IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 333 of 1995 Reserved on: 24.2.2009 Date of decision: 6.03.2009 State of H.P. ... Appellant Versus Ram Lal … Respondent Coram : The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 Yes. For the appellant: Mr. Rajesh Mandhotra, Deputy Advocate General with Mr. Ramesh Thakur, Assistant Advocate General. . For the respondent: Mr. Y. Paul and Mr. Dinesh K. Sharma, Advocates. Per V.K. Ahuja , J.: This is an appeal filed by the State of H.P. under Section 378 Cr.P.C. against the judgment of the Court of learned Sessions Judge, Shimla, dated 5.10.1994, vide which the respondent was acquitted of the charge framed against him under Section 376 I.P.C. Briefly stated, the facts of the case are that on 22.12.1993 Kumari ‘X’ (name not mentioned), who was studying in 5th Class, aged about 10-11 years, during day time alongwith her younger sister Meena had gone to the forest to collect leaves. The appellant who is working as a servant with one Gopal Singh of the village, was also following them. 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 On the way, he took ‘X’, the prosecutrix, towards the bushes and her younger sister Meena asked him as to what he was doing. The appellant asked her to keep quite and after taking her to the bushes, he opened the salwar of ‘X’ and when she started crying, he gave one rupee coin to ‘X’. Thereafter, the appellant removed his Pajama and ‘X’ was kept on his legs by the appellant and he put his penis inside the vagina of ‘X’ and started pushing the penis inside and outside and ‘X’ became unconscious. When she regained coconscious, her sister who was sitting nearby was found weeping and ‘X’ gave said one rupee coin and sent her sister Meena to bring chewing gum and four chewing gums were brought by her and both the girls divided the chewing gum in between them two each. They proceeded towards their house and in the evening her uncle asked Meena as to how they had got the chewing gum and she replied that this was given by ‘X’ and when he enquired, she told him that this one rupee coin was given by the appellant. As to why the money was given, ‘X’ informed him that the appellant had done ‘Battmiji’ with her. Thereafter, her mother and aunt enquired from her and she told that this ‘Bura Kaam’ had been done by the appellant. Thereafter, they went to the house of Gopal where the appellant was called, who confessed his guilt and begged for pardon. On the next day, the father of ‘X’ took her to Police Station and lodged the report. The girl as well as the appellant were medically examined. After completion of the investigation, the challan was filed before the learned Judicial Magistrate, who committed the case to the learned Sessions Judge, who tried the appellant, leading to his acquittal. We have heard the learned counsel for the parties and have gone through the record of the case. 3 The submissions made by the learned Deputy Advocate General for the prosecution were that the prosecution had fully established the case beyond any reasonable doubt from the statement of the prosecutrix and other witnesses, namely, father and uncle who have corroborated the version given by the prosecutrix. It was further supported by the statement of the Medical Officer who examined the prosecutrix and issued MLC, who had opined that redness was found on the vagina of the girl, which was due to the sexual intercourse committed with her. Thus, it was submitted that there was no proved enmity on record and the matter was immediately reported to the police. But the learned trial Court had wrongly acquitted the respondent on the grounds which do not exist or had commented upon minor infirmities found in the prosecution case, which do not affect the statement of the prosecution. It was also submitted that the statement of the prosecutrix was such which could be relied upon implicitly and which finds due corroboration from medical evidence also. It was also submitted that there is nothing in the statement of the prosecution which could even suggest that she was a tutored witness and her statement is such which clearly shows that she has withstood the test of cross- examination and her statement clearly proves the guilt of the respondent and findings of the learned trial Court to the contrary are liable to be reversed. It was also submitted that it was not a case where two views are possible from the evidence, but it is a case where the findings recorded by the learned trial Court are perverse and the same are liable to be reversed by this Court. On the other hand, learned counsel for the respondent had supported the impugned judgment for the reasons given therein 4 supplementing it by the submissions that alleged rape was committed near the common path and there was one house also nearby and, therefore, it was not possible that such an occurrence could have taken place near the common path or where a house was situated at a short distance from the place of occurrence. In regard to the medical evidence, it was submitted that it does not prove that there was any injury near the vagina and there was no injury on labia majora and the injury in question was possible with finger inserted by the mother of the prosecutrix to confirm if she had been sexually assaulted. It was also submitted