Himachal Pradesh High Court
Varun Kumar @ Banti vs State Of Himachal Pradesh on 22 December, 2015
Author: Sanjay Karol
Bench: Sanjay Karol, P.S. Rana
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
Cr. Appeal No. 364 of 2014
.
Judgment reserved on: 15.12.2015
Date of Decision : December 22 , 2015
Varun Kumar @ Banti ...Appellant.
Versus
State of Himachal Pradesh ...Respondent.
of
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Judge.
rt
The Hon'ble Mr. Justice P.S. Rana, Judge.
Whether approved for reporting? 1No.
For the Appellant : Mr. Vinod Chauhan, Advocate, for
the appellant.
For the Respondent: Mr.R.S. Verma, Additional Advocate
General with Mr. Kush Sharma,
Deputy Advocate General, for the
respondent-State.
Sanjay Karol, J.
In connection with FIR No. 116/2013, dated 30.05.2013, registered at Police Station, Palampur, District Kangra, H.P., under the provisions of Section 376 of IPC. The accused was charged to face trial for having committed offences punishable under the provisions of Section 6 of the Protection of Children from Sexual 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 19:34:17 :::HCHP 2Offences Act, 2012 (hereinafter referred to as the POCSO Act) and Section 506 of IPC.
2. Appreciating the testimonies of sixteen .
prosecution witnesses and one defence witness, trial Court convicted the accused on all counts and sentenced him to rigorous imprisonment for a period of ten years and to pay fine of `5000/- for the offence punishable of under the provisions of Section 6 of the POCSO Act and in default thereof, to further undergo simple imprisonment for a period of three months. Also he was sentenced to rt undergo rigorous imprisonment for a period of three months for commis sion of offence punishable under the provision of Section 506 of IPC.
3. It is this judgment dated 18.09.2014 / 20.09.2014, passed by Special Judge, Kangra at Dharamshala, H.P., in Sessions Case No.24-P/VII-2013, titled as State of Himachal Pradesh Versus Varun Kumar alias Banti, which is subject matter of challenge in this appeal filed under Section 374 of the Code of Criminal Procedure.
4. Correctness of findings stands assailed on the following grounds:-
::: Downloaded on - 15/04/2017 19:34:17 :::HCHP 3(i) In the absence of accused having been named in the FIR and there being no corroborative medical evidence, with regard to the identity of the accused, trial Court seriously erred in .
holding the accused to be the assailant and convicting him in relation to the charged offences;
(ii) It is the case of defective investigation inasmuch as recovery of the incriminating articles cannot be said to have been effected, of in accordance with law;
(iii) Accused stands falsely implicated for the reasons that he had been extracting resin rt from the bhaang plantation grown in the vicinity of the house of the prosecutrix; and
(iv) Prosecutrix , who is a child witness cannot be said to be a trustworthy witness.
5. On the other hand, learned Additional Advocate General supports the judgment for the reasons assigned therein.
6. We have heard Mr. Vinod Chauhan, learned counsel, on behalf of the convict-appellant as also M/s R.S. Verma, Additional Advocate General assisted by Kush Sharma, Deputy Advocate General, on behalf of the State. We have also minutely examined the testimonies of the witnesses and other documentary evidence so ::: Downloaded on - 15/04/2017 19:34:17 :::HCHP 4 placed on record by the prosecution. Having done so, we are of the considered view that no case for interference is made out at all. We find the findings returned by the .
trial Court to be based on complete, correct and proper appreciation of evidence (documentary and ocular) so placed on record. There is neither any illegality/infirmity nor any perversity with the same, resulting into of miscarriage of justice. Prosecution has been able to prove its case, beyond reasonable doubt against the convict. rt
7. That prosecutrix is a minor stands established, beyond reasonable doubt, through the testimonies of Dr.Preeti Sood (PW.6), Dr.Kalpana Mahajan, Radiologist (PW.7) and Dr. Santosh Mahajan (PW.15), who have determined the medical age of the prosecutrix. Naresh Kumar (PW.9) has proved on record the exact date of birth of the prosecutrix, which is 01.03.2003. Certificate (Ex.PW.9/A) is on record to this effect. The incident in question took place on 30.05.2013 and as such as on the date of occurrence of the incident prosecutrix was 10 years 2 months of age.
::: Downloaded on - 15/04/2017 19:34:17 :::HCHP 58. It is a matter of record, as has emerged through the testimony of Smt. Kanika Baghla (PW.14) that telephonically the incident was brought to the notice .
of the police on 30.05.2013. Daily diary entry (Ex.PW.12/A) is on record to this effect. Police swung into action and reached the spot and recorded the statement of Smt. Savitri Devi (PW.2), mother of the of prosecutrix , which led to the registration of FIR No.116/2013 , dated 30.05.2013 (Ex.PW.13/A), registered at Police Station Palampur, District Kangra, H.P., under rt the provisio ns of Section 376 of IPC, at 23:05 hours .
