Acceptance of Child Witness Evidence Dangerous As It Appeared to be A Result Of Tutoring: Telangana HC
While not outrightly rejecting the evidence of child witness but treading with caution while dealing with their testimony, the Telangana High Court at Hyderabad in a most persuasive, pertinent, progressive and pragmatic judgment titled Begari Ravi Kumar vs State of Telangana in Criminal Appeal No. 88 of 2024 that was filed under Section 374(2) of Cr.P.C., against the Judgment dated 14.12.2022 passed in POCSO/Sessions Case No.26 of IO22 on the file of the court of the Special Judge 99, Fast Track Special Court for Expeditious Trial and disposal of Rape and POSCO Act Cases, Kamareddy District that was pronounced as recently as on 27.12.2024 has acquitted a man who was booked under the provisions of Protection of Children from Sexual Offences Act (POCSO) and clarified that the evidence of a child witness can easily be influenced by the elders in the family. It was very rightly pointed out by the High Court that acceptance of the child witness evidence would be dangerous as the evidence appeared to be a result of tutoring. We thus see that while allowing the criminal appeal, the Bench very rightly acquitted the appellant. No denying it!
At the very outset, this robust, remarkable, rational and recent judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice K Surender of Telangana High Court at Hyderabad sets the ball in motion by first and foremost putting forth in para 1 that, “The appellant/Accused filed the appeal questioning the conviction recorded by the I Additional Sessions Judge, in POCSO/Sessions Case No.26 of 2022, dated 14.12.2022 for the offences under Sections 452 and 376 AB of Indian Penal Code and Section s(i)(j)(m) r/w. Section 6 of the POCSO Act and sentenced to undergo Rigorous Imprisonment for a period of five years and to pay a fine of Rs.1,0OO/- for the offence under Section 452 of IPC; to undergo Rigorous Imprisonment for a period of 2O years and to pay a fine of Rs.10,OOO/- for the offence under Section s(i)U)(m) r/w. Section 6 of the POCSO Act; further, all the sentences shall run concurrently.”
To put things in perspective, the Bench envisages in para 3 while briefly elaborating on facts of case disclosing that, “Briefly, the case of the prosecution is that PW1 who is the mother of the victim-PW.4, lodged complaint with the police on 31.O3.2O2O at 10.30 a.m. In her complaint PW1 state that on previous day i.e. 30.03.2020 at about 9:00 pm, after having dinner her elder son Sai Kumar (PW2) slept on the cot. Her husband Bagaiah, her daughter (pw.a)/victim girl, her another son Chanti and father of victim Gangaram, slept side by side in a row. PW. 1 closed doors around 11.30 p.m. and went outside to the temple that is by the side of her house to chit-chat with neighboring ladies and slept at the temple for some time. The appellant then went to PW. I and informed that police were coming and asked her to go inside the house. PW. 1 went inside the house and saw her daughter-PW.4 awake. When questioned, PW.4 informed PW.1 that when she was sleeping, the appellant woke her up and threatened her not to make any noise, closed her mouth, removed her underwear and committed sexual intercourse forcibly due to which burning took place in her private parts and blood was oozing from her private parts. There was blood on the private parts of PW.4 and also on her clothes. Immediately, PW.1 woke up her husband, her two sons and father-in-law and also the neighbours and narrated about the incident. Thereafter, the appellant was called and questioned. The appellant having confessed to the rape of PW.4 threatened PW.1 and others and went away.”
It cannot be glossed over that the Bench then points out in para 13 that, “The Doctor-PW.9 did not find any injuries on P.W.4’s body including breast, back region or the private parts of the victim girl. Though, PW.9 stated that blood stains were found on the frock of the victim girl, however, the FSL report does not reflect that there were any blood stains on the wearing apparel (frock) which was sent. No DNA test was conducted to ascertain the blood group of the semen found.”
