*IN THE HIGH COURT OF DELHI
Judgment reserved on : 18th September, 2009 % Date of decision: 29th September, 2009
Virender ... Appellant through: Mr. S.B. Dandapani, Advocate
The State of NCT of Delhi ....Respondent through: Mr. Manoj Ohri, APP for the state
HON'BLE MS. JUSTICE GITA MITTAL
1. Whether reporters of local papers may be allowed to see the Judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
GITA MITTAL, J
1. The present appeal lays a challenge to a judgment dated
17th August, 2007 passed by the learned Additional Sessions
Judge returning a finding of guilt against the appellant for
commission of an offence under the provisions of Section 376 of
the IPC in the case arising out of FIR No. 234/04 registered by the
police station Gokul Puri on 29th April 2005. The appellant also
assails the order dated 21st August, 2007 sentencing him to
undergo rigorous imprisonment for the period of seven years and
imposing fine of Rs.1,000. In default of payment of the fine, he
was sentenced to undergo simple imprisonment of 10 days. The
court further directed benefit under section 428 of the CrPC to be
given to the appellant.
2. Briefly stated, the case of the prosecution against the
appellant was that on 28th April, 2005 at 10.30 a.m., in a house in
front of the house of one Bhule Ram Choudhary, Gali No. 2, Sadat
Pur, Delhi, he had committed rape upon the prosecutrix by
committing sexual intercourse with her without her consent. The
appellant pleaded not guilty and had claimed trial. A total of 13
witnesses were examined by the prosecution in support of its
case. The conviction rests primarily o the evidence of the
prosecutrix who was examined as PW1; PW-7 her father Raju
Austin; PW10 Dr. Manisha who proved her MLC and PW 11 Ms.
Poonam Chaudhary, the Metropolitan Magistrate who recorded
the statement under section 164 of the CrPC of the prosecutrix.
3. Mr. S.B. Dandapnai, learned counsel for the appellant has
strongly contested the finding of guilt returned by the learned
trial court contending that there are contradictions in all material
particulars in the three statements given by the prosecutrix; the
first being the statement recorded under section 161 of the CrPC;
the second, being the statement recorded by the learned
Metropolitan Magistrate under section 164 of the CrPC and the
third, being her deposition in court. The first plank of challenge is
based on the plea that even if the contradictions in matters of
detail were ignored, however the prosecutrix has contradicted
herself in her statements with regard to the very place of
occurrence. Learned counsel has submitted at some length that
this is a major contradiction. The second major contradiction
relied upon by learned counsel for the appellant relates to the
manner in which she was allegedly saved from the clutches of the
appellant. The submission is that in view thereof the prosecution
has failed to establish the case laid against the appellant.
4. It is also contended on behalf of the appellant that the
prosecution deserves to be disbelieved for its failure to produce a
material witness named in the statement of the prosecutrix and
that the same nails the falsity in the case set up against the
appellant. The further submission is that PW 4 Neelam who was
set up by the prosecution as being the person who arrived at the
scene of occurrence and saved the prosecutrix, has turned
completely hostile and has denied any such occurrence.
5. Mr. Dandapani has painstakingly urged that even if the
allegations made by the prosecutrix are taken as true, still they
are insufficient to bring home the charge of rape against the
appellant. The submission is that the medical evidence led by
the prosecution also does not support any finding or conclusion of
rape. Learned counsel further urges that the learned trial court
has erred in completely ignoring the explanation given by the
accused in his statement recorded under section 313 of the CrPC
as to the motive for his implication in the false case set up
6. PW 9 Dr. Gopesh, the Radiologist who conducted the
examination of the prosecutrix on 29th April, 2005 and proved his
report on record as Exh. PW9/A. According to PW 9, the
prosecutrix was aged between 12-13 years. The MLC (Exh. PW
10/A) recorded on 28th April, 2005 mentions her age at 11 years.
7. So far as the occurrence is concerned, in the statement
recorded by the police under section 161 of the CrPC on 28th
April, 2005 which was proved on record as Ex PW1/A, the
prosecutrix had stated that she was a student of class 3; that at
about 10.30 a.m. on 28th April, 2005, she was standing outside
her house; that the appellant who resides in front of her house
had called her and handed over a twenty rupee note to purchase
a bottle of a cold drink for him; that she went to the nearby shop
and brought the cold drink. When she went with the cold drink
and the balance money to his house, the appellant grabbed her
and put her on the ground. The prosecutrix wanted to raise a
hue and cry when the accused covered her mouth with his hand
and forcibly removed her clothes. He removed his own clothes as
well and thereafter did 'galat kaam' with her. He threatened the
prosecutrix not to disclose the same to anybody and left her. The
prosecutrix has stated that thereafter she returned to her house
and when her father returned after few hours, she disclosed the
entire incident to him. Her father brought her to the police who
sent her to the GTB Hospital for the medical check up.
8. The prosecutrix was produced before the learned
Metropolitan Magistrate on 3rd May, 2005 when her statement
was recorded without an oath by the learned judge under Section
164 of the Criminal Procedure Code which has been exhibited on
record as Ex PW1/B. In this deposition, the appellant stated that
on 28th April, 2005, the appellant herein had come to her house
and told her to get a cold drink for which he had given her the
money. She had got the cold drink. The prosecutrix stated
before the magistrate that at that time, other than the
prosecutrix there was no one in her house and that Virender had
forced her to lie on the bed; forcibly removed their clothes and
then he did 'gandi harkatein'. She stated that hearing her
screams, one of her aunts arrived whereupon Virender left her.
It is noteworthy that when questioned by the learned
magistrate, the prosecutrix had stated that she does not
understand the meaning of the oath.
9. In the deposition in court as PW 1, the prosecutrix stated
that she knows the appellant very well for the reason that he was
residing at the same place for 3-4 years. She made a statement
similar to the one given by her under section 161 of the CrPC so
far as the place of occurrence was concerned. In her statement,
at one place she stated that the appellant had misbehaved with
her and that he did 'galat kaam' with her. The witness explained
galat kaam to mean as to what 'a husband does with his wife in
the night'. Certain additions in this statement so far as what
happened there after are pointed out. For the first time the
prosecutrix states that when she had shouted for help, one aunty
(who she now named as Neelam) asked another lady who was
passing by to ascertain as to where the cries were coming from
on which that lady, whose name she did not know, opened the
door on which the appellant left the house while she then put on
her clothes and returned to her house. In the evening, when her
father returned, she narrated the incident to him. She was taken
by her father to the police station and her statement was
recorded thereupon. She identified the underwear which had
been seized by the police as the one worn by her at the time of
incident. The statement given by her to the police and the one
under section 164 of the CrPC before the Metropolitan Magistrate
were proved on record as Exh PW 1/A and Exh PW 1/B
10. The prosecutrix had denied the suggestion put on behalf of
the appellant to the effect that her father had taken a loan of
Rs.4,000/- from the appellant three months prior to the
registration of the case with the promise to return the amount
within one month. It was further suggested to the prosecutrix
that her father had only returned Rs.1,000/- in three months and
that the appellant had come to her house at about 7 a.m. on 28th
April, 2005 to seek the balance money from her father for the
reason that he was leaving for his native village and needed the
same. The prosecutrix also denied the suggestion that when the
accused again demanded the money in the evening, her father
refused to return the money and for this reason the prosecutrix
had been tutored to make the statement against the accused
person and he has been falsely implicated.
These very suggestions were also put to Shri Raju Austin
father of the prosecutrix, who testified as PW 7. He too denied
11. The entire foundation to bring home the charge of
rape on the appellant rests on the attribution of 'galat kaam' to
him by the prosecutrix in Exh PW 1/A (statement under section
161 of the CrPC) as well as the statement made in court. The
prosecutrix has referred to his acts as 'gandi harkatein' in Exh.
PW1/B recorded by the learned magistrate.
12. It needs no elaboration that a conviction can be based on
the uncorroborated evidence of a prosecutrix if the same inspires
13. It would be useful to refer to certain observations of the
Apex Court in the pronouncement reported at 2007 Crl.L.J.
4704 Radhu vs. State of Madhya Pradesh which succinctly
laid down the applicable principles thus:-
"5. It is now well settled that a finding of guilt in a case of rape, can be based on the uncorroborated evidence of the prosecutrix. The very nature of offence makes it difficult to get direct corroborating evidence. The evidence of the prosecutrix should not be rejected on the basis of minor discrepancies and contradictions. If the victim of rape states on oath that she was forcibly subjected to sexual intercourse, her statement will normally be accepted, even if it is uncorroborated, unless the material on record requires drawing of an inference that there was consent or that the entire incident was improbable or imaginary. Even if there is consent, the act will still be a 'rape', if the girl is under 16 years of age. It is also well
settled that absence of injuries on the private parts of the victim will not by itself falsify the case of rape, nor construed as evidence of consent. Similarly, the opinion of a doctor that there was no evidence of any sexual intercourse or rape, may not be sufficient to disbelieve the accusation of rape by the victim. Bruises, abrasions and scratches on the victim especially on the forearms, writs, face, breast, thighs and back are indicative of struggle and will support the allegation of sexual assault. The courts should, at the same time, bear in mind that false charges of rape are not uncommon. There have also been rare instances where a parent has persuaded a gullible or obedient daughter to make a false charge of a rape either to take revenge or extort money or to get rid of financial liability. Whether there was rape or not would depend ultimately on the facts and circumstances of each case.
15. The evidence of the prosecutrix when read as a whole, is full of discrepancies and does not inspire confidence. The gaps in the evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such an incident ever took place. The learned Counsel for the respondent submitted that defence had failed to prove that Mangilal, father of prosecutrix was indebted to Radhu's father Nathu and consequently, defence of false implication of accused should be rejected. Attention was invited to the denial by the mother and father of the prosecutrix, of the suggestion made on behalf of the defence, that Sumanbai's father Mangilal was indebted to Radhu's father Nathu and because Nathu was demanding money, they had made the false charge of rape, to avoid repayment. The fact that the defence had failed to prove the indebtedness of Mangilal or any motive for false implication, does not have much relevance, as the prosecution miserably failed to prove the charges. We are satisfied that the evidence does not warrant a finding of guilt at all, and the Trial Court and High Court erred in returning a finding of guilt."