that there was enmity in between the father of the prosecutrix and employer of the appellant, namely, Gopal Singh and for that reason, the appellant was falsely implicated in the case. Thus, it was submitted that the findings recorded by the learned trial Court cannot be termed as perverse for the reasons given therein and as such, it calls for no interference by this Court. Before we refer to the points raised by both the parties counsel, we will like to make a reference to the testimony of the prosecutrix, other witnesses, namely, her father and uncle and the medical evidence and then shall consider the pleas raised during the course of arguments by both the parties. Coming to the testimony of PW-1 ‘X’, she had given her age as ten years and the learned trial Judge examined her without oath since she did not understand the sanctity of oath. She clearly stated in her statement that she alongwith her younger sister had gone to forest to collect leaves and they were being followed by the accused. Accused forcibly lifted her towards the forest in the bushes. She started crying and the accused gave her one rupee coin. The accused kept her on his 5 legs and he also caught hold of his penis. The accused after opening her salwar inserted his penis in her vagina and committed sexual act with her time and again and she became unconscious. When she regained consciousness, she got tied the string of her salwar, gave coin to her younger sister for bringing chewing-gum. She brought four pieces of chewing gum and they divided the same two each. Thereafter, they went to their home where her uncle Rameshwar asked as to why they were late and from where they have purchased the chewing gum. She disclosed him that one rupee coin was given to her by Ram Lal accused, who forcibly lifted her and she disclosed the incident to her uncle. Then she and her uncle went to the house of accused and her uncle questioned the accused as to why he had committed wrong with her, who accepted his wrong act and begged for mercy. She also disclosed the incident to her mother later. She was taken to the Police Station on the next day by her father, who lodged the report Ext. PW1/A. She also handed over her salwar to the police, who got her medically examined. In the cross-examination, she has admitted that the accused was known to them. His house is at a distance of half kilometre away from her house and is not visible. The accused used to come to their house prior to the incident to meet her maternal uncle Kahan Chand. There was no dispute of their family with the accused and accused used to meet her uncle Rameshwar also. She denied the suggestion that there used to be quarrel in between the accused and her maternal uncle Kahan Chand. She stated that no blood had oozed out from her private part due to the sexual intercourse done by the accused. She further stated that the accused penetrated his organ in her private part and continued it for about ten minutes. This time was suggested to her, which she admitted 6 as correct. She also stated that she cannot state how long she remained unconscious. The accused had already left the place when she was unconscious. She stated that she did not make any hue and cry nor gave calls to any one, though she was weeping. She admitted that the accused was working with one Gopal and their family off and on used to quarrel with Gopal who was reluctant to give path to their family and for this reason, the quarrel used to take place. She admitted that the land of Gopal is adjoining to the land of their family. A careful appraisal of the statement made by the prosecutrix will clearly show that it does not suffer from any infirmity. The prosecutrix had clearly admitted the suggestion in regard to the dispute with Gopal, employer of the respondent, who is having land adjacent to their land. However, she denied that suggestion of any enmity with the respondent who used to visit the house to meet her maternal uncle and another uncle Rameshwar. In view of the replies given by her, it is clear that she is an intelligent witness and had answered the questions put to her intelligently and there was nothing to suggest that she has been tutored in any manner to depose against the accused. Before we further refer to the evidence, we like to make a reference to the case law in regard to the statement of a child witness and how the Court should proceed while referring to the testimony of a child witness. In regard to the child witness, we may refer to the following decisions, which are relevant as to how the statement of a child witness should be appreciated, what precautions should be taken while appreciating the evidence of such a witness. Reference can be made to the decision in Bhagwan Singh and others Vs. State of M.P., (2003) 7 3 Supreme Court Cases 21. The observations made in Para-19 are relevant and are being reproduced below:- “19. The law recognizes 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 Panchhi v. State of U.P.)” The decision in Suryanarayana Vs. State of Karnataka, 2001(1) Crimes 99 (SC), shows that followings observations were made in Para-5, which are relevant and are being reproduced below:- “The evidence of the child witness cannot be rejected per se, but the court, as a rule of prudence, is required to consider such