Child Witness; Subrati Vs. State of U.P. [Allahabad High Court, 26-09-2016]

Penal Code, 1860 – S. 376 – Rape – Child Witness – the victim is below the age of 10 years – She has stated that due to pain, she became unconscious – she was also suggested in cross-examination that she was stating against the accused because she was tutored by the Sub-Inspector which was negativated by this witness – the testimony of the victim and the informant remained unshaken and is supported by the evidence of PW-5 Dr. Talat Jahan who has stated that the injuries were indicative of rape – the statement of the victim is very innocent and she does not appear to be tutored. She underwent the test of cross-examination by an Advocate and there is nothing in her evidence by virtue of which she could be termed to be a tutored witness – the prosecution has successfully proved that the accused has committed rape on the victim.

# Victim


HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

CRIMINAL APPEAL No. – 428 of 1995

Appellant :- Subrati

Respondent :- State Of U.P.

Counsel for Appellant :- Mohd. Arif Khan,Raj Bux Singh,Ram Ujagir Pandey,Rishad Murtaza,Sarojini Bala Yadav,Shamim Raza

Counsel for Respondent :- Govt. Advocate

Hon’ble Mrs. Ranjana Pandya,J.

1. Challenge in this appeal is to the judgment and order dated 11.08.1995 passed by IIIrd Additional Sessions Judge, Sultanpur, in S.T. No. 250 of 1990 (State vs. Subrati), under Section 376 I.P.C., P.S. Musafirkhana, District Sultanpur, whereby the accused appellant was convicted and sentenced to 7 years rigorous imprisonment under

# Section 376 I.P.C.

2. Filtering out unnecessary details, the prosecution case is that a report was lodged by the victim stating that she was aged about 10 years. On 16.03.1990, she had gone to the fields for some work. In the adjoining fields, the accused was collecting grass. The accused came to the victim and requested her to accompany him so that he would give her plums. The victim refused. At which the accused picked up the victim, pressed her mouth and took her towards the western side. He dropped her on the ground, took off all her undergarments and raped her. The victim raise hue and cry at which, the accused fled away. The victim was bleeding. After some times, the mother of the victim came on the spot and brought back the victim to her house, at which the first information report was lodged. On the basis of first information report, the investigation commenced.

3. The prosecution examined as many as 7 witnesses. PW-1 is the victim, who proved the first information report as Exhibit Ka-1. PW-2 is Smt. Rampata, the mother of the victim. PW-3 is Kalicharan who went to the police station with the victim and lodged the report. PW-4 is Brijlal who proved the memo by virtue of which blood stained and plain earth was collected by the I.O. which is Exhibit Ka-2. Further the blood stained undergarments of the victim was taken into possession in the presence of this witness. The recovery memo was proved by this witness as Exhibit Ka-3. PW-5 is Dr. Talat Jahan who examined the victim and found the following injuries on the body of the victim:-

“Forchette torn in the mid line. Perennial tear present extending upto 2 mm. away from the inner margin. Libra minora lacerated. Vaginal Mucosa torn and hanging out of the vagina. Vaginal mucosa torn extensively on all sides. Hymen torn. Fresh bleeding from the vagina present.

Two slides vaginal smear sent for detection of spermatozoa and gonacocei.”

4. The victim was sent by the doctor for determination of age. This witness has proved the medical report as Exhibit Ka-4 and the pathological report as Exhibit Ka-5. Head Constable Ram Murti Singh is PW-6 who scribed the chik report which was orally dictated by the victim informant. Further details of the case were written in the G.D. which proved by this witness as Exhibit Ka-7. The investigation was conducted by PW-7 S.I. Ram Chet Singh in whose presence the case was registered. He copied the copy of chik and G.D. in the case diary and recorded the statement of the victim who was present at the police station. After that the victim was got medically examined but before that, the accused Vijay Pratap and others kidnapped the victim and her aunt (Bua) for which a separate case was registered under Crime No. 91 of 1990, in which case, the victim was recovered but the accused fled away. Then the victim was again sent to district hospital for medial examination. The I.O. inspected the spot on 17.03.1990. He recorded the statements of the mother of the victim and Ram Charan and inspected the spot. He proved the site plan as Exhibit Ka-8. The Investigating Officer found blood on the place of incident. He collected the blood stained and ordinary earth from the place of occurrence and kept it in two boxes, sealed them and prepared the memo which was signed by this witness. He made attempts to apprehend the accused but the accused could not be apprehended, hence he obtained the process for attachment of the property of the accused but came to know that the accused was detained in the district jail where the statement of the accused was recorded. In the mean time, this witness obtained the medical report and the pathological report of the victim. After investigation, he submitted charge sheet which was proved by him as Exhibit Ka-9. On 22.03.1990, after the statement of the victim was recorded under Section 164 Cr.P.C., the victim was handed over to her family members. Supurdginama was proved by this witness as Exhibit Ka-10.

