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Himanshu Alias Shammi vs State Of Himachal Pradesh on 31 October, 2018

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Criminal Appeal No.504 of 2016
Reserved on : 11.10.2018
Date of Decision : October 31, 2018

.

Himanshu alias Shammi ….Appellant.

versus

State of Himachal Pradesh …Respondents.

Coram:

The Hon’ble Mr. Justice Sanjay Karol, Judge.

The Hon’ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? Yes
For the Petitioner : Mr. Shivank Singh Panta, Advocte.

For the respondent : Mr. Ajay Vaidya, Senior Additional
Advocate General.

Sanjay Karol, Judge

The following important issues arise for

consideration in the present appeal: (a) As to whether the

witnesses, being minors, were competent to testify in the

Court in terms of Section 118 of the Indian Evidence Act,

1872 (hereinafter referred to as the Evidence Act) and

their depositions considered for examining the guilt of the

accused; (b) As to whether their testimonies necessarily

required corroboration; and (c) As to whether testimonies

of the mothers of the victims can be considered, applying

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the doctrine of res gestae, in view of Section 6 of the

Evidence Act.

2. The appellant stands convicted on the

.

testimonies of child witnesses, three in number and their

mothers, four in number, based on the corroborative

medical evidence. The correctness of the reasoning and

the findings returned by the trial judge are subject matter

of consideration before us.

3.

Accused-appellant Himanshu alias

(hereinafter referred to as accused) has preferred the

present appeal, laying challenge to the judgment dated
Shammi

31.8.2016, passed by Special Judge, Chamba, Division

Chamba, Himachal Pradesh, in Sessions Trial No.20 of

2015, titled as State of Himachal Pradesh v. Himanshu

alias Shammi, whereby he stands convicted for having

committed offences punishable under Sections 376, 506 of

the Indian Penal Code and Section 4 of the Protection of

Children from Sexual Offences Act, 2012 (hereinafter

referred to as POCSO Act), and sentenced to undergo

rigorous imprisonment for a period of ten years and pay

fine of `10,000/- and in default thereof, to further undergo

simple imprisonment for a period of six months, in relation

to offence punishable under Section 4 of the POCSO Act;

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and rigorous imprisonment for a period of one year and

fine of `1,000/- and in default thereof to further undergo

simple imprisonment for a period of one month, in relation

.

to offence punishable under Section 506 of the Indian

Penal Code.

4. It is the case of prosecution that an Anganwadi

Centre was set up in an accommodation, rented to the

State. The accused, being son of the landlady, had easy

r to
access to the said Centre and was sexually abusing the

children. He sexually abused four minor victims and also

threatened them of dire consequences. Such fact was

discovered, when one of the victims disclosed the same to

her mother, who alongwith other victims and their parents

went to the Police Station and lodged FIR No.141/2015 (Ex.

PW-1/A), dated 11.4.2015. Investigating Officer SI Sakini

Kapoor (PW-18) got the victims medically examined from

Dr. Minakshi (PW-9) and obtained her medical opinion

(Ex.PW-9/B, Ex. PW-9/C, Ex.PW-9/D and Ex.PW-9/E).

Investigation revealed that the accused was in the habit of

enticing the victims (four in number), on the pretext of

giving toffees and after taking them to his room, subject

them to sexual assault. During the course of investigation,

statements of victims (Ex. PW-1/B, Ex. PW-2/A Ex. PW-

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3/A) and that of Priyanka (PW-4) mother of the fourth

victim, were recorded. Investigation further revealed the

victims to be minors. Necessary corroborative evidence

.

was collected by the Police and with the completion of

investigation, challan presented in the Court for trial.

5. Accused was charged for having committed

offences punishable under Sections 376 506 of the

Indian Penal Code and Section 4 of the POCSO Act, to

which he pleaded not guilty and claimed trial.

6. To prove its case, prosecution examined as

many as 18 witnesses. Statement of the accused, under

the provisions of Section 313 of the Code of Criminal

Procedure, was also recorded, in which he took the

defence of innocence and false implication, on the ground

that father of one of the victims had desired the property

to be transferred which was so refused. He chose to lead

evidence in his defence and examined his mother Bimla

Devi (DW-1) as a witness.

