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2014 DIGILAW 269 (ORI)

Kanhu Charan Naik v. State of Orissa

2014-04-22

SATRUGHANA PUJAHARI

body2014
Judgment S. Pujahari, J. The judgment and order of conviction and sentence dated 21.9.2002 passed by the learned Additional Sessions Judge, Khurda in S.T. Case No. 7/46 of 2001, have been impugned herein in this appeal by the appellant from Jail. The learned Additional Sessions Judge, Khurda vide the impugned judgment and order held the appellant guilty of an offence under Section 376(2)(f) read with Section 511 of the IPC and sentenced him to undergo imprisonment for seven years. 2. Prosecution came to the trial Court with a case that on 2.11.2000 while the victim (P.W.7) a girl child of 5 years old, and one YZ, another girl child of 5 years, were playing in village 'Danda' of their village, the appellant led both of them to the backside of village Panchayat Office, saying them to give them Green Blackgram Stick, (Biri Chhuin) there to eat. There he made the victim naked by removing the 'Chadi' worn by her, lifted her 'Frock' and made her sit on his lap and lifting the 'Lungi' worn by him, committed sexual intercourse on her. The victim and her playmate cried. Hearing their cry, a co-villager of the victim (P.W.3), who had been to nearby tube-well to fetch water, arrived at the spot and witnessed the occurrence and shouted. The appellant left the spot immediately thereafter scaling the boundary wall of the Panchayat Office. P.W.3 brought the victim and her playmate and left them near the house of the victim. The victim had disclosed the incident before her mother (P.W.2), who in turn intimated the same to her (P.W.2) husband (P.W.1), who reported the matter to the police vide written report (Ext-1) at Bologarh P.S. The police had registered the case and investigated and found substance in the report Ext. 1 and filed the final form alleging the appellant to have committed an offence under Section 376(2)(f) (Name of the witnesses are withheld to protect the identity of the victim). 3. The trial Court, considering the aforesaid case of the prosecution, framed charged under Section 376(2)(f) again the appellant. The appellant faced the trial with the plea of denial and false implication at the instance of villagers as he belonged to Scheduled Caste. The trial Court basically relying on the version to the victim (P.W.7) and her parents (P.Ws. 3. The trial Court, considering the aforesaid case of the prosecution, framed charged under Section 376(2)(f) again the appellant. The appellant faced the trial with the plea of denial and false implication at the instance of villagers as he belonged to Scheduled Caste. The trial Court basically relying on the version to the victim (P.W.7) and her parents (P.Ws. 1 and 2), though did not accept the prosecution case of rape on a woman of less than 12 years, but returned the impugned judgment and order as stated earlier on a lesser charge that is attempt for the same, discarding the defence plea of false implication. 4. Assailing the judgment of conviction and sentence, it has been submitted by learned counsel appearing for the appellant that since in this case the victim was aged about 4 years at the time of occurrence and there was no independent corroboration to her evidence, much less any corroboration from medical evidence, the trial Court erred in recording a finding of guilty against the appellant under Section 376(2)(f) read with Section 511 of IPC. Otherwise also, the sentence imposed seems to be disproportionate and needs interference, has also been submitted by the learned counsel for the appellant. 5. In response, it has been submitted by learned counsel for the State that since the evidence of the victim is reliable and the same is also being corroborated by the evidence of her mother (P.W.2) before whom she disclosed about the incident immediately after the occurrence as well as unimpeachable evidence of P.W.3 who arrived at the spot and found the appellant embracing the victim and fleeing away from there, so also the victim was naked and holding her 'Chadi, it is fallacious to say that the version of the victim is not corroborated and as such the trial Court erred in acting on the uncorroborated testimony of the victim. Further the victim being a competent witness, the Trial Court committed no wrong in accepting her version even if it is not corroborated inasmuch as the same is reliable and law is well settled that on the sole testimony of the victim of rape, conviction can be recorded. Further the victim being a competent witness, the Trial Court committed no wrong in accepting her version even if it is not corroborated inasmuch as the same is reliable and law is well settled that on the sole testimony of the victim of rape, conviction can be recorded. So far the sentence imposed is concerned, the same also appears to be commensurate to the facts and circumstances of the case, inasmuch as the appellant made an attempt to rape, a girl child of five years and the offence committed is serious and heinous. Hence, this Jail Criminal Appeal filed is devoid of merit and liable to be dismissed, has also been submitted by the learned counsel for the State. 6. It appears that prosecution in this case has led cogent evidence disclosing that the victim was a woman of less than 12 years inasmuch as the doctor (P.W.15) who examined the victim, basing on the physical and radiological examination in his evidence opined that the victim has between 5 to 6 years. The father of the victim has also deposed that the age of the victim was four years at the time of occurrence. The same was not disputed in the cross-examination in any manner. The trial Court has also found the victim to be a child witness. Therefore, the victim is a woman of less than twelve years. 