evidence, though the evidence of prosecutrix that she was raped by
the appellant/accused, has gone unchallenged in the crossexamination,
I think, this Court should not mechanically, nay in a
pedantic way, act on that evidence and record the conviction of the
appellant for the offence of rape. After all there is a duty cast on
the Court to scan the evidence according to law and not to record the
moral conviction. What is required is legal evidence. I find that the
learned trial Judge recorded moral conviction for the offence u/s 376
IPC.
7. There is one more angle about the evidence of PW 2
prosecutrix, aged about 6 years, as to why the same cannot be relied
upon to convict the appellant. The reason is that she is a child witness,
aged about 6 to 8 years. As to the appreciation of the evidence of child
witness, this court in the case of Baban Bakkayya Attre vs. State
of Maharashtra : 2001 (4) Mh.L.J. 404 held in paragraph no.13
as under :
“13. A child witness is certainly a competent
witness to depose before the Court. The Court would be
justified in convicting an accused on the basis of the
evidence of a child witness. If the court finds that the child
witness has the capacity of understanding and gives
truthful answers, a conviction could be based on the
evidence of such child witness. The rule of prudence, now,
ripped into rule of law, is to seek corroboration to the
evidence of child witness before the evidence of child
witness is made a foundation for conviction. It is to be
always remembered that a child witness is susceptible to
being tutored. Because of tutoring , the child witness is so
much impressed that he begins to believe that what is
tutored to him is the truth. The court has, therefore, to be
extremely cautious while accepting the evidence of the
child witness.”
8. The Courts have repeatedly held that the evidence of the
child witnesses should be carefully scrutinized as there is likelihood
of the child witnesses being tutored prone to depose in the court in a
particular manner. But then there is a duty cast on the Courts to
evaluate and assess the evidence of the child witnesses, that too in
juxtaposition with the other evidence, even if the evidence of
prosecutrix has not been challenged in the crossexamination in a
proper manner. As such, for the reasons given above, the appellant
cannot be held guilty of offence of rape by relying on the sole
testimony of the prosecutrix, aged about six years. Hence, I am of
the opinion that the prosecution utterly failed to prove the offence
u/s. 376 IPC against the appellant and he must be acquitted of the
said charge.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
CRIMINAL APPEAL NO. 205 /1999
Yogiraj s/o Pralhad Ghule
v
The State of Maharashtra
CORAM : A.B.CHAUDHARI, J.
DATED : 4th February, 2016
Citation: 2016 ALLMR(CRI)4715
Being aggrieved by the judgment and order dated 3rd July
1999 passed by learned Addl. Sessions Judge, Washim in Sessions Trial
No. 89/1998 sentencing the appellant to suffer R.I. for seven years
and to pay a fine of Rs.1,000/, in default R.I. for six months, the
present Appeal was filed in this Court.
2. In support of the Appeal Shri A.D. Girdekar, learned
counsel for the appellant vehemently argued that the conviction
recorded by the learned trial Judge for offence punishable under
Section 376 IPC, is perverse since the medical evidence does not at all
support the prosecution case. It was risky to convict the appellant for
the offence of rape, looking to the age of the appellant and the
prosecutrix, having the age of six years. He then submitted that the
evidence of the prosecutrix is untrustworthy and should have been
discarded by the trial Judge. At any rate, there could be no conviction
of the appellant, much less u/s. 376 IPC. In the alternative, he
submitted that the appellant has already undergone sentence of
three months and two days and in view of the fact that the appellant
has a family with children to maintain, he should be let off on the
period of imprisonment already undergone by him. Lastly, the learned
counsel left it to the discretion of this Court about the deposit of
increased fine amount, if any.
3. Per contra, Ms. Ritu Kalia, learned APP supported the
impugned judgment and order and submitted that the sole testimony
of the prosecutrix stands unshattered in the crossexamination which
is crystal clear from reading of the crossexamination. In fact,
according to her, there is no crossexamination at all on the material
evidence and that evidence has gone unchallenged and, therefore, no
fault can be found with the conviction which was recorded on the
basis of sole testimony. She, therefore, prayed for dismissal of the
Appeal.
4. I have heard learned counsel for the rival parties. I have
perused the impugned judgment and order minutely, recorded by the
learned trial Judge convicting the appellant u/s. 376 IPC. I have
gone through the evidence of the prosecution witnesses, including the
prosecutrix PW 2. The age of the prosecutrix on the date of recording
of evidence, is eight years. She described the incident in paragraph
no.1 of the examinationinchief as under :
“1. In the last year I was studying in 2nd standard.
I know the accused Yogiraj. At about 2.p.m. I had been to
my house from my school to take meals. After taking meal,
I was playing outside the house. The accused Yogiraj came
there and he had lifted me and carried me to his house
and laid me on the ‘Palang’ (cot). The accused had
removed his clothes and removed my nicker and committed
sexual intercourse with me. I was weeping. There the
grandmother of accused came. Then his sister came there.
Then I had proceeded to my school. On that day my
parents had been to the field. At about 4 p.m. I returned
back from the school to my home. My parents returned
back to home in evening. Then, I had narrated the incident
to my parents. I was directed for medical examination.”
5. I have perused the crossexamination of this witness and
as rightly contended by the learned APP, the crossexamination is not
worth even the paper on which it is written. The entire material
portion regarding the incident proper, has gone unchallenged. The
question, however, is whether the Court should mechanically accept
the testimony of the sole witness, namely, prosecutrix of the age of 6
years, merely because there is a failure on the part of the defence in
making the effective and proper crossexamination to her. At Exh.17,
there is a medical examination report of this girl of six years of age
who was said to have been raped by the appellant, aged 19 years. I
quote the relevant Exh. 17 medical report which reads thus;
“ No any injury all over the body externally illegible. No
any stain. Local examination – No any illegible over the
private parts illegible vagina.