7. Finding the testimonies of the three victims as

also their mothers, four in number, to be inspiring in

confidence, duly supported by corroborative evidence, trial

Court found the accused to be guilty of having committed

the charged offences and sentenced him as aforesaid.

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8. Assailing the impugned judgment, Mr. Shivank

Singh Panta, learned counsel for the accused, with

vehemence, argues that the accused himself is a victim of

.

circumstances and stands falsely implicated, for the

reason that mother of the accused had refused to accede

to the demand of the parents of the victims to sell her

land. Also statements of the victims cannot be said to be

inspiring in confidence.

9.

On the other hand, with equal vehemence, Mr.

Ajay Vaidya, learned Senior Additional Advocate General,

supports the impugned judgment on the basis of material

on record.

10. From the record as also statement of the

accused recorded under the provisions of Section 313 of

the Code of Criminal Procedure, it is evident that in the

house owned by Bimla Devi (DW-1), the State Government

had requisitioned accommodation, on rental basis, where

an Anganwadi Centre stood established. Also, it was fully

operational and functional.

11. Though the accused denies such fact but from

the line of his cross-examination, unrebutting and

undisputing, it is evident that the victims, four in number,

used to play in the courtyard of the said Anganwadi

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Centre. It also stands admitted that the accused, who is

25-27 years of age, ordinarily resides with his mother in

the very same village. Prosecution wants the Court to

.

believe that the accused was residing in the very same

building, but according to him, as is evident from the

suggestions put to the witnesses, he was residing in a

separate accommodation, which was close by, in fact

same courtyard. Hence, presence of the victims and the

accused on the spot cannot be disputed.

12. We now proceed to examine as to whether the

accused has been able to probablize the defence of false

implication, so taken in his statement under Section 313 of

the Code of Criminal Procedure, in the following terms, or

not:

“All the witnesses deposed false as their

houses were abutting to my house. Parents of
victims child Lal Singh and Sudershan and
approached my father to sell his land and when my

father refused to sell land, thereafter they
approached me to execute the sale deed in their
favour but I refused to sell my land and then all the

parents of victims conspired to implicate me in a
false case, the father of third victim (PW-1) is
relative of Sudershan and Lal Singh and family of
PW.1 is tenant of Yogesh and his uncle.”

13. To probablize the same, his mother Bimla Devi

stepped into the witness box and deposed as DW-1. In the

examination-in-chief part of her testimony, she does state

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that Lal Singh, Sudershan and Puran Bhadur,

fathers/relatives of the victims, had been asking her to

transfer her land for construction of house/ toilet/septic

.

tank. By mere statement of such fact, defence cannot be

said to have been probablized, for in her testimony she

does not state that parents of the victims had threatened

of any false implication of any member of her family or in

any manner, ever intimidated them. There is no history of

any complaint or litigation pertaining to any land. When?

Where? and in whose presence? such demand was made,

remains a shrouded mystery. Significantly, she admits the

parents of the victims to have owned some land. For

some reason, she denies the revenue record (Ex. PX, P-1

P-2), reflecting the parents of the victims to be owners of

11 biswas of land. It is in this backdrop that we reject the

submission of the accused of having been falsely

implicated on account of land dispute.

14. At this stage, we may clarify that this fact has

had no bearing in our mind while arriving at our conclusion

in deciding the appeal on merits.

15. In the instant case, there are four victims,

whom we term as Victim No.1 (PW-1), Victim No.2 (PW-2),

Victim No.3 (PW-3) and Victim No.4 (Aged 2½ years, not

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examined). All the four victims are girls. Victim No.1 is

aged 10 years; Victim No.2 is aged 8 years; Victim No.3 is

aged 10 years; and Victim No.4 is aged 2½ years.

.

