Delhi High Court
State Of Nct Of Delhi vs Dharmender on 23 March, 2018
$~5.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision: 23.03.2018
% CRL.A. 1184/2017
STATE OF NCT OF DELHI ..... Appellant
Through: Ms. Aashaa Tiwari, APP for the State.
versus
DHARMENDER ..... Respondent
Through: Mr. Ashok Kumar Sherawat and Mr.
Shashidhar Mishra, Advocates along
with respondent in person
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
HON'BLE MR. JUSTICE P. S. TEJI
VIPIN SANGHI, J. (ORAL)
1. The State has preferred the present appeal upon grant of leave to
assail the judgment dated 24.03.2017 rendered by the learned Additional
Sessions Judge-01-cum-Presiding Officer [Special Court designated under
the Protection of Children from Sexual Offences Act, 2012 (POCSO Act)],
District South-East, New Delhi in Case No.1806/16, Sessions Case
No.194/2013 arising out of FIR No.351/2013 registered at Police Station -
Kalkaji under Sections 377 IPC and Sections 3 & 6 of the POCSO Act.
2. By the impugned judgment, the Trial Court has acquitted the
respondent accused on the premise that the accused has cast a doubt on the
case of the prosecution and raised a possibility of false implication. The
Trial Court held that there was a possibility of the deposition of the victim
being tutored.
3. The case of the prosecution was that on 15.08.2013, SI Mitha Lal
received DD No. 6PP and reached Ram Dutt Dharmshala, Kalkaji Mandir,
New Delhi. There he met the complainant with his son aged 10 years - the
victim, and the complainant produced the accused Dharmender. The
complainant stated that the accused had committed wrong act with his son in
the night by taking him in a park. The victim was taken to the hospital for
his medical examination, and thereafter, his statement was recorded in the
hospital. The victim stated that he studies in 5th class. He with his mother
had gone to attend a jagran on the same night. His mother came back to her
residence, leaving the victim at the jagran. At about 2.30 AM, the accused
Dharmender - who was also in the jagran and who is the son of his bade
papa (son of the elder brother of the complainant), gave him a cold drink and
took him in the park in front of Kalkaji Mandir. There the accused started
removing the pant of the victim. When the victim objected, the accused
slapped him and removed his pant as well, and then inserted his private part
forcibly in the back of the victim. The accused threatened the victim that if
he disclosed anything to anyone, he would be killed. The victim came
home and told the incident to his parents.
4. On the statement of the victim, the case was registered and
investigated. The accused was also got medically examined. Samples were
collected by the doctor during the examination of accused and the victim,
which were seized. The accused was arrested and produced before the
Court. The statement of the victim was also got recorded before the learned
Magistrate under Section 164 Cr.P.C. Upon completion of investigation, the
charge sheet for the offences punishable under Section 377 IPC and Sections
3 & 6 of the POCSO Act was filed before the Special Designated Court
under the POCSO Act. The Special Court framed charge against the
accused under Section 6 of the POCSO Act to which the accused pleaded
not guilty and claimed trial.
5. To prove the charge, the prosecution examined 13 witnesses in all,
including PW-1 Dr. Sireesh - the doctor who examined the victim; PW-3
Dr. Karthik Krishna - the doctor who examined the accused; PW-9 the
father of the victim, PW-10 the mother of the victim and PW-11 the victim.
The statement of the accused was recorded under Section 313 Cr.P.C. and
the evidence brought on record by the prosecution to prove the charge was
put to the accused.
6. The accused denied all the evidences put to him while recording his
statement under Section 313 Cr.P.C. The accused opted to lead his evidence
in defence and he produced his mother as DW-1. The Trial Court, as
aforesaid, has acquitted the respondent accused, and thus, the present appeal.
7. We are mindful of the principles applicable to examination of a
judgment of acquittal in appeal. In Sheo Swarup & Ors. v. The King-
Emperor, AIR 1934 PC 227 (2), the Privy Council laid down the following
principles that the High Court should follow while examining the judgment
of acquittal:
"... ... ... the High Court should and will always give proper
weight and consideration to such matters as (1.) the views of
the trial judge as to the credibility of the witnesses; (2.) the
presumption of innocence in favour of the accused, a
presumption certainly not weakened by the fact that he has
been acquitted at his trial; (3.) the right of the accused to the
benefit of any doubt; and (4.) the slowness of an appellate
Court in disturbing a finding of fact arrived at by a judge who
had the advantage of seeing the witnesses. To state this,
however, is only to say that the High Court in its conduct of the
appeal should and will act in accordance with rules and
principles well known and recognized in the administration of
justice.
8. The Supreme Court has ever since applied the said principles and
elaborated further on the same from time to time. In Ghurey Lal v. State of
U.P., (2008) 10 SCC 450, after analyzing the earlier decisions, the Supreme
Court in para 70 crystallised the principles that the High Court should follow
if it is going to overrule, or otherwise disturb the Trial Court‟s acquittal.
Para 70 of the said judgment reads:
―70. In light of the above, the High Court and other appellate
courts should follow the well-settled principles crystallised by
number of judgments if it is going to overrule or otherwise
disturb the trial court's acquittal:
1. The appellate court may only overrule or otherwise disturb
the trial court's acquittal if it has ―very substantial and
compelling reasons‖ for doing so.
A number of instances arise in which the appellate court
would have ―very substantial and compelling reasons‖ to
discard the trial court's decision. ―Very substantial and
compelling reasons‖ exist when:
(i) The trial court's conclusion with regard to the facts is
palpably wrong;
(ii) The trial court's decision was based on an erroneous view
of law;
(iii) The trial court's judgment is likely to result in ―grave
miscarriage of justice‖;
(iv) The entire approach of the trial court in dealing with the
evidence was patently illegal;
(v) The trial court's judgment was manifestly unjust and
unreasonable;
(vi) The trial court has ignored the evidence or misread the
material evidence or has ignored material documents like
dying declarations/report of the ballistic expert, etc.
(vii) This list is intended to be illustrative, not exhaustive.
2. The appellate court must always give proper weight and
consideration to the findings of the trial court.
3. If two reasonable views can be reached--one that leads to
acquittal, the other to conviction--the High Courts/appellate
courts must rule in favour of the accused.‖
9. In the aforesaid light, we proceed to examine the issue whether the
impugned judgment calls for interference by us in the present appeal.
Submission of parties
10. The submission of Ms. Tiwari, learned APP is that the impugned
judgment borders on perversity. The learned ASJ has grossly erred in
determination of all the relevant issues in the case. She submits that the
manner in which the learned ASJ has returned the finding that it could not
be established/ proved that the age of the victim was below 12 years is
laconic as the learned ASJ has ignored the evidence brought on record as
well as the law applicable to determination of the said issue. She submits
that the learned ASJ has been casual and cavalier in his approach inasmuch,
as, he did not even invoke the judicial powers vested in him and did not
fulfill the statutory obligation cast on him for determination of the age of the
victim. In this regard, she has drawn the attention of the Court to the
statutory provisions contained in the POCSO Act as well as the Evidence
Act and the Cr PC.
11. Ms. Tiwari has further submitted that while observing that the
statement of the child witness requires corroboration before it could be
relied upon on the ground that a child witness is susceptible to tutoring and
his evidence should be evaluated more carefully with greater
circumspection, the learned ASJ has failed to notice the ample corroboration
of the statement of the victim found on record in the form of the statements
of the parents as well as the medical evidence brought on record. The MLC
of the victim has been completely overlooked as also the testimony of the
examining doctor PW-1.
12. The demeanor of PW-11, the victim at different points of time when
his statements were recorded has also been completely overlooked and
brushed aside by the learned ASJ while evaluating the statement. There is
no basis for the learned ASJ to discredit the statement of the victim PW-11.
13. Ms. Tiwari submits that minor abrasions in the statements of the
witnesses are bound to occur. However, the learned ASJ has failed to
appreciate that the crux of the case of the prosecution remained undented
and, particularly, PW-11 the victim could not be shaken in his cross-
examination. Ms. Tiwari has taken the Court through the statements of all
the relevant witnesses and the MLC of the victim. He has also referred to
the statement of the victim under Section 164 Cr PC and the evidence led in
by the principal of the school where the victim had studied i.e. PW-2.
14. On the other hand, learned counsel for the respondent submits that the
respondent/ accused had been falsely implicated in the case on account of
family dispute between the family of the child‟s parents and his own family.
He submits that upon medical examination of the accused, no injury was
found on his private part which would not be possible if he had penetrated
the child‟s anus as alleged. He further submits that even though the child
victim claimed that he had blood from his anus, no blood stains were found
on his clothes and even the DNA of the semen collected from the victim did
not match the DNA of the accused. Learned counsel places reliance on a
judgment of a Division Bench of this Court in State (GNCTD) v. Mullah
Muzib in Crl LP No.62/2015 decided on 09.02.2015 in support of his
submissions.
Discussion
15. On the aspect of age of the victim, the learned ASJ held that it was not
proved as per law that the age of the victim was below 12 years. We may
observe that the issue as to whether, or not, the age of the victim was below
12 years became relevant since Section 5 of the POCSO Act defines
aggravated penetrative sexual assault, inter alia, to mean "penetrative sexual
assault on a child below 12 years;" (as per clause (m) of Section 5 of the
POCSO Act). The reasoning found in the impugned judgment for the
aforesaid finding with regard to the age of the victim is contained in
paragraph 6 thereof, and the same reads as follows:
―6. As the age of victim is required to be proved below 12
years so the prosecution has called his school record which is
produced by PW2. As per the record produced by this witness,
victim was admitted in school in class 2nd on 18.08.2010 and
his admission was entered in the admission register at serial
no. 11187 and the date of birth of the victim is 16.06.2003. The
witness stated that his mother gave an affidavit in support of
date of birth. The mother has also deposed in this regard that
she gave her affidavit in support of date of birth of her son. As
per rules the birth certificate of the school first attended is
required which has not been produced. No other document or
birth certificate issued by any agency empowered under law to
issue birth certificate has been brought on file. Thus in the facts
the age of the victim below 12 years is not proved as per law.
Reliance may be placed in this regard on the case of Satpal
Singh v. State of Haryana (2010) 8 Supreme Court Cases 714.‖
16. The first message with regard to the incident was received vide DD
No.6 dated 15.08.2013 (Ex.PW-6/A) at 03:10 A.M. on the basis of a
wireless message, to the effect that opposite Kalkaji Mandir, near Ram Piao
in the parking of Kalkaji Metro Station, one boy has been raped.
