Crl. Revision No.408 of 2002 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Revision No.408 of 2002 Date of decision: 24.03.2009 Mahabir Singh .....Petitioner versus State of Haryana .....Respondent Coram:- Hon'ble Mr. Justice A. N. JINDAL. Present: Mr. Anhul Singh, Advocate for the petitioner. Ms. Rajat Goyal, AAG, Haryana. A. N. JINDAL, J Accused-petitioner (herein referred as 'Petitioner') was prosecuted for the offence under Section 377 for committing sodomy over 3 years and 3 months old child Parveen . Consequently, he was convicted and sentenced to undergo R.I. for 3 years and to pay a fine of Rs.1000/- vide judgment dated 10.7.1998 passed by Addl. Chief Judicial Magistrate, Kaithal. His appeal was dismissed vide judgment dated 23.01.2002 passed by the learned Additional Sessions Judge, Kaithal. On 2.04.1993, Ram Kumar father of Parveen was on his duty at a rice sheller at village Ghuna. At about 5.30 PM, appellant Mahabir, who is neighbourer of the victim had taken Parveen to the fields and committed sodomy upon him. When the child returned home, he while crying, informed his mother about the act of Mahabir. The Panchayat was convened to settle the matter but in vain, therefore, the case could be registered on 2.04.1993 against the petitioner. The petitioner was arrested on 4.04.1993. On the demarcation of the place of occurrence by the Crl. Revision No.408 of 2002 -2- victim, rough site plan was prepared the clothes of victim were taken into possession and sent to Forensic Science Laboratory, Madhuban. The statements of the witnesses were recorded. On completion of investigation, the challan against the petitioner was presented. The petitioner was charged under Section 377 IPC. In order to substantiate the charge, the prosecution examined Ram Kumar (Complainant) PW-1, Dr. B. B. Kakkar PW-2 , Dr. P.K. Paliwal, (Medical Officer of Medical College Rohtak) PW-3, Radha Rani (mother of the victim) PW-4, Parveen (Victim) PW-5, Jagjit Singh, Assistant Sub-Inspector(Investigating Officer ) PW-6, Dr. S. K. Jain PW-7. During his statement under Section 313 Cr.P.C, the petitioner denied all the allegations and pleaded his false implication in the case. In defence, the appellant examined Partap Singh, Ex- Sarpanch DW1, Suraj Bhan, Lambardar DW2. The trial ended in conviction. His appeal was also dismissed. The case is merely based on the testimony of the child witness who at the time of occurrence was 3 years and 3 months old and on the day of making the statement was about 7 years old. The other evidence is of Radha Rani who stated that she had seen the child in the lap of the accused. Before proceeding to determine the competency, reliability and trustworthiness of Parveen a child witness, I need to comment upon the testimony of Radha Rani. There is nothing in the FIR recorded by Radha Rani that he had seen the child in the lap of the accused. Rather it is mentioned in the FIR that when Parveen reached home, he was crying. On asking of his Crl. Revision No.408 of 2002 -3- mother, Parveen disclosed that the accused had committed sodomy upon him. Even in his statement in the Court, Parveen has stated that when Mahabir had left then he came at that time his mother was in the house. Thus the testimony of Radha Rani to the extent that Mahabir ran away after leaving the child is totally false and exonerated one in order to strengthen the case. Now I am left with the testimony of Parveen who was only 3 years and 3 months old at the time of occurrence and 7 years old at the time of making the statement. Firstly, doubts are raised as to the competency of Parveen to make the statement. The requirement of law essentially is that before recording the statement of the child the Court is to append a certificate regarding the fact that the witness was mature enough to understand the questions and giving rational answers to the questions put to him and could understand the meaning of oath. In case of the child witnesses, Section 118 of Indian Evidence Act, vests in the Court, the discretion to decide as to whether he is or is not disqualified to be a witness by reason of lack of understanding. Thus it is desirable and expected from the Magistrates that they should always record their opinion that the child could understand the duties of speaking the truth, such an opinion of the Magistrate or the Judge can also be gathered from the circumstances even when there is no such formal certificate. In any case from the perusal of the statement of Parveen no such question was asked if he understood the sanctity of oath and if he could understand the meaning of sodomy or the male organ, no such certificate was appended by the Magistrate if the Parveen was a competent witness. No such Crl. Revision No.408 of 2002 -4- statement was recorded by the Magistrate that the child was able to understand the questions and give rational answers. Thus I am unable to understand if Magistrate took Parveen as a competent witness. A child of seven years at the time of making the statement cannot recollect the circumstances happening with him four years back. Rather from the testimony, he appears to be tutored witness. The relevant extract from his statement is produced as under:- “What ever today I have stated, the same was told to me by my father. My father had told to me in the evening. Police had come to me. However, I do not remember as to how many days later, the police had come. My father had asked me to name Mahabir. It was told on the same day.” Thus from the tenor of the statement it transpires that he had named Mahabir on