16. In order to prove the age of the victims,

prosecution examined Thakur Singh (PW-11), Secretary of

Gram Panchayat, Karian, who has proven Birth Certificates

in respect of Victim No.2 (Ex.PW-11/C), Victim No.3

(Ex.PW-11/D); Victim No.4 (Ex. PW-11/B) and copies of

Yogesh
r to
family register, in respect of Lal Singh, Sudershan Singh

(Ex.PW-11/E, Ex.PW-11/F Ex.PW-11/G,

respectively). He further states that since date of birth of

Victim No.1 was not available, he issued certificate

(Ex.PW-11/H) in that respect. Thus the factum of age, in

our considered opinion, stands established, in accordance

with law.

17. It has come in the testimony of Dr. Kamaljeet

Singh (PW-10) that the accused was got medically

examined from him. He found him capable of performing

sexual intercourse. MLC (Ex.PW-10/B), in this respect, is

on record. Hence, plea of incapacity stands rejected.

18. It has also come in the testimony of Dr.

Minakshi (PW-9) that police got all the four victims

medically examined through her. In Court, she has

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deposed of having issued MLCs, in respect of Victim No.1

(Ex.PW-9/B), Victim No.2 (Ex.PW-9/C), Victim No.3 (Ex. PW-

3/D) and Victim No.4 (Ex.PW-3/E). She states that on

.

physical examination of Victims No.1, 2 3, though there

were no scars, wounds or injury on body, but there was

redness in the private parts and the hymens were absent.

According to the Doctor, injuries on the private parts of

Victim No.1 2 could be on account of sexual assault

within one month, and that on the private part of Victim

No.3 within a period of 15-20 days. With regard to Victim

No.4, the Doctor has opined that in the anal region, there

was redness and tenderness. Also, she took the vaginal

swabs and slides of all the victims, which were handed

over to the police.

19. From the cross-examination part of her

testimony, we do not find her opinion of sexual assault to

be rendered doubtful, in any manner. In fact, suggestion

put by the accused of the hymen having been ruptured on

account of masturbation with hard object or finger is

extremely shocking and preposterous. In any event, the

Doctor has clarified that the victims were not of the age to

have performed such an act.

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20. Though, it is not the case in hand, but Mr.

Shivank Singh Panta argues that medical record is at

variance with the ocular version. Hence we discuss the law

.

on the issue.

21. The Apex Court had the occasion to deal with

the case where there was a conflict between medical

evidence and ocular evidence of the prosecution and

Dayal Singh v State of Uttaranchal, (2012) 8 SCC 263 (SCC

p.283, paras 35036) observed that possibility of some

variations in the exhibits, medical and ocular evidence

cannot be ruled out. But it is not that every minor variation

or inconsistency would tilt the balance of justice in favour

the accused. Only where contradictions and variations are

of a serious nature, which apparently or impliedly are

destructive of the substantive case sought to be proved by

the prosecution, they may provide an advantage to the

accused. The Courts, normally, look at expert evidence

with a greater sense of acceptability, but it is equally true

that the courts are not absolutely guided by the report of

the experts, especially if such reports are perfunctory,

unsustainable and are the result of a deliberate attempt to

misdirect the prosecution.

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22. It is also a settled principle of law that where

the eyewitness account is found credible and trustworthy,

medical opinion pointing to alternative possibilities may

.

not be accepted as conclusive. [Dayal Singh (supra)].

23. After all 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 examining 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 opinion is accepted, it is not the opinion of

the medical officer but that of the Court.

24. Also, it is a settled principle of law that absence

of injuries on the external or internal parts of the victim by

itself cannot be a reason to disbelieve the 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).

25. Reiterating its earlier view in Mohd. Iqbal v.

State of Jharkhand, (2013) 14 SCC 481; Narender Kumar v.

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State (NCT of Delhi), (2012) 7 SCC 171, the Apex Court in

Mukesh v. State of Chhattisgarh, (2014) 10 SCC 327, has

held that sole testimony of prosecutrix is sufficient to

.

establish commission of rape, even in the absence of any

corroborative evidence.