17. On the statement of the victim, the FIR was registered vide FIR
No.351/2013 dated 15.08.2013 at PS - Kalkaji. In the said FIR, the age of
the victim was disclosed as 10 years. The victim was got medically
examined vide medical examination report (Ex.PW-1/A) on the date of the
incident, i.e. 15.08.2013 at 05:12 A.M. The doctor had filled the particulars
of the victim, including his age as a 10-year-old male, who had been brought
with history of sexual abuse on 15.08.2013 at 02:30 A.M.
18. The statement of the victim under Section 164 Cr.P.C. was recorded
on 12.09.2013, wherein in response to the query raised by the learned
Magistrate, the victim gave his age as 10 years. He disclosed that he studies
in 5th class. The learned Magistrate after initial questioning of the victim
recorded his opinion that the witness understood the answers and is capable
of giving rational answers. The victim narrated the entire incident before the
learned Magistrate.
19. The statement of the victim was recorded before the Court as PW-11.
In his statement recorded before the Court (which was recorded on
09.02.2015), the victim disclosed his age as 11 years, studying in 3 rd class.
The learned ASJ after posing initial queries recorded his satisfaction with
regard to the intelligence of the child and the reason for dispensing with
administration of oath to him in the following words:
" I have satisfied myself that the child is intelligent. He
understands the questions and can answer them in appropriate
manner. I am convinced that he is a competent witness.
However, he is only 11 years of age and therefore cannot be
expected to understand the purpose and consequences of oath."
20. The child victim was cross-examined at length on behalf of the
accused and no suggestion whatsoever was given to him that he was not a
child of 10 years on the date of the incident, or 11 years when his testimony
was recorded and as disclosed by him. It was not suggested to him that he
was over 12 years of age on the date of the incident, much less that he was a
major on the date of the incident.
21. The mother and the father of the victim, as aforesaid, were also
examined on behalf of the prosecution as PW-10 and PW-9 respectively.
Pertinently, neither of them was cross-examined on the aspect of the age of
the victim being 10 years on the date of the incident. It was not even
suggested to either of them that the victim was more than 12 years of age, or
18 years of age on the date of the incident.
22. Even the doctor (PW-1) - who stated in his statement that on
15.08.2013, the patient/ victim aged about 10 years was brought to the
casualty of AIIMS by the Constable and medically examined by him,
whereafter he prepared the detailed MLC (Ex.PW-1/A), was not cross-
examined on the aspect of the age of the victim.
23. The evidences/ questions, inter alia, put to the respondent accused
while recording his statement under Section 313 Cr PC, and the
corresponding answers given by the accused were the following:
"Q1. It is in evidence against you that as per PW1 on
15.08.2013 victim PW11 aged about 10 years was brought to
the casualty of AIIMS and he examined him and prepared the
MLC Ex.PW1/A. What do you have to say?
A. I do not know.
x x x x x x x x x
Q3. It is in evidence against you that as per PW2 PW11 was
admitted in SDMC co-ed primary school Kalkaji B Block in 2nd
class on 11.08.2010 and as per record his date of birth is
16.06.2003 and she issued a certificate under his signatures as
Ex.PW2/D in this regard.
A. I do not know.
x x x x x x x x x
Q.26 Why this case against you?
A. There was a property dispute between my father and
father of victim and my father was sent to judicial custody by
the father of victim regarding the dispute over the property.
x x x x x x x x x
Q.28 Do you want to say anything else?
A. I have been falsely implicated by the police at the
instance of father of the victim.‖
24. Thus, even while recording his statement under Section 313 Cr.P.C.,
the accused, in response to queries No. 1 & 3, which specifically brought out
the age of the victim was 10 years on 15.08.2013, and that his date of birth
16.06.2003, did not deny the same. He merely responded by showing his
ignorance. He responded "I do not know". This stand taken by the accused
has to be viewed in the light of the fact that the accused is the elder first
cousin of the victim.
25. Thus, no question arose during the proceedings before the Special
Court whether the victim was a child, or not, or whether the victim was a
child below 12 years, or not. Pertinently, the prosecution led in evidence
PW-2, i.e. the Principal of the primary school, wherein the victim was
admitted. She produced the original admission register. The relevant entry
of admission in the record of the school was exhibited as Ex.PW-2/C. As
per the said register, the victim was admitted in the said school in class 2 on
18.08.2010 vide serial No.11187. She also produced the admission form
regarding the admission of the victim in the school. The application form
was exhibited as Ex.PW-2/A. She also produced the affidavit given by the
mother of the victim PW-10 showing his date of birth. Copy of the affidavit
of the mother was exhibited as Ex.PW-2/B. She also brought the original
admission register with her. He passed out from the school in 5th class on
24.12.2013 after the incident in question. As per the school record, the date
of birth of the victim was 16.06.2003. The only relevant question put to this
witness in her cross-examination was that the mother of the victim had not
given any date of birth certificate issued by the MCD, or any Government
agency at the time of his admission in the school.
26. The birth certificate of a child may not have been got made; it may
not be available/ preserved, or; it may not have been led in evidence in a
given case. In either of these situations, can it be said that the age of the
victim would be presumed to be above 12 years or 18 years, even though the
other circumstances contra-indicate such an assumption? In our view, no
such presumption can be drawn and the Court would have to examine the
circumstances and evidence in each case to arrive at its own conclusion on
the aspect of age of the victim.
27. The learned ASJ has held that the age of the victim has not been
proved to be below 12 years on the premise that the victim‟s birth certificate
issued by an agency empowered under the law to issue the same has not
been brought on record. No other similar document has been placed on
record.
28. Section 35 of the Indian Evidence Act, 1872 (the Evidence Act) states
that "An entry in any public or other official book, register or record or an
electronic record, stating a fact in issue or relevant fact, and made by a
public servant in the discharge of his official duty, or by any other person in
performance of a duty specially enjoined by the law of the country in which
such book, register, or record or an electronic record is kept, is itself a
relevant fact‖.
29. As noticed hereinabove, PW-2 the school principal produced the
admission register Ex.PW-2/C; the school application form Ex.PW-2/A and
the copy of the affidavit of the mother of the victim Ex.PW-2/B, on the basis
of which the date of birth of the victim in the school record was recorded
16.06.2013 when the victim/ child was admitted in Class-II on 18.08.2010.
Pertinently, the incident in question is of 15.08.2013. Firstly, the affidavit
had been given by the mother of the victim/child and not by a stranger who
may not be aware of his date of birth. Secondly, the affidavit and the
application form were processed and acted upon by the school, and the date
of the birth of the victim/ child recorded in the school record by the school
authorities in the discharge of the official duty. Thirdly, the date of birth of
the child was disclosed by the mother as 16.07.2013 much before the
incident took place and thus, there was no occasion for the mother to falsely
declare the date of birth of her child/ victim.
30. The learned ASJ has placed reliance on the judgment of the Supreme
Court in Satpal Singh Vs. State of Haryana, (2010) 8 SCC 714, in support
of his aforesaid conclusion. A reading of the said judgment shows that the
learned ASJ has applied the said decision mechanically and without
appreciation thereof. In fact, on our reading we find that the said decision
supports the case of the prosecution in the present case. Satpal Singh
(supra) was a case of rape of a girl while she had gone with her brother to
the fields for collecting cattle fodder. The prosecutrix had raised an alarm
and upon hearing the same, her brother came running to the place of
occurrence, by when the appellant/ convict had escaped from the scene. The
Trial Court convicted the appellant and the High Court dismissed his appeal.
However, his sentence was reduced by the High Court from 7 years to 5 year
Rigorous Imprisonment, apart from fine for the offence under Section 376 of
the IPC. Before the Supreme Court, the appellant raised primarily two
issues. The first was that the making of the FIR was belated and, secondly,
that the prosecutrix was a major, and not minor at the time of the incident.
We are concerned only with the second aspect in the present case. We
consider it appropriate to reproduce the relevant extract from the judgment
of the Supreme Court in Satpal Singh (supra) dealing with the said aspect.
The same reads as follows:
―19. So far as the issue as to whether the prosecutrix was a
major or minor, it has also been elaborately considered by the
courts below. In fact, the school register has been produced
and proved by the Headmaster, Mohinder Singh (PW 3).
According to him, Rajinder Kaur (PW 15), the prosecutrix, was
admitted in Government School, Sharifgarh, District
Kurukshetra on 2-5-1990 on the basis of school leaving
certificate issued by Government Primary School, Dhantori. In
the school register, her date of birth has been recorded as 13-2-
1975. The question does arise as to whether the date of birth
recorded in the school register is admissible in evidence and
can be relied upon without any corroboration. This question
becomes relevant for the reason that in cross-examination, Shri
Mohinder Singh, Headmaster (PW 3), has stated that the date
of birth is registered in the school register as per the
information furnished by the person/guardian accompanying
the students, who comes to the school for admission and the
school authorities do not verify the date of birth by any other
means.
20. A document is admissible under Section 35 of the Evidence
Act, 1872 (hereinafter called as ―the Evidence Act‖) being a
public document if prepared by a government official in the
exercise of his official duty. However, the question does arise
as to what is the authenticity of the said entry for the reason
that admissibility of a document is one thing and probity of it is
different.
21. In State of Bihar v. Radha Krishna Singh [(1983) 3 SCC
118 : AIR 1983 SC 684] this Court dealt with a similar
contention and held as under:
―40. ... Admissibility of a document is one thing and its
probative value quite another--these two aspects cannot be
combined. A document may be admissible and yet may not
carry any conviction and weight or its probative value may be
nil. ... (SCC p. 138, para 40)
***
53. ... where a report is given by a responsible officer, which is
based on evidence of witnesses and documents and has a
statutory flavour in that it is given not merely by an
administrative officer but under the authority of a statute, its
probative value would indeed be very high so as to be entitled
to great weight. (SCC p. 143, para 53)
***
145. (4) The probative value of documents which, however
ancient they may be, do not disclose sources of their
information or have not achieved sufficient notoriety is
precious little. (SCC p. 171, para 145)‖
22. Therefore, a document may be admissible, but as to whether
the entry contained therein has any probative value may still be
required to be examined in the facts and circumstances of a
particular case. The aforesaid legal proposition stands fortified
by the judgments of this Court in Ram Prasad Sharma v. State
of Bihar [(1969) 2 SCC 359] ; Ram Murti v. State of
Haryana [(1970) 3 SCC 21 : 1970 SCC (Cri) 371 : AIR 1970
SC 1029] ; Dayaram v. Dawalatshah [(1971) 1 SCC 358 : AIR
1971 SC 681] ; Harpal Singh v. State of H.P. [(1981) 1 SCC
560 : 1981 SCC (Cri) 208 : AIR 1981 SC 361] ; Ravinder Singh
Gorkhi v. State of U.P. [(2006) 5 SCC 584 : (2006) 2 SCC (Cri)
632] ; Babloo Pasi v. State of Jharkhand [(2008) 13 SCC 133 :
(2009) 3 SCC (Cri) 266] ; Desh Raj v. Bodh Raj [(2008) 2 SCC
186] and Ram Suresh Singh v. Prabhat Singh [(2009) 6 SCC
681 : (2010) 2 SCC (Cri) 1194] . In these cases, it has been
held that even if the entry was made in an official record by the
official concerned in the discharge of his official duty, it may
have weight but still may require corroboration by the person
on whose information the entry has been made and as to
whether the entry so made has been exhibited and proved. The
standard of proof required herein is the same as in other civil
and criminal cases. Such entries may be in any public document
i.e. school register, voters list or family register prepared under
the rules and regulations, etc. in force, and may be admissible
under Section 35 of the Evidence Act as held in Mohd. Ikram
Hussain v. State of U.P. [AIR 1964 SC 1625 : (1964) 2 Cri LJ
590] and Santenu Mitra v. State of W.B. [(1998) 5 SCC 697 :