14. Inasmuch as the present case is concerned with allegations
of rape, a sexual offence, the ingredients of the offence must be
considered. In this behalf, reference deserves to be made to
Medical Jurisprudence and Toxicology (Twenty First Edition) by
Modi at page 369 which reads thus :
"Thus to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the Labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite sufficient for the purpose of the law. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one."
15. The necessary ingredients which are to be satisfied to bring
home the charge under section 376 of the IPC have been stated
in the pronouncement of the Apex Court in MANU/SC/844/2006
Santosh Kumar vs. State of U.P. The court placed reliance in
para 7 on the texts on medical jurisprudence by Modi (considered
above). Parikh and the Encyclopadia of Crime & Justice which
were cited in paras 38 to 39 of Madan Gopal Kakkad v. Naval
Dubey MANU/SC/0509/1992 : 2SCR921 as follows :-
"38. In Parikhs Textbook of Medical Jurisprudence and Toxicology, the following passage is found:
Sexual intercourse: In law, this term
is held to mean the slightest degree
of penetration of the vulva by the
penis with or without emission of
semen. It is therefore quite possible
to commit legally the offence of
rape without producing any injury to
the genitals or leaving any seminal
39. In Encyclopedia of Crime and Justice (Vol. 4) at page 1356, it is stated:
...even slight penetration is sufficient and emission is unnecessary.
Therefore, absence of injuries on the private parts of a victim specially a married lady cannot, ipso facto, lead to an inference that no rape has been committed."
16. The essentials of the offence have been described in 2009
CriLJ 396 State of Punjab vs. Rakesh Kumar thus :-
"Rape" or "Raptus" is what a man hath carnal knowledge of a woman by force and against her will (Co. Litt.123-b); or as expressed more fully, 'rape is the carnal knowledge of any woman, above the age of particular years, against her will; or of a woman child, under that age, with or against her will' (Hale PC 628). The essential words in an indictment for rape are rapuit and carnaliter cognovit; but carnaliter cognovit, nor any other circumlocution without the word rapuit, are not sufficient in a legal sense to express rape; 1 Hon.6, 1a, 9 Edw. 4, 26a (Hale PC 628). In the crime of rape, 'carnal knowledge' means the penetration to any the slightest degree of he organ alleged tohave been carnally known by the male organ of generation (Stephen's "Criminal Law" 9th Ed. p. 262). In 'Encyclopodia of Crime and Justice' (Volume 4, page 1356) it is stated "......even slight penetration is sufficient and emission is unnecessary". In Halsbury's Statutes of England and Wales (Fourth Edition) Volume 12, it is stated that even the slightest degree of penetration is sufficient to prove sexual intercourse. It is violation
with violence of the private person of a woman-an- outrage by all means. By the very nature of the offence it is an obnoxiuos act of the highest order."
17. In a judgment reported as far back as in AIR 1923 Lah 536
Regina vs. Ferrol; Natha, the court had ruled that to constitute
an offence under section 375 IPC, there must be evidence of
penetration, which may occur and the hymen may remain intact.
Vulval penetration is sufficient to constitute rape in India without
actual seminal emission.
This was reiterated in (1992) 3 SCC 204 Madan Gopal
Kakkad vs. Naval Dubey wherein the Apex Court held that it is
not essential that hymen should be ruptured, provided it is clear
that there was penetration even if partial.
18. In this case, the Apex Court had expression concern that all
sexual assaults on female children are not reported and do not
come to light, there is an alarming and shocking increase of such
cases. Children were ignorant of the act of rape and are not able
to offer resistance and become easy pray by lusty brutes who
display the unscrupulous, deceitful and insidiuos art of luring
female children and young girls. Therefore, such offenders who
are menace to the citilized society should be mercilessly and
inexorably punished in the severest terms.
19. Thus in order for the offence of rape to be complete, it is
essential to establish even slightest penetration. (Ref :
MANU/SC/0080/1978 : 1978 CriLJ 1804 Dr. S.P. Kohli, Civil
Surgeon, Ferozpur vs. High Court of Punjab & Haryana
20. In MANU/SC/7825/2008 Moti Lal vs. State of M.P., the
Apex Court had observed that a rapist not only violates the
victim's privacy and personal integrity, but inevitably causes
serious psychological as well as physical harm in the process.
Rape is not merely a physical assault -- it is often destructive of
the whole personality of the victim. A murderer destroys the
physical body of his victim, a rapist degrades the very soul of the
helpless female. The court, therefore, shoulders a great
responsibility while trying an accused on charges of rape. They
must deal with such cases with utmost sensitivity. The Courts
should examine the broader probabilities of a case and not get
swayed by minor contradictions or insignificant discrepancies in
the statement of the prosecutrix, which are not of a fatal nature,
to throw out an otherwise reliable prosecution case.
The evidence of PW 1 is to be tested on these touchstones.
21. In the light of the applicable law, the testimony of a
prosecutrix deserves to be recorded with utmost sensitivity and
care. Regard must be had to the trauma which the victim is
undergoing as well as the unwarranted feeling of shame the
victims of such offence feel. At the same time, the trial courts
must discharge the onerous task of ensuring that the complete
truth is brought on record so as to facilitate adjudication and the
basic question that is complicity of the accused in the
commission of the offence is correctly answered. The trial court
must be satisfied that the prosecutrix has understood the
essence of the acts which were committed by the accused which
must be borne out from the recorded testimony. These must be
sensitively brought out and recorded in the testimony of the
22. It is to be noted that the embarrassment, and reservations
of those concerned with the proceedings including the
prosecutrix, witnesses, counsel may result in a camouflage of the
trauma of the victim's experience. The judge has to be conscious
of these factors and rise above any such reservations to ensure
that they do not cloud the real facts and the actions which are
attributable to the accused persons. The trial courts must be
alive to the onerous responsibility which rests on their shoulders
and be sensitive in cases involving sexual abuse.
23. It is, therefore, necessary and incumbent on the court to
sensitively examine a prosecutrix in a trial relating to commission
of an offence under section 376 of the IPC to ensure that the
prosecutrix understands and brings out in her deposition as to
what has transpired. This requires a matured and sensitive
handling by the court.
24. The testimony of the prosecutrix as has been recorded
brings the acts attributed to the appellant into sphere of
conjecture and speculation. Therefore, it is essential to examine
the medical evidence which was led by the prosecution.
25. The prosecutrix was medically examined at 10.50 a.m. on
28th April, 2009 by Dr. Anjali. This doctor was not produced in the
witness box. The MLC which was recorded has been proved by
her colleague Dr. Mamta who was examined as PW 10 who
proved her writing and signatures thereon. The doctor had
recorded that there were no marks of injury on the body of the
prosecution. On the vaginal examination, the doctor has noted
that a old healed tear was present in the hymen and that the
vagina admitted tip of only one finger.
26. Her vaginal smear was sent for forensic testing. The report
of the Forensic Science Laboratory dated 28th April, 2005 Exh. PW
13/F-1 states that no semen was detected on exhibit PW1/A, 1/B
and 1/2 i.e. two microslides sent to the laboratory and one dirty
underwear. It is noteworthy that the prosecution has made no
effort to connect the two underwears which were sent to the
Forensic Science Laboratory with the one worn by the prosecutrix
and which one was worn by the appellant. It is to be kept in
mind that the medical examination was conducted late in the
night while the occurrence took place in the morning.
27. In the given facts, one essential fact also deserves to be
noticed. The MLC (Exh PW 10/A) which was prepared on the
medical examination of the prosecutrix has been proved on
record. This document however fails to record any opinion on the
examination which was conducted by the doctor. It fails to give
any opinion as to whether the prosecutrix had been sexually
assaulted. The doctor who conducted the medical examination
was not available to the prosecution and was not produced in the
28. Mr. Ohri, learned APP for the prosecution has drawn my
attention to the Medical Jurisprudence and Toxicology (Law
Practice & Procedure) authored by Dr. K.S. Narayan Reddy
wherein at page 439 in the portion dealing with examination on
the issue of 'Rape on Children', the author has observed thus:-
"....As the age and size of the infant increases, the pattern of injury will become less marked but the circumferential tears of the vestibular mucoas are found up to the age of six years or more. Full penile penetration produces bruising of the vaginal walls and frequently tears of the anterior and posterior vaginal walls. Anterior tears can involve the blader and the posterior tears the anorectal canal. Vaginal vault may rupture, and there may be vaginal herniation of abdominal viscera. The hymen may be entirely destroyed or may show lacerations. Blood may be oozing from the injured parts, or clots of blood may be found in the vagina. There may be mucopurulent discharge from the vagina. In digital penetration of the infant vagina, there is frequently some scratching or bruising of the labia and vestibule, but the circumferential tears are absent. The hymen shows a linear tear in the posterior or posterolateral quadrant, which may extend into the posterior vaginal wall and on to the skin of the perineum and may involve the perineal body. Ano-rectal canal is rarely involved. Bruising in the margins of tear and of anterior vaginal wall are common, but vaginal vault injury is rare. Any attempt to separate the thighs for examination causes great pain, because of the local
inflammation. The child walks with difficulty due to pain. The absence of marks of violence on the genitals of the child, when an early examination is made is strong evidence that rape has not been committed."
There is no opinion available of the doctor who conducted
the examination. The MLC when examined in the context of the
medical jurisprudence, does not appear to assist the prosecution.
29. So far as reliance on medical jurisprudence is concerned, it
was observed by Fazal Ali, J in MANU/SC/0120/1977 : 1977
CriLJ 817 Pratap Misra vs. State of Orissa that medical
jurisprudence is not an exact science and it is difficult for any
doctor to say with precision and exactitude as to when a
particular injury was caused as to the exact time when the
appellants may have had sexual intercourse with the prosecutrix.
30. In R vs. Ahmed Ali 11 WR Cr. 25 Nariman, J had made
observations on medical evidence. It was stated by the learned
Judge that the evidence of a medical man or other skilled
witnesses, however, eminent, as to what he thinks may or may
not have taken place under particular combination of
circumstances, however, confidently, he may speak, is ordinarily
a matter of mere opinion.
Even opinion with regard to rupture of a hymen has been
held to be inclusive so far as commission of an offence of rape is
31. It is trite that medical evidence would at best be a matter of
mere opinion. In the instant case certainly from the medical
evidence brought on record, no conclusive finding with regard to
the charge against the appellant can be returned.