26. Hence, the contention needs to be rejected.

27. Investigation of the case was conducted by SI

Sakini Kapoor (PW-18), who states that on 11.4.2015,

pursuant to entrustment of the file to her, she recorded

statements of the witnesses (examined in Court) and

completed the investigation.

28. We now proceed to discuss the other ocular

evidence. Essentially there are two set of witnesses. The

first being the child witnesses and the second their

mothers. We proceed to discuss the latter first. But before

we do so, let us discuss the law with regard to

admissibility of their statements, for they are in the nature

of hearsay.

29. Section 6 of the Evidence Act reads as under:-

“6. Relevancy of facts forming part of same
transaction.–Facts which, though not in issue, are
so connected with a fact in issue as to form part of
the same transaction, are relevant, whether they
occurred at the same time and place or at different
times and places.”

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30. In Rameshwar v. The State of Rajasthan (AIR

1952 SC 54), the Supreme Court has held that the

previous statement of the raped girl to her mother,

.

immediately after the occurrence, is not only admissible

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, but was held to be competent witness and,

therefore, duly examined and believed.

31. The Apex Court in Sukhar versus State of U.P.,

(1999) 9 SCC 507 has held that Section 6 of the Evidence

Act is an exception to the general rule whereunder the

hearsay evidence becomes admissible. But for bringing

such hearsay evidence within the provisions of Section 6,

what is required to be established is that it must be almost

contemporaneous with the acts and there should not be

an interval which would allow fabrication. Also “the

statements sought to be admitted, therefore, as forming

part of res gestae, must have been made

contemporaneously with the acts or immediately

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thereafter. The aforesaid rule as it is stated in Wigmore’s

Evidence Act reads thus : “Under the present Exception [to

hearsay] an utterance is by hypothesis, offered as an

.

assertion to evidence the fact asserted (for example that a

carbrake was set or not set), and the only condition is that

it shall have been made spontaneously, i.e. as the natural

effusion of a state of excitement. Now this state of

excitement may well continue to exist after the exciting

fact has ended. The declaration, therefore, may be

admissible even though subsequent to the occurrence,

provided, it is near enough in time to allow the assumption

that the exciting influence continued.”

32. Sarkar on Evidence (Fifteenth Edition)

summarises the law relating to applicability of Section 6 of

the Evidence Act thus:

“1. The declarations (oral or written) must relate to

the act which is in issue or relevant thereto; they
are not admissible merely because they accompany
an act. Moreover the declarations must relate to
and explain the fact they accompany, and not

independent facts previous or subsequent thereto
unless such facts are part of a transaction which is
continuous. 2. The declarations must be
substantially contemporaneous with the fact and
not merely the narrative of a past. 3. The
declaration and the act may be by the same
person, or they may be by different persons, e.g.,
the declarations of the victim, assailant and by-
standers. In conspiracy, riot c. the declarations of
all concerned in the common object are admissible.

4. Though admissible to explain or corroborate, or

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to understand the significance of the act,
declarations are not evidence of the truth of the
matters stated.”

33. Earlier the Apex Court in Gentela Vijayavardhan

.

Rao v. State of A. P., (1996) 6 SCC 241, considering the law

embodied in Section 6 of the Evidence Act held that the

principle of law embodied in the said Section is usually known

as the rule of res gestae recognised in English law. The essence

of the doctrine is that a fact which, though not in issue, is so

connected with the fact in issue “as to form part of the same

transaction” becomes relevant by itself. This rule is, roughly

speaking, in exception to the general rule that hearsay

evidence is not admissible. The rationale in making certain

statement or fact admissible under Section 6 is on account of

the spontaneity and immediacy of such statement or fact in

relation to the fact in issue. But it is necessary that such fact or

statement must be a part of the same transaction. In other

words, such statement must have been made

contemporaneous with the acts which constitute the offence or

at least immediately thereafter. But if there was an interval,

however slight it may be, which was sufficient enough for

fabrication then the statement is not part of res gestae.

34. Further in Rattan Singh v. State of H. P., (1997)

4 SCC 161 the Court examined the applicability of Section

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6 of the Evidence Act to the statement of the deceased

and held thus (SCC p.167, para 16)

“…………………The aforesaid statement of Kanta

.

