Hardutt @ Datta vs State of Haryana

V.S. Aggarwal, J.

Hardutt alias Dutta challenges the judgment of the learned Additional Sessions Judge, Hissar dated 10.7.1986 and the order of sentence of the same date. The learned trial Court held the appellant guilty of the offence punishable under Section 376 IPC. By virtue of the subsequent order of sentence he was sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 300/. In default of payment of fine, the appellant was to undergo further rigorous imprisonment for three months.

The relevant facts of the prosecution case are that Bhateri is the prosecutrix. She is stated to be aged about 8 or 9 years old. Some time in February, 1986 she had come to the house of her maternal uncle Pirthi Singh in Village Kuleri. She had gone to the field of Pirthi Singh to fetch some grass. At about 3.00 P.M. she was near the room of Sita Ram. There is a kotha near it. The appellant was present at that place. The kotha has two rooms. One of them does not have any door. The appellant took the prosecutrix in one of these rooms and made her lie on the floor and she was raped. The prosecutrix raised an alarm. It attracted Krishan and Bhup Singh. On seeing them the appellant made good his escape.

On 16.2.1986 Pirthi Singh had lodged the report pertaining to the incident to ASI Bhoj Raj. The prosecutrix was examined by Dr. Geeta Chaudhary. She found the following external injuries on her person :

"1. Abrasion 3 cm x 2 cm over upper end of sacrum on back.

Abrasion 3 cm x .1 cm over left side of back 10 cms below angle of scapula.

Abrasion 2 cm x 1 cm over back of left elbow joint.

All the abrasions were red and soft scabformed not removable."

On examination of her private parts, Dr. Geeta Chaudhary recorded :

"Private parts and thighs were blood stained. Forchette was lacerated badly. Hymen was badly lacerated with blood oozing on touch and was very painful. Advised Xray of joint for determination of age."

Dr. S.K. Dogra had conducted the xray of the prosecutrix and opined that she was below the aged of 14 years.

ASI Bhoj Raj took up the investigation. On basis of the statement made by Prithi Singh he got the first information report recorded. He went to the place of occurrence and prepared the rough site plan. Boritat was found at the spot and it was taken into possession after converting it into a sealed parcel. The appellant was arrested on 19.2.1986 and was medically examined by the doctor and found to be sexually potent. It is on these broad facts that report against the appellant for the offence punishable under Section 376 IPC was filed.

In support of its case the prosecution had examined 9 witnesses. They comprised of Dr. J.L. Batra who had examined the appellant, Dr. Geeta Chaudhary PW2 who had examined the prosecutrix pertaining to the injuries on her person and Dr. S.K. Dogra PW3 who had examined the xray of the prosecutrix to determine her age. In addition to that the prosecutrix appeared as PW5. There were two witnesses to the incident namely Krishan Kumar and Bhup Singh PW6 and PW7 respectively besides the Investigating Officer ASI Bhoj Raj PW9. Their statements have to be discussed hereinafter.

The statement of the appellant was recorded and the prosecution evidence was put to him in the form of different questions. He denied the incriminating evidence and stated that his is the only house in the locality inhabited by Jats. He is a poor Harijan. His land has been grabbed and has been falsely implicated. In fact as per him Bhup Singh had committed the crime.

In the defence the appellant had examined his fatherinlaw as the solitary witness. Manphul DW1 stated that his daughter was married to him 2 years back before he appeared in Court. They were blessed with a child. At the time of arrest, appellant and his daughter were living in their house.

The learned trial court took note of the contentions raised at the bar and held that it was the appellant who had committed rape on the person of the prosecutrix who was of tender age. Accordingly, the appellant was held guilty of the offence punishable under Section 376 I.P.C. The order of sentence followed. Hence, the present appeal.

As regards the age of the proxecutrix, there was little controversy raised. Dr. S.K. Dogra as already mentioned above had examined the skiagram and opined that she was positively below 14 years of age. The prosecutrix herself has described her age as 6 years when she appeared in the witness box. The observations of the Court when she stepped into the witness box also indicate that she was not more than 8 years of age. In face of the fact that statement of Bhateri PW5 the prosecutrix pertaining to her age during crossexamination was not seriously challenged, it must be held that she was about 8 years of age and in any case below 16 years at the relevant time.

Even with respect to the question as to if she was raped or not, learned counsel for the appellant did not raise much of an issue. The relevant extract of the report of Dr. Geeta Chaudhary who had examined Bhateri the prosecutrix has already been reproduced above. The hymen had been badly lacerated and was painful. This is coupled with the statement of Bhateri the proxecutrix that she had been raped. In fact as the trial proceeded, suggestions were being given during crossexamination to Bhateri PW5 and other witnesses that it was not the appellant but it was Bhup Singh PW who had raped her. Taking stock of the medical evidence and the above said facts, there is no plea that can be raised that in fact Bhateri had not been raped.

