Raju vs State of Uttarakhand

Prafulla C. Pant, J.—This appeal is received through Superintendent District Jail Dehradun, filed on behalf of the accused Raju (S/o Late Lal Bahadur). The appeal is directed against the judgment and order dated 26.9.2008, passed by Sessions Judge. Dehradun, in Sessions Trial No. 61 of 2007, whereby said court has convicted the accused/appellant Raju u/s 376 of I.P.C. and sentenced him to rigorous imprisonment for a period of seven years and directed to pay fine of Rs. 10,000. Heard learned amicus curiae for the appellant, and learned A.G.A. for the State, and perused the lower court record.

Prosecution story, in brief, is that on 3.10.2006, at about 3.00 p.m., P.W. 1 Nirmala Devi gave First Information Report to Patwari Mohana Tehsil Chakrata alleging that her younger sister Kavita @ Tanu, who was aged 9 years, told her that at about 7.00 a.m., (on 3.10.2006), in the grove of contractor Lal Singh, she (Kavita @ Tanu) was raped by accused Raju. She further alleged that on removing the under-garments of her younger sister she found that she (Kavita) was bleeding from her private parts (In certain areas of Uttarakhand hills revenue officials are given police powers). On the basis of above oral report Crime No. 2 of 2006 was registered by Patwari Mohana, who started investigating the crime. He took the victim (Kavita @ Tanu) to the women''s hospital Dehradun, where she was medically examined by P.W. 6 Dr. Saroj Naithani. The said Medical Officer found that the child was bleeding from her vagina. She (P.W. 6) prepared injury report and advised X-ray for determination of age of the girl. After receiving X-ray report she prepared supplementary medical report observing that the girl was aged approximately twelve years. After interrogating the witnesses, the Investigating Officer P.W. 8 Ram Kumar Juyal to whom the investigation was later transferred submitted charge-sheet against the accused Raju (S/o Lal Bahadur), for his trial in respect of offence punishable u/s 376 of I.P.C.

Special Judicial Magistrate, Dehradun, on receipt of the charge-sheet, appears to have committed the case to the Court of Sessions for trial. On 12.11.2007, learned Additional Sessions Judge, Dehradun, after hearing the parties framed charge of offences punishable under Sections 366 and 376 of I.P.C., against accused Raju who pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Nirmala Devi (informant), P.W. 2 Katku, P.W. 3 Kavita (victim), P.W. 4 Prabha Rawat, P.W. 5, Dr. C.S. Bhardwaj, P.W. 6 Dr. Saroj Naithani (who medically examined the victim), P.W. 7 Chabi Ram and P.W. 8 Sub Inspector Ram Kumar Juyal (who completed the investigation). Oral and documentary evidence was put to the accused, u/s 313. Cr. P.C., in reply to which he pleaded that the evidence adduced against him is false. No evidence in defence was adduced. The trial court after hearing the parties found that the prosecution has successfully proved charge of offence punishable u/s 376 of I.P.C., against accused Raju, and convicted him accordingly. After hearing on sentence, the trial court sentenced the convict to rigorous imprisonment for a period of seven years. Aggrieved by said judgment and order dated 26.9.2008, passed by learned Sessions Judge, Dehradun in Sessions Trial No. 61 of 2007, this appeal was got sent by the convict from District Jail, Dehradun, at belated stage. Delay in filing the appeal is condoned since the accused was unrepresented, Shri A.M. Saklani, advocate, is appointed an amicus curiae to assist the Court on behalf of the appellant.

Before further discussion, this Court thinks it just and proper to mention about the observations made by P.W. 6 Dr. Saroj Naithani in her medical report prepared by her on 3.10.2006, at 11.15 p.m. The said Medical Officer has mentioned in the medical report (Ext. A-3) that the height of the girl (Tanu) was 3 ft and 11 inches. She had 12 upper teeth and 11 lower teeth. Her breast was not developed. She further observed that there was slight bleeding from vagina of the girl. She further observed that with great difficulty, one finger could be inserted in the vagina and her hymen was found ruptured. In the medical report dated 3.10.2006, it is further observed by the Medical Officer for determination of age, wrist and elbow and ankle and knee be X-rayed. In her supplementary report after receiving the X-ray reports P.W. 6 Dr. Saroj Naithani has observed that approximately age of the girl was about twelve years.