9. It is also a matter of record that same day, prosecutrix was got medically examined from Dr. Preeti Sood (PW.6), who issued MLC (Ex.PW.6/A). Doctor handed over the clothes of the prosecutrix to the police and based on the opinion of the expert, so received by the police from the Regional Forensic Science Laboratory, Dharamshala (Ex.PW.16/G), doctor opined the prosecutrix to have been subjected to sexual intercourse.
10. In Court, the said doctor has testified that small amount of fresh blood was oozing out of her interitotus. Also there was laceration of hymen at 6 of ::: Downloaded on - 15/04/2017 19:34:17 :::HCHP 6 clock position, which was bleeding. Though one finger could be inserted inside the vagina. However, it was painful for the patient and the examining finger was .
blood stained. The vaginal swab and clothes of the prosecutrix which were sealed were taken into possession by the police and sent for chemical analysis.
11. Dr.Vinay Mahajan (PW.10), upon medical of examin ation, vide MLC (Ex.PW.10/A) did not find the accused incapable of performing the sexual act. The clothes of the accused, pubic hair, swabs from glans rt penis etc. were handed over to the police, which were also sent for chemical analysis.
12. Report of the chemical analyst does establish that semen was detected on the underwear of the prosecutrix, so seized by the police. So also human semen was detected on the mattress (Ex-5). Vaginal swab of the prosecutrix (Ex.-8), her skirt (Ex.-12/a) as also the swab handed over by Dr. Vinay Mahajan (PW.10) pertaining to the accused.
13. However medical and scientific evidence is only corroborative in nature.
::: Downloaded on - 15/04/2017 19:34:17 :::HCHP 714. What needs to be examined is as to whether testimonies of the prosecutrix and other supporting witnesses is, on material facts, inspiring in confidence or .
not.
15. Prosecutrix (PW.1) and her brother Vikram (PW.3) are minor. They are school going children.
Prosecutrix was a student of Class-6th. Whereas, her of brother of Class 3rd.
16. At this juncture we deem it appropriate to deal with the statement of law on the point.
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17. In Indian Woman Says Gang-Raped on Orders of Village Court Published in Business and Financial News Dated 23.10.2014, In Re, (2014) 4 SCC 786, the Apex Court has highlighted the need for having an effective State police machinery for curbing the menace of rape, for such crime is not only in contravention of the domestic laws, but is also in direct breach of obligations under Internatio nal Law, treaties whereof stand ratified by the State, which is under an obligation to protect its women from any kind of discrimination.
18. The Apex Court has highlighted the need for prompt disposal of cases of crime against women and ::: Downloaded on - 15/04/2017 19:34:17 :::HCHP 8 children. (Rajkumar v. State of Madhya Pradesh, (2014) 5 SCC 353).
19. In Shyam Narain v. State (NCT of Delhi), .
(2013) 7 SCC 77, the Apex Court held as under:
"27. Respect for reputation of women in the society shows the basic civility of a civilised society. No member of society can afford to conceive the idea that he can create a hollow in the honour of a woman. Such thinking is not only lamentable but also deplorable. It would not be an exaggeration to say that the thought of sullying of the physical frame of a woman is the demolition of the accepted civilized norm, i.e., "physical morality". In such a sphere, impetuosity has no room. The youthful excitement has no place. It should be paramount in everyone's mind that, on rtone hand, the society as a whole cannot preach from the pulpit about social, economic and political equality of the sexes and, on the other, some pervert members of the same society dehumanize the woman by attacking her body and ruining her chastity. It is an assault on the individuality and inherent dignity of a woman with the mindset that she should be elegantly servile to men. Rape is a monstrous burial of her dignity in the darkness. It is a crime against the holy body of a woman and the soul of the society and such a crime is aggravated by the manner in which it has been committed. We have emphasised on the manner because, in the present case, the victim is an eight year old girl who possibly would be deprived of the dreams of "Spring of Life" and might be psychologically compelled to remain in the "Torment of Win ter". When she suffers, the collective at large also suffers. Such a singular crime creates an atmosphere of fear which is historically abhorred by the society. It demands just punishment from the court and to such a demand, the courts of law are bound to respond within legal parameters. It is a demand for justice and the award of punishment has to be in consonance with the legislative command and the discretion vested in the court."::: Downloaded on - 15/04/2017 19:34:17 :::HCHP 9
20. In Narender Kumar v. State (NCT of Delhi), (2012) 7 SCC 171, the apex Court has cautioned the Court to adopt the following approach:
.
"The courts while trying an accused on the charge of rape, must deal with the case with utmost sensitivity, examining the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the evidence of the witnesses which are not of a substantial character."
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21. The Apex Court in Munna v. State of Madhya Pradesh, (2014) 10 SCC 254, has reiterated the principle rt that testimony of prosecutrix is almost at par with an immediate witness and can be acted upon without corroboration.
