Under which circumstances, disclosure made by the child victim though hearsay is admissible as per S 6 of the Indian Evidence Act?

1. The appellant – who shall be referred to as the accused hereinafter – is assailing the judgment dated 26.9.2017 rendered by the Additional Sessions Judge – 1, Nagpur in Special Child Protection Case 128 of 2013 whereby the accused is convicted for the offence punishable under section 6, read with section 5(n) of the Protection of Children from Sexual Offences Act (“POCSO Act”) and is sentenced to suffer rigorous imprisonment for ten years and to payment of fine of Rs. 5,000/- and in default to suffer further rigorous imprisonment for one year.

2. The victim, then aged 13 years lodged report at Police Station Mauda on 10.8.2013 (Exh. 25) pursuant to which offences punishable under section 6 of the POCSO Act and section 376(2) (f)(i) of the Indian Penal Code (“IPC”) were registered against the accused vide crime 129 of 2013.

3. The gist of the report, which is lodged by the victim who was accompanied by her mother Smt. Pushpa – (PW 2) is thus:

The victim was studying in the 9th standard at Shrinath Vidyalaya, Mahalgaon, her father was suffering from epilepsy and expired 5 years ago. Since then, the victim her mother, sister – Priya (PW 7), brother Prashant and the cousin brother of her deceased father (accused) were residing together in the house of Chudaman Wasnik, as tenant. 2 to 3 months prior to the lodging of report, the accused attempted to insert his penis in the anus of the child victim on two to three occasions. The victim disclosed the incidents to her mother who asked the accused to leave the house and since then the accused is residing separately. The victim returned from school at 6.30 p.m. on 7.8.2013 and was alone in the house. The victim was changing her clothes. The accused entered the house, went to the bathroom, undressed and rushed towards child victim. The accused closed the door, removed the salwar of the child victim which tore and since the accused was finding it difficult to untie the nada (cotton thread) of the paijama, he cut it with sickle. The accused forced the victim to lie, face down, pressed her breasts and inserted his penis in her anus. The accused got up from the person of the victim and tried to force her to come to his room by dragging her. The child victim gave a jerk to the hand of the accused and rushed to her neighbour’s house in naked condition. The neighbor Smt. Sushma Deshbhratar – (PW 5) gave her clothes to wear. The victim disclosed the incident to the neighbor who in turn called one Wasnikbai and then narrated the incident to the mother of the child victim telephonically. The mother of the child victim came home, she called her brother and brother-in-law telephonically. On 8.8.2013, the maternal uncle of the child victim and elder paternal uncle came, the matter was discussed and it was decided to lodge report.

4. The investigation proceeded on the usual lines. The spot panchanama was recorded in the presence of witness. The victim was medically examined. The accused was arrested on 9.30 p.m. on 10.8.2013 and was medically examined. The blood and other samples of the victim and the accused were collected and sent to chemical analyzer and so were the clothes of the victim and the accused which were seized during the investigation. The statements of witnesses were recorded, the completion of the investigation led to submission of the chargesheet in the Special Court.

5. The learned Sessions Judge framed charge Exh. 14 under section 376(2)(f) of the IPC and section 6, read with section 5(n) of the POCSO Act. The accused abjured guilt and claimed to be tried in accordance with law.

6. The accused did not step into the witness box nor did the accused examine any witness in defence. In response to question 91 in the statement recorded under section 313 of the Code of Criminal Procedure (“Code”), the accused states that since maternal and paternal uncles of the child victim did not like accused residing with mother of the child victim, they conspired to falsely implicate the accused in the crime. However, in the cross-examination of the child victim – (PW 1) what is suggested is that the accused objected to the child victim having an affair with one boy and disclosed the affairs to the mother of the child victim. Similar suggestion is also given to the mother of the child victim. The defence of false implication, as is discernible from the cross-examination, is different from the defence reflected in the statement recorded under section 313 of the Code.