1998 SCC (Cri) 1381 : AIR 1999 SC 1587]
23. There may be conflicting entries in the official document
and in such a situation, the entry made at a later stage has to be
accepted and relied upon. (Vide Durga Singh v. Tholu [AIR
1963 SC 361] .)
24. While dealing with a similar issue in Birad Mal
Singhvi v. Anand Purohit[1988 Supp SCC 604 : AIR 1988 SC
1796] , this Court held as under: (SCC p. 619, para 15)
―15. ... To render a document admissible under Section 35,
three conditions must be satisfied, firstly, entry that is relied on
must be one in a public or other official book, register or
record; secondly, it must be an entry stating a fact in issue or
relevant fact; and thirdly, it must be made by a public servant
in discharge of his official duty, or any other person in
performance of a duty specially enjoined by law. An entry
relating to date of birth made in the school register is relevant
and admissible under Section 35 of the Act, but entry regarding
to the age of a person in a school register is of not much
evidentiary value to prove the age of the person in the absence
of the material on which the age was recorded.‖
25. A Constitution Bench of this Court, while dealing with a
similar issue in Brij Mohan Singh v. Priya Brat Narain
Sinha [AIR 1965 SC 282] , observed as under: (AIR p. 286,
para 18)
―18. ... The reason why an entry made by a public servant in a
public or other official book, register, or record stating a fact in
issue or a relevant fact has been made relevant is that when a
public servant makes it himself in the discharge of his official
duty, the probability of its being truly and correctly recorded is
high. That probability is reduced to a minimum when the public
servant himself is illiterate and has to depend on somebody else
to make the entry. We have therefore come to the conclusion
that the High Court is right in holding that the entry made in an
official record maintained by the illiterate chowkidar, by
somebody else at his request does not come within Section 35 of
the Evidence Act.‖
26. In Vishnu v. State of Maharashtra [(2006) 1 SCC 283 :
(2006) 1 SCC (Cri) 217] while dealing with a similar issue, this
Court observed that very often parents furnish incorrect date of
birth to the school authorities to make up the age in order to
secure admission for their children. For determining the age of
the child, the best evidence is of his/her parents, if it is
supported by unimpeccable documents. In case the date of birth
depicted in the school register/certificate stands belied by the
unimpeccable evidence of reliable persons and
contemporaneous documents like the date of birth register of
the municipal corporation, government hospital/nursing home,
etc., the entry in the school register is to be discarded.
27. Thus, the entry in respect of age of the child seeking
admission, made in the school register by semi-literate
chowkidar at the instance of a person who came along with the
child having no personal knowledge of the correct date of birth,
cannot be relied upon.
28. Thus, the law on the issue can be summarised that the entry
made in the official record by an official or person authorised
in performance of an official duty is admissible under Section
35 of the Evidence Act but the party may still ask the
court/authority to examine its probative value. The authenticity
of the entry would depend as to on whose
instruction/information such entry stood recorded and what
was his source of information. Thus, entry in school
register/certificate requires to be proved in accordance with
law. Standard of proof for the same remains as in any other
civil and criminal case.
29. In case, the issue is examined in the light of the aforesaid
settled legal proposition, there is nothing on record to
corroborate the date of birth of the prosecutrix recorded in the
school register. It is not possible to ascertain as to who was the
person who had given her date of birth as 13-2-1975 at the time
of initial admission in the primary school. More so, it cannot be
ascertained as who was the person who had recorded her date
of birth in the primary school register. More so, the entry in
respect of the date of birth of the prosecutrix in the primary
school register has not been produced and proved before the
trial court. Thus, in view of the above, it cannot be held with
certainty that the prosecutrix was a major. Be that as it may,
the issue of majority becomes irrelevant if the prosecution
successfully establishes that it was not a consent case.‖
31. From the above extract, it would be seen that in Satpal Singh (supra),
the evidence led by the prosecution to establish the date of birth/ age of the
prosecutrix on the date of the incident was the school register of the
Government school, wherein she was admitted on 02.05.1990. The
prosecutrix had been admitted on the basis of the school leaving certificate
Issued by the Government primary school. In the said register, her date of
birth had been recorded as 13.02.1975. The Supreme Court posed the
question whether the date of birth recorded in the school register is
admissible in evidence and can be relied upon without any corroboration.
This question arose since the Headmaster of the Government school had
stated that the date of birth was registered in the school register as per the
information furnished by the parents/ guardian accompanying the students
who came to the school for admission, and the school authorities did not
verify the date of birth by any other means. The Supreme Court referred to
Section 35 of the Evidence Act. It observed that admissibility of a
document is one thing, and probity of the entry made in the said document is
a different thing. A document may be admissible but as to whether the entry
contained therein has any probative value may still required to be examined
in the facts & circumstances of a particular case. It was held that even if an
entry is made by an official in the discharge of his official duty, it may have
weight but still may require corroboration by the person on whose
information the entry has been made and as to whether the entry was made
has been exhibited and proved.
32. The Supreme Court referred to Birad Mal Singhvi (supra), wherein it
was held that an entry relating to date of birth made in the school register is
relevant and admissible under Section 35 of the Act, but entry regarding the
age of a person in a school register is of not much evidentiary value to prove
the age of the person in the absence of the material on which the age was
recorded.
33. The rationale behind making the entry made by a public servant in a
public or other official register or record as a relevant fact was noticed in
Brij Mohan Singh (supra). While doing so, the Supreme Court rejected the
reliance placed on the entry made in the school register with regard to the
date of birth, since the same had been made by an illiterate chowkidar which
could not be relied upon. The entry made in the school register with regard
to the date of birth provided by the parents could be disregarded, if it stands
belied by unimpeachable evidence of reliable persons and contemporaneous
documents like the date of birth register of a municipal corporation;
government hospital/ nursing home, etc.
34. Pertinently, in the present case, there is no evidence to the contrary
led by the defence to show that the date of birth of the child/ victim recorded
in the school register as 16.06.2003 was not correct. This omission becomes
more significant in view of the fact that the victim and the accused are first
cousins and the victim/ his family would have had some idea, if not
complete knowledge, of the date/ year of birth of the victim. As observed
by the Supreme Court in paragraph 28 extracted above, the entry made in
the official record by an official or person authorized, in performance of an
official duty is admissible under Section 35 of the Evidence Act but the
party may still ask the court/authority to examine its probative value. In the
present case, neither during the cross-examination of the prosecution
witnesses, including PW-2 - the Principal of the school where the victim
studied, nor in the cross-examination of the parents, i.e. PW-9 and PW-10,
nor in the cross-examination of the victim, any challenge was raised with
regard to the entry regarding the date of birth of the victim made in the
school record. The respondent accused did not lead any independent
evidence to raise a doubt with regard to the entry made in the school record
of the date of birth of the victim.
35. The learned ASJ has observed in the paragraph 6 of the impugned
judgment, which is extracted hereinabove, that "as per rules the birth
certificate of the school first attended is required which has not been
produced". The learned ASJ has made no reference to any specific "rule" in
this regard. However, we take it, that the learned ASJ had Rule 12 of the
Juvenile Justice (Care & Protection of Children) Rules 2007 (JJ Rules for
short) in his mind.
36. Firstly, we may observe that the Juvenile Justice (Care & Protection
of Children) Act 2015 (JJ Act for short) and the JJ Rules have been framed
with the object of "catering to the basic needs through proper care,
protection, development, treatment, social reintegration, by adopting a
child-friendly approach in the adjudication and disposal of matters in the
best interest of children and for their rehabilitation through processes
provided, and institutions and bodies established, ... ... ..." (emphasis
supplied) (See preamble to the JJ Act). The expression "child-friendly" is
defined in Section 2(15) of the JJ Act to mean "any behavior, conduct,
practice, process, attitude, environment or treatment that is humane,
considerate and in the best interest of the child;". Under Section 7, the
Juvenile Justice Board constituted under the JJ Act is obliged to observe its
rules in regard to transaction of business, and to ensure that all procedures
are child-friendly. The whole approach adopted by the authorities under the
JJ Act, in the administration of the said Act, is to lean in favour of the
accused/ juvenile in conflict with law. It is in this context that Rule 12 of
the JJ Rules - which prescribes the procedure to be followed in
determination of the age of the juvenile in conflict with law, has to be
understood and applied. The said Rules, insofar, as it is relevant reads as
follows:
―12. Procedure to be followed in determination of Age.―
(1) In every case concerning a child or a juvenile in conflict
with law, the court or the Board or as the case may be the
Committee referred to in rule 19 of these rules shall determine
the age of such juvenile or child or a juvenile in conflict with
law within a period of thirty days from the date of making of the
application for that purpose.
(2) The court or the Board or as the case may be the Committee
shall decide the juvenility or otherwise of the juvenile or the
child or as the case may be the juvenile in conflict with law,
prima facie on the basis of physical appearance or documents,
if available, and send him to the observation home or in jail.
(3) In every case concerning a child or juvenile in conflict with
law, the age determination inquiry shall be conducted by the
court or the Board or, as the case may be, the Committee by
seeking evidence by obtaining -
(a) (i) the matriculation or equivalent certificates, if
available; and in the absence whereof;
(ii) the date of birth certificate from the school (other
than a play school) first attended; and in the absence
whereof;
(iii) the birth certificate given by a corporation or a
municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of clause (a)
above, the medical opinion will be sought from a duly
constituted Medical Board, which will declare the age of the
juvenile or child. In case exact assessment of the age cannot be
done, the Court or the Board or, as the case may be, the
Committee, for the reasons to be recorded by them, may, if
considered necessary, give benefit to the child or juvenile by
considering his/her age on lower side within the margin of one
year.
and, while passing orders in such case shall, after taking into
consideration such evidence as may be available, or the
medical opinion, as the case may be, record a finding in respect
of his age and either of the evidence specified in any of the
clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b)
shall be the conclusive proof of the age as regards such child or
the juvenile in conflict with law.‖
Pertinently, in cases falling under sub-rule (3)(b), the Court/ Board/
Committee shall, for reasons to be recorded, give benefit to the child or
juvenile by considering his/ her age on the lower side within the margin of
one year.
