Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
RESERVED ON : 11 SEPTEMBER, 2012
th
DECIDED ON : 18 October, 2012
+ CRL.A.122/2011
AMRIT SHARMA @ AMIT ....Appellant
Through : Ms.Nitya Ramakrishnan, Amicus Curiae
with Mr.Rahul Kripalani & Ms.Suhasini
Sen, Advocates.
versus
THE STATE ….Respondent
Through : Ms. Richa Kapoor, APP.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE S.P.GARG
S.P.GARG, J.
1. Amrit Sharma @ Amit impugns the judgment dated
27.09.2010 in Sessions Case No.1144/2009 by which he was convicted
for committing offences punishable under Sections 363/366/376 (2)(F)
IPC and sentenced to undergo imprisonment for life with fine. In brief the
prosecution case is as under :
2. Daily Dairy (DD) No.3A (Ex.PW-1/B) was recorded at 12.45
(night) on 18.04.2009 at police station Shalimar Bagh on getting
information from Const.Vikram that a girl aged 3 - 4 years lying
Crl.A.122/2011 Page 1 of 24
unconscious near toilets, House No.52, Singalpur Village was admitted at
Babu Jagjivan Ram Memorial Hospital. The DD was marked to SI Hira
Lal who with Const.Naresh Pal reached the hospital. The child was unfit
to make statement. SI Hira Lal made endorsement (Ex.PW-8/C) over DD
No.3A and sent the rukka for lodging First Information Report under
Section 376 IPC. The Investigating Officer recorded Jagbir’s statement.
He had informed the PCR about the child. Efforts were made to record the
statement of the victim but in vain. SI Sushila Rana took photograph of
the child on mobile and showed to various persons for identification.
Smt.Shakuntala living in jhuggi No.101, AA-Block, Shalimar Bagh
identified the photo to be that of her daughter ‘N’. SI Sushila Rana met
Pooja, a friend of the victim and she informed that one rickshaw puller
known ‘ chor bhai ’ had taken her with him. She further disclosed that the
said rickshaw puller had offered biscuits and ` 10 to both of them. She
declined to take the biscuits and rupee 10 note. ‘N’ accepted and went
with him. On 21.04.2001, in her statement under Section 161 Cr.P.C., ‘N’
disclosed that ‘ chor bhai‟ had taken her in the rickshaw towards the forest
and thereafter, committed rape on her. She elaborated that ‘ chor bhai ’
used to ply rickshaw and visit their ‘ jhuggies ’. On 25.04.2009, the
accused was arrested from his jhuggi No.139-140, AA-Block, Shalimar
Crl.A.122/2011 Page 2 of 24
Bagh. He was interrogated and he made disclosure statement. Accused’s
underwear was seized vide seizure memo (Ex.PW-12/G). He was
medically examined. During the course of investigation, statement of the
prosecutrix ‘N’ was recorded under Section 164 Cr.P.C. The exhibits were
sent to Forensic Science Laboratory and report was collected. The
Investigating Officer recorded statements of the witnesses conversant with
the facts and after completion of the investigation, submitted a charge-
sheet against the appellant for committing the offence mentioned
previously. The accused was duly charged and brought to trial.
3. In order to bring home the charge levelled against the
accused, the prosecution had examined twelve witnesses in all at the trial.
The accused was examined under Section 313 Cr.P.C. to explain the
incriminating circumstance. He pleaded false implication at the behest of
prosecutrix’s mother (Smt.Shakuntla Devi) to extort money from him.
After appreciating the evidence and documents on record and taking into
consideration the submissions of the parties, the Trial Court concluded
that the appellant was the perpetrator of the crime. Feeling aggrieved by
the judgment and order of conviction, the appellant has preferred the
appeal.
Crl.A.122/2011 Page 3 of 24
4. Learned counsel for the appellant assailing the findings of the
Trial Court urged that it did not appreciate the evidence in its true and
proper perspective and fell into grave error in relying upon the testimonies
of PW-6 (N) and PW-11 (Pooja) without ensuring their capability to
depose and identify the culprit. The prosecutrix and her friend Pooja were
aged about 4-5 years on the day of occurrence, and it was improbable to
recognise and identify the culprit in the Court after a gap of about one
year. The learned Trial Court did not ask relevant questions to ascertain
their ability to remember faces, susceptibility to suggestion, circumstances
in which they made the identification and that they were in a position to
give rationale answers. The appellant was not named in the FIR and the
culprit was described by the victim and her friend Pooja as ‘ chor bhai ’.