Bhateri appeared as PW5. Since she was a child witness, the learned trial court had questioned her with respect to different facts and recorded a finding that she understood the nature of questions and is competent to depose in Court. In this regard, therefore, the trial court took precautions required to ensure that Bhateri was a proper witness or not. She indeed was a child witness and had deposed about the nature of the crime and the manner in which the same was committed.

The witness added that she had gone to live in the house of Prithi Singh and on the relevant date went to the field to fetch some grass. At about 3.00 P.M. she went to the room of Sita Ram. Har Dutt appellant was present. The appellant raped her. She raised an alarm and thereupon Krishan and Bhup had come. On seeing them the appellant ran away. She was bleeding. She was taken to the house of her maternal uncle. At that time he was not in the house and came on the next day. She narrated the occurrence to him. Thereupon she had washed her salwar.

The witness was crossexaminaed and testified that she had gone to school in the morning and come back in the afternoon. She was a student of 1st Class at that time. She could not answer the question as to how much land is owned by Pirthi Singh but added that during the time she stayed with Pirthi Singh appellant never visited their house. She had seen the appellant for the first time in the room on that date. As per her statement Bhup Singh and Krishan PWs did not tell her the name of the appellant. On being further probed she had stated that she had not seen Bhup Singh and Krishan on the date of occurrence before she raised the alarm. The appellant was stated to have not closed the door of the room. She further explained that she had not given any teeth bite to the appellant. She had continued to live in village Kuleri. As per her statement a Panchayat was held in village Kuleri. Her marriage was settled with Bhup Singh. She corrected herself that her marriage was not settled with Bhup Singh.

Her statement was necessarily assailed and it was urged that she was a child witness and, therefore, her testimony has to be taken with care and caution and necessarily need not be accepted. In its broad principle there is no controversy with the proposition that a child witness at times can be a dangerous witness because he can imagine certain things but it cannot be taken as an absolute rule. Taylor in his book "Evidence" at page 869 ($$ 1377) with respect to the child witness states :

"1377. With respect to children, no precise age is fixed by law within which they are absolutely excluded from giving evidence on the presumption that they have not sufficient understanding. Neither can any precise rule be laid down respecting the degree of intelligence and knowledge which will render a child a competent witness. In all questions of this kind much must depend upon the good sense and discretion of the Judge (g). In practice, it is not unusual to receive the testimony of children of eight or nine years of age when they appear to possess sufficient understanding."

The Supreme Court in the case Shivji Gonu Mohite v. State of Maharashtra, AIR 1973 SC 55 was also concerned with a witness who was a girl aged about 12 years. The trial court in her case had recorded that she did not understand the significance of oath. Accordingly, the oath had not been administered to her. It was held that her evidence should be scrutinized with care and in paragraph 14 it was observed :

"Once it was shown that Phuba was present in that field, the only question for consideration would be whether her evidence was acceptable or not. Her evidence in that connection had to be scrutinised with care and caution, as she was not only a teenager but the only witness claimed to be an eyewitness."

Similarly, in the case Caetano Piedado Fernandes and another v. Union Territory of Goa, Daman & Diu, AIR 1977 SC 135 the witness who was a child, was aged 6 years. The same rule of caution was drawn that the statement of the child witness must be looked with care and great caution. It was held :

"Turning first to the evidence of Xavier, it may be pointed out straightaway that he was a child witness aged only 6 years at the time when he gave evidence. His evidence is, therefore, to be approached with great caution. He was, according to the prosecution, the only eyewitness to the crime. We have carefully gone through his evidence, but we are constrained to observe that even after making the utmost allowance in his favour in view of the fact that he is a child witness, we find it difficult to accept his testimony. There are several contradictions from which his evidence suffers, such as who had which weapon, but it is not merely on account of these contradictions of a minor character that we are inclined to reject his evidence. There are serious infirmities affecting his evidence and of them, the most important is that he is supposed to have given the name of appellant No. 2 as the assailant of the deceased even though he had never seen him before the date of the incident."

Even in the case Suresh v. State of U.P., AIR 1981 SC 112, the Supreme Court was dealing with a child witness of about 5 years and it was held that whole sale her statement could not be believed. It was concluded :

"A witness who, by reason of his immature understanding, was not administered oath and who was privileged, by reason of his years, not to make his answers in an intelligible and coherent manner is unsafe to be trusted wholesale."