7. Since the victim is a girl of very tender age and the prosecution case is based on the testimony of the said victim which has been assailed as unreliable by the appellant on the grounds of her tender age and such witnesses are pliable and unable to distinguish between the truth and falsehood correctly and also there is no independent adequate corroboration to the same, it would be apposite to notice the law laid down by the Hon'ble Apex Court in a Plethora of decisions in this regard starting from the case of Rameswar v. State of Rajasthan, reported in 1952 Supreme Court 54. 8. 8. The Hon'ble Apex Court in the case of State of M.P. v. Ramesh and another, reported in (2011) 5 SCR 1 while examining the law relating to the deposition of a child witness, have taken note of the decision of Rameswar (supra) and many more decisions and held that evidence 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, there is no impediment to rely upon such uncorroborated testimony of a child witness. It would be, therefore, apposite to have the relevant extract from the said judgment, which reads thus: "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 the Indian Oaths Act, 1873 and Section 118 of the 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 and 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. 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 and others 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 irretrievable 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 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 cross-examination 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: Himat 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 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 in 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 hostile witness. (Vide Gagan Kanojia & Anr. v. State of Punjab, (2006) 13 SCC 516). 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 hostile witness. (Vide Gagan Kanojia & Anr. v. State of Punjab, (2006) 13 SCC 516). 13. In view of the above, the law on the issue can be sumniarized 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. 9. Therefore, the law is well settled that a child witness is not incompetent to testify due to his/her tender age, inasmuch as Section 118 of the Indian Evidence Act speaks that every witness is competent to testify unless prevented from understanding the question put to him/her or from giving rational answer by reason of tender age, extreme old age, disease of body or mind or any other cause of the same kind. Hence, the discretion is left to the Magistrate or Judge to record the testimony of a child witness if it is satisfied from the fact that the witness is not prevented from understanding the questions or giving the rational answers by reason of his/her tender age. The Magistrate or Judge therefore, before recording the evidence of such witness as mentioned in Section 118 of the Indian Evidence Act records its satisfaction by putting such questions as the Magistrate or Judge thinks fit to test the power of understanding and rationality of the answers given, from which it has to be satisfied about the competency of such witness and certify on the competency before recording evidence. The same is required to be preserved in the record by the Magistrate or Judge concerned for appreciation of the evidence of such witness as a rule of caution as in the absence of the same, the evidence of the witness is likely to be challenged on the ground of competency and seriously affects the credibility of such witness. But, the law is well settled that in the absence of such record, the version of such witness however, cannot be discarded as testimony of a incompetent witness, inasmuch as the competency can be gathered from the circumstances in the absence of such certificate, as laid down in the case of Rameswar (supra). 10. It appears that in this case, the learned Addl. Sessions Judge, Khurda though has not preserved the questions put to the victim - child witness (P.W.7), but has certified that he had put certain questions to the child witness as the child witness was able to give rational answer to the question put to her, learned Addl. Sessions Judge recorded her statement. The victim also appears to have answered the questions rationally put to her during her examination, as seen from the evidence of the victim (P.W.7). Therefore, there is no manner of doubt that she was competent to testify and a competent witness. 11. The evidence of the victim (P.W.7) would go to show that when she was playing, the appellant called her to give Blackgram to eat and she accompanied him and the appellant opened her 'Chadi' and rubbed his penis in her vagina. It is further emerged from her evidence that she cried but the appellant closed her mouth and when P.W.3 arrived, the appellant fled away, but P.W.3 took her to her house where she disclosed the incident before her mother (P.W.2). She has also identified the wearing apparels, such as, M.O.-I - Lungi worn by the appellant, M.O.-II Frock and M.O.-III - Chadi worn by her then. In the cross-examination made, nothing has been elicited by the defence disclosing that this witness had any reason of false implication or she is not stating the truth or the aforesaid evidence is unworthy of credence. In the cross-examination made, nothing has been elicited by the defence disclosing that this witness had any reason of false implication or she is not stating the truth or the aforesaid evidence is unworthy of credence. The version of the victim also gets corroboration from the unimpeachable evidence of P.W.3 who arrived at the spot hearing the cry of the children and found the appellant forcibly embracing her and seeing him fleeing away by jumping over the boundary wall of the Panchayat Office. The victim then found to be naked. So also the victim in her former statement made before her mother (P.W.2) soon after the incident, implicates the appellant. The same having been deposed by P.W.2, lends corroboration under Section 157 of the Indian Evidence Act to the evidence of the victim. 