Be it noted, the Bench notes in para 14 that, “The case of the appellant as stated in his examination under Section 313 Cr.P.C is that the grand-father of the appellant had six sons including father of the appellant. Husband of PW. 1 Gangaram who is the father of the victim is the own brother of the father of the appellant. The father of the appellant and Gangaram having a joint family agricultural lands situated at Veerannakatta temple and there were disputes between them. After the death of the father of the appellant, the appellant demanded share of his father from Gangaram (father of the victim). On the said issue several ‘galatas’(quarrels) took place in between the family members. On two occasions PW. 1 and PW.3 and also Gangaram beat the mother of the appellant when they demanded for share. In order to avoid his share in the property, false complaint was filed.”
It is worth noting that the Bench notes in para 15 that, “The relation of appellant is not disputed. However, the suggestion put to P.W. 1 and P.W.2 regarding disputes about property was denied. Both the father and grandfather of P.W.4 were not examined. As already discussed, the narration of forcible intercourse and blood being found is not supported by either the examining doctor PW.9 or FSL report. PW.1 states that the appellant went to her house while she was sitting at the temple and asked PW.1 to go inside the house, stating that Police were coming. The version projected by the prosecution that the appellant without being seen by PW.1 entered into the house, forcibly committed rape on the victim girl in the presence of four other family members sleeping side by side and thereafter coming out of the house and asking PW. 1 to go into the house appears to be made up and the appellant was falsely implicated.”
Most significantly, the Bench then encapsulates in para 16 what constitutes the cornerstone of this notable judgment postulating that, “The evidence of a child witness can easily be influenced by the elders in the family. Acceptance of the child witness evidence would be dangerous in the present circumstances of the case as the evidence appears to be a result of tutoring. Not examining the father and grandfather of the victim, who were sleeping by the side of the victim girl is fatal to the prosecution case’ Reference is made to the following judgments:
i. ln Mangoo v. State of M.P AIR 1995 SC 959 : 1995 Cri LJ 1461 this Court while dealing with the evidence of a child witness observed that there was always scope to tutor the child, however, it cannot alone be a ground to come to the conclusion that the child witness must have been tutored. The court must determine as to whether the child has been tutored or not. It can be ascertained by examining the evidence and from the contents thereof as to whether there are any traces of tutoring.
ii. ln Panchhi v. State of UP (1998) 7 SCC 177 : 1998 SCC (Cri) 1561 : AIR 1998 SC 2726, this Court while placing reliance upon a large number of its earlier judgments observed that the testimony of a child witness must find adequate corroboration before it is relied on. However, it is more a rule of practical wisdom than of law. It cannot be held that “the evidence of a child witness would always stand irretrievably stigmatised. It is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring” (SCC p. 181, para 11).”
iii. In State of U.P. v. Krishna Master (2010) 12 SCC 324 : (2011) 1 SCC (Cri) 381 : AIR 2010 SC 3071 this Court held that there is no principle of law that it is inconceivable that a child of tender age would not be able to recapitulate the facts in his memory. A child is always receptive to abnormal events which take place in his life and would never forget those events for the rest of his life. The child may be able to recapitulate carefully and exactly when asked about the same in the future. In case the child explains the relevant events of the crime without improvements or embellishments are the same inspire confidence of the court, his deposition does not require any corroboration whatsoever. The child at a tender age is incapable of having any malice or ill will against any person. Therefore, there must be something on record to satisfy the court that something had gone wrong between the date of incident and recording evidence of the child witness due to which the witness wanted to implicate the accused falsely in a case of a serious nature.”
Finally, the Bench then concludes by holding in para 17 that, “Accordingly, appellant succeeds and Criminal Appeal is allowed setting aside the conviction recorded by the I Additional Sessions Judge, in POCSO/Sessions Case No.26 of 2022, dated. 14.I2.2O22. The appellant is acquitted. Since the appellant/Accused is in jail, he shall be released, forthwith, if not required in any other case.”
In sum, we thus see that the Telangana High Court in this leading case held clearly, cogently and convincingly that acceptance of child witness evidence is dangerous as it appears to be a result of tutoring. It was therefore thought not fit to exclusively rely upon to convict the appellant/accused. We thus also see that the High Court deemed it fit to acquit appellant/accused. Very rightly so!
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