IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.: 371 of 2007 Reserved on : 24.08.2010. Decided on : 07.10.2010 ______________________________________________________________ Ramesh Chand …Appellant. Versus State of Himachal Pradesh …Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting? 1 Yes For the appellant : Mr. Viajy Bhatia, Advocate For the respondent : Mr Rajinder Dogra, Addl. Advocate General with Mr. Anil Jaswal, Dy. Advocate General. _______________________________________________________________ V.K. Sharma, Judge. The present jail appeal arises out of the judgment and order dated 28.09.2007, passed by the learned Addl. Sessions Judge-II, Kangra at Dharamshala, in Sessions Case No. 2-J/VII/2007, titled State Vs. Ramesh Chand, whereby the appellant who shall here-in-after be referred to as ‘the convict’, was tried for the offence under Section 376 of the Indian Penal Code (IPC) and was ultimately convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs. 20,000/- and on failure to pay the same to suffer rigorous imprisonment for two years. The amount of fine if realized , has been ordered to 1 Whether reporters of the local papers may be allowed to see the judgment? 2 be paid to the victim as compensation under Section 357 of the Code of Criminal Procedure (Cr.P.C.). 2. The law enforcing machinery was set in motion in this case pursuant to recording of daily diary report (DDR) No. 27 (Ex.PW-8/A), dated 10.09.2006, at Police Station (PS) Jawali, at 11.50 PM (night) at the instance of Sub Inspector (SI) Tameswar Singh, Station House Officer (SHO), P.S Jawali, which is in Hindi and when translated into English is to the following effect:- Time 11:50 PM night: It is recorded at this time that Shri Kuldeep Singh, Pradhan Gram Panchayat, Nana, (PW-3) gave information at the Police Station on telephone that he had received telephonic information from village Jharad that Ramesh Chand (accused) was committing rape on his daughter at his house. He (Kuldeep Singh) requested the police to visit the spot for conducting proceedings. Acting on this information I, SI/SHO along with H.C Yashpal No. 870, H.H.C Chand Lal No. 319, H.H.C Vinod Kumar No. 414 and Constable Deva Nand No. 1146, am proceeding to the spot by official vehicle No. HP39A-1486 driven by Ramesh Chand No. 1022. 3. On reaching the spot PW-13 SI/SHO Tamweshwar Singh recorded statement of the complainant PW-1 Dev Raj Ex.PW-1/A, under Section 154 Cr.P.C, at 2.10 AM (night) on 11.09.2006. The statement is in Hindi and its English translation is as under:- Stated that I am resident of village Jharad and am labourer by occupation. We are two brothers. Ramesh Chand is younger to me. Both of us live separately having one room each of the house. Ramesh Chand’s 3 wife Kanchna Devi has gone to her relation at Kutheda yesterday. After having dinner, I went to sleep in my room with my family members whereas Ramesh Chand was sleeping in the other room. At about 10.30 p.m., I heard the cries of Ramesh Chand’s daughter (name withheld to protect the identity of the prosecutrix, who shall hereinafter be referred to as such). At this, I went upstairs of my room to the upper-storey room and saw that the light was on in the room of Ramesh Chand. The latter had taken off his pants and made the prosecutrix nude. He (Ramesh Chand) had drawn the legs of the girl up to his waist and was committing rape on her. I also woke up my wife Kamlesh Kumari who also witnessed Ramesh committing wrong act with the girl. Thereafter, I disclosed the matter to my neighbourer Surender Singh who also came with me to my house and we (I and Surender Singh) sat inside the room and switched off the light. After sometime, Ramesh Chand took the prosecutrix towards the fields. From there also cries of the prosecutrix were coming. After about half-an-hour, Ramesh Chand brought the prosecutrix to his room. After that, I and Surender Singh went to the house of the latter from where we rang up Pradhan Sh. Kuldeep Singh and disclosed everything to him on telephone. Later, the Pradhan and the police visited the spot. When the police opened the room of Ramesh, the light was on. When the blanket was removed, it was found that Ramesh had removed his pants and that of the prosecutrix upto the knees. I have Seen Ramesh Chand committing rape on the prosecutrix with my own eyes. The legal proceedings may be initiated against him. 4. Consequently , FIR Ex.PW-12/A was recorded at P.S Jawali, on 11.09.2006, at 3.15 AM. 4 5. The prosecutrix was sent for medical examination to CHC Jawali vide application Ex.PW-6/A. The examination was conducted by PW-6 Dr. Aruna Gupta, who observed and opined as under, vide certificate Ex.PW-6/B:- “The prosecutrix was brought by police for medical examination on 11.9.06 at 3. a.m. with alleged H/O Rape by her father. Statement of victim:- My father put off my pant and hurt me on urinal site. On G.P.E:- She is conscious, co-operative and oriented to T.P.P. Pulse 80 pmt., Temp. 98 0 F. Chest/CVS/P/A - NAD. No Sign of injury seen over body. She has passed the urine before brought for examination - as told by Kamlesh Kumari and has not changed the clothes. No bath has been taken and not gone for motion (defecation). Local examination:- 1) No blood and semen stains present over thigh, leg or vulva. 