12. The counsel for the appellant has assailed such evidence to be false and the appellant has been falsely implicated as he belongs to Scheduled Caste and there was caste rivalry, as revealed from the evidence of D.W.1, more so as the aforesaid evidence of the victim, P.W.7 more so as the aforesaid evidence of the, victim, P.W. 7 is not corroborated by any medical evidence. Before appreciating such contention of the defence, it would be apposite to mention that, this Court is alive to the settled position of law that a defence need not prove its case by the standard of beyond reasonable doubt, but by preponderance of probability as has been held by the Hon'ble Apex Court in the case of Rabindra Kumar Dey v. State of Orissa, reported in 1997 SC 170. There is no material to show that the parents of the victim had any personal animosity with the appellant who belongs to Scheduled Caste. No doubt from the evidence of D.W.1, it reveals that there was animosity between the General Caste with Scheduled Caste and Scheduled Tribe people in the village. His evidence also discloses that on the date of incident at the evening time, the upper caste people said to have assaulted the appellant. The parents of the victim are not well educated. There is no material that they were leading the upper caste community of the village or the influence of any such leader of the village. His evidence also discloses that on the date of incident at the evening time, the upper caste people said to have assaulted the appellant. The parents of the victim are not well educated. There is no material that they were leading the upper caste community of the village or the influence of any such leader of the village. No evidence whatsoever has been brought to record by the defence disclosing that the appellant had any animosity with the parents of the victim. It is also not the case of the defence that the appellant was the leader of the Scheduled Caste and Scheduled Tribe people and making any protest of the torture stated to have been made on their caste people by the upper caste people of the village. In view of the aforesaid, it is hard to accept the defence version of false implication by the villagers or the parents of the victim making their minor daughter an instrument, particularly in the Indian setting sacrificing their minor daughter's reputation and also braving the stigma attached to a victim of rape. The same is also not acceptable, inasmuch as there is no foundational fact in support of the same. The defence has not suggested to the prosecution witnesses, more particularly to the victim while cross-examining that she has been tutored by her parents to depose the aforesaid against the appellant and the same was due to the animosity with the caste people of the appellant Rather, the assault on the appellant by the villagers appears to be offshoot of the misdeed alleged. To strengthen the defence version of false implication, notice of the Court has been drawn to the fact that the version of the victim is not supported by the medical evidence The same is without any substance, inasmuch as the medical evidence in this case is not supposed to come out for the reasons that it was a case of attempt and the victim speaks that the appellant only rubbed his penis on her vagina. It is not a case of penetrative sexual assault nor a case of any physical injury being caused to the victim. It is not a case of penetrative sexual assault nor a case of any physical injury being caused to the victim. Furthermore, P.W.2, the mother of the victim deposed that the semen was sticking to the vagina and thigh of the victim was washed by her Non-corroboration therefore, to the version of the victim from medical evidence does not corrode the credibility of her version as the medical evidence in this case was not supposed to come out to corroborate her version. The same therefore in no way helps the defence in strengthening the defence version to prove the case by standard of preponderance of probability. The defence evidence therefore, being too slender and feeble and not supported by any foundational facts, it is hard to accept the defence version of false implication due to a village rivalry between upper Caste and Scheduled Caste people. Therefore, the defence having not proved a probable case of false implication much less having proved the same by any preponderance of probability, the defence case of false implication, as such, does not militate against the evidence adduced by the prosecution to prove the charge of attempt to commit rape on a victim-woman of less than twelve years. 13. Thus, the finding recorded by the Trial Court in the impugned judgment holding the appellant guilty of the offence as stated earlier being based on clear cogent and unimpeachable evidence of a child witness, who is a victim of sexual assault, warrants no interference, more so when the same stands corroborated, as stated earlier and the defence could not prove its case of false implication by the standard of preponderance of probability. 14. So far as the sentence imposed is concerned, the same also appears to be commensurate to the facts and circumstances of the case, inasmuch as the petitioner attempted to commit rape on a child of very tender age. There is no mitigating circumstance in favour of the appellant. The offence being heinous and serious in nature, sentence imposed cannot be said to be disproportionate. Hence, the same needs no interference. 15. Resultantly, for the foregoing reasons, this Jail Criminal Appeal is devoid of merit and the same stands dismissed. The impugned judgment and order of conviction and sentence passed by the trial Court are hereby confirmed. The offence being heinous and serious in nature, sentence imposed cannot be said to be disproportionate. Hence, the same needs no interference. 15. Resultantly, for the foregoing reasons, this Jail Criminal Appeal is devoid of merit and the same stands dismissed. The impugned judgment and order of conviction and sentence passed by the trial Court are hereby confirmed. The appellant, who has been allowed to go on bail by this Court, if availed of the said order of bail, be taken to custody by the trial Court to undergo the remaining sentence. Appeal dismissed.