The prosecution did not collect any evidence to establish that the appellant
was known as ‘ chor bhai ’. In his statement under Section 313 Cr.P.C., the
appellant affirmatively denied that he was known as ‘ chor bhai ’. The
Investigating Officer did not move any application before the Magistrate
for holding Test Identification Proceedings. Neither the victim nor her
friend Pooja had given description of the perpetrator of the crime.
Identification by them in the Court for the first time after a considerable
period, without a proper identification parade, was unsafe. The counsel
Crl.A.122/2011 Page 4 of 24
highlighted various discrepancies, contradictions and lapses in the
investigation. She contended that the prosecutrix’s mother did not report
the incident to the police and did not lodge missing person report for two
days. She or her family members did not attempt to trace her. Inference
can be drawn that the prosecutrix had accompanied with a ‘known’
person. Her conduct is unnatural and inconsistent. It is mystery how the
police reached Pooja. She did not inform victim’s mother about N’s
disappearance. Adverse inference is to be drawn against the prosecution
for withholding material witnesses i.e. Jagbir (who informed the police
control room initially); PCR officials (who took the victim to the
hospital); Riyasat Ali and Gablu, his assistant (who unloaded the milk
drum from the tempo) and the Metropolitan Magistrate (who recorded
statement of the prosecutrix under Section 164 Cr.P.C.). The police also
did not make investigation about the lady who had left the child near
Jagbir’s residence. Relying on various studies and research, she
highlighted, that a child witness is more likely to err than adults by
choosing a wrong person in a target absent line up. This is probably true
because adults take greater caution while making positive identification.
She further contended that identification resting entirely on child witness
testimony is problematic, particularly in respect of identification when the
Crl.A.122/2011 Page 5 of 24
children do not know the accused from before. A child witness aged about
4-5 years apparently has no mental capacity to retain memory for such a
long time. She pointed out that young children have tendency to guess.
They are simply impulsive in their responses. A child’s inability to
restrain from guessing can undermine his or her credibility as a witness.
[See studies by Hans Gross et. al., Carole R. Beal et. al., Gail S. Goodman
et. al., Lesile J.Carver and James W. Tanaka et. al.]. Counsel further
placed reliance on ‘ Krishan Kumar Malik vs. State of Harayana ’, (2011) 7
SCC 130, ‘ Mahabir vs. State of Delhi ’, (2008) 16 SCC 481, ‘ Rameshwar
vs. State of Rajasthan ’, AIR 1952 SC 54, ‘ Caetano Piedade Fernandes
and anr. vs. Union Territory of Goa, Daman & Diu Panaji, Goa, ’ (3 JB)
(1977) 1 SCC 707, ‘ Subhash Chand vs. Rajasthan ’, (2002) 1 SCC 702,
‘ Habeeb Mohd. vs. State of Hyderabad ’, AIR 1954 SC 51, ‘ State of U.P.
vs. Jaggo ’, (1971) 2 SCC 42 and ‘ Ramkishan Mithanlal Sharma vs. State
of Bombay ’, AIR 1955 SC 104. She pointed out that the Investigating
Officer did not resort to the procedure of getting DNA Test or analysis to
establish the identity of the appellant.
5. Learned APP supporting the judgment in its entirety, urged
that it did not call for interference. The victim was put preliminary
questions to ascertain if she was able to give rationale answers. The Trial
Crl.A.122/2011 Page 6 of 24
Court found that she was a competent witness and placed reliance on her
testimony. She categorically identified the appellant as the perpetrator of
the crime. PW-11 (Pooja), her friend corroborated her testimony without
major variation. The medical evidence confirmed that the child was
brutally ravished. The deficiencies pointed out by the learned counsel
were dealt with by the Trial Court and are not fatal to throw away the
innocent version given by both the child witnesses who had no animosity
with the accused to falsely implicate him in the crime.
6. We have considered the submissions and examined the Trial
Court record. At the outset, it may be mentioned that the factum of rape
committed on the prosecutrix ‘N’ is not under challenge. Counsel for the
appellant has emphasised that the appellant was not the perpetrator of the
crime. The victim ‘N’ was found unconscious on the night intervening
17/18.04.2009 at about 11.45 P.M. and the information was recorded in
Police Control Room (Ex.PW-10/A). The informant informed on phone
No.9272179259 that ‘ Ek larki age 3 saal jise pita gaya hai jo injured hai ’.