22. The Apex Court in Madan Gopal Makkad v.
Naval Dubey and another, (1992) 3 SCC 204, has held as under:
"34. A medical witness called in as an expert to assist the court is not a witness of fact and the evidence given by the medical officer is really of an advisory character given on the basis of the symptoms found on examination. The expert witness is expected to put before the court all materials inclusive of the data which induced him to come to the conclusion and enlighten the court on the technical aspect of the case by explaining the terms of science so that the court although, not an expert may form its own judgment on those materials after giving due regard to the expert's opinion because once the expert's opinion is accepted, it is not the opinion of the medical officer but of the court.::: Downloaded on - 15/04/2017 19:34:17 :::HCHP 10
35. Nariman, J. in Queen v. Ahmed Ally, (1989) 11 Sutherland WR Cr 25, while expressing his view a on medical evidence has observed as follows:
"THE evidence of a medical man or other skilled witnesses, however, eminent, as to what he thinks may or may not have taken .
place under particular combination of circumstances, however, confidently, he may speak, is ordinarily a matter of mere opinion."
36. Fazal Ali, J. in Pratap Misra v. State of Orissa, (1977 3 SCC 41, has stated thus:
"... [l]t is well settled that the medical jurisprudence is not an exact science and it is of indeed difficult for any Doctor to say with precision and exactitude as to when a particular injury was caused ... as to the exact time when the appellants may have had rt sexual intercourse with the prosecutrix."
37. We feel that it would be quite appropriate, in this context, to reproduce the opinion expressed by Modi in Medical Jurisprudence and Toxicology (Twenty- first Edition) at page 369 which reads thus:
"THUS to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite sufficient for the purpose of the law. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one. "::: Downloaded on - 15/04/2017 19:34:17 :::HCHP 11
38. In Parikh 's Textbook of Medical Jurisprudence and Toxicology, the following passage is found:
"SEXUAL intercourse. In law, this term is held to mean the slightest degree of penetration of the vulva by the penis with or without emission of semen. It is therefore quite .
possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains."
39. In Encyclopedia of Crime and Justice (Vol. 4 at page 1356, it is stated:
"... [E]ven slight penetration is sufficient and emission is unnecessary."
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40. In Halsbury's Statutes of England and Wales, (Fourth Edition), Volume 12, it is stated that even the slightest degree of penetration is sufficient to prove sexual intercourse within the meaning of S. 44 rt of the Sexual Offences Act, 1956. Vide (1) R. v. Hughes , (1841) 9 C&P 752, (2) R. v. Lines and R. v. Nicholls , (1844) 1 Car & Kir 393.
41. See also Harris's Criminal Law, (Twenty-second Edition) at page 465.
42. In American Jurisprudence, it is stated that slight penetration is sufficient to complete the crime of rape. Code 263 of Penal Code of Califomia reads thus:
"RAPE; essentials Penetration sufficient. The essential guilt of rape consists in the outrage to the person and feelings of the victim of the rape. Any sexual penetration, however slight, is sufficient to complete the crime."
43. The First Explanation to S. 375 of Indian Penal Code which defines 'Rape' reads thus:
"EXPLANATION.PENETRATION is sufficient to constitute the sexual intercourse necessary to the offence of rape."
44. In interpreting the above explanation whether complete penetration is necessary to constitute an offence of rape, various High courts have taken a consistent view that even the slighte st penetration is sufficient to make out an offence of rape and the ::: Downloaded on - 15/04/2017 19:34:17 :::HCHP 12 depth of penetration is immaterial. Reference may be made to (1) Natha v. Emperor, (1925) 26 CrLJ 1185, (2) Abdul Majid v. Emperor, AIR 1927 Lah 735(2), (3) Mst. Jantan v. Emperor, (1934) 36 Punj LR 35, (4) Ghanashyam Misra v. State, 1957 CriLJ 469, (5) Das Bernard v. State , 1974 CriLJ 1098. In re Anthony, AIR 1960 Mad 308 it has been held that .
while there must be penetration in the technical sense, the slightest penetration would be suffic ient and a complete act of sexual intercourse is not at all necessary. In Gour's The Penal Law of India, 6th Edn. 1955 (Vol. II), page 1678, it is observed, "Even vulval penetration has been held to be sufficient for a conviction of rape." "
23. Also, it is a settled principle of law that of absence of injuries on the external or internal parts of the victim by itself cannot be a reason to disbelieve the rt testimony of the prosecutrix. (See: Mukesh v. State of Chhattisgarh, (2014) 10 SC 327); State of Haryana v.
Basti Ram, (2013) 4 SCC 200; O.M. Baby (Dead) by Legal Representative v. State of Keral, (2012) 11 SCC 362; and State of U.P. v. Chhotey Lal, (2011) 2 SCC 550).
24. The Apex Court in Puran Chand v. State of Himachal Pradesh, (2014) 5 SCC 689, observed that even non-rupture of hymen itself would be of no consequence and rape could be held to be proved even if there is slight penetration.