32. As pointed out by learned counsel for the appellant, the
prosecutrix has also vacilated on the issue as to the place of
occurrence. In the deposition given by her to the Magistrate, she
has stated that the incident occurred in her house. Her
explanation in court that there was a hearing error on the part of
the Magistrate is controverted by the statement to the Magistrate
itself as she further clarified that other than the prosecutrix, there
was no one in her house at that time.
33. So far as the contradiction in the place of occurrence in the
statement recorded by the learned Magistrate is concerned Mr.
Manoj Ohri, learned APP has placed reliance on the explanation
given by PW 1. In her deposition in court, the prosecutrix has
stated that the incident had occurred at the house of the accused
and sought to explain the contradictions in Ex PW 1/B as
inadvertence in the hearing process on the part of the learned
It is to be noted that the learned Metropolitan Magistrate
appeared in the witness box as PW 11. Exhibit PW 1/B contains a
certificate by the learned Magistrate to the effect that the
statement was a "true, full and correct" account of the statement
of the prosecutrix recorded by her in her chamber. It also
certified that the same had been read over to the prosecutrix and
admitted by her to be correct. This statement was sent under
sealed cover to the court concerned.
34. In the factual narration noted above, the statement of the
prosecutrix with regard to the manner in which she escaped from
the clutches of the appellant also assumes importance. While
nothing was said in her statement under section 161, she has
drastically improved on the same in the statement made by her
under section 164 of the CrPC. Her deposition in court improved
even further on it and for the first time discloses the name of the
aunty as Neelam. She further stated that Neelam had sent yet
another lady into the premises.
35. It is noteworthy that Raju Austin appearing as PW7 had
stated that Neelam was a neighbour and disclosed the name of
the second lady as Kela. PW7 had deposed that he had informed
the police about her identity.
No effort has been made to produce the lady who would
have been a material witness in support of the prosecution.
36. Neelam was examined as PW 4 before the court who stated
that she did not know anyting about the case as nothing had
happened in her presence and she had not seen anything. She
denied any acquaintance with the appellant and also stated that
she did not know who was the prosecutrix. The witness was
declared hostile and she had denied the contents of the
statements attributed to her as recorded by the police. She also
denied the specific suggestion that on 28th April, 2005, the
prosecutrix had told her that the appellant had committed rape
37. Learned counsel for the appellant has painstakingly pointed
out that there are contradictions even with regard to the time at
which and the contents of the information which was given by the
prosecutrix to her father. In this behalf, the testimony of PW 7
father of the prosecutrix has been pointed out. According to the
prosecutrix, she told her father about the occurrence between 1
and 1.15 p.m. whereas her father who was examined as PW 7
stated that she told him about the incident only after 5 p.m. The
police is stated to have recorded FIR No. 434/05 at about 12.30
a.m. On 29th April, 2005. PW 7 has also denied having taken loan
from the appellant and the rest of the suggestions.
38. At this stage, learned counsel for both parties have drawn
my attention to the examination of the appellant under section
313 of the CrPC. The appellant had stated that he was residing in
the house opposite to the prosecutrix who had denied any
acquaintance with her. In the answer to the last question put by
the court, the appellant had stated that the case against him was
false and fabricated and that prosecutrix's father has implicated
him for the reason that PW 7 owed an amount to appellant of
Rs.4,000/- who was asking for return of his money.
The trial court has not touched upon this issue at all.
39. The principles which are required to and weigh with the
courts in the administration of the criminal law and the justice
delivery system have been laid down in AIR 2002 SC 3206 :
MANU/SC/0757/202 Ashish Batham vs. State of Madhya
Pradesh, the Apex Courthad observed thus :-
"Realities or truth apart, the fundamental and
basic presumption in the administration of criminal law and justice delivery system is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicting or punishing an accused does not arise........"
40. The evaluation or assessment of evidence which is brought
on record by the prosecution would be guided by well settled
principles best stated in the words of Justice V.R. Krishna Iyer in
(1978) 4 SCC 161 (page 162 para 2) : MANU/SC/0093/1978
Inder Singh & Anr. vs. The State (Delhi Administration)
"2. Credibility of testimony, oral and circumstantial, depends considerably on a judicial evaluation of the totality, not isolated scrutiny. While it is necessary that proof beyond reasonable doubt should be adduced in all criminal cases, it is not necessary that it should be perfect. If a case is proved too perfectly, it is argued that it is artificial; if a case has some flaws, inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many, guilty men must be callously allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot away with it because truth suffers some infirmity when projected through human processes. Judicial quest for perfect proof often accounts for police presentation of fool-proof concoction. Why fake up ? Because the court asks for manufacture to make truth look true ? No, we must be realistic."
41. An examination of the statement made by the prosecutrix
would have to be examined in the context of the social milieu
from which a victim may hail. A person who has grown up with
the family surviving in a single room dwelling may carry different
impressions and knowledge of intimacies. An understanding of a
child as to what has been done to her would depend on her
maturity, education and knowledge which could be sourced from
several factors including education, exposure, environment;
upbringing and media. In the Indian context, society and societal
relationships still follow conservative patterns. There are large
pockets even in Delhi, many communities and social groups
where covering of heads and the purdah system in the presence
of males is still prevalent. Physical display of affection between
persons of opposite sexes in the form of even holding of hands is
unacceptable, and a hug is absolutely taboo. By and large there
is no physical display of affection, intimacy or closeness and
gestures as hugging or kissing invite public censure even
amongst the progressive and modern. The conventional Indian
namaskar manifests the traditional reserve of the nation.
42. Commission of an offence under section 376 certainly
requires some evidence with regard to the acts which were
committed by an accused person to establish the ingredients of
the offence. The statement which has been recorded in court
does not at all enable any conclusion to be derived as to what
was the comprehension of the prosecutrix as to what are the
relations between a husband and wife. In any traditional and
conservative Indian family, any act from mere touch to the
ultimate intimacy of sexual intercourse between persons not
married to each other would, in common parlance, would be
covered within the gamut of acts which could be labelled as
"galat kaam" or "gandi harkatein". This range would also cover
the intimacies shared by a married couple. Such understanding
of even the learned trial judge is manifested from the
proceedings in that while putting the evidence to the appellant
under section 313 of the CrPC, as question 4, it has been put to
the appellant that he had "misbehaved" with the prosecutrix.
43. The prosecutrix has explained 'galat kaam' to mean
'something that the husband and wife do in the night'. No
questions to ascertain the size of the house; background;
whether the prosecutrix has any siblings or any other relatives
who were cohabiting have been put. The record does not
indicate as to what is the comprehension or understanding level
of this child. The testimony of the prosecutrix does not reflect as
to what is her understanding of the physical intimacy which a
married couple shares.
44. In the present case, the evidence does not disclose as to the
nature of the environment in which the prosecutrix was growing
up. In the testimony of her father Raju Austin who appeared as
PW7 and the prosecutrix as PW 1, her mother had left the house
on account of quarrel with her father over his drinking habit
where was the occasion to witness intimacies between spouces.
PW 1 has stated that her father earned about Rs.400-500 per
week as a cleaner of private vehicles. The proseuctrix was a
mere child and a student of class III years at the time of the
45. In her statement before the learned magistrate on the 3rd of
May, 2005, PW 1 used a less strong expression. She attributed
"gandi harkatein" to the accused. The prosecutrix had stated
that she did not understand the meaning of oath. Thus both
statements leave the conclusion to be arrived at by the judge to
be based on supposition and conjecture.
46. Having regard to the well settled principles laid down by the
courts and in several judicial pronouncements of the Apex Court,
the acts alleged by the prosecutrix would not by themsleves be
sufficient to invite a finding of guilt for commission of an offence
under section 376 of Indian Penal Code. This is not to say that
such conduct is permissible or acceptable. However we are
concerned with a finding of guilt for a serious charge of rape in
the instant case.
47. Learned APP has placed a pronouncement of this court
wherein a prosecutrix has used the same expression. In the
judgment of this court reported at MANU/SC/2043/2009 entitled
Maruti vs. State. The prosecutrix had used the same very
expression to describe the offence of rape. In this case however
the mother of the prosecutrix had reached the scene of
occurrence while the appellant was in the act and had
corroborated the deposition of the prosecutrix.
It is noteworthy that the prosecutrix was a married lady and
the report of the Forensic Science Laboratory had supported the
deposition of the prosecutrix.
It is not so in the instant case.
In another judgment reported at MANU/SC/7825/2008 : JT
2008 8 SCC 271 Moti Lal vs. State of U.P., the Apex Court
had reiterated the well settled principle that the victim of a
sexual assault is not to be treated as an accomplice and as such
her evidence does not require corroboration from any other
evidence including the evidence of the doctor. It was further held
that in a given case even if the doctor who examined the victim
does not find any sign of rape, it is no ground to disbelieve the
sole testimony of the prosecutrix if it inspires confidence.
It was further held that it is only if the court finds it difficult
to place implicit reliance on her testimony which may lend
assurance of her testimony, amount of corroboration require in
the case of an accomplice.
48. It needs no elaboration and has been repeatedly held that
whatever be the nature of evidence oral or documentary, direct
or circumstantial, it is essential for the prosecution to prove the
necessary ingredients of the offence. In view of the above
discussion, it may not be proper to return a finding of guilt
against the appellant for the commission of an offence under
section 376 based on the deposition of the prosecutrix, oral
evidence or the medical evidence which has been led by the
49. Before parting with this case, it is necessary to consider an
important issue relating to the examination of a child witness as
well as a one, who is the victim in the offence. There are
examinations of a victim by the investigating agency; or in court
(A doctor performs a medical examination). Several areas are
covered by existing legislation and others by directions and
guidelines in binding pronouncements of the Apex Court and this
court. Jurisdiction and power conferred by the legislature is not
exercised and directions in precedents not followed, having
disastrous consequences upon the criminal justice dispensation
system. Having regard to the importance of these issues,
learned counsels appearing in the case have facilitated
examination of the statutory provisions and the judicial
precedents noticed hereafter.
50. The court rooms in the court building are normally crowded
places. The occupants include hardened criminals as well. The
court room environment is unfamiliar and would definitely be
unfriendly to a child who is require to testify as a witness. The
trauma if the child witness is a victim as well is only further
aggravated. An already apprehensive child in an unfriendly
atmosphere is in difficulty even in recounting his or her
experience. Such nervous testimony is then exposed to be torn
to shards by a skillful defence lawyer.