2) Pubic & Axillary hair not developed. No foreign hair seen. 3) No sign of injury seen over labia- majora. 4) Abrasion over labia minora and all walls of vagina (upto hymen) present. Red in colour tender on touch. 5) Hymen intact. 6) No discharge or blood seen. Examination of clothes: 1) Dirt (mud) light brown coloured present on the back of pant with small tear on Right side near pocket. (Marked). 2) Stain present on left lower border of Pant. 5 3) Stains present on Right Medial Side of lower border of Pant and tear present on lateral side near lower border. Dark grey coloured Pant sealed and handed over to Police for chemical examination. 4) Two foreign hair found on inner side of Pant (upper portion), sealed and sent for chemical examination. Opinion:- From above examination injury No.4 on local examination suggest that she is exposed to sexual intercourse. Final opinion will be given after Chemical Examiner’s report.” 6. On perusal of FSL report Ex.PW-6/C, as per which human semen was found on the Pant of the prosecutrix, which did not contain any blood, the medical witness (PW-6 Dr. Aruna Gupta) finally opined that “the prosecutrix was exposed to sexual intercourse”. 7. The accused was also got medically examined from PW-5, Dr. Vikas Gupta, vide application Ex.PW-5/A and certificate Ex.PW-5/B, containing the following observations and opinion was obtained:- “Person is brought by police for medical examination with alleged H/O rape of her own daughter. After arrest police has not allowed him to go to bath room. On GPE: Person is conscious oriented to time place & person. Pulse 100 per min. B.P – 140/90 MM of HG. Puplis dialated and sluggish reaction to light. Smell of alcohol from mouth. Chest/CVS/P/A - NAD. Person having moderately build and normal appearance. Moustaches 6 and beard present. Axillary scalp & pubic hair present. No bath taken & no urine passed & no clothes changed after police arrested him. Wearing only pant and not wearing underwear. Clothes Exam. (Pant)- Dark grey coloured pant having mud mark on right lower part (marked). No blood stains found on Pant. One stain on left side upper area near Jip present. No sign of injury (fresh) seen over any part of body. On Local Examination: Pubic hair present abut 1.5-4 cm in length (sample taken). No blood stain or injury seen over pubis, thigh, testis. Penis size 3 inches without erection and 6 inches after erection. Penis is normal. No signs of any venereal disease present. No injury seen over glans or penis. On retracting fore skin no smegma present. Fernum is having red coloured abrasion on front part near attachment to penis. From foregoing examination: I find nothing to suggest that the said accused is incapable of performing sexual intercourse. Sealed samples preserved & handed over to police for chem. examination – 1) Blood sample 2) Pant of victim 3) Sample of hair (pubic hair)” 7 8. During investigation bed sheet Ex.P-1 lying on the cot in the room belonging to the accused was taken into possession by the police vide memo Ex.PW-1/B. Birth certificate of the prosecutrix Ex.PW-7/B was also obtained by moving application Ex.PW-7/A, according to which her date of birth is 6.10.2001. The prosecutrix was entrusted in the custody of her mother PW-9 Kanchana Devi vide memo Ex.PW-9/A. The accused was arrested and was informed of the grounds of arrest vide memo Ex.PW-9/B. Site plan of the place of occurrence Ex.PW-13/B, was also prepared. The clue materials collected by the police during investigation were sent for examination to the Forensic Science Laboratory, Himachal Pradesh, Junga and report Ex.PW-6/C was procured. 9. On completion of investigation the accused was sent up to face trial. On being charged, he pleaded not guilty and claimed to be tried. The prosecution evidence followed. It examined as many as 13 witnesses. 10. On close of the prosecution evidence the accused was examined under Section 313 Cr.P.C, wherein, he set up defence of total denial, innocence and false implication. According to him, the witnesses examined by the prosecution are interested witnesses and have deposed against him on account of enmity. In reply to question No. 10 of the statement the specific defence raised by him is as under:- “I am innocent. On the day of alleged occurrence my wife was present in my house and during evening time I had 8 an altercation/quarrel with my brother/complainant over dispute of cutting grass in the presence of the victim and at about 11.30 p.m. while all the family members were sleeping my door was knocked from outside and when I opened the door and found the police who asked to send my daughter the victim with them as the police wanted to make inquiry about altercation and my daughter was taken along with my brother being ‘Taya’ of my daughter to police station Jawali. I had an infection over my male organ. I never committed any act of sexual assault with the victim. There is partition wall in my house with the house of my brother in the ground floor including Baranda portion as well as on the first floor. I have been implicated in the false case by my brother as a result of enmity.” 