5. After the prosecution evidence was closed, the statement of the accused was recorded underSection 313 Cr.P.C. In which he denied the occurrence. Further he has stated that he was enemical to Kalloo and Ram Kripal of the same village. He had been falsely implicated due to this enmity. The accused produced Constable Ram Kripal Sharma as DW-1 who proved the copy of the G.D. as Exhibit Kha-1.

6. After perusal of all the evidences available on record and hearing the counsel for the parties, the learned trial court has passed the impugned judgment as specified in para one of the judgment.

7. I have heard Sri Ram Ujagir Pandey as well as Ms. Sarojini Bala Yadav, counsel for the appellant, learned A.G.A. and perused the material available on record.

8. Counsel for the appellant has submitted that the trial court has not considered the evidence adduced by the defence. Besides the trial court has lost sight of the fact that all the witnesses adduced by the prosecution are interested witnesses, hence, they cannot be relied upon. Further, he has submitted that the accused was not known to the victim, hence, the appeal is liable to be allowed.

9. Per contra, learned A.G.A. Has submitted that there was no reason for the victim to falsely implicate the accused. The judgment is well reasoned and needs no interference.

10. As far as the first information report is concerned, on the basis of the first information report, the police machinery is brought into motion. Perusal of the chik report Exhibit Ka-1 reveals that the incident took place on 16.03.1990 in the afternoon. The report was lodged on the same day at 02:15 P.M. The distance of the police station from the place of occurrence being 8 Kms., thus, the first information report is prompt and chances of embellishment and and false implication are bleak.

11. I have carefully perused the chik report. A bare perusal of the chik report reveals that the chik report was dictated by the victim herself whose age as per first information report was about 10 years. A bare reading of the first information report reveals that this first information report was dictated orally to the Head Moharrir of the police station by the victim in her local regional language. The victim has narrated the complete incident in her own language categorically. Challenging this first information report, counsel for the appellant has submitted that the first information report has been lodged after consultation but this argument has no legs to stand, inasmuch as, the informant being the victim has specifically stated that she lodged the report prior to her medical examination.

12. Counsel for the appellant has also submitted that PW-1 is the victim and the informant. PW-2 is Smt. Rampata, the mother of the victim. PW-3 is Kalicharan, the uncle of the victim and belong to the same family. All are interested witnesses, hence their evidence cannot be relied upon. As far as the evidence of interested witnesses is concerned, there is no quarrel that PW-1, PW-2 and PW-3 are related to each other. Learned A.G.A. has submitted that the evidence of related witnesses cannot be thrown out merely on the ground of their relationship. As far as, the reliability of the witnesses is concerned in

# Dalip Singh and others vs. State of Punjab, AIR 1953 SC 364

it has been laid down as under by the Hon’ble Apex Court as under:-

“A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship for from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judge on its own facts.”

13. Observations of the Hon’ble Apex Court in

# Masalti and others vs. State of U.P., AIR 1965 SC 202

are worth mentioning:-

“But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how such evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.”

14. The above decision has been followed in

# Guli Chand and others vs. State of Rajasthan, (1974) 3 SCC 698

in which

# Vadivelu Thevar vs. State of Madras, AIR 1975 SC 614

was also relied upon. The following observations made by the Hon’ble Apex Court in

# Israr vs. State of U.P., 2205 (51) ACC 113

in para-12 of the judgment are also important:-

“…..Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the Court has to adopt a careful approach and analyze evidence to find out whether it is cogent and credible.”

15. The above position has been highlighted again in the case of

# Galivenkataiah vs. State of A.P., 2008 (60) ACC 370

in which reference has been made to some other cases also.