51. The treatment of victims of sexual assault or child witnesses
in such cases in court during their testimony has come up for
repeated criticism. The defence strategy of repetitive
questioning of the prosecutrix as to the details of the occurrence
under the pretence of testing her statement for inconsistency in
an attempt to secure varying interpretations of the occurrence
given by her so as to make them appear inconsistent with her
allegations has come up for criticism repeatedly. Faced with the
frequency of crimes against women, the Parliament enacted the
Criminal Law (Amendment Act) 1883 which was a statutory
recognition of the need to make the law of rape more realistic.
Sections 375 and 376 were amended and more penal provisions
were incorporated for benefiting such custodians who molest a
woman in custody and care. Section 114(a) was also added in
the Evidence Act for drawing a presumption in certain
prosecutions for rape involving such custodians.
52. Chapter 9 of the Indian Evidence Act, 1872 deals with
'witnesses'. As per Section 118, all persons shall be competent to
testify unless the court considers that they are prevented from
understanding the questions put to them, or from giving rational
answers to those questions, by tender years, extreme old age,
disease, whether of body or mind, or any other cause of the same
kind. An explanation has been incorporated by the legislature to
clarify that a lunatic is not incompetent to testify, unless he is
prevented by his lunacy from understanding the questions put to
him and giving rational answers. Thus so far as the competency
to appear as a witness, the legislature has underlined the basic
requirement of a person's understanding of the obligation to
speak the truth and to give an accurate impression and
possession of the mental capacity at the time of the occurrence
concerning which he has to testify and to receive an accurate
impression of it. This would be more so in case the witness is a
child of tender years. An assessment by the court of the
competency of a child who is to appear as the witness on these
issues is essential. It is also necessary to ascertain as to whether
the witness had a memory sufficient to retain an independent
recollection of the occurrence; capacity to understanding simple
questions about it and the capacity to express his/her memory of
the occurrence. (Ref : State vs. Allen, 70 Wn,2d 690, 424
P.2d 1021 (1967)
53. So far as the competency of a child to testify as a witness is
concerned, the courts in India have relied on the proposition
formulated by Justice Brewer in Wheeler vs. United States
159 US 523 (1895) who had opined that the evidence of a child
witness is not required to be rejected per se, but the Court as a
rule of prudence considers such evidence with close scrutiny and
only on being convicted about the quality thereof and reliability
can record conviction, based thereon.......
54. The reservation expressed with regard to evaluating the
testimony of a witness is based on apprehensions that children
may be vulnerable and susceptible to be swayed by what others
tell and the child witness is an easy pray to tutoring and therefore
their evidence must be evaluated carefully and with greater
circumspection. (Ref : Panchhi vs. State of U.P.
MANU/SC/0530/1998 : 1998 CriLJ 4044.)
55. It is equally well settled that if satisfied that the testimony
of the child witness is a voluntary expression of what transpired
and is an accurate impression of the same, no corroboration of
the testimony is required. The Supreme Court has repeatedly
ruled that there is no rule of practice that the evidence of a child
witness needs corroboration and stated that conviction can be
based on it. It is only as a rule of caution and prudence that the
court may require that it would be desirable to have
corroboration from other dependable evidence. (Ref : Dattu
Ramrao Sakhare & Ors. vs. State of Maharashtra
MANU/SC/1185/1997 : (1997) 5 SCC 341; Suryanarayana
vs. State of Karnataka MANU/SC/0001/2001 : 2001 CriLJ
56. The manner in which evidence is required to be assessed by
the courts has been laid down in a catena of decisions from
MANU/SC/0037/1952 : AIR 1952 SC 353 Hanumant vs. The
State of Madhya Pradesh.
57. In Rameshwar vs. State of Rajasthan AIR 1952 SC 54
the Apex Court was concerned with the conviction of the accused
for the rape of a 18 year old girl. The Additional Sessions Judge
concerned with the appeal has certified that she did not
understanding the sanctity of the oath. The evidence of the
witness in court was recorded without administering any oath to
her. On appeal, the sessions court held that the evidence was
sufficient enough to form the basis of a moral conviction but was
legally insufficient. This was overruled by the High Court which
granted leave to appeal to the Apex Court.
The Apex Court observed that the omission to administer an
oath goes to the credibility of the witness and not his
competency. Section 118 of the Indian Evidence Act makes it
clear that there is always competency in effect unless the court
considers otherwise and since there was nothing to suggest
incompetence, therefore section 118 would prevail.
58. It was observed that despite the certification that the
witness did not understanding the nature of the oath, the court
continued to take her evidence which manifested satisfaction of
the witness understanding the duty to speak the truth. The
accused had also never raised any objection to the same.
In this case, the Apex Court had observed that it is desirable
that the judge or magistrate should always record their opinion
as to whether the child understands his duty to speak the truth
and also to state that why they think that otherwise the
credibility of the witness would be seriously effected, so much so
that in some cases it may be necessary to reject the evidence
59. So far as power of a judge to put questions to a witness is
concerned, the same is statutorily founded in section 165 of the
Indian Evidence Act, 1872 which enables the judge to do so 'in
order to discover or to obtain proper or relevant facts'. The
statutory provision reads thus:-
"165. Judge's power to put questions or order production - The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross- examine any witness upon any answer given in reply to any such question:
Provided that the judgment must be based upon facts declared by this Act to be relevant, and duly proved:
Provided also that this section shall not authorise any Judge to compel any witness to answer any question, or to produce any document which such witness would be entitled to refuse to answer, or produce under sections 121 to 131, both inclusive, if the question were asked or the document were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under section 148 or 149; nor shall he dispense with primary evidence of any document, except in the cases hereinbefore excepted."
60. The Delhi High Court Rules in Part E prescribe the "Practice
in the Trial of Criminal Cases" and lay down therein the manner
in which the record of evidence in criminal cases shall be made.
Rule 1 mandates that only relevant evidence should be recorded.
Rule 2 sets out the duty of the court in the following terms :-
"2. Duty of Court to elucidate facts -
Magistrates should endeavour to elucidate the facts and record the evidence in a clear and intelligible manner. As pointed out in 23 P.R. 1917 a Judge in a criminal trial is not merely a disinterested auditor of the contest between the prosecution and the defence, but it is his duty to elucidate points left in obscurity by either side, intentionally or unintentionally, to come to a clear understanding of the actual events that occurred and to remove obscurities as far as possible. The vide powers given to the Court by Section 165 of the Indian Evidence Act and Section 540 of the Code of Criminal Procedure should be judiciously utilised for this purpose when necessary."
These rules bind the conduct of trials by the courts in Delhi.
61. Certain provisions of the Code of Criminal Procedure which
deal with the recording of evidence in inquiries and trials require
to be considered. Section 273 to 277 in this behalf are
noteworthy. Section 280 of the Code enables a court to record
remarks regarding the demeanour of the witness.
62. From the above, it is evident that there is statutory
recognition of the necessity for a judge to ask certain questions
to discover or obtain proper proof of the relevant facts. This
assumes significance in the context of examination of a child
witness where the court is first require to satisfy itself about the
competency of the child to testify and thereafter to ensure that
the complete testimony is brought out on record.
63. The Supreme Court has the criticised silence of the trial
judges who have permitted trials to develop into a contest
between the prosecution and the defence resulting in
contradictions entered into the trial. In this behalf, the
observations of Chinnappa Reddy, J in the case reported at 1981
CriLJ 609 : MANU/SC/0206/1981 Ram Chander vs. State of
Haryana reads thus :-
"The adversary system of trial being what is, there is an unfortunate tendency for a judge presiding over a trial to assume the role of a referee or an umpire and to allow the trial to develop into a contest between the prosecution and the defence with the inevitable distortions flowing from combative and competitive elements entering the trial procedure. If a Criminal Court is to be an effective instrument in dispensing justice, the presiding judge must cease to be a spectator and a mere recording machine. He must become a participant in the trial by evincing intelligent active interest by putting questions to witnesses in order to ascertain the truth."
64. The Apex Court has emphasised the wide powers of the
trial court under section 165 of the Evidence Act in the case
reported at AIR 1997 SC 1023 : (1997) 6 SCC 162 State of
Rajasthan vs. Ani alias Hanif & Ors. which observations read
"11. We are unable to appreciate the above criticism. Section 165 of the Evidence Act confers vast and unrestricted powers on the trial Court to put "any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant " in order to discover relevant facts. The said section was framed by lavishly studding it with the word "any" which could only have been inspired by the legislative intent to confer unbridled power on the trial Court to use the power whenever he deems it necessary to elicit truth. Even if any such question crosses into irrelevancy the same would not transgress beyond
the contours of powers of the Court. This is clear from the words "relevant or irrelevant" in Section
165. Neither of the parties has any right to raise objection to any such question.
12. Reticence may be good in many circumstances, but a judge remaining mute during trial is not an ideal situation. A taciturn Judge may be the model caricatured in public mind. But there is nothing wrong in his becoming active or dynamic during trial so that criminal justice being the end could be achieved. Criminal trial should not turn out to be about or combat between two rival sides with the judge performing the role only of a spectator or even an umpire to pronounce finally who won the race. A judge is expected to actively participate in the trial, elicit necessary materials from witnesses at the appropriate context which he feels necessary for reaching the correct conclusion. There is nothing which inhibits his power to put questions to the witnesses, either during chief examination or cross- examination or even during re-examination to elicit truth. The corollary of it is that if a judge felt that a witness has committed an error or a slip it is the duty of the judge to ascertain whether it was so, for, to err is human and the chances of erring may accelerate under stress of nervousness during cross-examination. Criminal justice is not to be founded on erroneous answers spelled out by witnesses during evidence collecting process. It is a useful exercise for trial judge to remain active and alert so that errors can be minimised."