7. The learned counsel for the accused Shri M.S. Wakil has not seriously assailed the finding of the learned Sessions Judge that the victim was child within the meaning of section 2(1)(d) of the POCSO Act. The victim has deposed that her date of birth is 29.12.2000. In the cross-examination, there is no challenge to the deposition that the date of birth of the victim is 29.12.2000. The mother of the victim PW 2 – Pushpa also deposed that the child victim was born on 29.12.2000, which evidence has again gone unchallenged. The incriminating material was put to the accused in examination under section 313 of the Code and the answer was “I do not know”. PW 11 – Dr. Vinod Rathod, who alongwith Dr. Sachin Giri, examined the child victim for age determination, has deposed that she was 12 years old on 10.8.2013. PW 11 – Dr. Rathod has proved the age determination certificate (Exh. 27). The age is determined after general physical examination, dental examination, examination of X-ray of the wrist and the elbow joint and genital examination. I have considered the deposition of PW 11- Dr. Vinod Rathod which is consistent with the age determination certificate, and the cross-examination. The evidence of PW 11 – Dr. Rathod on age determination is not shaken in the cross-examination. The prosecution also relied on the school record which is proved by PW 9 – Smt. Kirti Nasre – the Head Mistress of Shrinath Vidyalaya. However, the entries in the school record are on the basis of the school leaving certificate issued by the school in which the child victim was first admitted. The primary evidence which is source of information on the basis of which the entry is taken in the record of the school in which the victim was first admitted, is not proved. The school record which is proved by PW 9 – Kirti Nasre is of no evidentiary value. However, in view of the unchallenged evidence of PW 1 – child victim and PW 2 – Smt. Pushpa and the medical evidence on age determination, the finding recorded by the learned Sessions Judge that the child victim was aged less than 16 years as on the date of the incident, is unexceptionable.

8. In the context of the charges under section 6, read with 5(n) of the POCSO Act, the learned Sessions Judge has found that the relationship between the accused and the child victim is proved. The evidence that the accused is the cousin brother of the child victim is not challenged. The finding recorded by the learned Sessions Judge that it is proved that the accused was related to the child victim through blood is consistent with the evidence on record.

9. The deposition of the child victim – PW 1 is broadly consistent with the report, on material aspects. She has deposed that the accused was residing with her family and in view of his sexual misconduct, he was driven out of the house and he started residing adjacent to the house of the child victim. As regards the incident, the child victim states that she was alone in the house after returning from school and at 6.30 p.m. or thereabout on 7.8.2013 when she was changing her clothes, the accused came and knocked the door of the room. The victim told the accused that she was changing clothes. The accused went to the bathroom, undressed and since the latch of the door of the room was open, he entered the room naked, closed the door, tore the salwar of the child victim, tried to untie the paijama nada and since he was finding it difficult to do so, cut the nada. The child victim then deposes that the accused committed sexual intercourse, pressed her breasts due to which she sustained abrasion and then inserted his penis in her anus. The accused dragged the child victim who rescued herself and came out of the house in naked condition and went to Smt. Sushma Deshbhratar (PW 5) to whom the child victim narrated the incident and then the incident was informed to her mother telephonically. The child victim then states that her maternal uncle and elder paternal uncle were called on 8.8.2013 and made aware of the incident. The family went to the Police Station on 9th and lodged the report.

10. Shri M.S. Wakil, the learned counsel for the accused would submit that the evidence of the child victim is not confidence inspiring. The child victim admits that the earlier instances were not reported to the police, that the accused knocked the door of the room, is an omission. The evidence that the child victim told the accused that she was changing clothes and that after the incident, her sister Priya came, is an omission. In my considered opinion, the omissions do not touch the core of the prosecution version and are not significant enough to partake the character of contradictions. Considering the relationship, the fact that the earlier instances were not reported to the police is not a reflection on the veracity of the version of PW 1. Shri M.S. Wakil would then submit that the fact that the police did not seize the nada of the paijama is significant. I do not agree. The victim identified the clothes in the Court. The learned Sessions Judge found that the paijama nada was missing and that the salwar was torn. Shri M.S. Wakil, the learned counsel would then submit that the report is delayed which creates doubt as regards the prosecution version. The incident occurred on 7.8.2013 in the evening. It has come in evidence that the maternal uncle and elder paternal uncle were summoned on 8.8.2013, deliberations ensued, which is but natural, particularly considering that the accused is a close relative, since the social stigma and ostracization is a real possibility in the conservative Indian society in such situations. The report was lodged on 9.8.2013 which evidence is not challenged. The printed First Information Report does state that the information was received on 10.8.2013 at 2.15 p.m. In Exh. 25, the date of receiving the report which was initially recorded as 9.8.2013 is scored of and recorded as 10.8.2013. In any event, I am satisfied that the delay, if any, is properly explained and the veracity of the prosecution case is not affected thereby. Shri M.S. Wakil, the learned counsel then argues that since the evidence that the accused also inserted the penis in the vagina is an improvement, the credibility of the evidence of the child victim is destroyed. It is true that the child victim did not disclose in her statement to the police that the accused also inserted his penis in the vagina. To this extent, the evidence will have to be kept out of consideration. However, the evidence of the child victim that she was sexually ravished and that the accused inserted his penis in her anus is truthful, natural and implicitly reliable.