37. No doubt, the Supreme Court in Mahadeo (supra) held that the same
yardstick could be followed by the Court for the purpose of ascertaining the
age of a victim, as is prescribed in Rule 12 of the JJ Rules, however, in our
considered view, the said observations of the Supreme Court have to be
viewed, firstly, in the factual context in which they were made, and also
while keeping in mind the fact that stricto sensu Rule 12 of the JJ Rules is
framed with a view to provide protection to the accused who may be
juveniles, and not with a view to cause prejudice to a victim of a crime who
may be a minor.
38. In Mahadeo (supra), the appellant was convicted of the offence
punishable under Section 363, 506 & 376 IPC. The High Court dismissed
the appeal of the appellant. The two Courts affirmed the finding of fact that
the prosecutrix was 15 years and 4 months of age when the offences were
committed. The said findings were premised on the evidence led by the
prosecution in the form of school leaving certification of the prosecutrix
proved on record by the Headmistress of the school, which disclosed her
date of birth 20.05.1990 as also the admission form and the transfer
certificate issued by the primary school where the prosecutrix had studied,
led in evidence by the Headmaster of the primary school. In the records of
both the schools the date of birth of the prosecutrix was recorded as
20.05.1990. On behalf of the appellant, it was argued that the prosecutrix
was not below the age of 18 years at the time of occurrence. In this regard,
the appellant relied upon the evidence of doctor PW-8 who examined the
prosecutrix. She deposed that the age of the prosecutrix could have been
between 17 to 25 years at the relevant time. The Trial Court rejected the
reliance placed by the defence on the version of PW-8, since the same was
not premised on scientific examination of the prosecutrix by conduct of tests
such as the ossification test. The mere opinion of PW-8 - the doctor, could
not be acted upon. The Supreme Court agreed with the said finding of the
Trial Court and in that context made reference to Rule 12 of the JJ Rules.
The Supreme Court in the light of Rule 12(3)(b) observed that: ―only in the
absence of alternative methods described under Rules 12(3)(a)(i) to (iii), the
medical opinion can be sought for. In the light of such a statutory rule
prevailing for ascertainment of the age of a juvenile, in our considered
opinion, the same yardstick can be rightly followed by the courts for the
purpose of ascertaining the age of a victim as well.‖
39. Pertinently, in Mahadeo (supra) as well - like in the present case, the
birth certificate of the prosecutrix had not been produced. What had been
produced were the school records from the primary school and the
Daneshwar Vidyalaya which recorded the date of birth of the prosecutrix
consistently as 20.05.1990. The Supreme Court accepted the said evidence
as good evidence to prove the minority of the prosecutrix as on the date of
the offence. Thus, though the priority/ procedure laid down in Rule 12 of
the JJ Rules would be attracted to determine the age of the victim/
prosecutrix, the tendency to lean in favour of the accused (in the case of a
juvenile in conflict with the law) would, in such situations, be to lean in
favour of the minority of the victim/ prosecutrix while determining the age
of the victim/ prosecutrix.
40. In our view, in the context of the evidence led by the prosecution,
there was no occasion for the learned ASJ to hold that the birth certificate of
the school first attended not having been produced by the prosecution, the
age of the victim could not be said to have been proved to be below 12 years
of age on the date of the incident, and to ignore the evidence of the school
record produced by the prosecution. The approach of the learned ASJ in
disbelieving the prosecution evidence with regard to the age of the victim on
the date of occurrence is completely laconic, to say the least. There was no
occasion for the learned ASJ not to believe the fact that the victim was
below 12 years of age, i.e. he was only 10 years of age on the date of the
incident.
41. A fact is said to be proved when after considering the matters before
it, the Court either believes it to exist, or considers its existence so probable
that a prudent man, ought under the circumstances of the particular case, to
act upon the supposition that it exists. We believe the date of birth of the
victim to be 16.07.2003 in the light of the following circumstances:
(i) The date of birth of the victim was disclosed by the mother of the
victim in her affidavit Ex.PW-2/B contemporaneously when she
sought admission for the victim in the school on 18.08.2010 vide
serial No.11187 in Class-2;
(ii) In the year 2010, there was no reason or occasion for PW-10 to swear
a false affidavit, with regard to the date or year of birth of her child;
(iii) The entry of date of birth as 16.06.2003 was made by the school in its
record in the normal course in an official book/ register in the
discharge of the duty of the school;
(iv) The admission of the victim was made in the year 2010 in Class-2.
Admission to Class-2 at the age of 7 years (considering that the date
of birth of the victim was disclosed as 16.07.2003 by the mother PW-
10), even otherwise, was age appropriate;
(v) No material or evidence had been brought on record on behalf of the
defence to raise a doubt in the mind of the Court with regard to the
date of birth of the victim as disclosed in the school record;
(vi) The accused did not raise a doubt with regard to the date of birth and
age of the victim during cross-examination of either the parents of the
victim, or the victim himself, or even the school Principal who
produced the record, even though he is closely related - being the first
cousin of the victim;
(vii) Even when the case of the prosecution along with the evidence
brought on record was put to the accused while recording his
statement under Section 313 Cr.P.C., and the date of birth of the
victim was squarely put to him as 16.06.2003 on the basis of the
school record. The accused did not deny the date of birth and the age
of the victim, but merely responded by feigning ignorance. His
response to queries 1 & 3 raised under Section 313 Cr.P.C. have to be
viewed in the context that he is the elder first cousin of the victim;
(viii) The age of the victim was disclosed as 10 years at the time of
commission of the offence from the very beginning, i.e. when the FIR
was registered on 15.08.2013 (on the date of the occurrence itself) -
which has the quality of spontaneity, when the child/ victim was
medically examined by the doctor on 15.08.2013; when the statement
of the child was recorded by the learned Magistrate under Section 164
Cr.P.C. on 12.09.2013 and, again when statement of the child was
recorded before the Court on 09.02.2015. As aforesaid, there was no
challenge raised on behalf of the defence to the date of birth/ age of
the victim, as disclosed by him at any point of time.
42. Even if one were to accept that there was good reason for the learned
ASJ to consider the date of birth of the victim as not proved, it was the
obligation of the learned ASJ under Section 34(2) of the POCSO Act to
determine the said question after satisfying itself about the age of the victim.
The learned ASJ was empowered, and ought to have exercised the
jurisdiction vested in him under Section 311 of the Code and Section 165 of
the Evidence Act, to get the victim medically examined. Even Rule 12 of
the JJ Rules also requires the adoption of that course of action.
43. Recently, we had occasion to consider another decision of the same
learned ASJ in a case relating to kidnapping and rape of a girl child aged
about 8-9 years in the case of The State Govt of NCT of Delhi Vs. Sonu
Kumar, Crl.Appeal No.1137/2017 decided on 07.03.2018. In the said case
as well, the learned ASJ held that the age of the prosecutrix as being a minor
was not proved. We set aside the said judgment of the learned ASJ and in
relation to the finding returned by the learned ASJ on the age of the
prosecutrix, we, inter alia, observed as follows:
―23. The reasoning adopted by the learned ASJ to conclude
that the minority of the prosecutrix on the date of the incident
was not established, to say the least, borders on perversity. The
learned ASJ, observes in para 6 of the impugned judgment that
the prosecution had not examined any witness to prove the date
of birth of the victim, nor her birth certificate issued by any
authority empowered to issue the same had been produced. He
observes that while deposing in Court, the prosecutrix had
given her age as 11 years and considering her age, the Court
examined her without administering oath. The father of the
victim PW-9 had also not given her date of birth.
Consequently, the learned ASJ came to the conclusion that ―It
cannot be said that the age of the victim below 18 years has
been proved by the prosecution as per law‖.
24. The aforesaid reasoning adopted by the learned ASJ
shocks the conscience of this Court in the factual background of
this case.
x x x x x x x x x
27. The approach of the learned ASJ, that because no birth
certificate or other reliable document of the date of birth of the
prosecutrix had been led in evidence to establish the age of the
prosecutrix, it could not be accepted that she was below the age
of 18 years on the date of occurrence is shockingly absurd. The
prosecutrix had given her age as 9 years. She had disclosed in
her statement recorded under Section 164 Cr PC that she was
studying in third class. Neither the learned MM recording her
statement under Section 164 Cr PC, nor the Court while
recording her testimony, firstly, on 07.07.2012 doubted her
claim that she was 9 years and 11 years of age respectively
when the said statements were recorded. Even the doctor while
preparing the medical report of the prosecutrix upon her
examination vide Ex. PW-11/A recorded the age of the
prosecutrix as 9 years and did not raise any question or doubt
about the said claim.
28. In this background, the learned ASJ had no cause to
doubt the age of the prosecutrix as on the date of occurrence to
be 18 years or more. Pertinently, the learned ASJ does not
state that the prosecutrix appeared to be 18 years, or more, on
the date of occurrence in her physical appearance. In a given
case, where the age of the prosecutrix may be bordering 18
years, and on physical appearance it is not obvious that the
prosecutrix was a minor on the date of the occurrence, the
Court may, with a view to satisfy itself, direct the conduct of
medical examination of the prosecutrix to ascertain her age, or
to call for other evidence in exercise of its power under Section
311 Cr PC read with Section 165 of the Indian Evidence Act.
29. In Jamatraj Kewalji Govani v. State of Maharashtra,
AIR 1968 SC 178, the Supreme Court held that Section 540 of
Code of Criminal Procedure, 1898 (which corresponds to
Section 311 of Code of Criminal Procedure, 1973) read with
Section 165 of the Evidence Act confers wide jurisdiction on the
Court, with no limitation on its power to summon any person as
a witness, or examine any person present in Court although not
summoned, or recall or reexamine a witness already examined.