It is noteworthy that in this case the court had put questions
to PW 3 with regard to certain contradictions in his cross
examination. This was objected to by learned counsel for the
65. The role of the court is best described in the words of the
Supreme Court in the pronouncement reported at AIR 2004 SC
346 : (2004) 4 SCC 158 Zahira Habibulla H. Sheikh & Anr.
vs. State of Gujarat & Ors. and there can be no better
exposition of the principles than in the words of the Apex Court
when it stated as follows :-
"43. The Courts have to take a participatory role in a trial. They are not expected to be tape recorders to record whatever is being stated by the witnesses. Section 311 of the Code and Section 165 of the Evidence Act confer vast and wide powers on Presiding Officers of Court to elicit all necessary materials by playing an active role in the evidence collecting process. They have to monitor the proceedings in aid of justice in a manner that something, which is not relevant, is not unnecessarily brought into record. Even if the prosecutor is remiss in some ways, it can control the proceedings effectively so that ultimate objective i.e. truth is arrived at. This becomes more necessary the Court has reasons to believe that the prosecuting agency or the prosecutor is not acting in the requisite manner. The Court cannot afford to be wishfully or pretend to be blissfully ignorant or oblivious to such serious pitfalls or dereliction of duty on the part of the prosecuting agency. The prosecutor who does not act fairly and acts more like a counsel for the defence is a liability to the fair judicial system, and Courts could not also play into the hands of such prosecuting agency showing indifference or adopting an attitude of total aloofness.
44. The power of the Court under Section 165 of the Evidence Act is in a way complementary to its power under Section 311 of the Code. The section consists of two parts i.e. (i) giving a discretion to the Court to examine the witness at any stage and (ii) the mandatory portion which compels the Courts to examine a witness if his evidence appears to be essential to the just decision of the Court. Though the discretion given to the Court is very wide, the very width requires a corresponding caution. In Mohan Lal v. Union of India (1991 Supp (1) SCC 271) this Court has observed, while considering the scope and ambit of Section 311, that the very usage of the word such as, "any Court" "at any stage", or "any enquiry or trial or other proceedings" "any person" and "any such person" clearly spells out
that the Section has expressed in the widest possible terms and do not limit the discretion of the Court in any way. However, as noted above, the very width requires a corresponding caution that the discretionary powers should be invoked as the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the Code. The second part of the section does not allow any discretion but obligates and binds the Court to take necessary steps if the fresh evidence to be obtained is essential to the just decision of the case - 'essential', to an active and alert mind and not to one which is bent to abandon or abdicate. Object of the Section is to enable the court to arrive at the truth irrespective of the fact that the prosecution or the defence has failed to produce some evidence which is necessary for a just and proper disposal of the case. The power is exercised and the evidence is examined neither to help the prosecution nor the defence, if the Court feels that there is necessity to act in terms of Section 311 but only to subserve the cause of justice and public interest. It is done with an object of getting the evidence in aid of a just decision and to upheld the truth.
46. Ultimately, as noted above, ad nauseam the duty of the Court is to arrive at the truth and subserve the ends of justice. Section 311 of the Code does not confer any party any right to examine, cross-examine and re-examine any witness. This is a power given to the Court not to be merely exercised at the bidding of any one party/person but the powers conferred and discretion vested are to prevent any irretrievable or immeasurable damage to the cause of society, public interest and miscarriage of justice. Recourse may be had by Courts to power under this section only for the purpose of discovering relevant facts or obtaining proper proof of such facts as are necessary to arrive at a justice decision in the case."
In view of the above, the courts are bound to act in exercise
of powers under section 165 of the Evidence Act and undertake a
participatory role in a trial. They are expected to act fairly
especially in a trial involving possibility of a witness being bashful
or embarrassed with regard to the occurrence about which she or
he is require to depose, and it is the duty of the court to ensure
that the complete truth is brought out is even more stringent.
66. In Zahira Habibulla H. Sheikh & Anr. vs. State of
Gujarat & Ors. the purpose of a trial has been stated by the
court in paras 38, 39 and 40 thus :-
"38. A criminal trial is a judicial examination of the issues in the case and its purpose is to arrive at judgment on an issue as a fact or relevant facts which may lead to the discovery of the fact issue and obtain proof of such facts at which the prosecution and the accused have arrived by their pleadings; the controlling question being the guilt or innocence of the accused. Since the object is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities, and must be conducted under such rules as will protect the innocent, and punish the guilty. The proof of charge which has to be beyond reasonable doubt must depend upon judicial evaluation of the totality of the evidence, oral and circumstantial and not by an isolated scrutiny.
39. Failure to accord fair hearing either to the accused or the prosecution violates even minimum standards of due process of law. It is inherent in the concept of due process of law, that
condemnation should be rendered only after the trial in which the hearing is a real one, not sham or a mere farce and pretence. Since the fair hearing requires an opportunity to preserve the process, it may be vitiated and violated by an overhasty stage-managed, tailored and partisan trial.
40. The fair trial for a criminal offence consists not only in technical observance of the frame and
forms of law, but also in recognition and just application of its principles in substance, to find out the truth and prevent miscarriage of justice."
67. So far as witnesses are concerned, in para 41 of the
judgment, the Apex Court has quoted Bentham who described
witnesses as the eyes and ears of justice. The Apex Court
observed the importance and primacy of the quality of the trial
process. If the witness himself is incapacitated from acting as
eyes and ears of justice, the trial gets putrefied and paralysed,
and it no longer can constitute a fair trial. The incapacitation may
be due to several factors like the witness being not in a position
for reasons beyond control to speak the truth in the Court or due
to negligence or ignorance or some corrupt collusion. Time has
become ripe to act on account of numerous experiences faced by
Courts on account of frequent turning of witnesses as hostile,
either due to threats, coercion, lures and monetary
considerations at the instance of those in power, their bench men
and hirelings, political clouts and patronage and innumerable
other corrupt practices ingenuously adopted to smoother and
trifle truth and realities coming out to surface rendering truth and
justice, to become ultimate casualties. Broader public and
societal interests require that the victims of the crime who are
not ordinarily parties to prosecution and the interests of State
represented by their prosecuting agencies do not suffer even in
slow process but irreversibly and irretrievably, which if allowed
would undermine and destroy public confidence in the
administration of justice, which may ultimately pave way for
anarchy, oppression, and injustice resulting in complete
breakdown and collapse of the efifice of rule of law, enshrined
and jealously guarded and protected by the Constitution. There
comes the need for protecting the witness. Time has come when
serious and undiluted thoughts are to be bestowed for protecting
witnesses so that ultimate truth is presented before the Court
and justice triumphs and that the trial is not reduced to mockery.
The State has definite role to play in protecting the witnesses to
start with at least in sensitive cases involving those in power,
who has political patronage and could wield muscle and money
power, to avert trial getting tainted and derailed and truth
becoming a casualty. As a protector of its citizens it has to ensure
that during a trial in court the witness could safely depose truth
without any fear of being haunted by those against whom he has
deposed. Some legislative enactments like the Terrorist and
Disruptive Activities (Prevention) Act, 1987 (in short the "TADA
Act") have taken note of the reluctance shown by witnesses to
depose against dangerous criminals-terrorists. In a milder form
also the reluctance and the hesitation of witnesses depose
against people with muscle power, money power or political
power has become the order of the day. If ultimately truth is to
be arrived at, the eyes and ears of justice have to be protected so
that the interests of justice do not get incapacitated in the sense
of making the proceedings before Courts mere mock trials as are
usually seen in movies.
68. Despite the several pronouncements of the Apex Court as
well as the High Courts, it is to be noted that the trial courts have
failed to comply with the same. The present case throws an
imperative issue with regard to the duty of the court so far as
recording of the statement of the child witness is concerned. The
statement under section 164 of the CrPC was recorded by a
magistrate during the course of investigation. It would appear
that individual sensibilities clouded the proceedings resulting in a
camouflage of the evidence so much so that complete truth has
not been brought out. This in fact defeats the statutory mandate
and would be a failure to comply with the binding directions
noticed herein. This aspect has a direct and immediate impact
on society. For decades, the Apex Court has expressed concerns
on the rate at which sexual crime is increasing especially in the
context of children.
69. It was on a consideration of the sensitivities of the child that
courts acted on a complaint received by it and laid down
guidelines with regard to the investigation, medical examination
and recording of a statement by the magistrate as well as
appearance before the trial court which have been reported at
(2007) 4 JCC 2680 Court on Its own Motion vs. State & Anr.
70. A very sensitive pronouncement on some of the issues
noticed herein is found in the judgment reported at 62 (1996)
DLT 563 : 1998 CriLJ 2428 Sudesh Jhaku vs. K.C.J. & Ors.
when the court observed that it was high time when a fresh look
was taken and principles evolved which, while protecting the
child, do no harm to the defence. This statement by itself
emphasises the careful balance which is to be drawn by the court
and the solemn duty cast on it to ensure that while emphasising
the value of the childs feelings, it is necessary to ensure that the
rights of the defence are not obscured. In this case, the main
argument was made to expand the definition of rape to mean
sexual penetration of any bodily orifice. Certain observations by
the court in para 38 on the care which is required to be taken by
the judge recording testimony of a child are relevant for the
purposes of the issue being considered and read thus :-
"38. I hope that while the child is in the witness box every effort will be made by the learned trial Judge to lessen her ordeal and that he will take care that nothing is said or done which causes unnecessary distress to her. The Prosecutor in his zeal might undervalue the child's feelings. There is need to keep a check on it. The defense counsel undoubtedly have a primary duty to their clients but they owe a duty towards the court and the judicial system also. They are expected to avoid needless abuse and harassment of the witness. If the court notices any departure from this course of conduct, it should rise to the occasion promptly and effectively. Chief sexual abuse being one of the most serious and damaging criminal offences, the trial Judge shall handle the proceedings with considerable sensitivity and ensure that the trial is fairly conducted. He should take care that questions asked are not complex or confusing. Questions containing a negative or double negative should be better avoided. The feasibility of giving breaks during questioning may also be kept in mind though such breaks need not be long. If the prosecution
establishes to the satisfaction of the court that to obtain a full and candid account from the child witness the use of a screen would be necessary, the court may be inclined favourably to provide such a screen. I may notice that the reason for such a step may not necessarily be a fear of the accused. It may be of the court room itself. However, here is a word of caution. Since demeanour of a witness is always of some importance, the screen, if provided, should not come in the way of trial Judge to notice it. One thing more before I draw the curtain. It relates to child support persons in the court room. On that Mr. Jaitely had drawn my attention to the Report of the Special Advisor to the Minister of National Health and Welfare on Child Sexual Abuse in Canada Reaching for Solutions, 1991. In fact that the guidelines delineated above have drawn inspiration from the said Report and as regards the child support this is what it states :
"There are situations in which it is desirable to have a social worker or other friendly but "neutral" adult visible to the child, or even sitting beside a young child who is testifying. While some judges have permitted this, others have not. There have been cases where the Judge has ordered supportive persons to leave the court room, along with other members of "the public."