25. Mere fact that hymen is intact or that there is no actual wound on the private part of the prosecutrix is not conclusive of the fact that prosecutrix was not ::: Downloaded on - 15/04/2017 19:34:17 :::HCHP 13 subjected to rape. (Radhakrishna Nagesh v. State of Andhra Pradesh, (2013) 11 SCC 688).
26. Reiterating its earlier view in Mohd. Iqbal v.
.
State of Jharkhand, (2013) 14 SCC 481; Narender Kumar v. State (NCT of Delh), (2012) 7 SCC 171, the Apex Court in Mukesh v. State of Chhattisgarh, (2014) 10 SC 327, has held that sole testimony of prosecutrix is sufficient to of establish commission of rape, even in the absence of any corroborative evidence.
27. In Radhakrishna Nagesh v. State of Andhra rt Pradesh, (2013) 11 SCC 688, the apex Court held as under:
"33. It will be useful to refer to the judgment of this Court in the case of O.M. Baby v. State of Kerala, (2012) 11 SCC 362, where the Court held as follows:-
"17. ..... '16. A prosecutrix of a sex offence cannot be put on a 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 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 ::: Downloaded on - 15/04/2017 19:34:17 :::HCHP 14 the charge levelled by her. If the 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 of 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 rt 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.'
18. We would further like to observe that while appreciating the evidence of the prosecutrix, the court must keep in mind that in the context of the values prevailing in the country, particularly in rural India, it would be unusual for a woman to come up with a false story of being a victim of sexual assault so as to implicate an innocent person. Such a view has been expressed by the judgment of this Court in the case of State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 and has found reiteration in a recent judgment in Rajinder @ Raju v. State of H.P., (2009) 16 SCC 69, para 19 whereof may be usefully extracted:
'19. In the context of Indian culture, a woman - victim of sexual aggression - would rather suffer silently than to falsely implicate somebody. Any statement of rape is an extremely ::: Downloaded on - 15/04/2017 19:34:17 :::HCHP 15 humiliating experience for a woman and until she is a victim of sex crime, she would not blame anyone but the real culprit. While appreciating the evidence of the prosecutrix, the courts must always keep in mind that no self-
.
respecting woman would put her honour at stake by falsely alleging commission of rape on her and therefore, ordinarily a look for corroboration of her testimony is unnecessary and uncalled for. But for high improbability in the prosecution case, the conviction in the case of sex crime may be based on the sole of testimony of the prosecutrix. It has been rightly said that corroborative evidence is not an imperative component of judicial credence in rt every case of rape nor the absence of injuries on the private parts of the victim can be construed as evidence of consent.' ""
28. In Rameshwar v. The State of Rajasthan, AIR 1952 SC 54, the Supreme Court has held that previous statement of the raped girl to her mother, immediately after the occurrence, is not only admis sible and relevant as to her conduct, but also constitutes corroboration of her statement under the provisions of section 157 of the Evidence Act. In order to come to the aforesaid conclusions, illustration (j) to section 8 of the Evidence Act was relied upon. In that case, the victim, named Purni, was 7/8 years old. She was not administered oath, ::: Downloaded on - 15/04/2017 19:34:17 :::HCHP 16 but was held to be competent witness and, therefore, duly examined and believed.
29. In State of Punjab versus Jagir Singh (1974) 3 .
SCC 277 the apex Court held that:-
"A criminal trial is not like a fairy tale wherein one is free to give fight to one's imagination and fantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged. Crime is an of event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged rt with the commission of a crime, the Court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses . Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the Courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures ."
(Emphasis supplied)
30. The Apex Court in State of Rajasthan versus N. K. THE ACCUSED (2000) 5 SCC 30 has held that:-
"... ...It is true that the golden thread which runs throughout the cobweb of criminal jurisprudence as administered in India is that nine guilty may escape but one innocent should not ::: Downloaded on - 15/04/2017 19:34:17 :::HCHP 17 suffer. But at the same time no guilty should escape unpunished once the guilt has been proved to hilt. An unmerited acquittal does no good to the society. If the prosecution has succeeded in .
making out a convincing case for recording a finding as to the accused being guilty, the Court should not lean in favour of acquittal by giving weight to irrelevant or insignificant circumstances or by resorting to technicalities or by assuming doubts and giving benefit thereof where none of exists. A doubt, as understood in criminal jurisprudence, has to be a reasonable doubt and not an excuse for finding in favour of acquittal. An unmerited acquittal encourages wolves in the rt society being on prowl for easy prey, more so when the victims of crime are helpless females. It is the spurt in the number of unmerited acquittals recorded by criminal Courts which gives rise to the demand for death sentence to the rapists. The Courts have to display a greater sense of responsibility and to be more sensitive while dealing with charges of sexual assault on women."