Again information was recorded in Ex.PW-10/A at 23.47 hours that the
child aged 3 years who was bleeding was being taken to hospital. MLC
(Ex.PW-3/A) reveals that the child was taken by HC Sube Singh,
No.1081, PCR to Babu Jagjivan Ram Memorial Hospital and admitted at
Crl.A.122/2011 Page 7 of 24
12.45 A.M. on 18.04.2009. In the alleged history, it was mentioned that
the child was found at the road side and was having multiple bruises over
the face, fresh bleeding from perinial region. DD No. 3A (Ex.PW-1/B)
was recorded at police station Shalimar Bagh by PW-1 (HC Jai Bhagwal).
PW-4 (Dr.Anjali) proved MLC (Ex.PW-4/A) prepared by Dr.Sadhana.
She deposed that there was fresh bleeding from perineal region, tear
present, labia minora torn, skin tag and mucosal tag seen hanging from
perineal and vulva region. The child was referred to LNJP Hospital as the
facility for stitching the torn tag under anesthesia was not available in the
hospital. PW-3 (Dr.Meet Kumar) who examined the child on 18.04.2009
proved the MLC (Ex.PW-3/A). The medical evidence produced on record
confirms that rape was committed on the victim.
7. The basic and foremost issue for determination is as to
whether the appellant was the perpetrator of the crime or whether he had
been falsely implicated. Testimony of the victim appearing as PW-6 is
crucial. PW-12 (SI Susheela Rana) visited the hospital but the child was
not fit to make statement. PW-3 (Dr.Meet Kumar) categorically stated that
on 18.04.2009 the patient was unfit for statement. Adverse inference, thus,
cannot be drawn for delay in recording the statement of the prosecutrix. In
her statement under Section 161 Cr.P.C. on 21.04.2009, the prosecutrix
Crl.A.122/2011 Page 8 of 24
gave vivid account as to how and under what circumstances she was raped
by the assailant ‘ chor bhai ’. Her statement (Ex.PW-12/1) under Section
164 Cr.P.C. was recorded on 15.05.2009 by Sh.Neeraj Gaur, Metropolitan
Magistrate. Before recording her statement, he (the Magistrate) was
satisfied that the prosecutrix was in a fit state of mind and was willing to
make true and voluntary statement without any fear. It is true that the
Magistrate who recorded the proceedings under Section 164 Cr.P.C. was
not examined. However, the accused in his statement made on 10.05.2010
did not dispute the correctness of the proceedings under Section 164
Cr.P.C. and the FSL report. Since the formal proof was not insisted by the
appellant, the Trial Court did not examine the learned Magistrate.
Contents of the proceedings reveal that the prosecutrix was categorical
that she was raped by ‘ chor bhai ’ who used to ply rickshaw. In her
testimony in the Court, she proved the version given by her to the police
under Section 161 Cr.P.C. and the Magistrate under Section 164 Cr.P.C.
without deviation. She deposed :
„Mein chowk par khel rahi thi. Chor bhai mujhe rikshaw
mein bitha kar lal bagh mein le gaya tha. Mujhe mara
aur chako dikhaya. Susu dall raha tha. Gaal cheel diya
tha. Phir mujhe neher mein phek diya tha jisme pani
nahin tha jis-se mere mathe mein chot lag gayi thi. Ek
ghante ke baad mujhe pulis ne nikala aur hospital mein
bharti karaya tha‟.
Crl.A.122/2011 Page 9 of 24
(I was playing in the chowk. Chor Bhai had taken me to
Lal Bagh in a rickshaw. He showed me a knife and gave
me beatings. He penetrated his penis. He scratched/peeled
of my cheek. Thereafter, he threw me in a dry canal as a
result of which I sustained injury on my forehead. After
an hour, the police took me out and admitted me in the
hospital.)
She claimed that she could identify ‘ chor bhai ’. She identified the
accused present in the Court to whom she referred ‘ chor bhai ’. In the
cross-examination, she explained that ‘ chor bhai ’ used to ply rickshaw.