Same was the proposition enunciated by the Division Bench of Gauhati High Court in the case Babrubahan Jal v. State of Assam, 1991 Crl. L.J. 278 wherein the Court held :

"It is settled law that competency of a child witness depends on the capacity of understanding and consistency of the witness. It is also to be seen how far it fits with the rest of the witness and it is a matter of prudence to weigh the evidence of a child witness to be accepted by the judge. The view taken by the apex Court, in most of his references, is that it is highly unsafe to convict the accused on the uncorroborated testimony of a child witness. Keeping this view we like to examine the evidence on record."

At this stage, reference to the observations made by Lord Lane in R v Z (1990) 2 All England Law Reports that if the child possesses sufficient intelligence to justify the reception of her evidence and understood the duty of speaking truth, she could be believed. Younger the child, more the care should be taken. The judicial pronouncements referred to above, therefore, clearly support the proposition already mentioned above that a child witness is a competent witness, provided she understands the nature of questions. Due care and caution in any case might be taken while scrutinising the evidence of a child witness.

It was urged that Bhateri was not competent to identify the appellant and in this regard, reference was made to her statement during crossexamination which is being reproduced below :

" I do not know as to where the house of the accused is situated in the village. I saw the accused for the first time in the room on that day. Bhup and Krishan PWs did not tell me the name of the accused. I knew the name of the accused. On the day of occurrence, I had left the house at about 10.00 a.m. with piece of cloth and sickle. I had made a bundle of the grass which had been cut by me upto 3.00 p.m.''

The argument proceeded on the assumption that Bhateri did not know the appellant and, therefore, she could not name him. In this regard the statement of the witness has to be scrutinized with greater care and in right perspective. The witness had clarified that she had seen the appellant in the room for the first time on that day but she had not been told the name of the appellant by Bhup and Krishan. As would be seen hereinafter Bhup Singh and Krishan are alleged to have seen the appellant at that time. The first information report had been recorded after some delay. Consequently, the fact that the name of the appellant appeared therein or became known to the prosecutrix cannot be ignored.

Confronted with this position, it had been urged that in fact it was Bhup Singh who raped the prosecutrix and it is because of this fact that his marriage was settled with Bhup Singh. The argument proceeded to urge that appellant belongs to other caste and, therefore, was falsely implicated. The statement of the prosecutrix on that count reads :

"A panchayat was held at village Kuleri and there my marriage was settled with Bhup. Again said, (on the clarification sought by the prosecution counsel from the witness) that my marriage with Bhup Singh was not settled. I am living at Kuleri because my father had not taken me to Kullan."

Once again as one proceeds to reach this fact, it does not give the impression that it was Bhup Singh who could have raped her. There was no occasion to implicate the appellant. In fact she has clarified that her marriage was not settled with Bhup Singh. If she had continued to live in village Kuleri, the reasons are obvious. In a society ridden with customs and purity of life in thinking, the Court is not surprised that she was allowed to continue to live at village Kuleri. It is difficult to presume that simply because as a child witness she stated that her marriage was settled with Bhup Singh, is not that he might be taken as a culprit.

Reading of the statement of Bhateri the prosecutrix as a whole shows that she stood to the test of crossexamination. She was a child. She answered the questions intelligently. A slip here and there will not shake her testimony. Even a grown up witness would not have been more consistent. Therefore, there is no reason to discard her statement. By way of caution, one can look forward to corroboration.

The best corroboration herein is forthcoming from the statement of Dr. Geeta Chaudhary PW2. She had found that Bhateri had been raped. It is true that there is some delay in getting the first information report recorded. But in such like matters, delay would be inherent. Bhateri the prosecutrix had come to live with her uncle and aunt. She was a child of tender years. If she was raped, the honour of the family was involved. Some amount of rethinking in the family necessarily would take place. In face of these facts, the said delay in the present case cannot prove fatal.

In addition to that Krishan Kumar appeared as PW6. He deposed that he along with Bhup Singh were going towards the fields of Sita Ram. They had heard an alarm and reached to the Kotha. The appellant was seen raping Bhateri. On seeing Krishan Kumar and Bhup Singh, he ran away. On similar lines was the statement of Bhup Singh. Their testimonies corroborate the version of Bhateri. The witnesses are the residents of the same village. Certain variations here and there will not shake their testimonies. In the absence of any cogent reasons, there is no ground to reject their versions. The trial Court in these circumstances rightly concluded that it was the appellant who had committed the heinous crime.

As regards the sentence, it has already been noted above that Bhateri was young girl of tender years. Therefore, keeping in view the provisions of Section 376 IPC, the sentence of 10 years rigorous imprisonment cannot be termed to be excessive. There is no ground to interfere.

For these reasons, the appeal being without merit must fail and is dismissed. The appellant should surrender to his bail bonds.