A single bench of Justice C. Hari Shankar, in his judgment, upheld the dependability of testimonies from Child Witnesses. The bench, while holding the conviction of child rapist said “There is no prohibition on children being witnesses, whether in civil or criminal cases. The only circumstance in which the statute proscribes reliance on such evidence, is where the child is prevented from understanding the questions put to him, or from giving rational answers to such questions, by reason of his/her age.”
The appellant alias Prem Bahadur took the prosecutrix on the pretext of buying her clothes. However, he took her to a village near Anand Vihar and repeatedly raped her. He had kept the prosecutrix for a month after which she somehow escaped and was rescued by a lady nearby.
The Court, convicted Bahadur of committing offence under Sections 363 (Kidnapping), 366, 376 (Rape) , 506 (Criminal Intimidation) of the Indian Penal Code and section 6 of the Protection Of Children From Sexual offences Act (POCSO) and sentenced him to 10 years of rigorous imprisonment and a total fine of Rs 18,000.
In the arguments, the council of appellant-accused said that since the reports indicates only a slight tearing of hymen so the offence should be termed as a penetrative sexual act. However, the court differing to this argument opined that penile penetration, even without reaching the hymen, would be sufficient to answer the definition of penetrative sexual assault.
The following guiding principles, governing the admissibility and reliability of the evidence of child witnesses, are readily discernible from the cited judicial pronouncements:
- There is no absolute principle, to the effect that the evidence of child witnesses cannot inspire confidence, or be relied upon.
- Section 118 of the Indian Evidence Act, 1872 discounts the competence, of persons of tender age, to testify, only where they are prevented from understanding the questions put to them, or from giving rational answers to those questions, on account of their age.
- If, therefore, the child witness is found competent to depose to the facts, and is reliable, his evidence can be relied upon and can constitute the basis of conviction.
- The Court has to ascertain, for this purpose, whether (a) the witness is able to understand the questions put to him and give rational answers thereto, (b) the demeanour of the witness is similar to that of any other competent witness, (c) the witness possesses sufficient intelligence and comprehension, to depose,(d) the witness was not tutored, (e) the witness is in a position to discern between the right and wrong, truth and untruth, and (f) the witness fully understands the implications of what he says, as well as the sanctity that would attach to the evidence being given by him.
- The presumption is that every witness is competent to depose, unless the court considers that he is prevented from doing so, for one of the reasons set out under Section 118 of the Indian Evidence Act, It is, therefore, desirable that judges and Magistrates should always record their positive opinion that the child understands the duty of speaking the truth, as, otherwise, the credibility of the witness would be seriously affected, and may become liable to rejection altogether.
- Inasmuch as the Trial Court would have the child before it, and would be in a position to accurately assess the competence of the child to depose, the subjective decision of the Trial Court, in this regard, deserves to be accorded due respect. The appellate court would interfere, therewith, only where the record indicates, unambiguously, that the child was not competent to depose as a witness, or that his deposition was Twin, and to an extent mutually conflicting, considerations, have to be borne in mind, while ascertaining the competency of a child witness to justify. On the one hand, the evidence of the child witness has to be assessed with caution and circumspection, given the fact that children, especially of tender years, are open to influence and could possibly be tutored. On the other hand, the evidence of a competent child witness commands credibility, as children, classically, are assumed to bear no ill-will and malice against anyone, and it is, therefore, much more likely that their evidence would be unbiased and uninfluenced by any extraneous considerations.
- It is always prudent to search for corroborative evidence, where conviction is sought to be based, to a greater or lesser extent, on the evidence of a child witness. The availability of any such corroborative evidence would lend additional credibility to the testimony of the witness.
Delhi HC said, “In the facts of the present case, the conviction, of the appellant, by the learned ASJ, of having committed the offence under Section 366 of the IPC, which deals with kidnapping or abduction of any woman, in order that she may be forced or seduced to illicit intercourse, is also entirely sustainable in law, and calls for no interference. On the aspect of sentence, the learned ASJ has, if anything, erred on the side of leniency. The appellant had enticed the prosecutrix, who was playing with her friends, away from their company, deprived her of the warm sanctuary of her parents and loved ones, and transported her to what may be only termed a veritable hell-hole, in a distant village, where she was confined, under threat of her life, in a desolate room, for over a month, and subjected to repeated acts of sexual assault. The acts of the appellant betoken complete disregard for the bodily, mental and psychological integrity of the prosecutrix, solely with a view to satisfy his unnatural sexual urges. The degree of damage to the child, in such cases, is physical and psychological in equal measure. It is impossible for a court, peopled, after all, by lay human beings, to even conceptualize, let alone visualize, what a child, such as the prosecutrix, must have undergone, every traumatic second of the span of her confinement.”
“Rape is, on every occasion and without exception, a crime of power, more than one of lust, and, when committed on a child, is a brute and unrelentingly savage expression thereof. No clemency or mercy, whatsoever, can be shown to the perpetrator of such an act, especially when the perpetration is in full possession of the senses and faculties of the perpetrator”, said Justice C Hari Shankar while upholding the judgment of the trial Court.
-India Legal Bureau