Case BriefsHigh Courts

Allahabad High Court: Suresh Kumar Gupta, J., while addressing the present jail appeal held that,

“…in cases involving sexual assault/rape, it is generally difficult to find any corroborative witnesses, except the victim herself and therefore, the evidence of the victim is sufficient for conviction unless there exist compelling reasons for seeking corroboration.”

Appellant has been convicted and sentenced under Section 376 of Penal Code, 1860 for 10 years rigorous imprisonment alongwith a fine of Rs 20,000 and in default of payment of fine, two years additional imprisonment, under Section 342 IPC for six months imprisonment alongwith fine of Rs 500 and in default of payment of fine fifteen days additional imprisonment and under Section 506 IPC for 2 years rigorous imprisonment alongwith fine of Rs 1000 and in default of payment of fine, one-month additional imprisonment. All the sentences shall run concurrently.

Trial Court held the accused guilty and convicted him for the charged offences as aforesaid.

Counsel for the appellant Deepak Rana and AGA for the State is Sri Jai Prakash Tripathi.

Bench observed that it is a settled principle of law that in cases involving sexual assault/rape, it is generally difficult to find any corroborative witnesses, except the victim herself and therefore, the evidence of the victim is sufficient for conviction unless there exist compelling reasons for seeking corroboration. Thus, a conviction can be sustained on the sole testimony of the prosecutrix, if it inspires confidence.

In Gagan Bihari Samal v. State of Orissa, (1991) 3 SCC 562 Supreme Court of India whilst observing that corroboration is not the sine qua non for conviction in a rape case, held as follows :

In cases of rape, generally, it is difficult to find any corroborative witnesses except the victim of the rape. It has been observed by this Court in Bharwada Bhoginbhai Hirjibhai v. State of Gujarat,(1983) 3 SCC 217.

Further, it is also a well-settled principle of law that the testimony of child witness can be relied upon along with other circumstances and corroborative evidence to convict the accused. Undoubtedly, the settled proposition of law that the evidence of child witness is required to be scrutinised and appreciated with great caution.

Court in view of the well-settled law examined whether the evidence adduced by the prosecution, particularly the testimony of the victim is trustworthy, credible and can be relied upon.

Victim clearly stated that she was misled by the accused/appellant Jonny and he took away her to his house and committed rape upon her by extending threat. The statement of PW-2 has also been corroborated by the mother of the victim PW-1.

Further, there are catena of Judgments of the Supreme Court of India that it is necessary for the Court to have a sensitive approach when dealing with the cases of rape.

In the Supreme Court decision of State of Punjab v. Ramdev Singh, (2004) 1 SCC 421  it was held that,

Sexual violence apart from being a dehumanizing act is an unlawful intrusion on the right of privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity.

It degrades and humiliates the victim and where the victim is a helpless innocent child or a minor. It leaves behind a traumatic experience. A rapist not only causes physical injuries but more indelibly leaves a scar on the most cherished possession of a woman i.e. her dignity, honour, reputation and not the least her chastity. Rape is not only a crime against the person of a woman, it is a crime against the entire society.

Bench stated that it has been established that in the absence of a family member of victim, the accused/appellant fraudulently called the victim to his house. On being called the victim reached the house where appellant forcefully committed rape. In these facts and circumstances in an ordinary procedure it cannot be said to be a case of false implication.

Prosecution by cogent and credible evidence is able to prove the charge under Section 376 IPC against the appellant.

In the present matter, victim is a minor and an adult committed rape on a girl of tender age, deterrent punishment is called for, taking a lenient view is out of the question.

Presently the appellant is incarcerated for more than 7 years. Conviction of the appellant is confirmed under Sections 376, 342 & 506 IPC. So on the point of conviction, the appeal is dismissed.

On the quantum of the sentence, this Court thinks that the end of justice would be met if the appellant is sentenced to imprisonment which he has already undergone.

In view of the above, the appeal is finally disposed of. [Jonny v. State of U.P., Jail Appeal No. 343 of 2018, decided on 03-09-2020]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of Sunil P. Deshmukh and B.U. Debadwar, JJ., upheld the decision of the Additional Sessions Judge and discussed the credibility and competency of a child witness.