Devi can be admitted under Section 6 of the

Evidence Act on account of its proximity of time to
the act of murder. Illustration ‘A’ to Section 6
makes it clear. It reads thus:

‘(a) A is accused of the murder of B by

beating him. Whatever was said or done by A
or B or the by-standers at the beating, or so
shortly before or after it as to form part of the
transaction, is a relevant fact.’

(Emphasis supplied)

r to
Here the act of the assailant intruding into
the courtyard during dead of the night,
victim’s identification of the assailant, her
pronouncement that appellant was standing
with a gun and his firing the gun at her, are

all circumstances so intertwined with each
other by proximity of time and space that the
statement of the deceased became part of
the same transaction. Hence it is admissible
under Section 6 of the Evidence Act.”

35. In Balram Prasad Agrawal versus State of Bihar

and others, (1997) 9 SCC 338, the Apex Court reiterated

the principle laid down in the case of J. D. Jain v.

Management of State Bank of India, AIR 1982 SC 673:

(1982) 1 SCC 143 wherein a Bench of three learned Judges

speaking through Baharul Islam, J. in paragraph 10 of the

Report has made the following observations : (AIR p. 676,

para 10: SCC p.148, paras 21 and 22)

“The word ‘hearsay’ is used in various senses.
Sometimes it means whatever a person is heard to

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say; sometimes it means whatever a person
declares on information given by someone else.
(See Stephen on Law of Evidence).

The Privy Council in the case of Subramaniam v.
Public Prosecutor, (1956) 1 WLR 965 observed:

.

‘Evidence of a statement made to a witness

who is not himself called as a witness may or may
not be hearsay. It is hearsay and inadmissible when
the object of the evidence is to establish the truth
of what is contained in the statement. It is not

hearsay and is admissible when it is proposed to
establish by the evidence, not the truth of the
statement but the fact that it was made. The fact
that it was made quite apart from its truth, is
frequently relevant in considering the mental, state

and conduct thereafter of the witness or some
other persons in whose presence these statements
are made’.”

36. Applying the aforesaid principles, we find the

testimonies of the parents, even if hearsay in nature,

being in close proximity to the time of crime and relating

to the act which is in issue, substantially contemporaneous

to the acts in issue to be proven as a fact, can be referred

to and relied upon for establishing the prosecution case.

From the discussion hereinafter if we find the same to be

inspiring in confidence we would not hesitate in relying

thereupon for ascertaining the truthfulness of the genesis

of the prosecution case.

37. From the ocular version of Shakuntla (PW-5), it

is evident that the incident was first brought to her notice

by her daughter i.e. Victim No.1. This was on 11.4.2015.

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The Victim informed that 15 days ago, while she was

playing with Victim No.4 in the courtyard of the Anganwadi

Centre, the accused, on the pretext of giving toffees,

.

enticed them and after taking both of them inside the

room, subjected them to sexual assault. Further, the

accused had also committed such act on Victim No.2 and

Victim No.3. As such, she immediately informed the

parents of other victims, whereafter they all went to the

Police Station and reported the matter.

38. We do not find the version of this witness to

have been shattered in any manner, in the cross-

examination part of her testimony. Accused laid emphasis

more on false implication, than the witness or victims

telling lies. Suggestion that the victims did not face any

difficulty while urinating is of no consequence. We find the

witness to be worthy of credence and the veracity of her

testimony to be unimpeachable.

39. We notice that version of Anju Devi (PW-6),

mother of Victim No.3, and Kaushalya Devi (PW-7), mother

of Victim No.2 is on similar lines. In fact, Kaushalya Devi,

in her unrebutted testimony, has explained the reason

why the victims had not earlier disclosed the incident to

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their parents, which was so done only with such fact

having revealed on 11.4.2015.

40. Version of another parent namely Priyanka

.