(Emphasis supplied)
31. It is also a settled position of law that victim of a sex offence cannot be put on par with an accomplice.
She is in fact a victim of the crime. If for some reason Court is hesitant to place implicit reliance on the testimony of the victim it may look for evidence which may lend assurance to her testimony short of ::: Downloaded on - 15/04/2017 19:34:17 :::HCHP 18 corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the victim must necessarily depend on the .
facts and circumstances of each case. If the totality of the circumstances appearing on the record of the case disclose that victim does not have a strong motive to falsely involve the person charged, Court should of ordinarily have no hesitation in accepting her evidence.
[State of Maharashtra versus Chandraprakash Kewalchand Jain, (1990) 1 SCC 550 and O. M. Baby rt (dead) by Legal Representative vs. State of Kerala , 2012 (11) SCC 362].
32. The Apex Court in State of Punjab versus Gurmit Singh and others, (1996) 2 SCC 384 has held that:-
"... ...The Courts must, while evaluating evidence, remain aliv e 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 ::: Downloaded on - 15/04/2017 19:34:17 :::HCHP 19 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 of 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 reliable. Seeking corroboration of her statement before rt 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 s uspicion ?
---- --- ---
"21. Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflec tion on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault - it is often destructive of the ::: Downloaded on - 15/04/2017 19:34:17 :::HCHP 20 whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The Court, therefore, shoulder a great .
responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, of which are not of a fatal nature, to throw out an otherwise reliable prosecution case." ... ...
(Emphasis supplied) rt The Court again reiterated its view in Siriya @ Shri Lal vs. State of Madhya Pradesh, (2008) 8 SCC 72.
33. In State of M.P. v. Dharkole alias Govind Singh and others, (2004) 13 SCC 308 the Apex Court has held that:-
"9. ... Eye witnesses' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be credit- worthy; consistency with the undisputed facts; the 'credit' of the witnesses; their performance in the witness-box; their power of observation etc. Then ::: Downloaded on - 15/04/2017 19:34:17 :::HCHP 21 the probative value of such evid ence becomes eligible to be put into the scales for a cumulative evaluation."
"10. A person has, no doubt, a profound right not .
to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to 'proof' is an exercise particular to each case?
of "The simple multiplication rule does not apply if the separate pieces of evidence are dependent. Two events are dependent when they tend to occur together, and the rt evidence of such events may also be said to be dependent. In a criminal case, different pieces of evidence directed to establishing that the defendant did the prohibited act with the specified state of mind are generally dependent. A junior may feel doubt whether to credit an alleged confession, and doubt whether to infer guilt from the fact that the defendant fled from justice. But since it is generally guilty rather than innocent people who make confessions and guilty rather than innocent people who run away, the two doubts are not to be multiplied together. The one piece of evidence may confirm the other."
"11. Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an over emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague ::: Downloaded on - 15/04/2017 19:34:17 :::HCHP 22 apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and commonsense. It must grow out of the evidence in the case."
.
[Emphasis supplied]
34. In Dattu Ramrao Sakhare v. State of Maharashtra (1997 (5) SCC 341) it held that:
'5. .....A child witness if found competent to depose to the facts and reliable one such evidence of 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 rt 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 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 ::: Downloaded on - 15/04/2017 19:34:17 :::HCHP 23 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 careful scrutiny of their evidence the Court comes to the conclusion that there is an impress of truth in it, of there is no obstacle in the way of accepting the evidence of a child witness."
35. In Radhu v. State of Madhya Pradesh, (2007) rt 12 SCC 57, the Apex Court has held that "... Even if there is consent, the act will still be a 'rape', if the girl is under 16 years of age" and "There have also been rare instances where a parent has persuaded a gullible or obedient daughter to make a false charge of a rape either to take revenge or extort money or to get rid of financial liability. Whether there was rape or not would depend ultimately on the facts and circumstances of each case".
36. Law with regard to testimony of a child witness is now well established. In Golla Yelugu Govindu vs. State of Andhra Pradesh (2008) 16 SCC 769, while reiterating its earlier view the Apex Court held that:-
::: Downloaded on - 15/04/2017 19:34:17 :::HCHP 24"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 of 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 rt position was concisely stated by Brewer J. in Wheeler v. United States [159 U.S. 523 (1895)].
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 rec ord conviction, based thereon. [See Suryanarayana v.
State of Karnataka (2001) 9 SCC 129].
37. In State of Himachal Pradesh vs. Suresh Kumar (2009) 16 SCC 697, the Apex Court was dealing with a case where victim was ravished by the accused on 15.3.2000 which incident was narrated by the victim to her sister later during the day. She also narrated the incident to her parents the following day and later on to ::: Downloaded on - 15/04/2017 19:34:17 :::HCHP 25 the Doctors. Court accepted the statement of the sister, parents and the doctors while holding the accused guilty.
