No Embargo In Treating Testimony Of A Child Witness As The Sole Basis For Conviction: Punjab And Haryana High Court

In an appeal filed by the appellant against the judgment passed by the Additional Sessions Judge, convicting the accused under S.342 and S.376 of IPC and S.4 of POCSO Act, a bench of Justice Ritu Bahri and Justice Ashok Kumar Verma, upheld the impugned judgment and noted the steep rise in child rape cases citing the vulnerable position of a girl child and rape is one of the major modes of their exploitation.

The bench further observed that the High Courts must only interfere in such cases where it becomes apparent from the records that the trial courts have erred in regarding the child as a reliable witness and in absence of that, "the appellate court would be loath to disregard the evidence of the child witness"

The facts of the case are as follows: Neetu Devi had filed an FIR against Sanjay for raping her 4-year-old daughter when the daughter was sent to take curd from Sanjay's shop. The appellant (Sanjay Singh) was charged under S.342, 376, 511 of IPC and S.4 of POCSO. During the investigation, the accused-appellant was arrested and the victim was medically examined, where the ossification test reported her age to be 4-5 years and her medical examination revealed that the "possibility of sexual conduct could not be ruled out." The case reached the illaqa magistrate and then to Sessions Court which supplied the copies of challan and other documents, to the accused-appellant as per S.207, CrPC.

The Sessions Court framed charges under S.342, S.376 of IPC and S.4 of POCSO Act and the accused-appellant pleaded not guilty. After a thorough perusal of the evidence led by the prosecution and examination of the victim, who was found to be a competent witness having sufficient understanding of right and wrong, and judgments passed in the cases of Bharwala Bhoginbhai Hirjibhai v. the State of Gujarat and Shyam Narain v. the State of NCT of Delhi, the trial court convicted and sentenced the accused-appellant.

Thus, the present appeal has come up before the High Court.

Ms. Tanu Bedi, Counsel for appellant had vehemently argued that the defense counsel was not given any opportunity to cross-examine the victim in the trial court and thus, the testimony of the victim could not be relied on for convicting the accused-appellant. Furthermore, she argued that as per the medical report provided, no external mark of injury was seen, anywhere on the body.

She also stated that the mother of the victim, Ms. Neetu Devi, did not identify the accused in the trial Court and her father, Bhushan Singh, appeared as defense witness claiming a rivalry in the neighbourhood had prompted some leaders to tutor his wife about filing a criminal case against Jaganmohan (accused's father) and his son (the accused-appellant). Learned Counsel also presented Meena Kesari, an independent witness, who had deposed that she did not see any minor girl entering or going out of the shop of Jagmohan and thus, everything was normal on the said day.

Per Contra, learned Counsel for State submitted that not only had the victim herself clearly identified the accused and gave a testimony about him committing "wrong act on her", even S. 118 of Evidence Act does not bar a child who understands the questions and has the ability to give rational answers, to give such a testimony. Further stating that such testimony solely can lead to conviction, he argued that the trial court was right in its decision.

Regarding Appellant's Counsel's argument that they were not given any opportunity to cross-examine the victim, the learned Counsel stated that they "had slept over their right to do so" as they did not submit any questionnaire at the time of examination of the victim, nor did they make an application for cross-examination. They did not even raise any objection and argument regarding the same during the trial either.

After scrutinizing the submissions made, the Court had to look into two major questions: Whether the testimony of a child be the sole reason for the conviction of the accused-appellant? And Whether the hostility of the witness (the mother and the father) be a reason for rejecting en bloc evidence of the witness?

Regarding the first question, the Court first thoroughly examined the statement of the victim made in examination-in-chief and the fact that JMIC, Faridabad had asserted her competence to justify, by posing a few questions in Hindi where it was recorded that the victim was competent to depose and had deposed voluntarily. The Court then proceeded to peruse S.33 of POCSO Act, noting the legislature's wisdom of providing a special, specific procedure for recording the evidence of child witnesses and clarified that "in cases of sexual assault against Children, the first and most important piece of evidence is always the statement of the child victim themselves."

Referring to the apex court's judgments in Sanjay Kumar Valmiki v. State which held that if the trial court is satisfied that the child witness before it is unlikely to be tutored and has deposed of their own will and volition, then the evidence given by such child witness should be treated with the same regard as that of any other witness, the High Court averred that there is no embargo on child testimony in S.118 of Evidence Act and the duty is cast on the courts regarding allowing or disallowing such evidence on the grounds that child does not understand the questions put to him or to provide rational answers to such questions and if the answers to these questions are in negative then there is no justification to disregard such testimony. Thus, the court stated that the Child witness's testimony was substantial and enough under S.118 of the Evidence Act.

Regarding the second question, the court held that although the mother had stated that the "accused person present in the court was not that person", however, looking at her conduct and testimony as a whole, the mother had entirely and wholly supported the case of the prosecution in toto.

While explaining the evidentiary value of hostile witness, the court referred to apex court's judgments in Radha Mohan Singh v. the State of UP, Rajendra v. State of UP and Govindappa v. the State of Karnataka and held that "merely because a witness deviates from the statements made in FIR, their evidence could not be held totally unreliable." And regarding the father's action, the Court observed that although he was won over by the appellant, that in itself could not be made the reason to falsify and disregard the story of the prosecution.

Thus, the High Court, while noting the need for providing special care and attention to children and social stigma attached to child rape cases, upheld the judgment given by the learned Additional Sessions Judge.

Case: Sanjay v. State of Haryana

Citation: 2022 LiveLaw (PH) 19

Coram: Hon'ble Ms. Justice Ritu Bahri and Hon'ble Mr. Justice Ashok Kumar Verma

Counsel for appellants: Ms. Tanu Bedi, Advocate

Counsel for respondents: Mr. Ankur Mittal, Additional A.G. Haryana and Mr. Saurabh Mago, AAG, Haryana