He had also beaten her. In response to the question whether ‘ chor bhai ’
had visited her house earlier, she fairly answered in negative. She
admitted that when the police showed some photos, she recognised the
accused and informed the police that he was ‘ chor bhai ’ who committed
rape on her. She denied the suggestion that rape was not committed by
‘ chor bhai ’. She denied the suggestion that she was tutored by her mother,
aunt or Investigating Officer. She reiterated that she was shown a knife
and subsequently, rape was committed. In response to the question that
‘ chor bhai ’ had not taken her in a rickshaw in the jungle, she categorically
asserted that he had taken her.
8. On critical analysis of the statement of the child witness, it
appears that material facts deposed by her remained unchallenged in the
cross-examination. No ulterior motive was imputed to the witness or her
Crl.A.122/2011 Page 10 of 24
mother Shakuntla Devi for falsely implicating the accused. No suggestion
was put to the witness that the appellant was not known as ‘ chor bhai ’ or
that he was not present at the spot. Nothing was suggested to the witness
as to where else the appellant was on the date and time of the occurrence.
The appellant did not deny that he was not a rickshaw puller. Nothing was
suggested to the witness that she was incapable to identify the accused.
9. Another crucial witness is PW-11 (Pooja), a child witness
aged about 5-6 years. Before recording her statement, she was questioned
and her statement was recorded in question/answer form. She deposed that
prosecutrix ‘N’ was known to her and she resided in the second gali from
her residence. About the incident, she disclosed that she and ‘N’ were
playing in the gali. „Chor bhai ’ (present in the Court caught hold by hands
by the police) came on a rickshaw. When ‘ chor bhai ’ enquired ‘ ki bacche
udhar jaoge ’ (child, would you go there), she declined. Thereafter, the
rickshaw-wala asked them to sit in the rickshaw. He gave 10 and Parle
`
biscuit. She threw the note and biscuits. ‘N’ however took ten rupee note
and the biscuits given by ‘ chor bhai ’ and he took her on the rickshaw
towards the jungle. She further disclosed that she was able to identify
‘ chor bhai ’. She thereafter, pointed out towards the accused and identified
him as ‘ chor bhai ’ who had taken ‘N’ with him. In the cross-examination,
Crl.A.122/2011 Page 11 of 24
she stated that she had not seen ‘ chor bhai ’ earlier. She admitted that she
did not disclose the incident to her mother. She explained that due to fear,
she did not disclose the incident to her mother. She denied that she was
telling a lie on the tutoring of her mother and no such incident happened.
She asserted that she was telling the truth.
10. Scrutinising the statement of PW-11 (Pooja), it reveals that
she has corroborated PW-6 N’s version on all material facts. No material
inconsistency or contradiction emerged in her examination to discard her
version. Statement of this witness under Section 161 Cr.P.C. was recorded
on 19.04.2009 prior to recording the statement of the prosecutrix ‘N’.
Only from her statement under Section 161 Cr.P.C. the police came to
know that one ‘ chor bhai ’ had taken the prosecutrix ‘N’ on his rickshaw.
During the investigation, the appellant was arrested on the pointing out of
the prosecutrix ‘N’ and PW-11 (Pooja) and was identified as ‘ chor bhai ’
who committed rape. No suggestion was put to PW-11 (Pooja) that she
was not playing with the prosecutrix when she was taken in a rickshaw or
that she was not offered ` 10 and packet of biscuit. This child witness had
no motive to falsely name and identify the accused. She is a material
witness as she had seen the prosecutrix in the company of the accused
soon before the incident.
Crl.A.122/2011 Page 12 of 24
11. PW-5 (Smt.Shakuntla Devi), prosecutrix’s mother, went to
the hospital after the Investigating Officer showed her the photograph of
her missing daughter. She deposed that her daughter told her in the
hospital that she was taken away by ‘ chor bhai ’ in the jungle and
thereafter, he committed rape (ganda kaam) on her. The accused was
arrested vide arrest memo (Ex.PW-5/A) and her daughter ‘N’ identified
him. She identified her underwear (Ex.P1). In the cross-examination, she
admitted that the accused was not known to her prior to the incident and
she saw him for the first time when police apprehended him on the
identification of her daughter. She denied the suggestion that the accused
was falsely implicated to extort money. She further denied that some other
person had committed the offence and she falsely implicated the accused.
She further refuted the suggestion that the prosecutrix was tutored by her.
