus, on the whole, the prosecution evidence has sufficiently brought home the guilt of the offence of child rape to the revision-petitioner. Both the Courts below have recorded their concurrent findings on the point and we do not see any legal error or any perversity in arriving at those findings. Therefore, we confirm the aforesaid findings and hold the revision-petitioner guilty of the offence of child rape.
16. It was next contended that though the provisions contained in Probation of Offenders Act, could not be invoked for the benefit of the petitioner because, the offence has since been made punishable with imprisonment for life, due consideration might be given to the young age of the revision-petitioner and some more leniency be shown to him. The learned Additional Sessions Judge who decided the Appeal in the Court below, has already pointed out that the learned Assistant Sessions Judge had already shown some more leniency, to the revision-petitioner than what he deserved. Our attention was invited to the provisions contained in Section 376(2) of the Indian Penal Code, which made the child rape punishable under clause (f) thereof, was made punishable with rigorous imprisonment for a term which shall not be less than 10 years, but which may be for life and shall also be the liability to fine. Thus, when the legislature itself has indicated the minimum limit of the leniency that could be shown in such cases, it would not be justifiable to show more leniency than what is deserved in a case of the present type, on the ground that the revision-petitioner was a young man. We, therefore, do not see any reason to show further leniency to the revision-petitioner.
17. Finally, it was submitted by the learned counsel for both the sides that the instances of child rapes have been on the increase, particularly in this area, of late. It was also pointed out to us that the procedure indicated for taking precautions in the matter of recording the evidence of the child witnesses and the rule of law regarding extent of corroboration required in such matters, were rarely followed in many of the Courts below. It was for this reason that we have considered the law on the point at some length. If the aforesaid submissions are factually correct, we hope that, at least hereafter, the Judges in the Sessions Court dealing with cases of child rapes become alive to the law and procedure discussed above by us and as indicated by the Supreme Court as well as the Gujarat High Court, in the rulings referred to above.
18. Under these circumstances, we find no substance in the Revision Petition and we dismiss the same on merits. Rule discharged.
19. Petition dismissed.