11. It is well settled that the victim of sexual assault is not an accomplice. Conviction can rest on her sole testimony and to seek corroboration would add insult to the injury. If the evidence of the victim is not found of sterling quality, or if the Court has a disturbing or niggling doubt, short of corroboration, the other evidence including medical evidence may be looked into to lend assurance to the prosecution case. I find the evidence of the child victim confidence inspiring and therefore it would not be necessary to seek assurance from the other evidence on record. However, though, not required, as a fact, there is ample evidence on record which lends assurance to the evidence of the child victim.

12. PW 4 – Dr. Swati Chavan, who is a pathologist conducted the preliminary examination of the child victim on 10.8.2013. She noticed two abrasions on the chest and opined that the injury was fresh and was caused by sharp object like nails. PW 6 – Dr. Manik Gedam to whom the child victim was referred by the gynecologist is a surgeon. PW 6- Dr. Gedam has deposed that the child victim and her mother gave the history of insertion of penis in the vagina. The child victim was complaining of pain in the perineal region since the time of the incident. PW 6 noticed injuries on the right breast and the left lower limb of the child victim. One contusion abrasion with scab formation was noticed below the left knee. PW 6 – Dr. Gedam deposed that the formation of scab indicates that the injury was sustained prior 48 hours. PW 6 Dr. Gedam states that he did not notice any external injury at the perineal region. However, on rectal digital examination, he found that the child victim was experiencing pain. Spasms of external anal sphincter was noticed on proctoscopic examination, contusion 0.5 x 0.5 cm on anal mucosa just above the mucocutanious junction was noticed at 5 O’ clock position. Dr. Gedam deposed that the injuries are suggestive of forceful insertion of penis in the anus and that the injuries on the breasts are suggestive of resistance. It is elicited in the cross-examination that PW 1 – Dr. Gedam did not mention in the report that the injuries are suggestive of forceful insertion of penis and the injuries on the breasts are suggestive of resistance. Shri M.S. Wakil, the learned counsel for the accused would submit that the said omission is significant. In my opinion, the fact that the injuries are suggestive of forcible or forceful insertion of penis in the anus is not specifically mentioned in the report would not detract from the evidence of the doctor. The report specifically mentions the nature and extent of injuries and there is no reason not to accept the opinion of the doctor that the probable causes may be the resistance offered and the forceful insertion of the penis in the anus. Shri M.S. Wakil would then emphasize on the inconsistency in the opinion of PW 4 – Dr. Swati Chavan and PW 6 – Dr. Manik Gedam on the nature of injuries noticed on the breast and the leg of the child victim. It is true that PW 4 – Dr. Swati states that the injuries were fresh which is inconsistent with the opinion of PW 6 – Dr. Manik Gedam. The learned Sessions Judge has for reasons recorded given more weightage to the opinion of Dr. Manik Gedam and I see no reason to differ. PW 8 – Dr. Vilas Kurude is a gynecologist who examined the child victim on 10.8.2013. PW 8 deposed that the child victim was complaining of pain at the perineal region and the history given was of insertion of penis in the anus by the accused. PW 8 -Dr. Kurude states that the injuries were caused within 4 to 8 hours. However, in view of the deposition that the injuries were scab formation, the evidence of the surgeon PW 6 – Dr. Gedam that the injuries were 48 hours old appears to be consistent with the authoritative texts on medical jurisprudence. PW 8 – Dr. Kurude has deposed that since the victim was examined after 48 hours during which period she passed stool more than once, there is less possibility of finding any semen or bloodstain in the sample sent for chemical analysis. PW 8 has deposed that abrasions are possible due to struggle, and that he referred the child victim to the surgeon for examination.