Present appeal was filed under Section 374 of the Code of Criminal Procedure, 1973 against the judgment of the lower court, whereunder the appellant has been convicted of offences punishable under Section 302 and 309 of Penal Code, 1860.

Fidelity

Appellant since the start of his marriage used to ill-treat his wife i.e. deceased raising doubt about her fidelity.

On a fateful day, appellant assaulted on person of the deceased by giving blows of pestle and blade o her neck and other vital organs of the body.

Attempt to Commit Suicide

After causing the death of the deceased, the appellant tried to commit suicide by inflicting injuries on the neck and both hands by a sharp-edged object.

FIR

First Informant lodged FIR against the appellant for the offence under Sections 302 and 309 of the Penal Code, 1860. Thereafter trial was conducted wherein the appellant was held guilty.

Petitioners’ Counsel P. S. Paranjape argued that the Additional Sessions Judge failed to appreciate that PW-4 a child witness was fully tutored by PW-2 (first informant).

According to the appellant’s counsel, the aged act of moving inside and outside the house after allegedly committing the crime in the naked condition is not a normal act.

No sane person would move after committing such a serious crime in naked condition in a locality where his house situates.

Decision and Analysis

Bench on perusal of the facts and circumstances of the case stated that the prosecution case is based on circumstantial evidence.

Court observed that the issue of the homicidal death of the deceased was not disputed in the present matter.

Child Witness

Further, the bench noted that before recording the evidence Additional Sessions Judge ascertained as to whether master Krishna Akhade is a competent witness and whether oath can be administered to him by putting certain preliminary questions.

Considering the tender age of the child, the Lower Court Judge decided no to administer the oath to him.

High Court stated that,

Merely for the reason that, master Krishna Akhade (PW-4) was in the custody of Sonawane (PW-2) prior to his entering into the witness box, inference cannot be drawn that, Mangesh Sonawane (PW-2) had tutored him before coming to the court for giving evidence.

The aspect of competency and credibility of child witness under Section 115 of the Indian Evidence Act, 1872 was dealt with in the Supreme Court decision of Dattu Ramrao Sakhare v. State of Maharashtra, (1997) 5 SCC 341.

Court relying on the above-stated decision held that the evidence of master Krishna Akhade is reliable and there is no likelihood of him being tutored.

Section 106 of the Indian Evidence Act, 1872 provides that, ‘when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him’.

When tests of reliability and free from tutoring are satisfied, merely for the reason that oath was not administered to master Krishna Akhade (PW-4), his evidence cannot be kept out of consideration under Section 118 of the Indian Evidence Act, 1872.

Appellant – accused has not brought on record any material fact either from the cross-examination of witnesses examined by the prosecution or by producing any defence witness on the basis of which inference can be drawn either that during the fateful morning at the instance of Sangita quarrel broke out and in that quarrel, Sangita had attacked appellant and while defending himself he assaulted Sangita or that some third person either for committing theft or for other reason had entered into the house and assaulted Sangita and appellant, both.

On perusal of the evidence and material on record, the case of the prosecution is squarely covered by clause three of Section 300 IPC.

Defence of insanity is not correct in the present matter and is a mere afterthought.

Witnesses examined by the prosecution are neither interested nor inimical in the present matter. 

While the incident took place inside the house, front and rear doors which are entry points were locked and closed from inside. There was no scope for the third person to enter and at the time of the incident, except appellant-accused, Sangita and their tender aged two children, nobody was present in their house.

Appellant failed to explain as to how the said incident took place.

Attempt to Suicide

Bench held that the chain leading to the conclusion that, none other than the appellant is the assailant and after committing the murder of wife had attempted to commit suicide.

Court upheld the decision of Additional Sessions Judge and dismissed the present criminal appeal. [Bhatu v. State of Maharashtra, 2020 SCC OnLine Bom 868, decided on 21-08-2020]

Case BriefsHigh Courts

Tripura High Court: The Division Bench comprising of Sanjay Karol, CJ and Arindam Lodh, J. admitted the deposition of the prosecution witness which fully inspired confidence in establishing the guilt of the accused beyond doubt.