(PW-4), mother of Victim No.4, is also on similar lines. It

was only on 11.4.2015 that she was informed about the

incident by the mother of Victim No.1. It is true that in the

cross-examination part of her testimony, she was

confronted with her previous statement, wherein it never

stood disclosed that one month prior to the incident she

had got her daughter medically examined for having

suffered some infection in her private parts, but then this

fact, in our considered view, would have no bearing, for

otherwise her statement of sexual assault is corroborated

by Kaushalya Devi. That part, in her unrebutted

testimony, to a Court question, she categorically states

that when enquired, her daughter informed that she had

been sexually assaulted by the accused. We reproduce

the question and answer as under:

“COURT QUESTION

Did you ask or inquire your daughter
when your came to know from mother of Victim
No.2 (name withheld) that your daughter has
been sexually assaulted by the accused?

Ans: Yes Sir. She responded pointing out
towards her private part with her hands.”

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41. 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.”

42. Hence we see no reason to disbelieve the

testimonies of parents.

43. In cases involving sexual molestation and

assault require a different approach – a sensitive approach

and not an approach which a court may adopt in dealing

with a normal offence under penal laws. Child rape cases

are cases of perverse lust for sex where even innocent

children are not spared in pursuit of sexual pleasure. It is a

crime against humanity. In such cases, responsibility on

the shoulders of the courts is more onerous so as to

provide proper legal protection to these children. Their

physical and mental immobility call for such protection.

Children are the natural resource of our country. They are

the country’s future. Hope of tomorrow rests on them. In

our country, a girl child is in a very vulnerable position and

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one of the modes of her exploitation is rape besides other

modes of sexual abuse. These factors point towards a

different approach required to be adopted. It is necessary

.

for the courts to have a sensitive approach when dealing

with cases of child rape. The effect of such a crime on the

mind of the child is likely to be lifelong. A special

safeguard has been provided for children in the

Constitution of India in Article 39. This is what stands laid

44.

r to
down by Hon’ble the Apex Court in State of Rajasthan

versus Om Prakash, (2002) 5 SCC 745.

In Shyam Narain v. State (NCT of Delhi), (2013)

7 SCC 77, the Apex Court held that the youthful

excitement has no place. It should be paramount in

everyone’s mind that, on one 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

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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 Winter”. 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.

45. In this backdrop we proceed to discuss the

testimonies of the child witnesses. But before that the

issue with regard to their competence.

46. Section 118 of the Evidence Act reads as

under:-

“118 Who may testify. –All persons shall be
competent to testify unless the Court considers that
they are prevented from understanding the
questions put to them, or from giving rational
answers to those questions, by tender years,
extreme old age, disease, whether of body or mind,
or any other cause of the same kind.”

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47. In Dattu Ramrao Sakhare v. State of

Maharashtra, (1997 (5) SCC 341), held that: (i) A child

witness if found competent to depose to the facts and

.

reliable one such evidence could be the basis of

conviction. (ii) Even in the absence of oath the evidence of

a child witness can be considered under Section 118 of the

Evidence Act provided that such witness is able to

understand the answers thereof. (iii) The evidence of a

child witness and credibility thereof would depend upon

the circumstances of each case. (iv) 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. (v) 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. (vi) This precaution is necessary

because child witnesses are amenable to tutoring and

often live in a world of make beliefs. (vii) Though child

01/11/2018 22:56:48 :::HCHP
…24…

witnesses are pliable and liable to be influenced easily,

shaped and moulded, but if after careful scrutiny of their

evidence, the Court comes to the conclusion that there is

.

an impress of truth in it, there is no obstacle in the way of

accepting the evidence of a child witness.

48. In Golla Yelugu Govindu vs. State of Andhra

Pradesh, (2008) 16 SCC 769, the Apex Court while

reiterating its earlier view held that:-

“11. 6.Indian Evidence Act, 1872 (in short the
‘Evidence Act’) does not prescribe any particular
age as a determinative factor to treat a witness to
be a competent one. On the contrary, Section 118

of the Evidence Act envisages that all persons shall

be competent to testify, unless the Court considers
that they are prevented from understanding the
questions put to them or from giving rational
answers to these questions, because of tender
years, extreme old age, disease whether of mind,

or any other cause of the same kind. A child of
tender age can be allowed to testify if he has
intellectual capacity to understand questions and
give rational answers thereto. This position was

concisely stated by Brewer J in Wheeler v. United
States (159 U.S. 523). The evidence of a child
witness is not required to be rejected per se; but

the Court as a rule of prudence considers such
evidence with close scrutiny and only on being
convinced about the quality thereof and reliability

can record conviction, based thereon. (See Surya
Narayana v. State of Karnataka (2001) 1 SCC 1.”