Now, this Court has to see whether accused Raju committed rape on Kavita @ Tanu (aged less than 13 years) on 3.10.2006, as alleged by prosecution or not.

P.W. 3 Kavita @ Tanu has been examined by the trial court after observing that the witness did not possess sufficient maturity to understand the significance of oath. P.W. 3 Kavita @ Tanu in her statement told that on the day of incident she had gone to the grove where accused Raju came and picked her up in his arms and took her to his room. The witness further told that the accused undressed himself and her and thereafter he inserted his sexual organ in her sexual organ whereafter she started bleeding from her private parts. P.W. 3 Kavita @ Tanu further told that accused Raju gave her currency note of Rs. 50 and told her not to disclose the incident to any one. The witness further narrated that she ran to her elder sister (P.W. 1) and told her about the incident.

Corroborating the statement of P.W. 3 Kavita @ Tanu, P.W. 1 Nirmala Devi has stated that on the day of incident her sister Kavita (Tanu) came to her and told about the incident. She further told that the victim also showed her currency note of Rs. 50 given by accused Raju for not disclosing about the incident. This witness (P.W. 1) has further stated then after taking out under-garments of her younger sister when she checked she found that she (Kavita @ Tanu) was bleeding from her private parts.

It is clear from the statements of P.W. 1 Nirmala Devi and P.W. 6 Dr. Saroj Naithani that the victim was bleeding from her private parts on 3.10.2006. P.W. 3 Kavita (Tanu) has stated that accused Raju ravished her as already discussed above. It is proved on the record, and not disputed that the girl was less than sixteen years of age. Rather she was less than twelve years of age. She was a child. Her consent is of no significance. The testimony of P.W. 3 Kavita @ Tanu is natural and trustworthy. She had no enmity with accused Raju. In the circumstances, the trial court has rightly believed the prosecution evidence and held that accused Raju committed rape on Kavita @ Tanu aged around twelve years.

On behalf of the amicus curiae it is argued that the statement of P.W. 3 Kavita @ Tanu cannot be read in evidence as no oath was administered to her. Considering the age of the girl, this Court is unable to accept the arguments advanced on behalf of the appellant. Proviso to Section 4 of Oaths Act, 1969, does not require administering oath to a witness aged up to the age of twelve years. P.W. 1 Nirmala Devi elder sister of the victim has stated that victim was aged 8-9 years. The Medical Officer has also opined in the report that the girl was aged approximately 12 years. In the circumstances, it was not necessary for the trial court to record the statement of the victim on oath. Apart from this, Section 7 of the Oaths Act, 1969, provides that no omission to take any oath or making affirmation shall invalidate any proceeding or render inadmissible any evidence. In other words, statement given by the witness aged more than 12 years even if recorded without administering oath is admissible in evidence. The only caution required to be taken as held by Division Bench of this Court in Bhagat Singh and three others Vs. State of U.P., , is that such evidence which is recorded without administering oath to a witness aged more than 12 years, must be credible or must be corroborated from other evidence on record. In the present case, statement of P.W. 3 Kavita @ Tanu (assuming that she had attained age of twelve years) is fully corroborated from the medical evidence on record as discussed above, and also from the statement of P.W. 1 Nirmala Devi. In Rameshwar Vs. The State of Rajasthan, also it has been held by the Apex Court that statement of witness even if aged more than 12 years, recorded without administering oath, by itself is inadmissible. It has been held that if the witness is competent and able to understand the question, even without administering oath statement of such witness can be read in evidence. For the reasons as discussed above, this Court is of the view that this appeal has no force which is liable to be dismissed. Accordingly, the appeal is dismissed. Let a copy of this judgment be sent to the Superintendent of the Jail concerned for information to the appellant. Lower court record be sent back.