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 myfather 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 theparents 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 notindependent 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, areall 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 broaderprobabilities 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
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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 118of 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 wasconcisely 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; butthe Court as a rule of prudence considers such
evidence with close scrutiny and only on being
convinced about the quality thereof and reliabilitycan 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:
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“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, thecase 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 victimswho 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 attractingsocial 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 aboutsignificant 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 viewthe 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 wellsettled 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
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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 totell 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 sexualmolestation 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 injured01/11/2018 22:56:48 :::HCHP
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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 forcorroboration. 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 inthe 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 tobase 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 nothave 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 thatin 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 falsestory 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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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
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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
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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
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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
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