16. In the case of

# Ravi vs. State of U.P., (2004) 11 SCC 266

the following observations have been made by the Hon’ble Apex Court:-

“It is well settled in a catena of cases that the evidence of eye witnesses cannot be rejected merely because they are related. The relatives will not exonerate real culprits and falsely implicate others.”

17. Hon’ble Supreme Court in the case of

# State of Andhra Pradesh vs. S. Rayappa and others, 2006 (1) AAR 259 (SC)

dealing the evidence of related / interested witnesses has observed as under:-

“…..By now it is a well-established principle of law that testimony of a witness otherwise inspiring confidence cannot be discarded on the ground that he being a relation of the deceased is an interested witness. A close relative who is a very natural witness cannot be termed as an interested witness. The term interested postulates that the person concerned must have some direct interest in seeing the accused person being convicted somehow or the other either because of animosity or some other reasons.”

18. In para 8 Hon’ble Apex Court has further observed as under:-

“The relative witness is not necessarily an interested witness. On the other hand, being a close relation to the deceased, they will try to prosecute the real culprit by stating the truth. There is no reason as to why a close relative will implicate and depose falsely against somebody and screen the real culprit to escape unpunished. The only requirement is that the testimony of the relative witnesses should be examined cautiously….”

19. In the case of

# Satvir vs. State of U.P., (2009) 4 SCC 289

the Hon’ble Supreme Court has observed in para 24 as under:-

“The eye witnesses have been cross examined at length by the learned counsel, but nothing tangible has been extracted from their evidence to create any shadow of doubt that they are not truthful witnesses. They have given reliable, consistent and creditable version of the crime and their evidence inspires confidence. It is well settled that if the witness is related to the deceased, his evidence has to be accepted if found to be reliable and believable because he would inter alia be interested in ensuring that real culprits are punished.”

20. In

# Jaishree Yadav vs. State of U.P., (2006) 1 SCC (Cri) 160

the Hon’ble Apex Court has laid down that the evidence of interested witnesses cannot be thrown out on the ground of their relationship.

21. As far as the evidence of PW-2 Smt. Rampata is concerned, she is the mother of the victim. She has stated that when the victim did not return home for quite sometime, she went to the fields to search her daughter. While, she was searching for her daughter, she found her daughter who was crying in pain and she was bleeding, both her thighs and legs were blood stained and she was lying naked. Her undergarments were lying aside. She dressed her daughter and brought her back home. She further stated that after she brought her home, she took off the panty of the girl and covered her with a saree. This finds support from the statement of the victim PW-1, who has specifically stated that when her mother brought her back home from the fields, she was covered by her mother with a saree and she was taken to the police station by her aunt (Bua) and uncle Kalicharan. This also finds support from the copy of G.D. Exhibit Ka-7 in which the presence of aunt (Bua) and uncle Kalicharan is noted.

22. The conduct of the mother of the victim to go to search for her daughter when her daughter did not return home is very natural and digestible. The statement of the mother of the victim immediately after the incident would be relevant under Section 6 of the Evidence Act.

23. In

# Javed Alam vs. State of Chhatisgarh, (2009) 6 SCC 450

it has been laid down that Section is an exception to rule of evidence that hearsay evidence is not admissible. Test for applying rule of res gestae is that statement (or fact) should be spontaneous and should form part of the same transaction ruling out any possibility of concoction.

24. Even PW-4 Brijlal has admitted that the victim belongs to his family. He has stated that he saw the accused running away with grass. He was surprised as to why the accused was running away. Lateron he came to know that he had raped the victim. The evidence of PW-4 is not very significant, hence, it does not need any discussion.

25. As far as PW-3 Kalicharan is concerned, he has stated that when he came to know about the occurrence, he went to the house of the victim. He was told about the incident, where he waited for the father of the victim but when he did not return, he accompanied his sister Pulau and the victim went by tractor of Shiv Prasad to the police station where the victim dictated the report to the Head Moharrir of the police station. This again finds support from copy of G.D. Exhibit Ka-7 in which the presence of Kalicharan finds place. This witness was suggested that he lodged the report on the instigation of Sher Bahadur and Pancham against the accused but he denied the suggestion. Even otherwise, this suggestion has no legs to stand, inasmuch as, the report was dictated by the victim herself.