Importantly, Apex Court reversed the finding recorded by .
the High Court wherein it was held that statement of the victim being minor was not worthy of credence.
38. The apex Court in Radhakrishna Nagesh Versus State of Andhra Pradesh, (2013) 11 SCC 688 had of an occasion to deal with a case of a child victim. After considering its earlier decisions, the Court held that Court must examine the evidence of the prosecution in its rt entirely and then see its cumulative effect to determine whether offence of rape stands committed or not.
39. The apex Court in Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, (1983) 3 SCC 217 has held as under:
"9. In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the 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 ::: Downloaded on - 15/04/2017 19:34:17 :::HCHP 26 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 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 milieu, its own social mores, its own permissive values, and its own code of life. Corroboration may be of 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 rt 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.
It is conceivable in the western society that a female may level false accusation as regards sexual molestation against a male for several reasons such as :-
(1) The female may be a 'gold digger' and may well have an economic motive- to extract money by holding out the gun of prosecution or public exposure.
(2) She may be suffering from psychological neurosis and may see an escape from the neurotic prison by phantasizing or imagining a situation where she is desired, wanted, and chased by males.::: Downloaded on - 15/04/2017 19:34:17 :::HCHP 27
(3) She may want to wreak vengeance on the male for real or imaginary wrongs. She may have a grudge against a particular male, or males in general, and may have the design to square the account.
.
(4) She may have been induced to do so in consideration of economic rewards, by a person interested in placing the accused in a compromising or embarrassing position, on account of personal or political vendetta.
(5) She may do so to gain notoriety or publicity or to appease her own ego or to satisfy her feeling of self -importance in the of context of her inferiority complex.
(6) She may do so on account of jealousy.
rt (7) She may do so to win sympathy of others.
(8) She may do so upon being repulsed.
10. By and large these factors are not relevant to India, and the Indian conditions. 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 on account of any such factor as has been just enlisted. The statement is generally true in the context of the urban as als o 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 19:34:17 :::HCHP 28 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, of she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family. (6) It would almost inevitably and almost invariably result in rt mental torture and suffering to herself. (7) The fear of being taunted by 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 husbands' 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 innocent. (12) The reluctance to ::: Downloaded on - 15/04/2017 19:34:17 :::HCHP 29 face interrogation by the investigating agency, to face the Court, to face the cross-examination by counsel for the culprit, and the-r isk of being disbelieved, act as a deterrent.
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11. In view of these factors the victims and their relatives are not too keen to bring the culprit to books. And when in the face of these factors the crime is brought to light there is a built- in assurance that the charge is genuine rather than fabricated. On principle the evidence of a victim of of sexual assault stands on par with evidence of an injured witness. Just as a witness who has sustained an injury (which is not shown or rt believed to be self - inflicted) is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a sex- offence is entitled to great weight, absence of corroboration notwithstanding. And while corroboration in the form of eye-witness account of an independent witness may often be forthcoming in physical assault cases, such evidence cannot be expected in sex offences, having regard to the very nature of the offence. It would therefore be adding insult to injury to insist on corroboration drawing inspiration from the rules devised by the Court's in the western world (obeisance to which has perhaps become a habit presumably on account of the colonial hangover). We are therefore of the opinion that if the evidence of the victim does not suffer from any basic infirmity, and the 'probabilities - factor' does ::: Downloaded on - 15/04/2017 19:34:17 :::HCHP 30 not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from the medical evidence, where, having regard to the circumstances of the case, medical .
evidence can be expected to be forthcoming, subject to the following qualification :
Corroboration may be insisted upon when a woman having attained majority is found in a compromising position and there is a likelihood of her having levelled such an accusation on account of of the instinct of self preservation. Or when the 'probabilities-factor' is found to be out of tune."
[Also: State of H.P. v. Asha Ram, (2005) 13 SCC 766] rt
40. We shall now discuss the evidence in view of the aforesaid settled proposition of law.
41. In Cr. Appeal No. 246 of 1999, titled as State of H.P. Versus Krishan Chand, decided on 20.08.2010, the Court has held as under:-
"5. The law relating to appreciation of the testimony of a child witness has been succinctly laid down by the Apex Court in Bhagwan Singh and others Versus State of M.P. (AIR 2003 SC 1088), wherein the Apex Court held as follows:
"19. The law recognizes the child as competent witness but a child particularly at such a tender ag e of six years, who is unable to form a proper opinion about the nature of the incident because of immaturity of understanding, is not considered by the Court to be a witness whose sole testimony can be relied without other corroborative ::: Downloaded on - 15/04/2017 19:34:17 :::HCHP 31 evidence. The evidence of child is required to be evaluated carefully because he is an easy prey to tutoring. Therefore, always the Court looks for adequate corroboration from other evidence to his testimony."
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6. The law is well settled that it is the duty of the Court to satisfy itself that the child understands the questions and can answer them properly. In the case before the Apex Court the child was a witness to be occurrence. In the present case, the child is not only a witness but of the victim himself. When the child witness is also the victim his testimony has greater force.