I am leaving the matter to the good sense of the learned trial Judge. However, one thing is certain. The proceedings have to be in camera."
71. The judgment of this court was assailed before the Apex
Court and was heard alongwith a writ petition filed by Sakshi, an
NGO. The pronouncement of the Apex Court is reported at AIR
2004 SC 3566 : (2004) 5 SCC 518 Sakshi vs. UOI & Ors. On
the issue being considered, the court has noticed a judgment of
the Canadian Supreme Court in Her Majesty, The Queen,
Appellant vs. D.O.L., Respondent and the Attorney General of
Canada, etc. (1993) 4 SCR 419 wherein the Supreme Court took
note of some glaring features in cases of sexual abuse which
included the innate power imbalance which exists between the
abuser and the abused child; a failure to recognise that the
occurrence of child sexual abuse is one intertwined with the
sexual abuse of all women, regardless of age; and that the court
cannot disregard the propensity of victims of sexual abuse to fail
to report the abuse in order to conceal their plight from
institutions without the criminal justice system which holds
stereotypical and biased views about the victimisation of women.
It was observed that "system induced trauma: often ultimately
serves to re-victimise the young complainant". These
observations were made in the context of Section 715.1 of the
Criminal Code of Canada which permitted video taping made
within a reasonable time after the alleged offence in which the
complainant describes the act complained of, to be admissible in
evidence, if the complainant, while testifying, adopts the contents
of the video tape.
The Canadian Supreme Court observed that this provision
acts to remove the pressure placed on the child victim of assault
when the attainment of truth depends entirely on her ability to
control her fear, her shame and the horror of being face to face
with the accused when she must describe her abuse in a
compelling and coherent manner. It was also observed that rules
of evidence have not been constitutionalised into unaltered
principles of fundamental justice. Neither they should be
interpreted in a restrictive manner which may essentially defeat
their purpose of seeking truth and justice. Rules of evidence, as
much as the law itself, are not cast in stone and will evolve with
72. In Sakshi vs. UOI (supra) the Supreme Court though did
not accept the prayer for expanding the definition of rape,
however made many valuable observations especially with
regard to the proceedings in the trial court in which a child victim
has to testify. These observations deserve to be considered in
extenso and reads thus :-
"31. The whole inquiry before a Court being to elicit the truth, it is absolutely necessary that the victim or the witnesses are able to depose about the entire incident in a free atmosphere without any embarrassment. Section 273 Cr.P.C. merely requires the evidence to be taken in the presence of the accused. The Section, however, does not say that the evidence should be recorded in such a manner that the accused should have full view of the victim or the witnesses. Recording of evidence by way of video conferencing vis-a-vis Section 273 Cr.P.C. has been held to be permissible in a recent decision of this Court in State of Maharashtra v. Dr. Praful B Desai MANU/SC/0268/2003 : 2003CriLJ2033 . There is major difference between substantive provisions defining crimes and providing punishment for the same and procedural enactment laying down the procedure of trial of such offences. Rules of procedure are hand-maiden of justice and are meant to advance and not to obstruct the cause of justice. It is, therefore, permissible for the Court to expand or enlarge the meanings of such provisions in order to elicit the truth and do justice with the parties.
32. The mere sight of the accused may induce an element of extreme fear in the mind of the victim or the witnesses or can put them in a state of shock. In such a situation he or she may not be able to give full details of the incident which may result in
miscarriage of justice. Therefore, a screen or some such arrangement can be made where the victim or witnesses do not have to undergo the trauma of seeing the body or the face of the accused. Often the questions put in cross-examination are purposely designed to embarrass or confuse the victims of rape and child abuse. The object is that out of the feeling of shame or embarrassment, the victim may not speak out or give details of certain acts committed by the accused. It will, therefore, be better if the questions to be put by the accused in cross- examination are given in writing to the Presiding Officer of the Court, who may put the same to the victim or witnesses in a language which is not embarrassing. There can hardly be any objection to the other suggestion given by the petitioner that whenever a child or victim of rape is required to give testimony, sufficient breaks should be given as and when required. The provisions of Sub-section (2) of Section 327 Cr.P.C. should also apply in inquiry or trial of offences under Section 354 and 377 IPC." (Emphasis supplied)
73. In Sakshi vs. UOI (supra), the Apex Court had observed
that these legislature had failed to take note of the offences and
had omitted to mention section 354 and 377 of the Indian Penal
Code which are also embarrassing to recount in section 327 (2)
and (3) of the Criminal Procedure Code.
74. In AIR 1996 SC 1383 : (1996) 2 SCC 384 State of
Punjab vs. Gurmit Singh & Ors., the Apex Court had observed
that these two provisions are in the nature of exception to the
general rule of an open trial. It was observed that the provisions
are mandatory and cast a duty on the court to conduct the trial of
rape cases etc invariably 'in camera'. The courts are obliged to
act in furtherance of the functions expressed by the legislature
and not to ignore its mandate and must invariably take recourse
of these provisions and hold trial of rape cases in camera. The
Apex Court observed that this would would enable the victim of
crime to be a little comfortable and answer the questions with
greater ease in not too familiar a surroundings. Trial in camera
would not only be in keeping with the self respect of the victim of
crime and in tune with the legislative intent but is also likely to
improve the quality of the evidence of a prosecutrix because she
would not be so hesitant or bashful to depose frankly as she may
be an open court, under gaze of public. The improved quality of
her evidence would assist the courts in arriving at the truth and
sifting truth from falsehood.
75. In the case of State of Punjab vs. Gurmit Singh &
Ors.(supra), the Apex Court had stated that wherever possible it
may also be worth considering whether it would not be more
desirable that the cases of sexual assaults on the females are
tried by lady Judges, wherever available, so that the prosecutrix
can make her statement with greater ease and assist the Courts
to properly discharge their duties, without allowing the truth to
be sacrificed at the altar of rigid technicalities while appreciating
evidence in such cases. Some activists have suggested that in
addition, as far as possible, the staff in a court room who is
concerned with such cases, should as far as possible be of the
same gender. This is not to denigrate or make any observation
on the sensivity of male judges and staff but only a consideration
towards the embarrassment and the natural reticence which is
faced by a victim of sexual assault to recall such a traumatic
occurrence fuelled by the feeling of guilt and humiliation which is
felt by the victim by what has happened to her in the presence of
strangers and gender of the judge may put the victim at ease.
76. The present case illustrates the extent of divergence in the
perceptions and approach of two learned judges, one being the
magistrate who recorded the section 164 statement and the
other being the judge who recorded the testimony of the child
witness in court. While the magistrate has put a couple of
questions in an attempt to ascertain the understanding level of
the prosecutrix, the testimony in court does not say so. It is well
settled that the trial court is required to be satisfied and ought to
record its satisfaction that the child witness understands the
obligation to speak the truth in the witness box. She clearly
stated in her statement under section 164 of the CrPC that she
did not understand the oath. This is not to be found in her court
77. In addition to the above, the court is required to be satisfied
about the mental capacity of the child at the time of the
occurrence concerning which he or she is to testify as well as an
ability to receive an accurate impression thereof. The court must
be satisfied that the child witness has sufficient memory to retain
an independent recollection of the occurrence and a capacity to
express in words or otherwise his or her memory of the same.
The court has to be satisfied that the child witness has the
capacity to understand simple questions which are put to it about
the occurrence. There can be no manner of doubt that record of
the evidence of the child witness must contain such satisfaction
of the court. There is no such material on the record. The order
sheet does not indicate that the proceedings were in camera.
The name of the prosecutrix is clearly mentioned on the record
even, in the charge framed and the evidence recorded.
78. Children who are victims of sexual assaults and rape carry a
huge burden of unwarranted guilt and violations for which they
are not responsible. The humiliation, shame and embarrassment
which cloud their emotions because of the worst kind of violation
they have suffered which get aggravated when required to
recount the same to strangers in formal surroundings. The
trauma of a child victim is only multiplied as he or she is required
to repeatedly recapitulate her ordeal to the investigating
agencies, prosecutors and then in court.
79. In the instant case, the evidence recorded by the learned
Metropolitan Magistrate under section 164 of the CrPC and by the
court appears to suggest embarrassment of the court to put
questions of any kind to the prosecutrix and witness so as to
elucidate the complete truth from her resulting in, not
contradictory but incoherent testimony of the child victim who
has concealed the essential ingredients of the offence. Use of
appropriate language would enable the necessary decency to be
maintained in the proceedings and the record.
A judge is require to be mindful that the edifice on which
the entire structure of the evidence of the prosecution stands is
the trustworthiness of the testimony of the witness. Therefore,
the manner and the language in which the evidence is recorded
is of extreme importance.
80. India is a country where several languages are spoken. The
Constitution recognises several of these while the number of
dialects which are prevalent and in use in different parts of the
country run into hundreds. Delhi is home to people from every
corner of the country and the world. In this background, a
communication with the child witness has added dimensions so
far as this city is concerned. The court has to ascertain not only
the comprehension of the child witness but also the extent of the
child's vocabulary before proceeding to record a deposition. This
assumes even more importance inasmuch as the same word may
have different connotations and meanings in different languages
and regions. The child is also being called upon to make a
deposition with regard to events which may be way beyond
her/his knowledge and comprehension.
81. The above discussion in no uncertain terms reiterates a
hard reality that the requisite care and caution which
investigation, examination and trial into sexual offences involving
child victim and child witnesses may not receive the necessary
attention from the trial courts and the other concerned agencies.
82. Certain guidelines were laid down by R.C. Chopra, J in a
judgment reported at 115 (2004) DLT 174 :
MANU/DE/1088/2004 Sh. Mahender Singh Chhabra vs.
State of N.C.T. Of Delhi & Ors. with regard to investigation
and trial of cases involving commission of offences of murder
under section 302; culpable homicide not amounting to murder
under section 304; death of a woman under suspicious
circumstances within seven years of marriage under section
304B; rape under section 376 and decoity with murder
punishable under section 396 IPC were laid down. The court
observed that radical improvements are required with a view to
nail the real culprits and save victimisation of innocents so that
the faith of general public in the criminal investigation system is
not eroded. In para 9 of the judgment, the learned Judge
observed that criminal investigation and trial is a journey to
discover the truth. The conviction of an innocent or acquittal of a
guilty is an inexcusable shame to the system. These salutary
guidelines deserves to be implemented and followed to the letter.