49. Recently, in State of Himachal Pradesh v.

Sanjay Kumar alias Sunny, (2017) 2 SCC 51, the Apex

Court held as under:

01/11/2018 22:56:48 :::HCHP

…25…

“30. By no means, it is suggested that whenever
such charge of rape is made, where the victim is a
child, it has to be treated as a gospel truth and the
accused person has to be convicted. We have
already discussed above the manner in which
testimony of the prosecutrix is to be examined and

.

analysed in order to find out the truth therein and

to ensure that deposition of the victim is
trustworthy. At the same time, after taking all due
precautions which are necessary, when it is found
that the prosecution version is worth believing, the

case is to be dealt with all sensitivity that is needed
in such cases. In such a situation one has to take
stock of the realities of life as well. Various studies
show that in more than 80% cases of such abuses,
perpetrators have acquaintance with the victims

who are not strangers. The danger is more within
than outside. Most of the time, acquaintance rapes,
when the culprit is a family member, are not even
reported for various reasons, not difficult to fathom.
The strongest among those is the fear of attracting

social stigma. Another deterring factor which many

times prevent such victims or their families to lodge
a complaint is that they find whole process of
criminal justice system extremely intimidating
coupled with absence of victim protection
mechanism. Therefore, time is ripe to bring about

significant reforms in the criminal justice system as
well. Equally, there is also a dire need to have a
survivor centric approach towards victims of sexual
violence, particularly, the children, keeping in view

the traumatic long lasting effects on such victims.

31. After thorough analysis of all relevant and

attendant factors, we are of the opinion that none
of the grounds, on which the High Court has cleared
the respondent, has any merit. By now it is well

settled that the testimony of a victim in cases of
sexual offences is vital and unless there are
compelling reasons which necessitate looking for
corroboration of a statement, the courts should find
no difficulty to act on the testimony of the victim of
a sexual assault alone to convict the accused. No
doubt, her testimony has to inspire confidence.
Seeking corroboration to a statement before relying
upon the same as a rule, in such cases, would
literally amount to adding insult to injury. The
deposition of the prosecutrix has, thus, to be taken

01/11/2018 22:56:48 :::HCHP
…26…

as a whole. Needless to reiterate that the victim of
rape is not an accomplice and her evidence can be
acted upon without corroboration. She stands at a
higher pedestal than an injured witness does. If the
court finds it difficult to accept her version, it may
seek corroboration from some evidence which lends

.

assurance to her version. To insist on corroboration,

except in the rarest of rare cases, is to equate one
who is a victim of the lust of another with an
accomplice to a crime and thereby insult
womanhood. It would be adding insult to injury to

tell a woman that her claim of rape will not be
believed unless it is corroborated in material
particulars, as in the case of an accomplice to a
crime. 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? The plea about lack of corroboration has
no substance {See Bhupinder Sharma v. State of
Himachal Pradesh, (2003) 8 SCC 551}.

Notwithstanding this legal position, in the instant

case, we even find enough corroborative material
as well, which is discussed hereinabove.”

50. In Radhakrishna Nagesh v. State of Andhra

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

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…27…

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 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 circumstances of
each case. But if a prosecutrix is an adult and
r of full understanding the court is entitled to

base a conviction on her evidence unless the
same is shown to be infirm and not
trustworthy. If the totality of the
circumstances appearing on the record of the
case disclose that the prosecutrix does not

have a strong motive to falsely involve the
person charged, the court should ordinarily
have no hesitation in accepting her evidence.

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.”

51. Thus the children examined in Court were

competent to depose as a witness in the Court.

