IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.585 of 2003. Date of Decision: 9.11.2010. _______________________________________________ Gaddi. ….Appellant. Versus. State of H.P. ….Respondent. Coram: Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting1? Yes. For the petitioner: :Mr.N.K.Thakur, Advocate with Mr.Ramesh Sharma, Advocate. For respondent: :Mr. P.K.Sharma, Addl. Advocate General with Ms. Shubh Mahajan, Dy. Advocate General. Dev Darshan Sud, J.(Oral). The appellant challenges his conviction by the learned trial Court for offences under Sections 363 and 354 I.P.C. sentencing him to undergo rigorous imprisonment for two years and fine of Rs.3,000/- and in default to further undergo rigorous imprisonment for three months. He was also sentenced to undergo rigorous imprisonment for one year and fine of Rs. 2,000/- under Section 354 I.P.C. and in default of payment to undergo rigorous imprisonment for three months. Whether reporters of the Local papers are allowed to see the judgment? yes. 2 2. Prosecutrix PW4 Km. Manisha was a minor aged about four years on the date when the alleged offence was supposed to have been committed. 3. The case of the prosecution is that on 11.7.2001, the prosecutrix was removed from the lawful guardianship of her mother PW3 Smt. Sunita Devi. It is alleged that minor Km. Manisha was playing in the court yard of her house when the accused forcibly took her away to the nearby fields by scaring her with a knife took of her Salwar and tried to sexually assault her. On hearing her cries, her mother PW3 Sunita Devi rushed to the court yard and found that the prosecutrix was undressed and she was holding ‘Suthnu’ (Salwar) in her hand and was crying. She saw the accused running up-hill from the scene of occurrence and chased him. On the way, she also met PW5 Smt. Ishro Devi, who also joined her in the chase but they were unable to apprehend the accused. 4. The prosecution story then proceeds that on that very day, PW3 Sunita Devi went to the Police Station to lodge her report. Her statement Ext.PW3/A was recorded by the police next day 12.7.2001 at 10.30 a.m. and First Information Report Ext.PW9/A was registered. The appellant was thereafter charged for offences under Sections 363, 376 and 506 I.P.C. for kidnapping the prosecutrix and thereafter attempting to rape her. After investigation and on the evidence on record, the learned trial Court convicted the petitioner for offences under Sections 363 and 354 I.P.C. 3 5. The learned trial Court has basically relied upon the testimony of the complainant PW3 Smt. Sunita Devi and the testimony of the prosecutrix to arrive at the finding of guilt. The learned trial Court holds that their testimony coupled with the evidence of PW5 Smt. Ishro Devi clearly establishes that the prosecutrix was kidnapped from a house, taken into the fields and subjected to sexual assault. The Court also holds that the injuries on the prosecutrix as proved by PW1 Dr.Sunita Galodha and as recorded in the MLC Ext.PW1/A established that the appellant had, in fact, inflicted these injuries. 6. I have heard learned counsel for the appellant as also learned Additional Advocate General. 7. Learned counsel for the appellant urges that the evidence relied upon in no manner links the appellant to the alleged kidnapping and sexual assault having been committed by the appellant. Learned counsel submits that the Court below has not at all considered the evidence in its entirety but has come to the conclusion on evidence which cannot be accepted as establishing the appellant’s guilt. 8. The first point urged is that the incident took place on 11.7.2001 and there is no explanation on the record as to why the statement Ext.PW3/A as also the First Information Report Ext.PW9/A was recorded on 12.7.2001 at 10.30 a.m. Though, PW2 Smt. Aruna Sharma, PW3 Smt.Sunita Devi mother of the prosecutrix and PW5 Smt. 4 Ishro Devi, all state unanimously in one voice that the incident had, in fact, occurred on 11.7.2001. 9. I have given my anxious consideration to this fact but have been unable to find out anything on the record that PW3 Smt. Sunita Devi had gone to the police Station on 11.7.2001 but no report etc. was either recorded or entertained by the police. I am unable to find neither any reason nor any explanation from the police as to this strange conduct if what this witness says is correct. I may add under Section 154 Cr.P.C. that it is the statutory duty of the police to record First Information Report disclosing commission of an offence. In this case if the narration of facts is accepted, as true, disclose the commission of a heinous crime where a four years old child has been purported subjected to a physical trauma. 10. On the evidence of the witnesses, considering the testimony of PW2 Smt. Aruna Sharma, who is Pradhan Gram Panchayat, all that I need say is that on the day of occurrence i.e. 11.7.2001, PW3 Smt. Sunita Devi had gone to her house along with the prosecutrix and had informed her about the incident upon which she informed them that this is not a matter within the cognizance of the Panchayat and as such they should lodge a report with the police. 