The Supreme Court in this decision, inter alia, held:
―10. Section 540 is intended to be wide as the
repeated use of the word ‗any' throughout its
length clearly indicates. The section is in two
parts. The first part gives a discretionary power
but the latter part is mandatory. The use of the
word 'may' in the first part and of the word
'shall' in the second firmly establishes this
difference. Under the first part, which is
permissive, the court may act in one of three
ways: (a) summon any person as a witness, (b)
examine any person present in court although
not summoned, and (c) recall or re-examine a
witness already examined. The second part is
obligatory and compels the Court to act in these
three ways or any one of them, if the just decision
of the case demands it. As the section stands there
is no limitation on the power of the Court arising
from the stage to which the trial may have
reached, provided the Court is bona fide of the
opinion that for the just decision of the case, the
step must be taken. It is clear that the
requirement of just decision of the case does not
limit the action to something in the interest of the
accused only. The action may equally benefit the
prosecution. There are, however, two aspects of
the matter which must be distinctly kept apart, The
first is that the prosecution cannot be allowed
to rebut the defence evidence unless the prisoner
brings forward something suddenly and
unexpectedly. ... ...‖. (emphasis supplied)
30. Similarly, in Mohanlal Shamji Soni v. Union of India &
Anr., AIR 1991 SC 1346, the Supreme Court observed in para
27 of the decision as follows:
―27. The principle of law that emerges from the
views expressed by this Court in the above
decisions is that the criminal court has ample
power to summon any person as a witness or
recall and re-examine any such person even if the
evidence on both sides is closed and the
jurisdiction of the court must obviously be
dictated by exigency of the situation, and fair play
and good sense appear to be the only safe guides
and that only the requirements of justice
command the examination of any person which
would depend on the facts and circumstances of
each case‖. (emphasis supplied)
31. But this course of action would not even be called for to
be adopted, when the prosecutrix is so small and there is no
reason to raise a doubt with regard to the age of the
prosecutrix on the date of the occurrence - either by the
defence, or on the physical appearance of the prosecutrix
before the Court.
32. The finding that the age of the victim/ prosecutrix could
not be said to be below 18 years being completely perverse is
set aside.‖
44. The manner in which the learned ASJ has proceeded to deal with the
matter exhibits a completely casual, cavalier and insensitive approach on his
part. Offences relating to sexual abuse of children are amongst most
heinous crimes. It is for this reason that the Parliament has framed the
special law, namely, the POCSO Act, since the provisions contained in the
IPC were found to be not adequate enough to deal with such like offences.
The gravity of such offence, as perceived by the society and the law makers
can be gauged from the severity of the punishment prescribed in the POCSO
Act. Considering the fact that the POCSO Act relates to child victim, the
law also raises presumptions under Sections 29 and 30 of the said Act
against the accused - which demonstrates a distinct shift from the
fundamental criminal jurisprudence that every person accused of an offence
is assumed to be innocent unless proven guilty. We are dismayed that the
learned ASJ has shown complete lack of sensitivity in dealing with the
present case. On this aspect we are not yet finished and our following
discussion will further demonstrate the reasons for our aforesaid conclusion.
45. The learned ASJ evaluated the testimony of the victim PW-11 in the
background that "a child witness is susceptible to tutoring and his evidence
must be evaluated more carefully and with greater circumspection and that
evidence of a child witness must find adequate corroboration before it is
relied upon". On this aspect, we consider it appropriate to notice some of
the decisions of the Supreme Court.
46. We may first notice Rameshwar v. State of Rajasthan, 1952 (3) SCR
377. In this case, the appellant was charged with committing rape of an
eight year old girl. He was convicted by the Assistant Sessions Judge and
sentenced. In appeal before the Sessions Judge, the learned Sessions Judge
held that the evidence was sufficient for "moral conviction" but fell short of
"legal proof" because, in his opinion, the law requires corroboration of the
story of the prosecution in such cases as a matter of precaution, and the
corroborative evidence - in so far as it sought to connect the appellant with
the crime, was legally insufficient though morally enough. Accordingly, the
accused was acquitted giving him the benefit of the doubt. The State
appealed to the High Court and the High Court held that the law requires
corroboration in such cases, but held that the statements made by the
prosecutrix to her mother was legally admissible as corroboration, and
considering that to be sufficient, the High Court set aside the acquittal and
restored the conviction and sentence of the appellant.
47. The Supreme Court, inter alia, considered the question whether the
law requires corroboration of the statement of the victim/ prosecutrix in such
like cases. The Supreme Court observed that the Evidence Act does not
prescribe that the statement of the victim/ prosecutrix in the case of rape
requires corroboration. The Supreme Court referred to Section 114 (b) of
the Evidence Act - which states that the Court may presume that an
accomplice is unworthy of credit unless he is corroborated in material
particulars, and Section 133 of the Evidence Act - which states that an
accomplice shall be a competent witness against an accused person, and a
conviction is not illegal merely because it proceeds upon the uncorroborated
testimony of an accomplice. The Supreme Court observed that a woman,
who has been raped, is not an accomplice. She is the victim of an outrage.
If she consented, there is no offence unless she is a married woman, in
which case questions of adultery may arise. However, adultery presupposes
consent and so is not on the same footing as rape. The Supreme Court, inter
alia, observed as follows in its decision:
"... ... In the case of a girl who is below the age of consent, her
consent will not matter so far as the offence of rape is
concerned, but if she consented her testimony will naturally be
as suspect as that of an accomplice. So also in the case of
unnatural offences. But in all these cases a large volume of
case law has grown up which treats the evidence of the
complainant somewhat along the same lines as accomplice
evidence though often for widely differing reasons and the
position now reached is that the rule about corroboration has
hardened into one of law. But it is important to under- stand
exactly what the rule is and what the expression "hardened
into a rule of law" means." (emphasis supplied)
48. Vivian Bose, J, who authored the judgment, observed that in this
branch of law, the legal position is the same in India as in England. He
relied upon The King v. Baskerville, (1916) 2 K.B. 658. Baskerville (supra)
was a case where the accused was convicted of committing acts of gross
indecency with the two boys. The two boys were accomplices because they
were freely consenting parties and there was no use of force. In Baskerville
(supra), the learned Chie Justice observed:
"There is no doubt that the uncorroborated evidence of an
accomplice is admissible in law...... But it has long been a rule
of practice at common law for the judge to warn the jury of
the danger of convicting a prisoner on the uncorroborated
testimony of an accomplice or accomplices, and, in the
discretion of the judge, to advise them not to convict upon
such evidence; but the judge should point out to the jury that
it is within their legal province to convict upon such
unconfirmed evidence......
This rule of practice has become virtually equivalent to a rule
of law, and since the Court of Criminal Appeal came into
operation this Court has held that, in the absence of such a
warning by the judge, the conviction must be quashed...... If
after the proper caution by the judge the jury nevertheless
convict the prisoner, this Court will not quash the conviction
merely upon the ground that the accomplice's testimony was
uncorroborated." (emphasis supplied)
49. Justice Bose held that the law was exactly the same in India. He held:
―That, in my opinion, is exactly the law in India so far as
accomplices are concerned and it is certainly not any higher in
the case of sexual offences. The only clarification necessary for
purposes of this country is where this class of offence is
sometimes tried by a judge without the aid of a jury. In these
cases it is necessary that the judge should give some
indication in his judgment that he has had this rule of caution
in mind and should proceed to give reasons for considering it
unnecessary to require corroboration on the facts of the
particular case before him and show why he considers it safe
to convict without corroboration in that particular case. I am
of opinion that the learned High Court Judges were wrong in
thinking that they could not, as a matter of law, convict without
corroboration.
There is a class of cases which considers that though
corroboration should ordinarily be required in the case of a
grown-up woman it is unnecessary in the case of a child of
tender years. Bishram. v. Emperor, A.I.R. 1944 Nag. 363 is
typical of that point of view. On the other hand, the Privy
Council has said in Mohamed Sugal Esa v. The King A.I.R.
1946 P.C. 3 at 5 that as a matter of prudence a conviction
should not ordinarily be based on the uncorroborated evidence
of a child witness. In my opinion, the true rule is that in every
case of this type the rule about the advisability of
corroboration should be present to the mind of the judge. In a
jury case he must tell the jury of it and in a non-jury case he
must show that it is present to his mind by indicating that in
his judgment. But he should also point out that corroboration
can be dispensed with if, in the particular circumstances of
the case before him, either the jury, or, when there is no jury,
he himself, is satisfied that it is safe to do so. The rule, which
according to the cases has hardened into one of law, is not
that corroboration is essential before there can be a
conviction but that the necessity of corroboration, as a matter
of prudence, except where the circumstances make it safe to
dispense with it, must be present to the mind of the judge, and
in jury cases, must find place in the charge, before a
conviction without corroboration can be sustained. The tender
years of the child, coupled with other circumstances
appearing in the case, such, for example, as its demeanour,
unlikelihood of tutoring and so forth, may render
corroboration unnecessary but that is a question of fact in
every case. The only rule of law is that this rule of prudence
must be present to the mind of the judge or the jury as the
case may be and be understood and appreciated by him or
them. There is no rule of practice that there must, in every
case, be corroboration before a conviction can be allowed to
stand‖. (emphasis supplied)
50. Thus, as early as in 1952, the Supreme Court made the legal position
clear that, firstly, a woman subjected to rape is not an accomplice and,
secondly, the rule of corroboration is not a mandatory rule, but a rule of
prudence and caution, which could be dispensed with in the facts and
circumstances of a given case. All that is required is that it should be
present to the mind of the Judge, that it is advisable to look for corroboration
of the statement of the prosecutrix/ victim. The Judge may dispense with
the need for corroboration if he thinks that it is safe to do so. The tender
years of the child, coupled with other circumstances appearing in the case,
for example, his demeanour and unlikelihood of tutoring and so forth may
render corroboration unnecessary, but that is a question of fact in every case.
51. The Supreme Court then considered the nature and extent of
corroboration required when it is not considered safe to dispense with it.
Once again, the Supreme Court referred to Baskerville (supra). The
Supreme Court held that it is not independent confirmation of every material
circumstance in the sense that the independent evidence in the case, apart
from the testimony of the complainant or the accomplice, should in itself be
sufficient to sustain conviction. All that is required is that there must be
some additional evidence rendering it probable that the story of the
complainant (who is treated like an accomplice) is true, and that it is
reasonably safe to act upon it. The independent evidence must not only
make it safe to believe that the crime was committed, but must in some way
reasonably connect or tend to connect the accused with it by confirming in
some material particular the testimony of the accomplice or complainant that
the accused committed the crime. However, this does not mean that the
corroboration as to identity must extend to all the circumstances necessary to
identify the accused with the offence. All that is necessary is that there
should be independent evidence which will make it reasonably safe to
believe the witnesses story that the accused was the one, who committed the
offence.
52. The Supreme Court proceeded to observe that the corroboration must
come from independent sources, and that the testimony of one accomplice
would not be sufficient to corroborate that of another. There may, however,
be circumstances which may make it safe to dispense with the necessity of
corroboration, and in such cases a conviction based on the statement of the
victim/ prosecutrix, without corroboration, would not be illegal. The
Supreme Court also observed that corroboration need not be direct evidence
that the accused committed the crime. It is sufficient if it is merely
circumstantial evidence of his connection with the crime. Were it otherwise,
"many crimes which are usually committed between accomplices in secret,
such as incest, offences with females" (or unnatural offences) "could never
be brought to justice".