The respondent, a 28-year-old man has given the testimony in the case of the murder of his parents which he happened to witness at only 6 years of age. The facts of the case were that the accused along with three other persons entered the house of the respondent and killed his parents with a sharp-edged weapon. The events, in this case, starting from the investigation, the accused absconding and then the further re-investigation ordered by the High Court which was followed by the trial took a span of nearly 21 years. In order to establish the complicity of the accused in the crime the testimony of the eyewitnesses were given weightage to as in this case the investigations conducted were faulty as observed by the Trial Court which had ordered for the conviction of the accused.

Further, an appeal was filed wherein the accused contended that the testimony of the prosecution witness who was a ‘minor’ when he witnessed the incident cannot be taken into account which was nonetheless given by him after a considerable span of years.

The Court observed that naturally, the prosecution witness will only depose what he saw at the time of the occurrence of crime and that he has categorically established the factum of the brutal murder which was neither shaky nor unbelievable thus leaving no ground for discrepancies. It was important to note that the prosecution witness knew the accused as he belonged to the same village thus making the deposition all the more plausible. It further added, “Though child witnesses are pliable and liable to be influenced easily, shaped and molded, but 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. Corroboration, therefore, was a rule of prudence and nothing more. Accordingly finding the testimony to be fully corroborated, the appeal was dismissed. [Tapan Majumder v. State of Tripura, 2019 SCC OnLine Tri 25, decided on 25-01-2019]

Case BriefsHigh Courts

Kerala High Court: In the order passed by Sunil Thomas, J., the Court addressed the issue whether a minor is competent enough to be presented in court as a witness who in this case is the only eyewitness to the murder of his mother, where the accused being the father of the minor picked up a quarrel with his wife on 15.11.2014 at 2 p.m. and rammed her head against the wall, and subsequently strangulated and murdered her.

Initially the trial court had held that the child was not competent to give rational answers, hence needs to be discharged. The prosecution on 18.5.2017, filed CMP No. 2178/2017 invoking Section 311 of Cr.P.C, 1973 in order to issue summons to the child witness, subsequent to which the trail court allowed the application and mandated recalling of the witness for a just reason that the truth shall be revealed as she was the only eyewitness present at the time of the murder.

Further, the trial court conducted the ‘Voir Dire test’ to test the competency of the minor, which the minor was able to pass by giving rational answers, on which the trail court emphasised that how necessary it is to carefully mould and frame the questions considering the age of the child.

This Court referring to Kelly v. State, 75 Ala. 21 held that the competency of the child is not barred by his/her age and that the finding of the trial court on ‘Voir Dire’ is not final and also if any sufficient grounds are shown, the Court can examine the witness if it is in the interest of justice.

Furthermore, this Court observed that preliminary finding of incompetency of child witness can be varied by court at a later stage, and subsequently refused to interfere with the trial court’s impugned order, consequently dismissing the case. [Mirajul Islam Sheik v. State of Kerala,  2017 SCC OnLine Ker 24107, decided on 15.12.2017]

Case BriefsHigh Courts

Uttaranchal High Court: The Court recently addressed a criminal petition in which the appellant had appealed against his conviction by trial court under S. 307 IPC and sentenced accordingly. The main contention on which the accused based his appeal was that the case against him was not proved beyond reasonable doubt as there was no eyewitness against himself except the injured himself and his two minor children who the counsel said, could be tutored very easily.

The Court examined all the witnesses in the case along with its facts and observed that it is true that a child witness is susceptible to be swayed by what others tell him or her and therefore, he/she is an easy prey to tutoring. However, the Bench of Lok Pal Singh, J. said that when the evidence lead by a child witness is found reliable, it cannot be discarded merely on the ground that the same has been made by child witness.

The Court after re-appreciating the entire incident, came to the conclusion that the evidence by child witnesses corroborated the statements of other witnesses and thus, it was worth relying on and dismissed the appeal. [Rakesh Mohan Juyal v. State of Uttaranchal, 2017 SCC OnLine Utt 1508, decided on 12.12.2017]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Vinod Goel, J, upheld the conviction of the appellant under Section 10 of the Protection of Children from Sexual Offences Act, 2012.