12. We find no substance in the allegation that the accused was
falsely implicated by PW-5 (Smt.Shakuntla Devi) to extort money. No
foundation for such allegation was laid and nothing transpired as to when
PW-5 (Smt.Shakuntla Devi) had demanded money from him. She was not
aware about the whereabouts of her daughter. She was not aware if the
accused was the perpetrator of the crime. She saw the accused only when
the police apprehended him. Thereafter, he remained in police/judicial
Crl.A.122/2011 Page 13 of 24
custody. There was no possibility of the witness to extort money from
him. The appellant being a rickshaw-puller residing in a jhuggi did not
have any means to fulfil any such demand of the prosecutrix’s mother.
Moreover, a mother would not tarnish the reputation of her own daughter
for the sake of money. She is not expected to let the real culprit go scot
free and to extort money from an innocent. This defence deserves outright
rejection.
13. Learned counsel for the appellant vehemently contended that
PW-6 and PW-11 were child witnesses and it was improbable for them to
identify the culprit who was not known to them prior to the incident.
There was every possibility of the child witness to fault in identifying a
wrong person. Dock identification is of no value as the accused alone was
in judicial custody at the time of their examination and it was natural for
them to point towards the accused to be the culprit. We are not impressed
with these submissions. It is true that the accused was not known to PW-6
and PW-11. But it is also certain that he used to visit the jhuggies/colony.
He also used to stay in the nearby jhuggies No.139-140. The child
witnesses in their statement recorded under Sections 161/164 Cr.P.C. and
in their deposition before the Court did not name the accused but
identified him categorically stating that he was the person whom they
Crl.A.122/2011 Page 14 of 24
referred as ‘ chor bhai ’. In their statements, they had given specific
description that the said ‘ chor bhai ’ used to ply rickshaw and had taken
the victim on the rickshaw. The accused did not deny that he was not a
rickshaw puller and did not visit the spot from where the child was taken.
Both PW-6 and PW-11 had interaction with the offender for sufficient
time during day time in the month of April. They had sufficient
opportunity to recognise him. The accused did not explain as to what
prompted him to offer cash and biscuits to the child witnesses. It appears
that PW-11 (Pooja) was suspicious and more cautious and did not take the
bait. Identification by pseudo name ‘ chor bhai ’ is perfectly legal and
inspires implicit confidence since the accused was apprehended at the
pointing out of PW-6 and PW-11.
14. The Trial Court put number of preliminary questions to the
child witnesses before recording their statements to find out if they were
competent to give rationale answers to the questions. After recording its
satisfaction about the competence of the child witnesses to understand the
questions and their ability to give rationale answers, their statements were
recorded. The decision on the question whether the child witness has
sufficient intelligence primarily rests with the Trial Judge. We find no
good reasons to disturb the satisfaction of the Trial Court that the
Crl.A.122/2011 Page 15 of 24
witnesses were competent witness. Under Section 118 Evidence Act, no
specific age has been prescribed and a child of any age can be a competent
witness. Under Section 119 Evidence Act, even a deaf and dumb can be a
competent witness. There is no fixed age on which a child must have
arrived in order to be competent as a witness. Competency is determined
at the time the child testifies rather than at the time the incident occurred.
15. Studies have revealed that traumatic experiences are likely to
be highly distinctive, they may be particularly accessible to explicit
memory under appropriate conditions (Bernstein, 2002; Howe, 1997).
16. As per ‘ Science Daily (Mar.17, 2008) ’ :
“Scientists found that humans exhibit two types of
memory. They call one “verbatim trace”, in which events
are recorded very precisely and factually. Children have
more “verbatim trace”, but as they mature, they develop
more and more of a second type of memory: “gist trace”,
in which they recall the meaning of an event, its
emotional flavour, but not precise facts. Gist trace is the
most common cause of false memories, occurring most
often in adults. Research shows that children are less
likely to produce false memories, because gist trace
develops slowly. As a result, children‟s recollections
could be more reliable than those of adults, and this
could lead to ramifications in the courtroom. This
illustration shows the Roman two-faced god, Janus, on
trial. Symbolically, his bearded, mature head speaks to
judges of yore, while the young boy‟s head is turned
towards the judge of the future. (Credit: Zina Deretsky,
National Science Foundation).”
Crl.A.122/2011 Page 16 of 24
17. In the absence of any contra evidence we cannot assume that
testimonies of PW-6 (Neha Kumari) and PW-11 (Pooja) should not be
considered simply because they were child witnesses. There is nothing on
record to show that both PW-6 and PW-11 were not capable to reveal the
incident and identify the accused.