7. A child of tender age of seven years by rt nature will not tell lies. At that age a child has not become worldly wise, has not learnt the ways of the modern world and has not learnt to tell lies. However, on the other hand, there is no manner of doubt that a child can be tutored by his parents, teachers or other people, who have influence over him and in fact over period of time a child may start believing that what is told to him/her by persons, who wield influence over him/her, is the truth. Therefore, the Court has to be more careful while examining the testimony of a child witness. We are also not oblivious of the fact that we are dealing with a case where the accused has been acquitted. The presumption of innocence which attaches to any accused is strengthened by his acquittal. In this regard, we may make reference to the judgment of the Apex Court in Gowrishankara Swamigalu Versus State of Karnataka, (AIR 2008 SC 2349).""
::: Downloaded on - 15/04/2017 19:34:17 :::HCHP 3242. At this juncture, it be only observed that the accused in his statement under Section 313 Cr.P.C. has taken the following defence:-
.
"The boys had been coming to the place in the vicinity of the house of the father of the victim for extraction of Bhaang resin from the growth. One day, father of the victim questioned as to why I had been coming to of extract resin of Bhaang and he had tiff with me. He then stated that he will take the revenge from me and will not spare as he had rt been a Bihari. He has filed this false case against me."
43. In support he examined Vicky Kumar (DW.1).
However, having minutely examined the testimonies of all the witnesses, we do not find the same to have been probablized. Vicky Kumar, who was examined on 02.04.2014, wants the Court to believe that 15-16 months prior to the incident in question, an altercation took place between the accused and the father of the prosecutrix, who not only gave beatings, but also threatened the accused by stating that "he would see us". We do not find this versio n to be true, for this particular incident would have taken place sometime in ::: Downloaded on - 15/04/2017 19:34:17 :::HCHP 33 the month of January 2013. Significantly no report was lodged with regard to the same. Why so? remains unexplained. Noticeably witness does not state that the .
father of the prosecutrix had threatened of falsely implicating the accused, much less by putting the honour of his daughter at stake.
44. Also from the line of cross-examination and of the admissions made by the accused, it can be safely held that accused was familiar with the place where the incident took place and was easily identifiable.
rt
45. Record does reveal that in the initial report (Ex.PW.2/A) and the FIR (Ex.PW.13/A) recorded on the basis of statement of mother of the prosecutrix (PW.2), there is no reference of the accused. It only records that a person having scar on cheek, who was seen near the house by Vikram, Ashish, Arun and Karan and could be identified by the prosecutrix had committed the sexual act. But then the matter does not end here. Record reveals that immediately thereafter, prosecutrix and her brother got their statements recorded in which there is clear reference of the accused. None had any doubt about the identity of the accused.
::: Downloaded on - 15/04/2017 19:34:17 :::HCHP 3446. In Court Vikram (PW.3) brother of the prosecutrix states that on 30.05.2013 , when he returned from the school with his sister (prosecutrix) at about 3.00 .
PM, he saw the accused s itting in the compound of the house extracting bhaang (Resin content of cannabis plant) by rubbing his hands. He started playing with his friends and noticed the accused go to the first floor of the of house. Accused jumped from the dunga and left the house. When he went upstairs, he found the prosecutrix smeared with blood, weeping .
rt She d isclosed that accused had subjected her to sexual assault. To impeach the credit of this witness, learned counsel invites our attention to the cross-examination part of his testimony.
No doubt there are improvements, but then they are not of such nature so as to render the witness to be unreliable or his testimony unreliable. There are no embellishments. On the question of the presence of the accused on the spot, immediately prior to the incident, there is neither any contradiction nor any embellishment.
Deposition with regard to the identity of the accused cannot be said to be unbelievable or the witness unreliable. He is definitely not a tutored witness and has ::: Downloaded on - 15/04/2017 19:34:17 :::HCHP 35 narrated the events in a natural manner which we find to be convincing.
47. We find that on material facts Vikram (PW.3) .
has corroborated the version of the prosecutrix (PW.1), who in Court states that at about 4.00 PM, while she was alone in the house as her brother was playing with his friends, accused came to her room and asked her for a of glass of water. After drinking water, accused went out but again came in and inquired her name. Not only did she disclose her name, but also inquired his name.
rt Accused caught her and made her lie on the cot and committed sexual act, which resulted into oozing of blood. The accused lifted a sickle lying in the room and threatened not to disclose the incident to any person, lest she be killed. Thereafter, accused jumped from the roof and left the place. However, when her mother returned at 5.30 PM, she disclosed the incident to her.