11. In defence, the accused has examined two witnesses, namely DW-1 Roshan Lal and DW-2 Tulsi Ram. 12. On conclusion of the trial the accused was convicted and sentenced as already noticed. Being aggrieved, the accused has laid challenge to the impugned judgment/order dated 28.9.2007, which has been supported by the respondent-State. 13. We have heard the learned counsel for the accused appointed by the Court at State expenses, the learned Addl. Advocate General and Dy. Advocate General for the respondent- State and perused the record. 14. Be it stated at the very outset that the gravamen of charge for which the accused was tried and convicted amounts to worst form of incest. The finding of guilt has been returned against the accused by the learned trial Court mainly on the basis of the testimonies of the complainant Dev Raj, who has appeared 9 as PW-1 and his wife PW-4 Kamlesh Kumari, being the alleged eye witnesses coupled with the depositions of PW-2 Surinder Singh, a neighbour, PW-3 Kuldeep Singh, Pradhan Gram Panchayat and PW-13 SI/SHO Tameshwar Singh, the investigating officer, which are in the nature of res gestae, as corroborated by the medical and forensic evidence forming part of the statements of PW-6 Dr. Aruna Gupta and PW-5 Dr. Vikas Gupta and FSL report Ex.PW-6/C. 15. It shall be pertinent to notice at this stage that the prosecutrix was cited as a prosecution witness. The record reveals that charge was framed against the accused on 2.4.2007. The prosecutrix along with some other witnesses was summoned for 10.5.2007. Some other witnesses were also summoned for 11.5.2007. However, since summons were not issued to the witnesses by the concerned court official, none of the witnesses summoned for 10.5.2007 and 11.5.2007, including the prosecutrix was present in the Court. It was in such circumstances that the case was adjourned for prosecution evidence to 4.6.2007 and 5.6.2007. The prosecutrix who was summoned for 4.6.2007, was present in the Court on that day. However, she was not examined on that day for the reasons stated vide zimni order dated 4.6.2007, which is re-produced below:- “4.6.2007 Present:- Sh. B.S. Parmar P.P for the State. Accused Ramesh Chand produced in the custody of HHC Kuldeep Chand No. 952 and HHC Arvind Singh No. 357 Police Line 10 D/Shala. Sh.Ajay Supehia Adv. Counsel for the accused. Copy of supplementary challan supplied as per separate statement. The accused is also accompanied by his wife Kanchan Devi and his daughter the victim (prosecutrix) in the present case when appeared before the court before opening the trial by the prosecution and examination of the prosecution evidence. PW Dev Raj, Surinder, Kuldeep Singh and Kamlesh Kumar present and examined. PW (prosecutrix) the victim is present but could not be examined at the request of the P.P. for the State who has sought time to examine the victim in view of the fact that the victim is in care and custody of her mother Kanchan Devi who is present today w/o of the accused and thereby some time is sought for examination of the victim which is considered and allowed. PW (prosecutrix) is discharged to today. Now for further prosecution evidence to come up now on 5.6.2007 which is already fixed. Signed and stamped Addl. Sessions Judge(II) Kangra at Dharamshala” 16. On 5.6.2007, statement of PW-6 Dr. Aruna Gupta, who had conducted medical examination of the prosecutrix, was partly recorded when her further examination was deferred till 15.6.2007, in order to enable her to identify the prosecutrix, who was also summoned for that day. However, since PW-6 Dr.Aruna Gupta, sought exemption in appearance for 15.6.2007 on medical grounds, the case was adjourned to 25.6.2007. However, strangely enough on 25.6.2007 the 11 prosecutrix was given up by the prosecution as per the following statement made by the learned Public Prosecutor:- “Statement of Sh. B.K. Marvaha P.P for the state. 25.6.2007 I give up PW (prosecutrix) who is five years old and unable to understand the questions put to her. RO&AC Signed and stamped Sd/- Addl. Sessions Judge(II) B.K.Marvaha Kangra at Dharamshala” 17. The circumstances under which the prosecutrix was given up by the learned Public Prosecutor are also reflected in the zimni order recorded by the learned trial Court on 25.6.2007, which is as under:- “25.6.2007 Present:- Sh. B.K. Marvaha P.P for the State. Accused Ramesh Chand produced in the custody of HHC Amar Singh No. 691 and C. Arvinder Kumar No. 357 Police Line D/Shala. Sh.Ajay Supehia Adv. Counsel for the accused. Dr. Aruna Gupta present and her further re- examination is complete. PW (prosecutrix) is given up as per separate statement of P.P. for the State on record. Now for prosecution evidence remaining witnesses be summoned for 7.7.2007. Signed and