18. The legal position is well settled on this aspect. In ‘ State of
Maharashtra vs. Damu ’, (2000) 6 SCC 269, the Supreme Court held :
“28. The unrealistic approach made by the Division
Bench of the High Court to the evidence of PW-30 and
PW-31 can be seen even by a glance through the
observation made by the learned Judges which is
extracted below :
“Sagar is stating about the instances which took
place, according to him, when he was 5 or 6 years of age.
The instances by themselves are so minor that anybody,
in ordinary course, being of that age, would not
remember the same even by the end of the day on which
the incident took place. Trying to find corroboration to
the deposition of Sagar (PW-31) from the deposition of
Ramakant (PW-30) is a futile exercise.”
29. For the boy the said instances might have been very
minor not to keep them alive in memory even till the
evening of that day. But when he was told later of the
danger he escaped from that minor incident would winch
to the surface of his mood (sic mind). This is how the
human mind works and the mind of a child is no
exception to the process. For the parents of the boy the
two episodes could not have created any impact at the
time the incidents happened. But when they knew later
that A-4 was kidnapping infants and killing them it would
have created the most probable reaction of the human
mind in them also by realising how they escaped by the
Crl.A.122/2011 Page 17 of 24
skin of their teeth from a perennial calamity. The Division
Bench was therefore too unrealistic when it brushed aside
the truthful evidence of PW-31 (Sagar) and his father
PW-30 (Ramakant).”
19. In ‘ State of U.P. v. Krishna Master ’ : AIR 2010 SC 3071, the
Supreme Court held :
“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.”
20. In ‘ Nivrutti Pandurang Kokate v. State of Maharashtra‟ :
AIR 2008 SC 1460, the Supreme Court dealing with the child witness has
observed as under : (SCC pp. 567-68, para 10)
“10. „… 7. … 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
Crl.A.122/2011 Page 18 of 24
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. ”
21. In ‘ State of H.P. vs. Suresh Kumar @ DC ’, (2009) 8 SCALE
628, the prosecutrix was 5 – 6 years old. The accused therein was resident
of the same village. The observations of the Supreme Court in paragraphs
12 & 13 are relevant to note :
“12. There is another vital submission made by the
respondent-accused which is required to be dealt with at
this stage. It was submitted that both the child witnesses,
namely, PW-3 and PW-4, the prosecutrix and her sister
respectively, should not and could not have been believed
due to the following two reasons. Firstly, both PW-3 as
well as PW-4 was child at the time of commission of the
said offence and secondly, they were tutored by their
parents and police.
13. We have considered the said submission, but we find
the same to be unacceptable. The depositions of these two
witnesses, i.e. PW-3 and PW-4 with regard to the
occurrence of such incidence are firm and convincing.
We find no reason as to why a child of her age i.e.
prosecutrix would get an innocent person named for an
offence which was undisputedly committed on her. It is
Crl.A.122/2011 Page 19 of 24
settled position of law that the conviction for offence
under Section 376 on the sole testimony of a rape victim
if the evidence of the prosecutrix is found to be credible
and convincing. This Court observed as follows in the
case „State of Rajasthan vs. MANU/SC/0416/2002 : Om
Prakash 2002CriLJ2951‟ :
13. The conviction for offence under Section 376 IPC
can be based on the sole testimony of a rape victim is a
well-settled proposition. In „State of Punjab vs. Gurmit
Singh‟, MANU/SC/0138/1997, referring to „State of
Maharashtra vs. Chandraprakash Kewalchand Jain‟,
MANU/SC/0122/1990, this Court held that it must not be
overlooked that a woman or a girl subjected to sexual
assault is not an accomplice to the crime but is a victim of
another person‟s lust and it is improper and undesirable
to test her evidence with a certain amount of suspicion,
treating her as if she were an accomplice. It has also
been observed in the said decision by Dr.Justice
A.S.Anand (as His Lordship then was), speaking for the
Court that the inherent bashfulness of the females and the
tendency to conceal outrage of sexual aggression are
factors which the courts should not overlook. The
testimony of the victim in such cases is vital and unless
there are compelling reasons which necessitate looking
for corroboration of her statement, the courts should find
no difficulty to act on the testimony of a victim of sexual
assault alone to convict an accused where her testimony
inspires confidence and is found to be reliable. Seeking
corroboration of her statement before relying upon the
same, as a rule, in such cases amounts to adding insult to
injury. ”
22. Non holding of Test Identification was not fatal. In ‘ Mahavir
vs. State of Delhi ’, (2008) 16 SCC 481, the Supreme Court held that
Crl.A.122/2011 Page 20 of 24
absence of Test Identification Parade in all cases was not fatal specifically
when the accused is well known by sight.