1) No definite opinion about the rape can be
x illegible x
2) Not eligible for sexual intercourse.
3) NAD
4) Blood sample taken.
5) Adv. Xray Elbow Jt. /Wrist Jt.
Illegible.
.... Secondary sexual character are not developed.
.... No public hair over vagina illegible.
No any injury over the vagina. Hymen Intact. No
any stain.
No definite opinion about the Rape can be given. “
(Page no.30 of the paperbook)
6. From the perusal of the above medical report produced by
the prosecution, it is clear that the entire body of the prosecrutix was
not having any external or internal injuries anywhere. No stain was
found on any part of her body or her private part. No definite opinion
about rape could be given. No injury over the private part or hymen or
vagina was found. This evidence, in turn, shows absolute negation of
the theory of rape of a girl, aged six years, by a person of 19 years old.
There is no other evidence produced by the prosecution affirmatively
to prove the sexual intercourse/penetration or any of the ingredients
of Section 375 of the IPC. The clothes of the appellant /accused were
also seized and he was also medically examined but then the perusal of
the medical evidence in relation to the accused, again, demonstrates
the same story, namely, absence of even the remotest evidence about
the act of sexual intercourse. In the wake of the above medical
evidence, though the evidence of prosecutrix that she was raped by
the appellant/accused, has gone unchallenged in the crossexamination,
I think, this Court should not mechanically, nay in a
pedantic way, act on that evidence and record the conviction of the
appellant for the offence of rape. After all there is a duty cast on
the Court to scan the evidence according to law and not to record the
moral conviction. What is required is legal evidence. I find that the
learned trial Judge recorded moral conviction for the offence u/s 376
IPC.
7. There is one more angle about the evidence of PW 2
prosecutrix, aged about 6 years, as to why the same cannot be relied
upon to convict the appellant. The reason is that she is a child witness,
aged about 6 to 8 years. As to the appreciation of the evidence of child
witness, this court in the case of Baban Bakkayya Attre vs. State
of Maharashtra : 2001 (4) Mh.L.J. 404 held in paragraph no.13
as under :
“13. A child witness is certainly a competent
witness to depose before the Court. The Court would be
justified in convicting an accused on the basis of the
evidence of a child witness. If the court finds that the child
witness has the capacity of understanding and gives
truthful answers, a conviction could be based on the
evidence of such child witness. The rule of prudence, now,
ripped into rule of law, is to seek corroboration to the
evidence of child witness before the evidence of child
witness is made a foundation for conviction. It is to be
always remembered that a child witness is susceptible to
being tutored. Because of tutoring , the child witness is so
much impressed that he begins to believe that what is
tutored to him is the truth. The court has, therefore, to be
extremely cautious while accepting the evidence of the
child witness.”
8. The Courts have repeatedly held that the evidence of the
child witnesses should be carefully scrutinized as there is likelihood
of the child witnesses being tutored prone to depose in the court in a
particular manner. But then there is a duty cast on the Courts to
evaluate and assess the evidence of the child witnesses, that too in
juxtaposition with the other evidence, even if the evidence of
prosecutrix has not been challenged in the crossexamination in a
proper manner. As such, for the reasons given above, the appellant
cannot be held guilty of offence of rape by relying on the sole
testimony of the prosecutrix, aged about six years. Hence, I am of
the opinion that the prosecution utterly failed to prove the offence
u/s. 376 IPC against the appellant and he must be acquitted of the
said charge.
9. The next question is as to what offence the appellant did
commit, based on the evidence of the prosecutrix which, as earlier
stated, has gone unchallenged. From the above evidence of the
prosecutrix, it is clear that the appellant had outraged her modesty.
The assault made by the appellant on the girlchild as is clear from the
above evidence, clearly proves that he committed the offence
punishable u/s. 354 IPC. The incident relates to the year 1998, that
is obviously prior to the amendment made by the Parliament, which is
effective from 3rd February 2013. Therefore, the Court gets discretion
to alter or modify the sentence having found the appellant guilty for
offence u/s 354 IPC. The appellant has already undergone
imprisonment of 3 months and 2 days. Since the incident is of the year
1998 and the appellant is said to be a married person with children
to look after, I do not think, at this stage, he should be pushed into
jail. But then appellant cannot be let off so easily. The appellant will
have to pay a substantial amount towards fine, for not being again
sent to Jail. Learned counsel for the appellant states that he is a poor
agriculture labourer. Be that at it may, in my opinion, the appellant
should be asked to deposit an amount of Rs. 25,000/ ( rupees twenty
five thousand) as fine, to be forfeited to the Government, upon its
deposit. In that view of the matter I make the following order :
ORDER:
a) Criminal Appeal No. 205/1999 is partly allowed.
b) The judgment and order dated 3.7.1999 in Sessions Case
No.89/98 passed by learned Additional Sessions judge, Washim,
convicting and sentencing the appellant for offence punishable u/s.
376 IPC, is set aside and the appellant is acquitted of the charge with
which he was charged.
c) The appellant is convicted for offence punishable u/s. 354 IPC
and sentenced to suffer imprisonment for the period which he has
already undergone.
d) The appellant shall pay a fine in the sum of Rs. 25,000/
(rupees twenty five thousand ) to be deposited before the trial Court
within a period of one year from today. In default, the appellant shall
undergo R.I. for one year.
e) Bail bonds of the appellant shall stand cancelled.
JUDGE
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