26. Coming to the evidence of the victim PW-1, her statement bears a certificate by the trial judge that questions of general nature, were put to this child witness and the trial judge concluded that the witness was capable of understanding.

27. Counsel for the appellant has submitted that it was not safe to convict the accused on the solitary statement of the child witness who could have easily been tutored.

28. As far as the statement of the victim is concerned, in

# Mohd. Ali @ Guddu vs. State of Uttar Pradesh, (2015) 7 SCC 272

in which the Hon’ble Apex Court has held that there can be no iota of doubt that on the basis of the sole testimony of the prosecutrix, if it is unimpeachable and beyond reproach, a conviction can be based.

29. It is trite law that law permits that the testimony of the prosecutrix can be accepted without any corroboration in material particulars, for she has to be placed on a higher pedestal than an injured witness. Thus, if the sole testimony of the prosecutrix is worthy of credence and reliable then no corroboration is required. I am conscious of the fact that in cases of rape, the statement of the prosecutrix must be given primary consideration, but, at the same time, the broad principle that the prosecution has to prove its case beyond reasonable doubt applies equally to a case of rape.

30. As far as the evidence of a child witness is concerned, it is settled, on record that the victim is below the age of 10 years, inasmuch as, in the first information report she has mentioned her age to be about 10 years. As per the radiological report, her age as determined by the doctor was between 6 to 8 years.

31. In

# State of U.P. vs. Krishna Master and others, AIR 2010 SC 3071

the Hon’ble Apex Court has observed that the evidence of child witness cannot be rejected out right but it should be evaluated carefully with greater circumspection. The Court has to ascertain whether it is free from influence. It has further been held that if on a careful scrutiny, the testimony of a child witness is found truthful, there can be no hindrance in the way of accepting the same and recording the conviction of the accused on the basis of testimony of a child witness.

32. Further in

# Dattu Ramrao Sakhare vs. State of Maharashtra, (1997) 5 SCC 341

Hon’ble Apex Court has held as under:-

“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.”

33. The Hon’ble Apex Court in

# Panchhi vs. State of U.P., (1998) 7 SCC 177

has observed about ‘child witness’, which reads as under:

“The evidence of a child witness cannot be rejected outrightly but the evidence must be evaluated carefully and with grater 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. The Court has to assess as to whether the statement of the victim before the Court is the voluntary expression of the victim and that she was not under the influence of others.”

34. In cross-examination this witness has categorically narrated the whole incident. She has stated that due to pain, she became unconscious. She was also suggested in cross-examination that she was stating against the accused because she was tutored by the Sub-Inspector which was negativated by this witness. The testimony of the victim and the informant remained unshaken and is supported by the evidence of PW-5 Dr. Talat Jahan who has stated that the injuries were indicative of rape.

35. In this regard the Hon’ble Apex Court in

# Ashok Debbarama @ Achak Debbarma vs. State of Tripura, (2014) 4 SCC 747

has held that the identification for the first time in Court is good enough and can be relied upon if the witness is otherwise trustworthy and reliable. It is only as a matter of prudence that the courts require and insist upon test identification parade and they it would entirely depend upon facts and circumstances if testimony of the witness is otherwise found to be trustworthy and reliable.

36. I have carefully examined the statement of the victim whose statement is very innocent and she does not appear to be tutored. She underwent the test of cross-examination by an Advocate and there is nothing in her evidence by virtue of which she could be termed to be a tutored witness.

37. PW-1, the victim has specifically stated that she was chopping Bersem in the field, suddenly the accused came to her and asked her to accompany him to eat plums. He also introduced himself to the victim by telling his name and address.

38. Thus, the medical evidence has wholly corroborated the oral evidence of the victim.

39. Counsel for the appellant has submitted that this story narrated by the victim is not reliable, inasmuch as if the accused wanted to rape the victim there was no reason why he would reveal his identity, especially when the victim specifically stated in her cross-examination that from the time when the accused carried her from the field till he committed rape, neither he asked the victim her name nor told his own name to the victim. This argument of the learned counsel for the appellant does not find favour with the Court, because this could be the way in which the accused tried to seduce this small girl. It appears that the victim belonged to a very poor family because she has stated that she does small jobs in the house. The victim has stated in her statement that the accused committed rape on her. She started bleeding at which the accused fled away. The statement of PW-1 is natural and inspires confidence.