23. In view of the above, the law on the issue is that the evidence
of child witness cannot be rejected out-rightly. It must be evaluated more
carefully and with greater circumspection because a child is susceptible to
be swayed by others and can be tutored. Small children can make false
identification not because they want to depose and state false facts but
because they may not be guided and be fully aware and conscious of the
adverse consequence and the effect of making false positive identification.
We have examined the testimonies of PW-6 and PW-11 within mere
parameters.
24. Only in the statement recorded under Section 313 Cr.P.C.,
the appellant claimed that he was not called ‘ chor bhai ’. No such
suggestion was put to the child witnesses and PW-5 (Smt.Shakuntla
Devi). Moreover, it was the perception of the child witnesses as to how
they connected the culprit as he was not known to them by name. There
was no hesitation for both PW-6 and PW-11 to recognise and identify him
in the Court. The accused was arrested on the identification of the
prosecutrix and PW-11 (Pooja). He did not examine any witness in
defence that he was not called ‘ chor bhai ’ by the children living in his
Crl.A.122/2011 Page 21 of 24
neighbourhood. Minor discrepancies, contradictions and inconsistencies in
the statements of the witnesses highlighted by the learned counsel are
insignificant and do not affect the credibility of the statements of the child
witnesses. Lapses on the part of the Investigating Officer also do not
corrode the cogent testimony of the witnesses. The police came into
motion when Jagbir informed the Police Control Room about a child aged
3 years lying unconscious near toilets House No.52, Singal Pur Village.
He was not a witness to the incident and had set the police machinery into
motion. His non-examination does not cause dent in the prosecution case.
Contents of MLC (Ex.PW-3/A) reveal the pathetic condition in which the
child aged about 4 years was found abandoned and admitted in BJRM
Hospital at 12.45 night by PCR. Conduct of the prosecutrix’s mother is
abnormal as she did not attempt to find out the whereabouts of her
daughter and did not lodge any missing person report with the police.
Only when she was shown the photograph of the child, she went to the
hospital and identified her. However, in the cross-examination, no enquiry
was made from her about the unreasonable conduct. The Court cannot
ignore the ground realities that it is not easy for a poor to lodge first
information report at the first instance. Moreover, her unnatural conduct
does not wash the truthful version narrated by PW-6 and PW-11. Gabdu,
Crl.A.122/2011 Page 22 of 24
though cited a witness, was not examined. We notice that the process was
not issued for his appearance and after recording statements of PW-1 and
PW-6 on 15.03.2010, the Trial Court adjourned the case for recording
entire remaining prosecution evidence for 10.05.2010 and 11.05.2010.
The witnesses who were present on the said dates were examined. The
Trial Court closed the prosecution evidence on 10.05.2010 despite request
by Addl. Public Prosecutor for one more opportunity to examine the
remaining witnesses observing that the prosecution had already examined
all the material prosecution witnesses. It appears that the Trial Court did
not consider Gabdu a material witness to be examined. Moreover, he was
not a witness to the incident and his non-examination does not affect the
prosecution case. After the incorporation of Section 53-A in the Criminal
rd
Procedure Code w.e.f. 23 June, 2006 it has become necessary for the
prosecution to go in for DNA Test facilitating the prosecution to prove its
case against the accused. However, in this case, the Investigating Officer
did not resort to the procedure of getting the DNA Test or analysis. In our
view, this lapse is not fatal as factum of rape is not under challenge. The
accused was arrested on the identification of the material witnesses
including prosecutrix.
Crl.A.122/2011 Page 23 of 24
25. In the light of above discussion, we find no merit in the
appeal preferred by the appellant. The order on conviction and sentence
are upheld. The appeal is dismissed. The Trial Court record be sent back
forthwith.
CRL.M.B.141/2011
In view of the orders passed above, the application stands
disposed of, having become infructuous.
(S.P.GARG)
JUDGE
(SANJIV KHANNA)
JUDGE
OCTOBER 18, 2012
tr
Crl.A.122/2011 Page 24 of 24