the asking of his father. He even did not come across the accused or the police after sodomy was committed upon him or he has not disclosed when he had met the police. The Court has always been conscious in believing such statements of the child witness as it has been stated time and again that there is no more dangerous witnesses than young children. They by virtue of immature age, are unable to understand the sanctity of oath. They are prone to mistake dreams for reality. They are pliable as clay and repeat glibly as of their own knowledge what they had heard from others. Children have good memories and they are most untrustworthy class of witnesses on account of their tender age. Thus certain parameters have been set before evaluating the Crl. Revision No.408 of 2002 -5- testimony of the child witnesses. The question regarding the appreciation of the child witnesses also came under fire before the Division Bench of this High Court in case of Ram Singh vs. The State 1973 C.L.R (1) 482 wherein their Lordships issued following guidelines: “Thus, the case resolves itself into the issue: whether it was safe, in the circumstances of the case, to act on the testimony of the solitary eye-witness, Swinder Kaur. Admittedly, she is a child of about 8 or 9 years of age. There is a beed-rool of authorities which have firmly laid down the rule that childern are a most untrustworthy class of witnesses, for when of tender age, they live in a realm of make believe, they are prone to make mistake dreams for reality, they are pliable as clay and repeat glibly as of their own knowledge what they had heard from others. The Courts have, therefore, to scrutinize the evidence of a child witness with utmost caution. Though no precise criteria for appraising the evidence of a child witness can be laid down, yet one broad test is, whether there was possibility of any tutoring. If this test is found in the positive, the Court will not , as a rule of prudence, convict the accused on a murder charge on the basis of Crl. Revision No.408 of 2002 -6- child evidence unless it is corroborated to material extent in material particulars, directly connecting the accused with the crime”. In the instant case, the statement of the the victim suffers from material illegalities and also had not cleared the test as laid down in the aforesaid judgment. The testimony of Parveen stands uncorroborated by other evidence and also does not fit in with medical evidence. Dr. B. B. Kakar examined the victim for the first time after four days of the occurrence observed as under: Injury: Alleged history of sodomy, four days back there is no external injury around the anus. No redness. Referred to M.O. Rohtak. Thereafter, on the next day 3.4.1993 Dr. P.K. Paliwal medically examined Parveen and found the following injuries: Injuries: Anal mucosa is red and inflamed. There is no laceration in the mucosa of anal canal situated at 12.' clock position measuring 0.3 cm to 0.5 cm in size. No blood stains present. There are multiple abrasions over both the knees in an area of 3 to 5 cm margin 0.5 cm to 1 cm in diameter with dry and brown scape. On comparison of both the medical reports, the report made by Dr. P. K. Paliwal appears to be broad one and the same contradicts the report given by Dr. B. B. Kakar who examined victim Crl. Revision No.408 of 2002 -7- at the first blush. Dr. B. B. Kakar was quite medically fit and an expert witness to examine any injury. Dr. B. B. Kakar did not find any injury on his knees. He has not stated any where that he did not visualised the injuries of the victim. Had there been actually some injuries on the knees then he would have pointed out the same in his report dated 2.04.1993. Dr. B.B. Kakar has stated that there was no redness or injury around anus but it finds mentioned in the report made by Dr. P. K. Paliwal. This contradiction in reports is very much material. It has not been explained as to what transpired between the period of 1st examination and 2nd examination as the injuries came to the surface on the person of Parveen for the second time. It was not microscopic or radiological examination which was done by Dr. P. K. Paliwal. Had he done so then some weight could be attributed to his statement or Dr. B. B. Kakar could be said to have only physically examined injured. In the absence of any explanation, it would not be unsafe to condemn the report made by Dr. P. K. Paliwal. At the same time the another material defect from which the impugned prosecution is suffering is two days delay in lodging FIR which stands unexplained. Furthermore, the act of sodomy on the part of the accused stands falsified from the statement of PW-7 S.K. Jain, Medical Officer, Civil Hospital who medically examined the accused and opined that it was not possible for him to comment whether accused had done sexual act on the relevant date. The aforesaid facts and circumstances were not taken into consideration by the Courts below while recording the conviction against the petitioner. The onus to prove the guilt of the accused lay Crl. Revision No.408 of 2002 -8- heavily upon the prosecution which it has failed to shift by leading cogent, convincing and reliable evidence. As such benefit of doubt could be extended to the petitioner. In the aforesaid circumstance, I hereby accept the revision petition set aside the impugned judgment and acquit the petitioner of the charges framed against him. Bail bonds and surety bonds furnished by him stand discharged. Fine, if any deposited by him, may be refunded. ( A. N. JINDAL ) JUDGE 24.03.2009 A.Kaundal