11. The evidence of PW3 Smt. Sunita Devi is of primary importance. She is the mother of the prosecutrix and says that on the fateful day she was in her house cutting vegetables in the upper story. She heard cries of her 5 daughter PW4 and rushed to the fields and found the prosecutrix weeping and holding her Salwar in her hand. The prosecutrix told her that the accused had threatened her with a knife, taken her away from the court yard and opened her Salwar. She saw the accused running up-hill and was assisted in the chase on the way by PW5 Smt. Ishro Devi. In cross- examination she admits that the place where the purported crime had been committed has lot of thorns and thorny bushes etc. She has been confronted with the statement of Ext.PW3/A in which there are some contradictions but for the purposes of the present appeal I am not considering them for the reason that the First Information Report cannot be treated as a substantive piece of evidence major contradictions in the report can of course be used to test the credibility of the witness(s). 12. PW8 Dr.Rakesh Chauhan, Medical Officer, Zonal Hospital, Hamirpur, who has examined the accused on 13.7.2001 at about 9 a.m., found that the accused was capable of performing sexual intercourse. Most importantly, he observed that the presence of smegma which according to him proved that he could not have had sexual intercourse at least during the last twenty four hours. Adverting to the medical examination of the prosecutrix Ext.PW1/A, there only three minor abrasions over the heels and above the ankles otherwise there is no scratch or injury on any other part of the body more especially over the perineum etc. 6 13. The evidence of two witnesses, namely, minor prosecutrix PW4 Km. Manisha and PW3 Sunita Devi requires to be considered in some detail. When PW4 Manisha was in the witness box, she was unable to answer most of the questions put to her by the Court in order to ascertain her capability making statement under oath. She could not state as to what her age was, the name of her school and that of her teacher and the place where she was standing at the time when her evidence was being recorded. She was asked by the court as to whether a person should state the truth or should lie to which there was no response. She states that on the day, she was taken away by the accused at the point of knife, she was undressed and the accused urinated on her after lying on top of her. Importantly, she states that nobody from her house came to the spot and there was some lady who passed by. She could not say as to where she was taken by her mother for medical examination or to any other place/person. In her cross-examination she admits that she has stated in Court whatever her mother tutored her to do. The exact words used by her “Yeh Thik Hai Ki Jo Bayan Maine Aaj Diya Hai yeh meri mata pita ney mujhey sikhaya thaa” (Translated: It is correct that whatever as stated in the court today by me was tutored/taught to me by my mother). 14. In Rameshwar Vs. State of Rajasthan, AIR 1952 S.C.54, the Supreme Court considering the provision of Section 13 of the Evidence Act, held that the evidence of a child witness, who has not been administered oath, cannot be said to be 7 inadmissible. It is a credibility of the witness which has to be adjudged. The Court rules: “6 The proviso to S.5, Indian Oaths Act, 1973 prescribes that: “Provided that where the witness is a child under twelve years of age, and the Court or person having authority to examine such witness is of opinion that, though he understands the duty of speaking the truth, he does not understand the nature of an oath or affirmation, the foregoing provisions of this section and the provisions of S.6 shall not apply to such witness, but in any such case the absence of an oath or affirmation shall not render inadmissible any evidence given by such witness nor affect the obligation of the witness to state the truth.” The question is whether the opinion referred to must be formally recorded or whether it can be inferred from the circumstances in which the deposition was taken. 7. The proviso quoted above must be read along with S.118, Evidence Act and S.13, Oaths Act. In my opinion, an omission to administer an oath, even to an adult, goes only to the credibility of the witness and not his competency. The question of competency is dealt with in S.118. Every witness is competent unless the Court considers he is prevented from understanding the questions put to him, or from giving rational answers by reason of tender years, extreme old age, disease whether of body or mind, or any other cause of the same kind. It will be observed that there is always competency in fact unless the Court considers otherwise. No other ground of incompetency is given, therefore, unless the Oaths Act adds additional grounds of incompetency it is evident that S.118 must prevail. 11. I would add however that 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 8 certificate. In the present case, it is plain that the learned Judge had the proviso in mind because he certified that the witness does not understand the nature of an oath and so did not administer one but despite that went on to take her evidence. It is also an important fact that the accused, who was represented by counsel, did not object. Had he raised the point the Judge would doubtless have made good the omission. I am of opinion that Mt. Purni was a competent witness and that her evidence is admissible. In the Privy Council case which I have just cited, their Lordships said--- “it is not to be supposed that any Judge would accept as a witness a person who he considered was incapable not only of understanding the nature of an oath but also the necessity of speaking the truth when examined