53. The Supreme Court then proceeded to consider whether a previous
statement of an accomplice/ complainant/ prosecutrix/ victim could be
accepted as corroboration? In this regard, the Supreme Court drew the
attention to illustration (j) to Section 8 of the Evidence Act, which reads -
"The question is whether A was ravished. The facts that, shortly after the
alleged rape, she made a complaint relating to the crime, the circumstances
under which, and the terms in which, the complaint was made are relevant."
54. The Supreme Court also referred to Section 157 of the Evidence Act,
which reads:
"In order to corroborate the testimony of a witness, any former
statement made by such witness relating to the same fact at or
about the time when the fact took place, or before any authority
legally competent to investigate the fact, may be proved."
55. The Supreme Court concluded that where the conditions prescribed in
the said section are fulfilled, the statement of the prosecutrix/ victim would
be legally admissible in India as corroboration.
56. The Supreme Court then considered the question whether the mother
of the victim/ prosecutrix could be regarded as an "independent" witness.
The Supreme Court held that there was no legal bar to exclude the mother of
the prosecutrix/ victim from being considered as an independent witness,
merely on the ground of their relationship. It observed:
"... ... Independent merely means independent of sources which
are likely to be tainted. In the absence of enmity against the
accused there is no reason why she should implicate him
falsely. It is true the accused suggested that they were on bad
terms but that has not been believed by anyone".
57. The Supreme Court held that the testimony of the mother provided
independent corroboration connecting the accused with the crime in the facts
of the case, and considering the conduct of the victim/ prosecutrix and her
mother from start to finish, the Supreme Court held that no corroboration
beyond the statement of the child to her mother was necessary.
58. In Prakash & Anr. v. State of Madhya Pradesh, (1992) 4 SCC 225,
the fourteen year old minor was the brother of the deceased. The minor
Ajay Singh was stated as an eye witness to the crime. The Trial Court
discarded the evidence of the minor Ajay Singh, being influenced by the fact
that he was of tender of age and that he was likely to be tutored. The
Supreme Court did not accept this reasoning of the Trial Court. The
Supreme Court observed:
"11. ... ... In discarding the evidence of the brother of the
deceased namely Ajay Singh the learned Additional Sessions
Judge was influenced by the tender age of Ajay (about 14
years) and was of the view that he was likely to be tutored. We
do not think that a boy of about 14 years of age cannot give a
proper account of the murder of his brother if he has an
occasion to witness the same and simply because the witness
was a boy of 14 years it will not be proper to assume that he is
likely to be tutored. The High Court has given very convincing
reasons for accepting the evidence of Ajay Singh as an
eyewitness of the murderous act and we do not find any
infirmity in the finding made by the High Court ... ...".
(emphasis supplied)
59. Thus, it cannot be assumed that a witness who is a minor is tutored.
There should be evidence/ material on record to conclude that a child
witness has been tutored. At the same time, the Court has to be satisfied that
there is no likelihood of the child witness being tutored.
60. In Ratansinh Dalsukhbhai Nayak v. State of Gujarat, (2004) 1 SCC
64, the child was an eye witness to the murder of the two deceased persons.
Relying on the testimony of the child witness, the Trial Court convicted the
accused under Section 302 IPC and, accordingly, sentenced them. Before
the Supreme Court, the appellant placed reliance on Arbind Singh v. State
of Bihar, 1995 (4) SCC 416 to contend that where the Court finds traces of
tutoring, corroboration is a must before the evidence of the child witness
could be acted upon. The Supreme Court referred to Dattu Ramrao
Sakhare v. State of Maharashtra, (1997) 5 SCC 341, wherein it had been
held:
―A child witness if found competent to depose to the facts and
reliable one such evidence 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 of the Evidence
Act provided that such witness is able to understand the
questions and able to give rational 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.‖ (emphasis supplied)
61. The Supreme Court went on to observe:
"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 the 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 preserved in the records, it is clear that
his conclusion was erroneous. This precaution is necessary
because child witnesses are amenable to tutoring and often live
in a world of make-believe. 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, there is no obstacle in
the way of accepting the evidence of a child witness".
(emphasis supplied)
62. While dealing with the merits of the case before it, the Supreme Court
held that there was no reason for false implication by the child witness. The
Trial Court on careful examination was satisfied about the child's capacity to
understand and to give rational answers. That being the position, it cannot be
said that the child witness had no maturity to understand the import of the
questions put to her, or to give rational answers. The child witness had been
cross-examined at length and she stood her ground. The Supreme Court
held that the evidence of the child witness was credible, which revealed her
truthful approach and that her evidence had the ring of the truth.
Consequently, the Supreme Court accepted the said evidence of the child
witness and dismissed the appeal.
63. In State of Madhya Pradesh v. Ramesh & Anr., 2011 (3) Scale 619,
the daughter of the deceased, aged about eight years, was a witness to the
crime. On the basis of the statement of the child witness, the two accused
were convicted under Section 302 IPC. Accused no.2 was convicted with
the aid of Section 120B IPC. The High Court, however, reversed the said
judgment and acquitted the accused on the premise that the eye witness PW-
1 was a child witness and was, therefore, disbelieved. The Supreme Court
reversed the decision of the High Court and restored the conviction of the
accused. On the aspect of admissibility of the evidence of a child witness,
the Supreme Court referred to several earlier decisions. The relevant
passage from this decision of the Supreme Court being instructed, is
reproduced herein below:
"6. In Rameshwar S/o Kalyan Singh v. The State of
Rajasthan, AIR 1952 SC 54, this Court examined the provisions
of Section 5 of Indian Oaths Act, 1873 and Section 118 of
Evidence Act, 1872 and held that every witness is competent to
depose unless the court considers that he is prevented from
understanding the question put to him, or from giving rational
answers by reason of tender age, extreme old age, disease
whether of body or mind or any other cause of the same kind.
There is always competency in fact unless the Court considers
otherwise.
The Court further held as under:
―.....It is desirable that Judges and magistrates
should always record their opinion that the child
understands the duty of speaking the truth and
state why they think that, otherwise the credibility
of the witness may be seriously affected, so much
so, that in some cases it may be necessary to reject
the evidence altogether. But whether the
Magistrate or Judge really was of that opinion
can, I think, be gathered from the circumstances
when there is no formal certificate....‖
7. In Mangoo & Anr. v. State of Madhya Pradesh, AIR 1995
SC 959, this Court while dealing with the evidence of a child
witness observed that there was always scope to tutor the child,
however, it cannot alone be a ground to come to the
conclusion that the child witness must have been tutored. The
Court must determine as to whether the child has been tutored
or not. It can be ascertained by examining the evidence and
from the contents thereof as to whether there are any traces of
tutoring.
8. In Panchhi & Ors. v. State of U.P., AIR 1998 SC 2726,
this Court while placing reliance upon a large number of its
earlier judgments observed that the testimony of a child
witness must find adequate corroboration before it is relied
on. However, it is more a rule of practical wisdom than of law.
It cannot be held that "the evidence of a child witness would
always stand irretrievably stigmatized. It is not the law that if
a witness is a child, his evidence shall be rejected, even if it is
found reliable. The law is that evidence of a child witness
must be evaluated more carefully and with greater
circumspection because a child is susceptible to be swayed by
what others tell him and thus a child witness is an easy prey to
tutoring.‖
9. In Nivrutti Pandurang Kokate & Ors. v. State of
Maharashtra, AIR 2008 SC 1460, this Court dealing with the
child witness has observed as under: ―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 the 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 preserved in the records, it is clear that his
conclusion was erroneous. This precaution is necessary
because child witnesses are amenable to tutoring and often live
in a world of make-believe. 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, there is no obstacle in the way
of accepting the evidence of a child witness.‖
10. The evidence of a child must reveal that he was able to
discern between right and wrong and the court may find out
from the crossexamination whether the defence lawyer could
bring anything to indicate that the child could not differentiate
between right and wrong. The court may ascertain his
suitability as a witness by putting questions to him and even if
no such questions had been put, it may be gathered from his
evidence as to whether he fully understood the implications of
what he was saying and whether he stood discredited in facing
a stiff cross-examination. A child witness must be able to
understand the sanctity of giving evidence on a oath and the
import of the questions that were being put to him. (Vide:
Himmat Sukhadeo Wahurwagh & Ors. v. State of Maharashtra,
AIR 2009 SC 2292).
11. In State of U.P. v. Krishna Master & Ors., AIR 2010 SC
3071, this Court held that there is no principle of law that it is
inconceivable that a child of tender age would not be able to
recapitulate the facts in his memory. A child is always
receptive to abnormal events which take place in his life and
would never forget those events for the rest of his life. The
child may be able to recapitulate carefully and exactly when
asked about the same in the future. In case the child explains
the relevant events of the crime without improvements or
embellishments, and the same inspire confidence of the Court,
his deposition does not require any corroboration whatsoever.
The child at a tender age is incapable of having any malice or
ill will against any person. Therefore, there must be
something on record to satisfy the Court that something had
gone wrong between the date of incident and recording
evidence of the child witness due to which the witness wanted
to implicate the accused falsely in a case of a serious nature.
12. Part of the statement of a child witness, even if tutored, can
be relied upon, if the tutored part can be separated from
untutored part, in case such remaining untutored part inspires
confidence. In such an eventuality the untutored part can be
believed or at least taken into consideration for the purpose of
corroboration as in the case of a hostile witness. (Vide: Gagan
Kanojia & Anr. v. State of Punjab, (2006) 13 SCC 516)‖.
(emphasis supplied)
64. The Supreme Court, in view of the aforesaid legal position,
summarized the law in the following words:
"13. In view of the above, the law on the issue can be
summarized to the effect that the deposition of a child witness
may require corroboration, but in case his deposition inspires
the confidence of the court and there is no embellishment or
improvement therein, the court may rely upon his evidence.
The evidence of a child witness must be evaluated more
carefully with greater circumspection because he is
susceptible to tutoring. Only in case there is evidence on
record to show that a child has been tutored, the Court can
reject his statement partly or fully. However, an inference as
to whether child has been tutored or not, can be drawn from
the contents of his deposition‖. (emphasis supplied)
65. Thus, the deposition of a child witness may require corroboration, but
in case his deposition inspires the confidence of the court and there is no
embellishment or improvement therein, the Court may rely upon his
evidence. Evaluation of the evidence of a child witness requires more care
and greater circumspection, because he is susceptible to tutoring. Only in
case there is evidence on record to show that the child has been tutored, the
Court may reject his statement partly or fully. An inference as to whether
the child has been tutored or not, can be drawn from the content of his
deposition.
