Summary
A three-year-old girl was found unconscious and bleeding in 1986 after the accused, to whose care she had been entrusted, allegedly raped her. The Sessions Judge convicted him under Section 376 IPC in 1987; the High Court acquitted him in 2013 in a six-page judgment relying on the child's silence in court, a discrepancy between the FIR and the complainant's deposition, and the absence of semen. The Supreme Court restored the conviction: the High Court as first appellate court had not independently assessed the evidence; a traumatised child's silence cannot benefit the accused and conviction may rest on medical and circumstantial evidence; the discrepancy was never put to the witness and was not material; and the medical evidence of injuries to the victim and to the accused pointed to the accused.
Issues
- Whether the High Court, as the first appellate court, was justified in reversing the conviction without independently assessing the evidence, and whether the Supreme Court should remand or itself examine the evidence after nearly four decades.
- How the silence of a child victim who could not depose about the incident, and the absence of the prosecutrix's testimony generally, bear on the prosecution case.
- Whether the discrepancy between the complainant's version in the FIR and his deposition in court was material enough to discredit him.
- Whether the medical and circumstantial evidence established the offence under Section 376 IPC beyond reasonable doubt.
Provisions considered
- Section 376, Indian Penal Code, 1860The Trial Court found the ingredients of rape fulfilled on the medical evidence of fresh rupture of the hymen and injuries to the child's genitals and sentenced the accused under Section 376 to seven years' rigorous imprisonment, reduced from ten years as he was a 21-year-old first offender. The Supreme Court restored that conviction and sentence. (¶¶ 5, 22)
Held
- As the first appellate court the High Court was expected to independently assess the evidence before confirming or disturbing the Trial Court's findings; a six-page judgment giving the matter fleeting consideration did not meet that settled requirement. Given that the incident was forty years old and the appeal itself had taken twenty-six years to be decided, remand would not serve justice and the Supreme Court examined the evidence itself. (¶¶ 6, 8)
- The name of a victim of sexual assault must not be disclosed; the High Court had referred to the child by name throughout. The Supreme Court redacted her name, even in passages quoted from the record, in line with the directions in Nipun Saxena v. Union of India issued during the pendency of the appeal. (¶ 7)
- Principles on child witnesses: no hard and fast rule governs competency; the trial judge must be satisfied of the child's ability and understanding of truth and falsehood; non-administration of oath does not render the testimony unusable; the judge must be alive to the possibility of tutoring; seeking corroboration is practical wisdom rather than a rule of law; and if the child withstands cross-examination, conviction may rest on that testimony alone. (¶¶ 12, 13, 14)
- The child victim's silence and tears when questioned in court cannot be treated as a factor in favour of the accused. The silence of a traumatised child is not that of an adult prosecutrix and she had not turned hostile; it would be unfair to burden her with carrying the entire prosecution. There is no hard and fast rule that a conviction cannot stand without the prosecutrix's statement where other evidence, medical and circumstantial, points to guilt, and the absence of the prosecutrix's evidence is not in all cases a negative for the prosecution. (¶ 17)
- The testimony of a prosecutrix or witness with a disability cannot be regarded as weak or inferior merely because she interacts with the world differently; so long as it otherwise inspires judicial confidence it is entitled to full weight (Patan Jamal Vali v. State of A.P. endorsed). (¶ 17)
- The discrepancy between the complainant's written report (accused's dhoti open, running away) and his deposition (accused seated upon the child) did not discredit him: the record did not show whether he could read or write or who scribed the report, the discrepancy was never put to him in cross-examination, and whether such a discrepancy is material depends on the facts, to be judged in the light of other evidence such as medical evidence supporting the prosecution. (¶¶ 18, 19)
- The medical evidence excluded the defence suggestion that the child's injury was caused by a nail or pin; the doctor found injury to the accused's genitals of a kind possible only on forcible intercourse with a minor; the allegation that the doctor was bribed was wholly unsubstantiated; and the alleged animosity between the accused and the child's father was not established to a degree creating reasonable doubt. The circumstances pointed to the accused having committed the offence. (¶¶ 15, 20, 21)
Result
Appeal allowed. The High Court's judgment of acquittal in S.B. Criminal Appeal No. 503/1987 set aside and the Sessions Judge, Tonk's judgment of conviction dated 19 November 1987 in Sessions Trial No. 26/86 restored; the accused to surrender within four weeks to serve the sentence, if not already served. Pending applications closed; original records to be returned.