83. It therefore needs no further elaboration that the care
which is required, whether the child is victim of the offence or is
one who has witnessed the occurrence would remain the same.
It is also evident that on different aspects of investigation,
medical examination and trial relating to commission of offences
including sexual offences wherein either the victim is a child or a
child is required to appear as a witness in support of the
prosecution, directions have been made and guidelines have
been laid down in different judgments which have not received
the attention they deserve. It would be in the interests of justice
to therefore compile the same to facilitate their implementation.
Upon hearing learned counsel for the parties in the present case
and on a consideration of the several judgments placed by Mr.
Manoj Ohri, learned APP for the state, certain additional
requirements have been also noticed and set out in the preceding
paragraphs. For the sake of convenience, the directions and
guidelines laid down by the Apex Court and this court so far as
case involving a child victim or child witness which are required
to be mandatorily and urgently implemented are culled out as
(i). On a complaint of a cognisable offence involving a child victim being made, concerned police officer shall record the complaint promptly and accurately.(Ref: Court On Its Own Motion vs. State & Anr.)
(ii). Upon receipt of a complaint or registration of FIR for any of the aforesaid offences, immediate steps shall be taken to associate a scientist from Forensic Science Laboratory or some other Laboratory or department in the investigations. The Investigating Officer shall conduct investigations on the points suggested by him also under his guidance and advice.(Ref : Mahender Singh Chhabra vs. State of N.C.T. Of Delhi & Ors.)
(iii). The investigation of the case shall be referred to an officer not below the rank of Sub- Inspector, preferably a lady officer, sensitized by imparting appropriate training to deal with child victims of sexual crime.(Ref: Court On Its Own Motion vs. State & Anr.)
(iv). The statement of the victim shall be recorded verbatim.(Ref: Court On Its Own Motion vs. State & Anr.)
(v). The officer recording the statement of the child victim should not be in police uniform.(Ref: Court On Its Own Motion vs. State & Anr.)
(vi). The statement of the child victim shall be recorded at the residence of the victim or at any other place where the victim can make a
statement freely without fear.(Ref: Court On Its Own Motion vs. State & Anr.)
(vii). The statement should be recorded
promptly without any loss of time.(Ref: Court On Its Own Motion vs. State & Anr.)
(viii). The parents of the child or any other person in whom the child reposes trust and confidence will be allowed to remain present.(Ref: Court On Its Own Motion vs. State & Anr.)
(ix). The Investigating Officer to ensure that at no point should the child victim come in contact with the accused.(Ref: Court On Its Own Motion vs. State & Anr.)
(x) The child victim shall not be kept in the police station overnight on any pretext, whatsoever, including medical examination.(Ref: Court On Its Own Motion vs. State & Anr.)
(xi). The Investigating Officer recording the statement of the child victim shall ensure that the victim is made comfortable before
proceeding to record the statement and that the statement carries accurate narration of the incident covering all relevant aspects of the case.(Ref: Court On Its Own Motion vs. State &
(xii). In the event the Investigating Officer should so feel the necessity, he may take the assistance of a psychiatrist.(Ref: Court On Its Own Motion vs. State & Anr.)
(xiii). The Investigating Officer shall ensure that the child victim is medically examined at the earliest preferably within twenty four hours (in accordance with Section 164A Cr.P.C) at the nearest government hospital or hospital
recognized by the government.(Ref: Court On Its Own Motion vs. State & Anr.)
(xiv). The Investigating Officer shall ensure that the investigating team visits the site of the crime at the earliest to secure and collect all incriminating evidence available.(Ref: Court On Its Own Motion vs. State & Anr.)
(xv). The Investigating Officer shall promptly refer for forensic examination clothings and articles necessary to be examined, to the forensic laboratory which shall deal with such cases on priority basis to make its report available at an early date.(Ref: Court On Its Own Motion vs. State & Anr.)
(xvi). The investigation of the cases involving sexually abused child may be investigated on a priority basis and completed preferably within ninety days of the registration of the case. The investigation shall be periodically supervised by senior officer/s.(Ref: Court On Its Own Motion vs. State & Anr.)
(xvii). The Investigating Officer shall ensure that the identity of the child victim is protected from publicity.(Ref: Court On Its Own Motion vs. State & Anr.)
(xviii). To ensure that the complainant or victim of crime does not remain in dark about the investigations regarding his complaint/FIR, the complainant or victim shall be kept informed about the progress of investigations. In case the complainant gives anything in writing and requests the I.O., for investigations on any
particular aspect of the matter, the same shall be adverted to by the I.O. Proper entries shall be made by I.O. in case diaries in regard to the steps taken on the basis of the request made by the complainant. The complainant, however, shall not be entitled to know the confidential matters, if any, the disclosure of which may jeopardize the investigations.(Ref : Mahender Singh Chhabra vs. State of N.C.T. Of Delhi & Ors.)
(xix). Whenever the SDM/Magistrate is requested to record a dying declaration, video recording also shall be done with a view to obviate subsequent objections to the genuineness of the dying declaration.(Ref : Mahender Singh Chhabra vs. State of N.C.T. Of Delhi & Ors.)
(xx). The investigations for the aforesaid offences shall be personally supervised by the ACP of the area. The concerned DCP shall also undertake fortnightly review thereof. (Ref : Mahender Singh Chhabra vs. State of N.C.T. Of Delhi & Ors.)
(xxi). The material prosecution witnesses cited in any of the aforesaid offences shall be ensured safety and protection by the SHO concerned, who shall personally attend to their complaints, if any. (Ref : Mahender Singh Chhabra vs. State of N.C.T. Of Delhi & Ors.)
(xxii). Wherever possible, the IO shall ensure that the statement of the child victim is also video recorded.(Ref: Court On Its Own Motion vs. State & Anr.)
II RECORDING OF STATEMENT BEFORE MAGISTRATE
(i). The statement of the child victim shall be recorded promptly and at the earliest by the concerned Magistrate and any adjournment shall be avoided and in case the same is unavoidable, reasons to be recorded in
writing.(Ref: Court On Its Own Motion vs. State & Anr.)
(ii). In the event of the child victim being in the hospital, the concerned Magistrate shall record the statement of the victim in the hospital.(Ref: Court On Its Own Motion vs. State & Anr.)
(iii). To create a child friendly environment separate rooms be provided within the Court precincts where the statement of the child victim can be recorded.(Ref: Court On Its Own Motion vs. State & Anr.)
(iv). The child victim shall not be separated from his/her parents/guardians nor taken out from his/her environment on the ground of
"Ascertaining voluntary nature of statement" unless the parents/guardian is reported to be abusive or the Magistrate thinks it appropriate in the interest of justice.(Ref: Court On Its Own Motion vs. State & Anr.)
(v). Wherever possible, the IO shall ensure that the statement of the child victim is also video recorded.(Ref: Court On Its Own Motion vs. State & Anr.)
(vi). No Court shall detain a child in an institution meant for adults.(Ref: Court On Its Own Motion vs. State & Anr.)
III MEDICAL EXAMINATION
(i) Orientation be given to the Doctors, who prepare MLCs or conduct post mortems to
ensure that the MLCs as well as post mortem reports are up to the mark and stand judicial scrutiny in Courts.(Ref : Mahender Singh Chhabra vs. State of N.C.T. Of Delhi & Ors.)
(ii). While conducting medical examination, child victim should be first made comfortable as it is difficult to make her understand as to why she is being subjected to a medical
(iii). In case of a girl child victim the medical examination shall be conducted preferably by a female doctor.(Ref: Court On Its Own Motion vs.
State & Anr.)
(iv). In so far as it may be practical, psychiatrist help be made available to the child victim before medical examination at the hospital itself.(Ref: Court On Its Own Motion vs. State & Anr.)
(v). The report should be prepared expeditiously and signed by the doctor
conducting the examination and a copy of medical report be provided to the parents/guardian of the child victim.(Ref: Court On Its Own Motion vs. State & Anr.)
(vi). In the event results of examination are likely to be delayed, the same should be clearly mentioned in the medical report.(Ref: Court On Its Own Motion vs. State & Anr.)
(vii). The parents/guardian/person in whom child have trust should be allowed to be present during the medical examination.(Ref: Court On Its Own Motion vs. State & Anr.)
(viii). Emergency medical treatment wherever necessary should be provided to the child victim.(Ref: Court On Its Own Motion vs. State & Anr.)
(ix). The child victim shall be afforded prophylactic medical treatment against STDs.(Ref: Court On Its Own Motion vs. State & Anr.)
(x). In the event the child victim is brought to a private/nursing home, the child shall be afforded immediate medical attention and the matter be reported to the nearest police station.(Ref: Court On Its Own Motion vs. State & Anr.)
(i) To create a child friendly environment separate rooms be provided within the Court precincts where the statement of the child
victim can be recorded.(Ref : Court On Its Own Motion vs. State & Anr)
(ii) In case of any disability of the victim or witness involving or impairing communication skills, assistance of an independent person who is in a position to relate to and communicate with such disability requires to be taken.
(iii) The trials into allegations of commission of rape must invariably be "in camera" . No request in this behalf is necessary. (Ref : State of Punjab vs. Gurmit Singh)
(iv) The Committal Court shall commit such cases to the Court of Sessions preferably within fifteen days after the filing of the chargesheet. (Ref: (2007 (4) JCC 2680 Court On Its Own Motion vs. State & Anr.)
(v). The child witness should be permitted to testify from a place in the courtroom which is other than the one normally reserved for other witnesses.
(vi) To minimise the trauma of a child victim or witness the testimony may be recorded through video conferencing or by way of a close circuit television. If this is not possible, a screen or some arrangement be made so that the victims or the child witness do not have to undergo seeing the body or face of the accused. The screen which should be used for the
examination of the child witness or a victim should be effective and installed in such manner that the witness is visible to the trial judge to notice the demeanour of the witness. Single visibility mirrors may be utilised which while protecting the sensibilities of the child, shall ensure that the defendant's right to cross examination is not impaired. (Ref : Sakshi vs UOI).
(vii) Competency of the child witness should be evaluated and order be recorded thereon.
(viii) The trial court is required to be also satisfied and ought to record its satisfaction
that the child witness understands the
obligation to speak the truth in the witness box. In addition to the above, the court is required to be satisfied about the mental capacity of the child at the time of the occurrence concerning which he or she is to testify as well as an ability to receive an accurate impression thereof. The court must be satisfied that the child witness has sufficient memory to retain an independent recollection of the occurrence and a capacity to express in words or otherwise his or her memory of the same. The court has to be
satisfied that the child witness has the capacity to understand simple questions which are put to it about the occurrence.