as a witness”. (P.P.55 & 56)) 15. On the question as to whether oath is required to be administered to a child or not, the Supreme Court in Paras Ram Vs. State of Himachal Pradesh, 2001 (3) Crimes 184 (SC), holds: “3 The nutshell of the case is that the appellant attempted to commit rape on a little girl Radha on 18.9.89. The further description of the case revealed the following: Radha and her friend Indira were playing in the courtyard of the adjacent house of the appellant on the forenoon of 18.9.1989. Appellant coaxed Radha by offering to supply an apple to her. The little girl was allured by this offer and went into the room of the appellant. She was then put on the cot. Her Salwar was removed by him. Then he made the attempt to sexually molest her. Radha was examined as PW1. The trial Court did not place any reliance on Radha on the sole reason that oath could not be administered to her as she did not understand the meaning or sanctity of the oath. The Division Bench of the High Court chose to rely on her testimony despite the aforesaid draw-back. There is no legal bar against relying on the testimony of a child to whom oath could not be administered due to her incapacity to understand the meaning of oath, if the Court is satisfied that her evidence 9 is reliable. Even so, the courts always insisted on adequate corroboration of the evidence of such a child witness. PW1 Radha had narrated, though as answers to questions put of her, as to what happened inside the house of the appellant. She said in so may words that appellant had made an attempt to ravish her. Her friend Indira was examined as PW2. She also is a child witness. Nonetheless, her evidence has given assurance to the High Court of the truth of the version of P”W1 Radha on the borader aspect of the events which took place.” (P.185) 16. In State of Bihar Vs. Ramujagar Singh, AIR 1969 S.C. 53, the court holds: “While a child witness of about 12 years can often be expected to give out a true version because of its innocence, there is always the danger in accepting the evidence of such a witness that, under influence, she might have been coached to give out a version by persons who may have influence on her. Thus where a girl who was sleeping with the deceased stated that she was lying on a cot close to the cot on which her deceased aunt was sleeping; that she actually saw her aunt being killed and, according to her, there was a threat to her life also when one of the accused said that she should also be killed, though she was saved when another accused asked that she should be spared because she was a child. Further she refused to given out the names of accused and gave them only after being kept in police custody for two days. Corroboration of the evidence was sought from the recovery of bloodstained quilt and some articles from some of the accused and failure of the accused to give reasonable explanation. In this case there were a number of circumstances which indicated that it was unsafe to rely on the girl’s evidence. The girl whose statement implicating the accused persons was obtained under the circumstances could not, therefore, be held to be a reliable witness, particularly in view of the circumstance that she did not disclose their names even 10 at the earlier stage when she had not been put in fear of her life. Further the recoveries could not be held to corroborate the girl’s version. Failure of the accused to give an adequate explanation would not lead to an inference that the bloodstains must be those of the blood of the deceased. The circumstances seemed to indicate that there was no connection at all between the bloodstains and the murder. 17. In Bhagwan Singh and others Vs. State of M.P. (2003) 3 SCC 21, the court rules: “19 The law recognises the child as a competent witness but a child particularly at such a tender age of six years, who is unable to form a proper opinion about the nature of the incident because of immaturity of understanding, is not considered by the court to be a witness whose sole testimony can be relied upon without other corroborative evidence. The evidence of a child is required to be evaluated carefully because he is an easy prey to tutoring. Therefore, always the court looks for adequate corroboration from other evidence to his testimony (See: (1998) 7 SCC 177.). 20. In the case before us, the trial Judge has recorded the demeanour of the child. The child was vacillating in the course of his deposition. From a child of six years of age, absolute consistency in deposition cannot be expected but if it appears that there was a possibility of his being tutored, the court should be careful in relying on his evidence. We have already noted above that Agyaram, maternal uncle of the child, who first met him after the incident and took him along with his younger brothers to his father’s village, has not been produced by the prosecution as a witness in the court. It was most unlikely that if the child had seen the incident and identified the three accused, he would not have narrated it to Agyaram as the latter would have naturally inquired about the same. The conduct of his father Radheyshyam who was produced as a witness by the prosecution is also unnatural that before recording the statement of the child by the police, he made no enquiries from the child. 