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…28…

52. When we peruse the testimonies of these

victims, we find them to have fully narrated the incident of

sexual assault committed by the accused.

.

53. Victim No.1 (PW-1), who studies in a

Government Primary School, states that the accused, after

enticing her and Victim No.4, took them to a room where

he committed sexual assault. She understands the

meaning thereof and is categorical about such fact. She

states that the accused inserted his “Peshavwali Jagaha

into her Peshavwali Jagaha”, as a result of which she felt

pain. Accused gave her toffees as also threatened her not

to disclose the incident to her parents, lest he would kill

them. It was only after a few days that she disclosed the

incident to her mother. Accused also committed such type

of acts on other victims (Victim No.2 Victim No.3), which

fact was disclosed to her by the victims. After the incident

was made public, parents of the victims met and the

matter was reported to the police.

54. Veracity of her statement is sought to be

impeached in the cross-examination part of her testimony,

with the suggestion that the insertion of his private part by

the accused in the anal/vagina is not recorded in the FIR.

Well, this cannot be a reason to disbelieve a witness, for

01/11/2018 22:56:48 :::HCHP
…29…

FIR is not a narration of facts or encyclopedia of

prosecution case. It is in conformity with the prosecution

case of the victim having been subjected to sexual assault

.

by the accused. The witness has clarified that on the date

of the incident, sister of the accused was not present at

home and that his mother was in another room. It is not

the case of this witness that she raised hue and cry, so as

to attract attention of someone in the neighbourhood.

55.

One cannot ignore the fact that all of the

witnesses (victims) hail from the rural background and

that too the remotest corner of the State. They hail from

socially and economically backward strata and area of the

society and have taken the courage of speaking the truth

in the Court, of which we have no doubt.

56. Similarly, Victim No.2, who was a student of

third class, states that the accused used to take her to his

room, on the pretext of giving her “Chiji” (toffee). One

day, the accused had penetrative sex with her. He

threatened her not to disclose the incident to her parents,

lest he would kill them. She disclosed the incident to her

mother, when parents of all the victims came together and

reported the matter to the police. The witness was

confronted with her previous statement, wherein the

01/11/2018 22:56:48 :::HCHP
…30…

factum of threats is not so recorded. But then, in our

considered view, this fact would be of not much

consequence, for otherwise, we find her statement to be

.

inspiring in confidence. This mere embellishment or

improvement, as is so argued, does not render the witness

to be unworthy of credence or her statement to be

unbelievable, in the backdrop of the law laid down by the

Supreme Court of India, which we have discussed earlier.

whom she would play.

The credit of this witness is sought to be impeached by

suggesting that there were other children around, with

But then even this, in our

considered view, would not render the earlier part of her

testimony, to the effect that the accused used to commit

sexual assault by enticing her, to be unbelievable.

Suggestion that she did not find any difficulty in urinating

or passing the stool or that she had changed the clothes

would also not render her statement to be unbelievable.

57. We find testimony of Victim No.3 to be on

similar lines that of the earlier two victims and find her

version to be inspiring in confidence for the very same

reasons.

58. Thus, when cumulatively viewed the

testimonies of the victims and as corroborated by their

01/11/2018 22:56:48 :::HCHP
…31…

mothers, squarely point towards the guilt of the accused,

beyond reasonable doubt, and in our considered view the

prosecution to have proved its case by leading clear,

.

cogent, convincing and reliable piece of evidence.

59. We hold the victims to be witnesses, competent

to depose in accordance with law; their testimonies fully

proving the prosecution case; fully corroborated by ocular

and documentary medical evidence and the testimonies of

their mothers who also could depose and narrate the

incident, in accordance with law.

60. 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, irregularity, perversity in

correct and/or complete appreciation of the material so

placed on record by the parties. Hence, the appeal is

dismissed.

Appeal stands disposed of, so also pending

application(s), if any.

( Sanjay Karol ),
Judge

( Sandeep Sharma ),
October 31, 2018(sd) Judge

01/11/2018 22:56:48 :::HCHP

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