There can be no manner of doubt that
record of the evidence of the child witness must contain such satisfaction of the court.
(ix) As far as possible avoid disclosing the name of the prosecutrix in the court orders to save further embarrassment to the victim of the crime; anonymity of the victim of the crime must be maintained as far as possible
(x) The statement of the child victim shall be recorded promptly and at the earliest by the concerned Magistrate and any adjournment shall be avoided and in case the same is unavoidable, reasons to be recorded in writing. (Ref : Court On Its Own Motion vs. State of N.C.T. Of Delhi)
(xi) The court should be satisfied that the victim is not scared and is able to reveal what has happened to her when she is subjected to examination during the recording of her
evidence. The court must ensure that the child is not concealing portions of the evidence for the reason that she has bashful or ashamed of what has happened to her.
(xii) It should be ensured that the victim who is appearing as a witness is at ease so as to improve upon the quality of her evidence and
enable her to shed hesitancy to depose frankly so that the truth is not camouflaged on account of embarrassment at detailing the occurrence and the shame being felt by the victim.
(xiii) Questions should be put to a victim or to the child witness which are not connected to case to make him/her comfortable and to
depose without any fear or pressure;
(xiv) The trial judge may permit, if deemed desirable to have a social worker or other friendly, independent or neutral adult in whom the child has confidence to accompany the child who is testifying (Ref Sudesh Jakhu vs. K.C.J. & Ors).
This may include an expert supportive of the victim or child witness in whom the witness is able to develop confidence should be
permitted to be present and accessible to the child at all times during his/her testimony. Care should be taken that such person does not influence the child's testimony.
(xv) Persons not necessary for proceedings including extra court staff be excluded from the courtroom during the hearing.
(xvi) Unless absolutely imperative, repeated appearance of the child witness should be prevented.
(xvii) It should be ensured that questions which are put in cross examination are not designed to embarrass or confuse victims of rape and sexual abuse (Ref : Sakshi vs UOI).
(xviii) Questions to be put in cross examination on behalf of the accused, in so far as they relate directly to the offence, should be given in writing to the presiding officer of the court who may put them to the victim or witnesses in a language which is clear and is not embarrassing. (Ref : Sakshi vs. UOI)
(xix) The examination and cross examination of a child witness should be carefully monitored by the presiding judge to avoid any attempt to
harass or intimidate the child witness.
(xx) It is the duty of the court to arrive at the truth and subserve the ends of justice. The courts have to take a participatory role in the trial and not act as mere tape recorders to record whatever is being stated by the
witnesses. The judge has to monitor the proceedings in aid of justice in a manner that something, which is not relevant, is not unnecessarily brought into record. Even if the prosecutor is remiss in some ways, the court can control the proceedings effectively so that the ultimate objective that is the truth is arrived at. The court must be conscious of serious pitfalls and dereliction of duty on the part of the prosecuting agency. Upon failure of the prosecuting agency showing indifference or adopting an attitude of aloofness, the judge must exercise the vast powers conferred under section 165 of the Evidence Act and section 311 of the CrPC to elicit all necessary materials by playing an active role in the evidence collecting process. (Ref : Zahira Habibulla H. Sheikh & Anr. vs. State of Gujarat & Ors.)
(xxi) The judge is expected to actively
participate in the trial, elicit necessary materials from the witnesses at the appropriate context which he feels necessary for reaching the correct conclusion. The judge has uninhibited power to put questions to the witness either during chief examination or cross examination or even during re-examination for this purpose. If a judge feels that a witness has committed an error or slip, it is the duty of the judge to ascertain whether it was so, for , to err is human and the chances of erring may accelerate under stress of nervousness during cross examination. (Ref: AIR 1997 SC 1023 (para 12) State of Rajasthan vs. Ani alias Hanif & Ors.)
(xxii) The court should ensure that the
embarrassment and reservations of all those concerned with the proceedings which includes the prosecutrix, witnesses, counsels may result in camouflage of the ingredients of the offence. The judge has to be conscious of these factors and rise above any such reservations on
account of embarrassment to ensure that they do not cloud the truth and the real actions which are attributable to the accused persons.
(xxiii) The court should ascertain the spoken language of the witness as well as range of vocabulary before recording the deposition. In making the record of the evidence court should avoid use of innuendos or such
expressions which may be variably construed. For instance "gandi harkatein" or "batamezein" have no definite meaning. Therefore, even if it is necessary to record the words of the
prosecutrix, it is essential that what those words mean to her and what is intended to be
conveyed are sensitively brought out.
(xxiv) The court should ensure that there is no use of aggressive, sarcastic language or a gruelling or sexually explicit examination or cross examination of the victim or child witness. The court should come down with heavily to discourage efforts to promote specifics and/or illustration by any of the means offending acts which would traumatise the victim or child witness and effect their testimony. The court to ensure that no element of vulgarity is
introduced into the court room by any person or the record of the proceedings.
(xxv) In order to elicit complete evidence, a child witness may use gestures. The courts must carefully translate such explanation or description into written record.
(xxvi) The victim of child abuse or rape or a child witness, while giving testimony in court should be allowed sufficient breaks as and when required. (Ref : Sakshi vs. UOI)
(xxvii) Cases of sexual assaults on females be placed before lady judges wherever
available. (Ref: State of Punjab vs. Gurmit Singh)
To the extent possible, efforts be
made that the staff in the courtroom concerned with such cases is also of the same gender.
(xxviii) The judge should be balanced,
humane and ensure protection of the dignity of the vulnerable victim. There should be no expression of gender bias in the proceedings. No humiliation of the witness should be
permitted either in the examination in chief or the cross examination.
(xxix) A case involving a child victim or child witness should be prioritised and
appropriate action taken to ensure a speedy trial to minimise the length of the time for which the child must endure the stress of involvement in a court proceeding. While considering any request for an adjournment, it is imperative that the court considers and give weight to any adverse impact which the delay or the
adjournment or continuance of the trial would have on the welfare of the child.
(i) Effort should be made to ensure that there is continuity of persons who are handling all aspects of the case involving a child victim or witness including such proceedings which may be out of criminal justice system. This may involve all steps commencing from the
investigation to the prosecutor to whom the case is assigned as well as the judge who is to conduct the trial.
(ii) The police and the judge must ascertain the language with which the child is conversant and make every effort to put questions in such language. If the language is not known to the court, efforts to join an independent translator in the proceedings, especially at the stage of deposition, should be made.
(iii) It must be ensured that the number of times that a child victim or witness is required to recount the occurrence is minimised to the absolutely essential. For this purpose, right at the inception, a multidisciplinary team involving the investigating officer and the police; social services resource personnel as well as the prosecutor should be created and utilised in the investigation and prosecution of such cases involving a child either as a victim or a witness.
This would create and inspire a feeling of confidence and trust in the child.
(iv) The child victim shall not be separated from his/her parents/guardians nor taken out from his/her environment on the ground of "Ascertaining voluntary nature of statement" unless the parents/guardian is reported to be abusive or the Magistrate thinks it appropriate in the interest of justice.(Ref : Court On Its Own Motion vs. State of N.C.T. Of Delhi)
(v) Courts in foreign countries have evolved several tools including anatomically correct illustrations and figures (as dolls). No instance of such assistance has been pointed out in this court. Extensive literature with regard to such aids being used by foreign courts is available. Subject to assistance from experts, it requires to be scrutinised whether such tools can be utilised in this country during the recording of the testimony of a child victim witness so as to accommodate the difficulty and diffidence faced. This aspect deserves serious attention of all concerned as the same may be a valuable tool in the proceedings to ensure that the complete truth is brought out.
(vi) No court shall detain a child in an institution meant for adults.(Ref : Court On Its Own Motion vs. State of N.C.T. Of Delhi). This would apply to investigating agencies as well.
(vii) The judge should ensure that there is no media reporting of the camera proceedings. In any case, sensationalisation of such cases should not be permitted.
84. The issue with regard to teaching of offences regarding
sexual assault and rape itself has been a source of much
discussion. I am informed that there are instances of even legal
educators being bashful and embarrassed about teaching such
subjects. Judges and counsels are products of the legal
education. The multi-faceted problem and concerns noticed
above are not confined to ensuring gender justice in courts alone.
In this background, it is absolutely imperative that these areas of
law and the issues which have been raised herein are taken up
with all seriousness. Perhaps the programme of continuing legal
education needs to take a look on these questions.
85. As noted above, the directions laid down in the aforenoticed
judgments do not appear to be strictly followed. Some of the trial
courts are either not conscious of their powers and duties as
conferred by the Code of Criminal Procedure and recognised by
the Indian Evidence Act or hesitant to exercise them. These
issues cannot be ignored any further.
86. The Delhi Legal Services Authority and the Delhi High Court
Legal Services Committee are taking several initiatives so far as
access to and dispensation of justice is concerned. The directions
of the courts as culled out above are intended to ensure justice to
both the victim and the accused.
87. For all the reasons set down above, the finding of guilt of
the appellant for commission of the offence under section 376 of
the Indian Penal Code is not sustainable. The appellant is stated
to be in custody since 29th of April, 2005 and has spent a period
of four years and five months in incarceration.
In view of the above discussion, the judgment dated 17th of
August, 2007 is, therefore, set aside and quashed. As a result,
the order of sentence dated 17th of August, 2007 also cannot
stand and is also hereby set aside.
This appeal is allowed in the above terms.
Copy of the operative part i.e. the directions and guidelines
be sent to the District Judge who may circulate the same and
ensure that the same are complied with.
88. It is further directed that a copy of this judgment be sent to
the Secretary, Delhi Legal Services Authority and Secretary, Delhi
High Court Legal Services Committee for further action so as to
ensure the implementation of the directions and guidelines laid
down in para 83.
Copy of this judgment be also sent to the Director, Delhi
Judicial Academy so that the several issues raised may be also
89. This court records its deep appreciation for the thorough
research and able assistance rendered by Mr. S.B. Dandapani,
Advocate for the appellant and Mr. Manoj Ohri, learned APP for
the state in this case.
Needless to say in case of any difficulty in respect of any of
the directions, it is open to any person or party concerned to
make appropriate application for consideration.
This matter is disposed of in the above terms.
September 29, 2009