The appellant had raised a question as to admissibility of the minor victims/witnesses’ testimonies. The Court relied on Panchhi v. State of UP, (1998) 7 SCC 177 where it was held that it cannot be said that a child witness’ evidence would always stand irretrievably stigmatized. A child witness’ evidence does not get automatically rejected, it must however, be evaluated more carefully, since a child is more susceptible to tutoring.

The cross-examination revealed no material inconsistencies between the testimonies of the child witnesses and other witnesses. Hence, appeal dismissed. [Hans Raj @ Bhola v. State, 2017 SCC OnLine Del 10589, decided on 21.09.2017]

High Courts

Delhi High Court: Dealing with a case where a five-year-old girl “X” was raped by her neighbour, a bench of S.P. Garg J affirmed the decision of the trial court to convict the accused (appellant) under Section 376(2)(f) of the Penal Code.

In the instant case, the trial court convicted the accused on the basis of “X’s” testimony, in which she deposed that the accused took her inside the house on the pretext to give toffee, and inserted his private part into her private part. The trail court also relied on “X’s” Court statement, in which she identified the appellant to be the perpetrator of crime. The Court rejected the plea of the appellant that he was not the perpetrator of crime, on the ground that he failed to establish the plea of ‘alibi’ and give plausible explanation for his false implication. The Court noted that “X” aged about five years is not expected to level serious allegation of rape against an innocent one who lived in her neighbourhood. The Court further noted that no strong reasons exist to disbelieve the testimony of child witness, and that for petty altercation X’s parents cannot be imagined to concoct false allegations which have reflection upon the chastity of their little child.

The Court concluded that ocular testimony of the prosecutrix is in consonance with the medical evidence, which lends credence to X’s version of sexual assault, and stated that ‘since the perpetrator of the crime was known to the victim and belonged to their native place, he deserves no leniency particularly when the victim was aged about five years like his daughter”. The Court stated that the impugned judgment based on fair and proper appreciation of the evidence supported by relevant judgments needs no intervention, and accordingly affirmed the decision of the trial Court, and awarded 10 years jail term to the accused for raping the girl child. Upender Mukhiya v. The State (NCT of Delhi), 2015 SCC OnLine Del 9863, decided on 29.05.2015

 

High Courts

Delhi High Court: In an another horrifying incident of rape, where a 5 year old girl was subjected to rape by the accused, the Court upheld the sentence of 10 years imprisonment under Section 376(2) (f) of the Penal Code. The Court in this case discussed the issue, whether a conviction can be recorded on the sole testimony of a child witness and held that the court has to ensure that child witness is reliable and if the witness’s testimony is found to be trustworthy then conviction can be recorded solely on that basis, the Court cited Supreme Court decision in Virendra v. State of U.P. (2008) 16 SCC 582 which said that Indian Evidence Act, 1872 does not prescribe any particular age as a determinative factor to treat a witness to be a competent witness and child of tender years can be allowed to testify if the child has the ability to understand questions and give rational answers. Therefore evidence by child witness is not required to be rejected per se, but as a rule of prudence, court must be convinced about the quality and reliability of the same.

In instant case, the counsel for petitioner,.Mr. D.B. Yadav contended that judgment of the lower court suffer from infirmities as the material witnesses that is parents of the victim were not examined by the prosecution and on the other hand, the counsel for respondent, Fizani Hussain submitted that testimony of the prosecutrix alone is sufficient to sustain the conviction.

The Court finally held that the testimony of the prosecutrix is sufficient for the conviction of accused and in the present case; testimony is corroborated along with medical as well scientific evidence which has helped the prosecution to establish its case beyond reasonable doubt. While affirming the decision of lower court over the quantum of sentence, the Court said that victim was only 5 year old when rape was committed on her, therefore, the accused deserves the severest punishment possible.Mithu Rai v. State, 2015 SCC OnLine Del 7289, decided on 10.02.2015