66. At this stage, we may, firstly, take notice of the statement of the
victim made before the police, on the basis of which the FIR was registered,
secondly, the statement of the victim recorded under Section 164 Cr.P.C.
before the learned Magistrate, and, thirdly, the statement recorded before the
Court as PW-11.
67. In his statement made to the police on 15.08.2013, on the basis of
which the FIR was registered (Ex. PW-5/A), the victim stated that he lives at
his residential address with his parents and studies in Class-5 at the named
school. On that night, he had gone with his mother to Kalkaji Mandir to
attend the jagran. His mother returned home to sleep. At about 02:30 A.M.
the accused, who is the son of his "Bade papa" (father‟s elder brother) came
to him and told him that he will make him drink a cold drink. He gave the
victim a cold drink and took the victim in the park opposite the temple
where the accused started taking off the pant of the victim. The victim
resisted, whereupon he was slapped by the accused. The accused took off
the victim‟s pant and he inserted his private part into the back side of the
victim forcibly. He also threatened the victim that if he disclosed the
incident to anybody, he would be killed. Thereafter the victim came home
and narrated the incident to his parents.
68. In his statement recorded under Section 164 Cr.P.C. before the
learned Magistrate vide Ex.PW-4/B, the victim stated that his family
members reside at Kalkaji Mandir. He stated that his family offers service
at the temple. On 14.08.2013, a jagran was being held near the victim‟s
house. The family of the victim renders service at the jagran. He stated that
he was dancing at the jagran. His brother Dharmender - the accused,
slapped him from behind and held his collar. Dharmender stated that he
would take the victim to his mother. Thereafter Dharmender made the
victim roam around in the jagran. Then he took the victim to the canteen
and made him drink a cold drink. Thereafter, Dharmender took the victim in
the jungle. There the accused took of his pants, and asked the victim to take
his private part in his mouth. The victim refused, whereupon the accused hit
him. The accused took off the clothes of the victim and tried to make the
victim sit on his private part. Thereafter the accused put his private part in
the victim‟s mouth. The accused boxed the victim in his stomach and
thereafter made him lie at his stomach and climbed on the victim.
Thereafter, he inserted his private part in the back side of the victim. The
victim urinated. The accused then put on his clothing. The victim jumped
over a rail and ran from the spot and came on to the road. He disclosed that
he used to come first in the race in the school. He also stated that he was
bleeding. He went to the temple and one Aunty took him to his home. At
his home, he told everything to his mother. The mother of the victim called
the police. The police and others took him to the hospital.
69. In his testimony, PW-11 - the victim, narrated the same incident with
consistency in all material respects. He stated that the accused Dharmender
slapped him on his neck and caught hold of him by collar when the victim
was dancing in the jagran, and asked him to come with him as he will give
him pepsi. On that pretext, the accused took victim to the nearby jungle. In
the jungle, the accused beat up the victim and removed his pant as well as
the clothes of the victim, and inserted his private part forcibly in the victim‟s
mouth. Thereafter the accused made the victim to lie down in the knee
elbow position and inserted his private part into the victim‟s anus. The
accused again started beating the victim and started inserting his private part
into the mouth of the victim. Blood started coming out from the anus of the
victim and he felt like passing stool. He sat down for the said purpose when
the accused again started beating him. The victim refused to accompany the
accused. He put on his clothes and the accused also put on his clothes. The
victim tried to run away, on which the accused threw a brick on him but he
escaped the said blow. Thereafter he ran towards one person (uncle) and
asked for his help to save him, otherwise the accused would hit him.
Thereafter, the victim ran away to his home. He informed the incident to his
mother and the mother asked the father to ring up the police. The father of
the victim went for search of the accused; located him, and; handed over the
accused to the police. The police then brought the victim as well as the
accused to the police station from where they were sent for medical
examination. The victim exhibited his MLC Ex.PW-1/A which bear his
thumb impression. He was allotted a bed in the hospital and on the next day
he was sent for operation. Thereafter, he was discharged from the hospital.
He also exhibited his statement recorded before the Magistrate under
Section 164 Cr.P.C. as Ex.PW-4/B. He stated that his statement was
recorded by the police which was exhibited as PW-11/A. The victim also
correctly identified the accused in Court. He also identified his jean pant
Ex.P-1.
70. The victim was cross-examined on behalf of the accused. He denied
that any quarrel had taken place between his family and the family of the
accused. One day a quarrel had taken place when the accused had come to
the house of the victim heavily drunk and demanded the keys of the bike
from the victim‟s father. The victim‟s father had refused the keys of the
bike, whereupon the accused had started abusing the father and the
grandmother of the victim. He denied the suggestion that he had filed the
case in order to falsely implicate the accused. He denied the suggestion that
his statement was recorded before the Magistrate under pressure of his
parents. He volunteered to stated that his parents always told him that one
should speak the truth. He disclosed the time of the incident as about 2:00 -
2:30 A.M. in the park. He also denied that he had been tutored by his
parents to level false allegations against the accused. He also denied the
suggestion that blood had come out from his anus as he received injuries
while playing with his friends in the park. He volunteered to state that "Bum
par khoon aise thode hi nikal ata he".
71. From the three statements of the victim, namely Ex.PW-11/A,
Ex.PW-4/B, and his testimony recorded before the Court, it is clear that in
all material respects the same are entirely consistent, natural and believable.
The consistent version given by the victim in all the three statements is as
follows:
a. On the night of the incident, the victim had gone to the jagran near his
house;
b. The victim was dancing in the jagran. The victim was left in the
jagran and his mother returned to her residence;
c. The accused came to the victim and caught hold of him.
d. The accused offered the victim a cold drink;
e. The accused took the victim to the forest/ park opposite the temple;
f. In the forest/ park, the accused tried to remove the pant of the victim,
which was resisted by the victim. The accused beat up the victim and
forcibly removed his clothes. He also removed his own clothes and
put his vital part in the mouth of the victim, and thereafter in the
backside of the victim;
g. The victim started bleeding and felt like passing stool/ urine;
h. The accused again inserted his private part in the mouth of the victim;
i. The victim and the accused put on their clothes and the victim did not
accompany the accused;
j. The victim ran away from the spot and escaped;
k. The victim took the help of one person and reached his home;
l. The victim then informed the incident to his mother and the mother
informed the incident to the father. The police was called.
m. The father of the victim went in search of the accused and located
him. The accused was handed over to the police by the father of the
victim.
n. The police brought the victim and the accused to the police station,
from where they were sent for their medical examination to AIIMS;
o. The victim was admitted to the hospital and operated upon and
remained in the hospital for a few days;
p. The statement of the victim was recorded by the Magistrate under
Section 164 Cr PC.
72. It is well settled that minor discrepancies and embellishments
naturally creep in when statements of any person are recorded at different
points of time due to lapse of memory. What the Court has to examine is
whether the embellishment and discrepancies point towards fabrication,
afterthought, or improvements in the statements made by the witness from
time to time with a view to implicate the accused. The witness may narrate
the incident, or a part of it more elaborately at one stage, and at an earlier or
later stage, he may narrate the incident or a part of it with brevity. He may,
on different occasions, elaborate upon different part of the incident. Such
elaborations at different times do not necessarily lead to inconsistency, or
discredit the statement made by the witness in the Court. When we compare
the three statements of the victim, as aforesaid, we find that there are only
minor embellishments, which do not go to the root of the matter and they are
expected. The version of the victim (PW-11), at the core has remained
consistent.
73. The learned ASJ while observing that a child witness is susceptible to
tutoring; that his evidence must be evaluated more carefully and with greater
circumspection, and; that it should find adequate corroboration before it is
relied upon, unfortunately, has failed to apply himself to examination of
these very aspects. The statement of the victim was recorded by the police
(Ex. PW-11/A), and a perusal thereof does not betray the sense of it being
tutored. On the basis of this statement, the FIR came to be registered in the
present case. The victim‟s statement was recorded under Section 164 Cr PC
on 12.09.2013 vide Ex. PW-4/B. The learned Magistrate recorded the
statement after requiring the I.O. to leave the chamber of the Magistrate.
The learned Magistrate inquired from the victim whether he wishes to make
his statement - to which he replied in the affirmative, and whether his
statement was being made under threat, force or coercion - to which he
replied in the negative. The learned Magistrate recorded his satisfaction that
the witness was making the statement voluntarily. The learned Magistrate
then put initial questions to ascertain whether the child victim was able to
understand the questions/ statement. He was asked as to what is his age;
how many siblings he has; the name of his mother; what he does; whether he
believes in god (to which he responded thoda-thoda - i.e. little bit), and;
why he had come before the Magistrate. He was also asked whether he
knew the meaning of oath, to which he responded "kasam kakar sach hi
bolte he" i.e. after taking oath, one only speaks the truth. Thereafter, the
statement of the victim was recorded under oath and he appended his
signatures. A perusal of this statement also shows that the same is natural
and it does not betray a sense of it being tutored, or dictated. In all material
respects, the same is consistent with the statement made by the victim before
the police vide Ex. PW-11/A.
74. The victim deposed before the Court on 09.02.2015. His statement
was recorded by holding in-camera proceedings. He was provided a support
person in terms of the guidelines issued by this Court. The support person
was instructed not to prompt, sway or influence the witnesses during the
testimony, nor to discuss the evidence to be given by the witness. Once
again, the child witness was posed initial questions to understand his
maturity and to understand whether he is a competent witness. He was
asked his name; in which class he studies; whether he knows counting; who
had brought him; whether he knew the place where he had been brought - to
which he responded by stating "This is Saket Court"; whether he knew why
he had come to the Saket Court - to which he responded „mere case ke
silsile mein" i.e. in relation to his case; how many brothers, sisters are you;
how many years old are you, and; whether one should speak the truth or lie
- to which he responded "sach bolna chahiye" i.e. one should speak the
truth.
75. The learned ASJ then recorded her satisfaction that the child is
intelligent and he understands the questions and can answer them in an
appropriate manner. She recorded her satisfaction that the child witness was
a competent witness. However, considering that he was only 11 years of
age, and he could not be expected to understand the purpose and
consequences of oath, the administration of oath was dispensed with. The
child thereafter narrated the incident, as aforesaid, and his statement is
consistent with the ones recorded earlier by the police as well as by the
learned Magistrate. Pertinently, while deposing, the child started weeping
due to the trauma. He was pacified. Once he was comfortable, he stated
that he would depose. This demeanor of the child witness has been
completely overlooked by the learned ASJ. Pertinently, the learned ASJ
who recorded the statement of the child witness does not make any
observation to the effect that the child appears to be pretending, or to be
acting to show that he is suffering trauma. In fact, the learned ASJ records
the demeanor of the witness that while deposing the witness started weeping
due to the trauma, and he was pacified. Similarly, when the accused was
shown to the child witness through the video link on the screen, after seeing
him, the child witness identified him. The child witness stated "mein kehna
chahta hoon ki isse phasi hona chahiye" i.e. the accused should be hanged.