evidence with close scrutiny and only on being convinced about the quality of the statements and its reliability, base conviction by accepting the statement of the child witness. The witness of PW2 cannot be discarded only on the ground of her being of Teen age. The fact of being PW2 a child witness would require the court to scrutinize her evidence with care and caution. If she is shown to have stood the test of cross-examination and there is no infirmity in her evidence, the prosecution can rightly claim a conviction based upon her testimony alone. Corroboration of the testimony if a child witness is not a rule but a measure of caution and prudence. Some discrepancies in the statement of a child witness cannot be made the basis for discarding the testimony. Discrepancies in the deposition, if not in material particulars, would lend 8 credence to the testimony of a child witness who, under the normal circumstances, would like to mix up what the witness saw with what he or she is likely to imagine to have seen. While appreciating the evidence of the child witness, the courts are required to rule out the possibility of the child being tutored. In the absence of any allegation regarding tutoring or using the child witness for ulterior purposes of the prosecution, the courts have no option but to rely upon the confidence inspiring testimony of such witness for the purposes of holding the accused guilty or not.“ Reference can also be made to the decision in Acharaparambath Pradeepan and another Vs. State of Kerala, (2006) 13 Supreme Court Cases 643. The observations made in Paras 44, 46 and 48 are relevant and are being reproduced below:- “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 fulfilment of the requirements of the said provision. The opinion of the learned Judge had been recorded and, 9 thus, it satisfies the test lad down by this Court in Rameshwar v. State of Rajasthan. 46. A child indisputably is competent to testify if he understands the question(s) put to him and gives rational answer(s) thereto. None of the witnesses have been found to be suffering from any intellectual incapacity to understand the questions and give rational answers thereto. 48. Indisputably, certain factors are required to be considered as regards reliability of the testimony of the child witnesses 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 child witness.“ We may clarify that no arguments were advanced by the learned counsel for the respondent on this statement of the prosecutrix that she was a child witness or was tutored one or that for this reason her statement cannot be relied upon. However, we have referred to the law on the testimony of a child witness and in the light of the law laid down by the Apex Court, we have considered the testimony of the prosecutrix before relying upon her statement. It is, therefore, clear that while appreciating the statement of a child witness, the Court has to be more careful, rule out the possibility of tutoring and should also look for corroboration if necessary from some evidence which could give credence to the testimony of a child witness. Coming to the statement of the prosecutrix PW-1 ‘X’, her age proved on record comes to ten years and four months on the date of occurrence. The occurrence took place on 22.12.1993, while the date of birth proved on record as per certificate Ext. PW11/A was 23.8.1983 and she was almost of the age of ten years and four months on the date of 10 occurrence. We have already observed that the prosecutrix ‘X’ appears to be an intelligent girl keeping in view her age and had answered the questions correctly and her statement is such which can be relied upon. There is no element of tutoring in her statement and she has narrated the facts correctly and in our opinion, her statement is such, which can be relied upon. Coming to the plea of false implication, the learned counsel for the respondent had relied upon the decision in Radhu Vs. State of Madhya Pradesh, (2007) 12 Supreme Court Cases 57, to substantiate his plea that the possibility of false implication in such cases is always there, wherein their Lordships have observed that false charges of rape are not uncommon and there are some rare instances where a parent has persuaded a gullible or obedient daughter to make a false charge of rape either to take revenge or extort money or to get rid of financial liability. However, it was clearly observed that whether there was rape or not would depend ultimately on the facts and circumstances of each case. There are no such circumstances in the present case, which could even suggest that it was a case of false implication. We agree with the submission that there is possibility of false implication also but the Hon’ble Apex Court has only sounded the note of caution that while appreciating the evidence of a child witness in such cases of rape, the possibility of false implication should be ruled out by the Court while appreciating the testimony of the prosecutrix. We have considered the evidence in fair manner and we are of the opinion that there is nothing on record to show that there is any possibility of false implication particularly in view of the facts of the case. There is no enmity in between the father of the prosecutrix and the accused and 11 some enmity or