Thereafter, she was taken to the hospital and got medically examined. The witness has identified her blood stained clothes (Ex.P -1, P-2, P-3 & P-4), which were recovered by the police in the presence of Ashok Kumar (PW.4). The witness has clarified that at the time of ::: Downloaded on - 15/04/2017 19:34:17 :::HCHP 36 assault, accused had gagged her mouth . Credibility of this witness is sought to be impeached by inviting our attention that part of her testimony, wherein she admits .
to have informed the police of having been subjected to sexual assault by a person, who had a scar on his face, which fact was not so found on the face of the accused, at the time of medical examination by Dr. Vinay Mahajan of (PW.10). We are not in agreement with learned counsel on this point, for what the doctor states is that "I did not notice any spot on the cheek of the accused person".
rt There is a difference between the spot on the cheek and the scar mark on the face. Be that as it may, identity of the accused to be the assailant, in our considered view, is not in doubt and stands established and proved, beyond reasonable doubt both by the prosecutrix and her brother.
48. We find that mother of the prosecutrix (PW.2), after learning about the incident immediately went to Smt. Kanika Baghla (PW.14) with whom she was working as a Maid, who in turn, reported the matter to the police.
She does state that prosecutrix had informed her about the incident and there is no contradiction, improvement ::: Downloaded on - 15/04/2017 19:34:17 :::HCHP 37 or embellishment in her testimony . This witness clarifies that it was the prosecutrix, who had disclosed the name of the accused to her and she had also disclosed to the .
police that assailant had a scar on his face. Her version stands corroborated by Kanika Baghla (PW.14).
49. Noticeably the statement at the first instance so recorded by the police was not that of the prosecutrix , of who in any case was under great trauma. She does state that name of the accused stood disclosed by her to her mother. Simply because mother failed to disclose the rt name of the accused to the police would not be a ground to acquit the accused, for his name stood immediately disclosed at the first opportune moment. We are dealing with people coming from rural and socio economic background. In any event without delay statement of the prosecutrix was recorded wherein name of the accused was disclosed.
50. Record reveals that with the recording of the statement of the prosecutrix, accused was immediately arrested and in the presence of Munish (PW.5), made disclosure statement (Ex.PW.5/A) and got recovered his clothes (Ex.P-9 and P-10) vide memo (Ex.PW.5/B) and ::: Downloaded on - 15/04/2017 19:34:17 :::HCHP 38 sickle (Ex.P-11) vide memo (Ex.PW.5/C). Report of the Forensic Science Laboratory revealed blood and semen to be on his clothes as also of the prosecutrix . There is no .
illegality in the procedure adopted by the police.
51. Testimonies of the prosecution witnesses, more so that of minor cannot be said to be unbelievable.
Witnesses are trustworthy and in the opinion of the Court of have deposed truthfully. Safely it can be held that prosecution has discharged the initial burden of establishing its case and the statutory burden, so rt required by the accused under Section 30 of the POCSO Act, cannot be said to have been discharged. Ocular evidence stands materially corroborated by other evidence on record.
52. The ocular version as also the documentary evidence clearly establishes complicity of the convict in the alleged crime . The testimonies of prosecution witnesses are totally reliable and their depositions believable. There are no major contradictions rendering their version to be unbelievable.
53. From the material placed on record, it stands clearly established by the prosecution witnesses , beyond ::: Downloaded on - 15/04/2017 19:34:17 :::HCHP 39 reasonable doubt, that the convict is guilty of having committed the offences charged for. There is sufficient, clear, convincing, cogent and reliable piece of evidence .
on record to this effect. The circumstances stand conclusively proved by unbroken chain of unimpeachable testimony of the prosecutio n witnesses. The guilt of the convict stands proved beyond reasonable doubt to the of hilt. The chain of events stand conclusively established and lead only to one conclusion, i.e. guilt of the convict.
Circumstances rt when cumulatively considered, fully establish completion of chain of events, indicating the guilt of the accused and no other hypothesis other than the same. It cannot be said that convict is innocent or not guilty or that he has been falsely implicated or that his defence is probable or that the evidence led by the prosecution is inconsistent, unreliable, untrustworthy and unbelievable. It cannot be said that the version narrated by the witnesses in Court is in a parrot-like manner and hence is to be disbelieved.
54. Thus, from the material placed on record, it stands established by the prosecution, beyond reasonable doubt, by leading clear, cogent, convincing ::: Downloaded on - 15/04/2017 19:34:17 :::HCHP 40 and reliable piece of evidence, that convict committed penetrative sexual assault with the prosecutrix -child below 12 years and also criminally intimidated her.
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55. For all the aforesaid reasons, we find no reason to interfere with the judgment passed by the trial Court. The Court has fully appreciated the evidence placed on record by the parties. There is no illegality, of irregularity, perversity in correct and complete appreciation of the material so placed on record by the parties. Findings cannot be said to be erroneous in any rt manner. Hence, the appeal is dismissed .
Records of the Court below be immediately sent back.
(Sanjay Karol), Judge.
(P.S. Rana), December 22, 2015. Judge.
(Purohit) ::: Downloaded on - 15/04/2017 19:34:17 :::HCHP