This statement of the child witness demonstrates the anger in him towards
the accused, stemming from the treatment he was subjected to by the
accused.
76. The child witness was cross examined by the accused. He, inter alia,
denied that quarrels used to take place between his family and the family of
the accused. At the same time, he narrated an episode of a small quarrel
which had taken place when the accused had come to his house heavily
drunk, demanding the keys of the bike from the victim‟s father. The
victim‟s father had refused to give the keys of the bike, whereupon the
accused started abusing the victim‟s father and grandmother. He denied the
suggestion that he had filed the case in order to falsely implicate the
accused. He denied the suggestion that the statement recorded before the
Magistrate was under pressure of his parents. He volunteered to state that
his parents always tell him that one should speak the truth. He, once again,
denied the suggestion that he had been tutored by his parents to level false
allegations against the accused. He denied the suggestion that blood came
out from the anus as he received injury while playing with his friends in the
park. He volunteered to state "bum par khoon aise thode hi nikal ata he".
The statement of the victim recorded before the Court, far from indicating
that the same was tutored or made under the influence of the parents of the
victim, gives a clear indication of the same being truthful. This is evident
from the demeanor of the child witness as taken note of herein above, as
well as his spontaneous responses and voluntary statements. If the child had
been tutored, he would not have narrated about the minor incident about the
accused demanding the motorcycle from his father after consuming alcohol
and on being refused by the father, of the accused misbehaving with PW-9.
77. In the statement of the victim‟s mother PW-10, she stated that the
victim returned to the house at about 3:00 a.m. when he narrated the incident
to her of the accused committing "galat kaam". She even explained the
meaning of the said expression and stated that her son i.e. the victim was "so
much scared at that time". During her cross examination, the witness PW-
10 stated "There was great issue/ dispute between my family and the family
of my jaith, namely, Ram Gopal". The learned ASJ while passing the
impugned judgment has sought to make much of this statement of PW-10 to
probablise false implication. Clearly, this statement is in relation to the
incident in question itself. The dispute between the families arose on
account of the incident. It was not suggested to her that there was already
some great dispute/ issue pending between her family and the family of her
jaith, namely, Ram Gopal when the incident is alleged to have taken place.
Pertinently, during her cross examination, it was not suggested to PW-10
that "great issue/ dispute" between the two families related to any specific
issue, such as a property dispute or any other dispute. She specifically
denied that the accused had been falsely implicated in the case. She also
denied that she had pressurized her son to make a statement before the
Magistrate. She volunteered to state that whatever happened with her son,
he had narrated before the Magistrate.
78. The father of the victim examined as PW-9. His statement is
consistent with that of PW-10, as well as his son PW-11. He, inter alia,
stated that his son came back to the house at about 2:30 a.m. (night) and he
narrated the incident to PW-9. In his cross examination, PW-9 stated that he
had cordial relation with his brother Ram Gopal, who was also residing in
the Dharamshala at that time. Pertinently, it was not suggested to PW-9 that
he did not have cordial relations with his brother, or the family of the
brother, or the accused. Though it was suggested that in order to take
revenge from the accused he had been falsely implicated in the case, he was
not confronted with any past incident, or suggested any particular reason,
which would provide the motive to take revenge. It was not suggested to
this witness that he had tutored his son i.e. the victim PW-11 to make a false
statement. Thus, there was absolutely no basis for the learned ASJ to
conclude that the child witness PW-11 had been tutored by his parents.
79. So far as the aspect of corroboration is concerned, the statement of the
victim was duly corroborated by his parents PW-9 and PW-10, both of
whom testified that when the victim returned to the house between 2:30 a.m.
and 3:00 a.m. in the night, he narrated the incident to them, whereafter the
accused was located and police was called. The statement of the victim is
also corroborated by the medical evidence of PW-1, who exhibited the MLC
Ex. PW-1/A. As per the said MLC, upon local examination of the victim,
the doctor, inter alia, found "abrasion present over the left inguinal region,
tear present in anal mucosa at 12 0' clock position". In his cross
examination, PW-1 stated that "From the injury mentioned above it is clear
that the carnal intercourse was done upon the victim/ master Rohit". Thus,
not only there was corroboration of the statement of the child victim by his
parents, but also by independent medical evidence. In our view, this itself
would be sufficient to safely rely upon the statement of the victim. The
parents of the child victim do not cease to be independent and competent
witness, merely on account of their relationship with the victim. The
decision of the Supreme Court in Rameshwar (supra) is clearly attracted in
the present case.
80. In the impugned judgment, the reasoning given by the learned ASJ for
rejecting the case of the prosecution is found in para 12. The same reads as
follows:
"12. The victim has not deposed that he was taken by the
accused in the jagran. The prosecution has not examined the
said uncle or aunty from whom the victim help in reaching his
home. Nor has examined anyone from the friends of the victim
with whom he was dancing and was taken from there by the
accused no any other independent witness who had seen the
victim in the company of accused. The victim has stated that he
ran from the spot but if the testimony of police officials is
admitted then it is not possible that he was able to run. As per
victim he was bleeding but no blood stained cloth has been
produced in the trial although one jean was produced to which
the victim identified as belonging to him. The victim in his
statement made first in time to the police has not alleged that
oral sex was also made with him by the accused".
81. A perusal of the same shows that the learned ASJ has completely
misdirected him in the matter of appreciation of evidence. It is clear to us
that his approach is not judicious. It is wholly irrelevant that the victim had
not deposed that he was taken by the accused in the jagran. The issue was
not as to who had taken the child victim to the jagran. The issue was
whether the accused had taken the child victim from the jagran on the
pretext of giving him a cold drink and dropping him home. The "uncle" or
"aunty" from whom the victim had taken help in reaching his home after the
incident was not shown to someone known to him. It was not suggested to
the victim in his cross examination that he knew the person who had
dropped him home. Thus, there was no question of the prosecution being
expected to examine the said person. The argument that the friends of the
victim with whom he was dancing were not examined, is neither here nor
there.
82. The learned ASJ had to appreciate the evidence which had been led in
the case, and not to pick holes by referring to other evidences which may, or
may not, have been led. The examination of the other friends of the victim
was not essential to establish the charge against the accused. It was not the
case of the prosecution that any of the friends of the victim were eye
witnesses to the offence itself. It was not the defence of the accused that he
was not present in the jagran. He did not set up an alibi. The fact that he
was in the vicinity of the place of incident is evident from the fact that he
was located and produced before the police by PW-9, the father of the
victim. The learned ASJ concludes that it was not possible for the victim to
run in view of the testimony of the police officials. However, it was not
even suggested to PW-11 in his cross examination, that he was not in a
position to run. The casual manner in which the evidence has been
appreciated by the learned ASJ can also be gauged from the fact that he only
refers to "the testimony of police officials", without stating as to the
testimony of which police official he is relying upon, and which part of the
testimony of a particular witness is being relied upon by him, to reach his
conclusion.
83. Constable Dinesh Kumar PW-7, during his cross examination, inter
alia, stated that "The age of victim Rohit was about 10 years at that time.
Victim Rohit was weeping at that time and was not in a proper position to
walk however, he was talking". The aforesaid statement cannot be
understood to mean that the victim was not in a position to walk or run,
particularly in the face of an emergency like the one he faced. PW-1 Dr.
Sireesh had stated in his cross examination that the victim was limping at the
time when he was examined and was not in a position to walk properly.
However, it was not stated by him that the victim was not in a position to
walk at all, or that he could not have run, even for a short distance, in an
emergent situation. The fact that he was weeping itself shows that some
incident had taken place concerning him. Even Constable PW-8 Karamvir
states that when he reached the spot, the condition of the victim Rohit was
not well and somehow he was feeling pain.
84. Non-detection of blood stain in the forensic examination of the jean
worn by the victim does not destroy the case of the prosecution. That may
be a result of bleeding not being severe or continuous. Pertinently, the
medical examination of the victim did find a tear/ abrasion present over the
left inguinal region. The tear was found to be present in anal mucosa at 12
0‟ clock position. Thus, there was no scope for doubting the injury suffered
by the victim in the anal region, merely because blood was not detected in
the jean pant of the victim.
85. Even if the statement of the victim of his being subjected to oral sex
were to be discarded on account of his not having made any such allegation
in Ex. PW-11/A, that does not detract from his clear and categorical
assertion of his being subjected to anal sex by the accused, which statement
of his was corroborated by his parents as he had, soon after the incident,
narrated the incident to them, and also by his medical examination report.
Thus, we are of the view that the prosecution clearly established the charge
against the respondent/ accused of having committed the offence under
Section 6 of the POCSO Act.
86. Reliance placed by learned counsel for the respondent/ accused on
Mullah Muzib (supra) is completely misplaced. By the said order, the
Division Bench merely dismissed the leave petition preferred by the State
against the acquittal of the accused of the charges punishable under Section
377 IPC read with Section 6 and 10 of the POCSO Act. In that case, the
medical examination of the minor child, who was aged 15 years and who
claimed to have been subjected to repeated sexual assaults by the accused,
did not reveal any external injury on the body of the victim, except one scab
on his right buttock, which had no relation with the alleged sexual assault.
However, as noticed herein above, in the present case, there is clear and
distinct medical evidence to support the case of the prosecution with regard
to the sexual assault on the victim.
87. Learned counsel for the respondent has also placed reliance on the
testimony of PW-3 Dr. Karthik Krishna, who examined the accused. The
said doctor opined that there was nothing to suggest that the accused was
incapable to perform sexual assault under normal circumstances. In his
cross examination, he stated that no fresh injuries were present on the body
of the accused when he was medically examined. The submission is that if
the accused had committed the sexual assault, the same would have left
injuries on his private part.
88. We do not find any merit in this submission, since it is not necessary
that he should definitely have suffered any injury on his private part at the
time of committing sexual assault on the minor child. Pertinently, in
Mullah Muzib (supra), the doctor PW-9 deposed that there was no standard
guideline that if an adult has carnal intercourse with a boy aged 15 years, he
would suffer injury. Thus, we find no merit in the submission of the
respondent. Reliance placed on the DNA report to say that the DNA found
on the samples lifted from the victim/ his clothes did not match with the
samples drawn from the accused, does not rule out the involvement of the
accused.
89. In view of the aforesaid discussion, we set aside the impugned
judgment and hold the respondent guilty of having committed the offence
under Section 6 of the POCSO Act, since the victim was a child below 12
years of age, and he is found to have committed aggravated penetrative
sexual assault on the victim as defined in Section 5(m) of the POCSO Act.
VIPIN SANGHI, J.
P. S. TEJI, J.
MARCH 23, 2018