13. The medical evidence is consistent with the version of the child victim that the accused inserted his penis in her anus. Shri Wakil would then argue that PW 5 – Smt. Sushma did not support the prosecution. Witnesses turning hostile is a common occurrence. However, since the evidence of the child victim is implicitly reliable, the fact that PW 5 – Sushma did not support the prosecution is of scant significance. PW 2 – Pushpa is the mother of the victim who has deposed that the child victim narrated the entire incident when she returned home after receiving telephonic call from PW 5 – Sushma. It is suggested that she and the accused were residing as husband and wife, which suggestion is denied. PW 2 admits that while residing together, the accused used to contribute to the family expenses. PW 2 denied the suggestion that her children and the landlord were disliking the relationship between PW 2 and the accused. PW 2 denied the suggestion that her relationship with the accused turned sour since the accused disclosed having seen the child victim with one boy. PW 7 – Priya is examined to establish that the child victim disclosed that she was sexually ravished by the accused. Nothing is brought on record in the cross-examination to discredit her testimony. PW 7 – Priya has denied the suggestion that the child victim was having affair with one Subhash and that since the child victim and Priya apprehended that the accused would reveal the affair to their mother, the accused is falsely implicated.

14. The evidence of PW 2 and PW 7 as regards the disclosure made by the child victim though hearsay is admissible in view of the provisions of section 6 of the Indian Evidence Act which recognizes and embodies the rule of res gestae, which is explained by the Hon’ble Apex Court in Gentela Vijayvardhan Rao v. State of Andhra Pradesh reported in MANU/SC/0719/1996 : AIR 1996 SC 2791 thus:

“15. The principle of law embodied in Section 6 of the Evidence Act is usually known as the rule of res gestae recognised in English law. The essence of the doctrine is that a fact which, though not in issue, is so connected with the fact in issue “as to form part of the same transaction” speaking, in exception to the general rule that hearsay evidence is not admissible. The rationale in making certain statement or fact admissible under Section 6 of the Evidence Act is on account of the spontaneity and immediacy of such statement or fact in relation to the fact in issue. But it is necessary that such fact or statement must be a part of the same transaction. In other words, such statement must have been made contemporaneous with the acts which constitute the offence or at least immediately thereafter. But if there was an interval, however slight it may be, which was sufficient enough for fabrication then the statement is not part of res gestae …………… “

Section 6 is an exception to the rule of evidence that hearsay evidence is not admissible. The statement must relate to the fact in issue or relevant thereto and must be substantially contemporaneous with the fact. Such statement though not evidence of the truth of the matters stated are of corroborative value. In Sukhar ..vs.. State of Uttar Pradesh reported in MANU/SC/0626/1999 : (1999) 9 SCC 507 the Hon’ble Apex Court observes that section 6 is an exception to the general rule of inadmissibility of hearsay evidence provided such evidence is almost contemporaneous with the fact/s excluding the possibility of fabrication. The essence of the doctrine is that a fact which, though not in issue, is so connected with the fact in issue, as to the form part of the same transaction, that it becomes relevant by itself.

The evidence of PW 2 – Pushpa and PW 7 – Priya that the child victim narrated the incident to them is therefore admissible in view of the provisions of section 6 of the Indian Evidence Act.

15. The overwhelming evidence against the accused apart, the statutory presumption under section 29 of the POCSO Act is required to be rebutted by the accused in view of the prosecution having established the fundamental facts, which the accused failed to do. The defence is not probabilized even on the touchstone of preponderance of probabilities. The defence is not consistent and different suggestions are given to the witnesses. The defence which is reflected in the cross-examination is not spoken of in the 313 statement. It is true that the presumption under section 29 can be rebutted by effective cross-examination and bringing on record material which would render the prosecution case improbable or of doubtful veracity. However, in my considered opinion, the accused failed to discharge the burden of rebutting the statutory presumption.

16. I am satisfied that the judgment of conviction is unexceptionable and warrants no interference.

The appeal is without substance, and is dismissed.