11 21. We find some force in the submission made by the learned counsel appearing for the Stte of Madhya Pradesh that looking to the age of the child and his two younger brothers, it was most likely that they were with the mother and sleeping with her when she had gone to stay with her deceased father Mata Prasad. But the other possibility of the children being fast asleep when the elders of the house wee attacked and killed cannot be ruled out as the incident is alleged to have happened in the midnight. Mere presence of the children in the house at the time of the incident is no assurance to the case of the prosecution that the eldest child got up on hearing hue and cries and had not only seen the incident but also identified the accused. Taking into consideration the child psychology, a lad of six years having seen his mother being assaulted would have raised a cry; but he says that he quietly went back to sleep. It is most unnatural even for a child that after witnessing his mother being assaulted by known persons he would go back to sleep to wake up late in the morning only when his maternal uncle Agyaram came to fetch him and his younger brothers to his father’s Alampur. 22. It is hazardous to rely on the sole testimony of the child witness as it is not available immediately after the occurrence of the incident and before there were any possibility of coaching and tutoring him. (See: Paras 14-15 of State of Assam V. Mafizuddin Ahmed, (1983) 2 SCC 14: 1983 SCC (Cri) 325.) In that case evidence of a child witness was appreciated and held unreliable thus: “14. The other direct evidence is the deposition of PW7, the son of the deceased, a lad of 7 years. The High Court has observed in its judgment: “…………………..the evidence of a child witness is always dangerous unless it is available immediately after the occurrence and before there were any possibility of coaching and tutoring.’ 15. A bare perusal of the deposition of PW7 convinces us that he was vacillating throughout and has deposed as he was asked to depose either by his nana or by his own uncle. It is true that we cannot expect much consistency in the deposition of this witness who was only a lad of 7 years. But 12 from the tenor of his deposition it is evident that he was not a free agent and has been tutored at all stages by someone or the other.” (P.P. 31 to 33) 18. Lastly, in Acharaparambath Pradeepan and another Vs. State of Kerala, (2006) 13 S.C.C. 643, the court holds: “44 Section 118 of the Evidence Act seeks to exclude evidence of those who may suffer from intellectual weaknesses. It reads as under: ‘118. who may testify—All persons shall be competent to testify unless the court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind”. In terms of the said provision, therefore, all persons shall be competent to testify unless by reason of tender years, the court considers that they are incapable of understanding the questions put to them and of giving rational answers. It is for the Judge to satisfy himself as regards fulfillment of the requirements of the said provision. The opinion of the learned Judge had been recorded and, thus, it satisfies the test laid down by this Court in Rameshwar Vs. State of Rajasthan, AIR 1952 SC 54: 1952 Cri.LJ 547. (P. 655). 19. From the consideration of the law relating to admissibility, credibility and appreciation of evidence of a child witness, the principles settled are: (a) that the evidence of a child of tender years or a child as contemplated in law, cannot be discarded merely because of the reason of his/her age or of being a child . (b) Such evidence is not inadmissible even if oath has not been administered to such a witness. (c) On the question of credibility and appreciation, corroboration can be sought where the child is of tender years of age incapable of giving logical answers or understanding the import of the questions put to such witness. The element of 13 tutoring has to be ruled out and where other corroborative evidence does not support the testimony of such a witness, it cannot be relied upon as being the sole evidence for convicting an accused. 20. It is in the background of these principles that the evidence for the prosecutrix is being considered. In this case, what I find is that the statement of prosecutrix PW4 Km. Manisha, cannot be relied upon in its entirety and would require some corroboration for the reason that whatever she states is not supported by the evidence of PW1 Dr. Sunita Galodha. She also contradicts PW3 Sunita Devi as she states that nobody from her house came to rescue her. Her evidence can not be relied upon solely without any corroboration for reaching the conclusion that the appellant was, in fact, guilty of the offence. 21. Looking to the topography of the area where the offence is supposed to have been committed and the medical evidence, both PW1 Dr. Sunita Galodha and PW8 Dr.Rakesh Chauhan, factum of rape is totally ruled out. The question is as to whether there was an attempt to rape her or not. Even that cannot be accepted on the version of the prosecutrix as according to her she was pushed down to the ground and the appellant lay on her and even urinated on her. The medical evidence is completely against what she states as a fact. Moreover, it is unfortunate that the child admits in her cross- examination that she has been tutored to state in the Court in the manner in which she has been told to do so by her mother. Although, some questions put to her by the court 14 have been answered but she has not been able to state as to whether one should speak the truth. She did not even know where she was standing