discord as suggested on record is only in regard to the dispute, if any, in between the employer of the respondent and the prosecutrix’s father. The dispute is of not such a serious nature which can lead to inference that the father of the prosecutrix would stake the honour of his minor daughter falsely roping the respondent to settle scores with his employer. We are not inclined to accept the observations made by the learned trial Court in Para-34 that false charges of rape are not uncommon in India and occasionally parents may introduce chillies into the vagina of their female child to cause irritation and inflammation. Coming to the medical evidence, Medical Officer PW-7 Dr. Mrs. Kumar, who conducted the medical examination of the girl had found that her hymen was intact and there was no bleeding present. She only observed that only redness was seen around peri urethral area and around hymen. She also stated that she mentioned in certificate Ext. PW7/B that redness is possible because of the sexual act. She admitted that there was no injury on the labia majora of the prosecutrix. She also clearly opined that if the finger is inserted as was inserted in the present case by PW-5 Smt. Rajma, mother of the prosecutrix, to confirm the rape, the redness which has been mentioned in Ext. PW7/B cannot be caused. She also observed that redness as aforesaid was found around vagina of the girl. Thus, it is clear that the Medical Officer had clearly opined that the girl was not used to sexual intercourse. The redness could be caused because of the sexual intercourse and not because of the insertion of the finger. The learned trial Court in disbelieving the statement of the Medical Officer had showed that the possibility of rape cannot be ruled out and had drawn his own conclusions, may be from the personal 12 knowledge or from experience of dealing in such cases but in our opinion, the observations made do not lead to the inference that the girl had not been subjected to rape. The learned trial Court observed in Para-28 of the judgment that there was no injury on the back of the prosecutrix in view of the medical examination which was contradictory to the statement of the mother of the prosecutrix PW-5 who had deposed that there was injury on the back of the prosecutrix. It was not case of any contradiction since the girl was examined after six days due to non- availability of the Medical Officer as mentioned on the back of the MLC and minor presence if any or injury of any such nature would not have been there after six days. The facts of the case had to be looked into since the girl was not raped by placing her on an uneven surface or over some thorny surface, but the rape as per the prosecution case was committed by the respondent by putting the child on his legs. It is apparent from the statement of the prosecutrrix herself as PW-1 that penis was not fully inserted but was pushed inside and outside, which clearly leads to the inference that the respondent may have tried to satisfy his lust by rubbing his penis inside the vagina or touching it with vagina and in such circumstances, there would not be any injury or rupture of the vagina or injury on the labia majora or on the person of prosecutrix. The learned trial Court also did not rely upon the medical evidence by making observation in Para-29 that since it was a case of sexual act with a small child and if considerable violence is used, there is often laceration of the fourchette and perineum and since there was no abrasion contusion or two organs including vaginal canal. Therefore, it appears that the learned trial Court did not rely upon the medical evidence. In the present case, there is nothing to show that considerable 13 violence was used and as it appears that the respondent has only attempted to satisfy his lust by touching vagina and by inserting his penis and taking it out, in which case there was no question of force having been used resulting in the injury on the private parts. The learned trial Court also observed that since there was no injury on the male organ or swelling or inflammation, since the act was committed by a fully developed man with a child of ten years, the non presence of the injury also resulted in disbelieving the medical evidence by the learned trial Court and such observation to our mind cannot be said to be correct. If no considerable force is used while inserting the penis inside the vagina by appellant upon the girl, it is not necessary that there will be an injury on the private part also. Therefore, the observations made by the learned trial Court in disbelieving the medical evidence are not correct. The learned trial Court had also disbelieved the statement of the prosecutrix since it was observed that the rape was committed in a busy thoroughfare and people used to come off and on as admitted by the witness. This observation to our mind is incorrect since there is nothing to show that this common path was near busy place, bazaar or abadi and the very fact that it was a village path does not lead to an inference that the people used to come there. No questions were put up to the girl/prosecutrix or her sister, if any person passed through this path during the time they remained at the spot, even after the occurrence when the younger sister of the