stamped Addl. Sessions Judge(II) Kangra at Dharamshala” 18. Admittedly, the prosecutrix was a child witness. She was born on 6.10.2001. Thus, she was slightly less than 5 years of age at the time of the alleged occurrence, which took place on 10.9.2006. On 25.6.2007, when she was given up by the Public 12 Prosecutor, she was just over five years and eight months. Presently, she might be over nine years old. 19. Section 118 of the Evidence Act lays down as to who may testify. The provision is re-produced below:- “118. Who may testify? - All persons shall be competent to testify unless the Court considers that they are prevented from understanding the question put to them, or from giving rational answer to those questions, by tender years, extreme old age, disease, whether of body and mind, or any other cause of the same kind. Explanation - A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the question put to him and giving rational answers to them.” 20. Thus, it is apparent that the duty to ascertain competence of a witness to testify is cast upon the court. It cannot be abdicated in favour of the prosecutor or anyone else. 21. In Golla Yelugu Govindu v. State of A.P., AIR 2008 Supreme Court 1842, the Hon’ble Apex Court has held as under vide para 9 of the report:- “The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. 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 his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make beliefs. Though it is an 13 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.” 22. It was further held as under by the Hon’ble Supreme Court vide para 44 of the judgment reported as Acharaparambath Pradeepan and another v. State of Kerala, (2006) 13 Supreme Court Cases 643:- “Section 118 of the Indian 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 v. State of Rajasthan .” 23. The above aspect was further elaborated by the Hon’ble Supreme Court in Ratansinh Dalsukhbhai Nayak v. State of Gujarat, 14 (2004) 1 Supreme Court Cases 64, vide para 7 of the judgment, which is as under:- “In Dattu Ramrao Sakhare v. State of Maharashtra it was held as follows: (SCC p. 343 para 5) "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 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". The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. 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 his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make beliefs. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaked 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, 15 there is no obstacle in the way of accepting the evidence of a child witness.” 24. It was held as under by the Hon’ble High Court of Patna in Ram Babu Paswan v.State of Bihar, 2007 CRI.L.J. 3365, vide parra 5 of the judgment:- “P.W. 2, Sonu Kumar is a young boy who allegedly disclosed to the informant and others that he and Ritesh were given Dalmot by the accused persons and then he was scolded by the appellant on which he went back to his house and Ritesh had been asked by the accused appellant to take out husk from the Bhuskar. Unfortunately, P.W. 2 was not found matured enough to be examined as a witness only because he could not answer certain questions put to him by the trial Court. A perusal of those questions shows that the questions purported to test the general knowledge of the boy by asking regarding number of months in a year and num- ber of days in week and how many days the school remains closed. He was also asked to count numbers in response to which he counted up to 30 only and gave an answer that he did not know multiplication and did not have sense of directions. Although P.W. 2 has replied that he was a student of preparatory class before class-I but he could count up to 30 and was aware that schools remain closed on Sunday. His age was assessed by the Court to be 5 years and as per prosecution case he was a very important witness who had disclosed that he has seen the deceased last with the appellant who had asked him to take out husk from the Bhuskar after giving him some Dalmot. The question of general knowledge regarding number of months in a year and number of days in a week should not have been put to a witness aged five years who admittedly had not attended even class-I. The testing of the witness was not on proper lines. He not only gave out his name, his father's name but 16 also gave out his address as well as dass where he was studying. This shows that witness had understanding and should have been allowed to be examined. Such error by the trial Court cannot be allowed to effect the prosecution case on the ground that Sonu Kumar (P.W. 2) did not corroborate the claim of the informant and other witnesses that he had disclosed the essential facts showing that the deceased was last seen by him with the appellant. The fact that the dead body was found in a gunny bag which is usually used for taking husk to other places prima facie corroborates the claim of the prosecution that Sonu had seen the deceased with the appellant when the appellant requested the deceased boy to