40. Counsel for the appellant has also submitted that since the accused was not known to the victim and no test identification parade was conducted in the case, hence there is nothing on record to prove that it was the accused who committed rape on the child but as suggested to the victim it was Sher Singh who committed rape on the girl. The victim has identified the accused in Court. She has denied of Sher Singh having raped her.

41. The Hon’ble Apex Court has constantly held what is substantive evidence is the identification of an accused in court by a witness and that the prior identification in a test identification parade is used only to corroborate the identification in court. Holding of test identification parade is not rule oflaw but rule of prudence. Normally, identification of the accused in a test identification parade lends assurance so that the prosecution identification in court during trial can be safely relied upon. However, even in the absence of such test identification parade, the identification in court can in given circumstances be relied upon since the victim (child witness) is otherwise trustworthy and reliable.

42. Counsel for the appellant while placing reliance upon

# Kailash Laxman Khamkar vs. State of Maharashtra, 2010 Crl.L.J. 3255

in which the Hon’ble Apex Court has held as under:-

“In order to come to a conclusion that the conduct of the accused was indicative of a determination to gratify his passion at all resistance, then such material must exist. Importantly, surrounding circumstances may time throw beacon light on that aspect.”

43. The present case in hand is not a case of attempt but the accused has successfully committed the act of rape, hence, the prosecution has successfully proved that the accused has committed rape on the victim.

44. Counsel for the appellant has also submitted that when the victim went to the hospital for medical examination, she was lifted and kidnapped by Ram Kripal Singh, Pancham Singh, Nannhey Nat and Vijay Prakash Yadav which were admitted by the victim and even the I.O., hence, the whole occurrence becomes doubtful. I think, the incident if any of taking away, the girl and her relatives from the hospital forcibly is a separate incident. It has no bearing on this rape case.

45. Rape is a monstrous, brutal and sexual offence and in this particular case even a small girl below the age of 10 years has not be spared.

46. Counsel for the appellants has submitted that though not proved on record that the application was moved before the concerned Magistrate to hold test identification parade, but the I.O. did not hold the test identification parade due to which the prosecution case falls down like a heap of cards. Although the I.O. has denied and stated that he did not receive any directions for holding test identification parade.

47. The I.O. PW-2 Ramchet Singh in cross-examination has specifically stated that no direction were issued to him to hold test identification parade. In this regard, the statement of DW-1 was also considered by me keeping in view the copy of G.D. Exhibit Kha-1. But perusal of Exhibit Kha-1 and the statement of DW-1 Constable Ram Kripal Sharma do not show that any orders for holding test identification parade were passed by any officer. Thus, the prosecution has proved its case beyond all reasonable doubts.

48. As far as the statement of the accused recorded under Section 313 Cr.P.C. is concerned, he has stated that he was falsely implicated due to his enmity with Lallu and Ram Kripal but this statement has not supported by any short of evidence. I do not think a minor girl would spare the real culprit and implicate an innocent person on the instigation of an outsider.

49. In the case in hand, the crime is rampant for unfathomable reason. The pain and suffering of a victim is a brutal assault on her physical frame, when she is raped. It is a nightmare for her.

50. Counsel for the appellant has also submitted that a very harsh sentence has been imposed by the trial court in sentencing the accused for seven years rigorous imprisonment under Section 376 I.P.C. As per the record, the present age of the appellant would be below 50 years. I think a society which is civilized and replete with cultural values of thousand years old, should respect child and human rights. Child abuse and the rape of a girl child can never be tolerated and the culprits deserved to be dealt with iron hands of law. In this case, a tender angelic girl has been brutally ravished and there is no ground to reduce sentence which is a just sentence in the present case.

51. Thus I conclude, on the basis of what has been said and discussed above, the appeal deserves to be dismissed.

52. Accordingly the appeal is dismissed.

53. The conviction and sentence of the appellant as awarded by learned trial court by the impugned judgment and order is confirmed.

54. The appellant is on bail, his bail bonds are cancelled and sureties are discharged. He shall be sent to jail to serve out the remaining sentence.

55. Let certified copy of this judgment be sent to the trial court concerned for compliance.

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