//
you're reading...
legal issues

child abuse – acquitted =The accused was working as Teacher in a private school at Lingapur village, on 22.6.2002 during evening hours, the daughter of the defacto-complainant namely Tulasi informed her mother that the accused removed her underwear and inserted his pennies into her anus, as a result of which, she sustained bleeding injury to her private parts, thereafter the accused instructed the school attenders Smt.Mallamma and Chandrakala to wash the body and clothes of the victim. On 24.6.2002, the father of the victim and others questioned the accused about the incident, then the accused admitted his guilt but prayed not to give any report against him.

THE HON'BLE SRI JUSTICE G.KRISHNA MOHAN REDDY  
CRIMINAL REVISION CASE No.1416 of 2004 

15-7-2011 

Karri Simhachalam Naidu 

State of A.P.,rep. by P.P.

Counsel for the Petitioner: Sri C.Praveen Kumar

Counsel for the Respondents: The Public Prosecutor 

:JUDGMENT: 
This revision has arisen out of concurrent findings recorded by the Principal
Assistant Sessions Judge, Ranga Reddy district and V Additional Sessions Judge, 
Fast Track Court, Ranga Reddy district in S.C.No.132 of 2003 dated 5.2.2004 and
Crl.A.No.18 of 2004 5.8.2004 respectively.
The prosecution case is as follows:
The accused was working as Teacher in a private school at Lingapur village, on
22.6.2002 during evening hours, the daughter of the defacto-complainant namely
Tulasi informed her mother that the accused removed her underwear and inserted
his pennies into her anus, as a result of which, she sustained bleeding injury
to her private parts, thereafter the accused instructed the school attenders
Smt.Mallamma and Chandrakala to wash the body and clothes of the victim. On 
24.6.2002, the father of the victim and others questioned the accused about the
incident, then the accused admitted his guilt but prayed not to give any report
against him. Thereafter, the other school girls namely Uma Devi and Krishna
Veni also informed the father of the victim that the accused committed the same
offence against them also several times. Further a report was given on
24.6.2002 at 14.30 hrs which was registered in Cr.No.118 of 2002 on the file of
Medchal P.S. under Section 377 and 376(f) IPC. Further necessary investigation
was done and later charge sheet was filed in the case.
For the prosecution, the father of the victim girl and the victim girl were
examined as P.Ws.1 and 2 besides examining P.Ws.3 to 22 and Exs.P1 to P21 and 
M.Os.1 to 3 were also marked. For the defence, none was examined and no 
documents were marked. The trial Court on consideration of the matter, found the
accused guilty of committing the offence punishable under Section 376(f) IPC and
convicted and sentenced him to undergo rigorous imprisonment for a period of
seven years and to pay a fine of Rs.100/- and in default, to suffer simple
imprisonment for a period of one week, whereas consequently the accused 
preferred Crl.A.No.18 of 2004 before the
V Additional Sessions Judge (FTC), Ranga Reddy district and the appellate Court,
on the consideration of the matter, dismissed the appeal confirming the
conviction and sentence imposed by the trial Court. Hence this revision.
It is the contention of learned counsel for the petitioner that the minor girl
who was examined as P.W.2 deposed that there was anal penetration of the penis 
of the accused and causing of injury, but the medical evidence rendered by
P.W.22 would prove that there was no evidence of that and taking into
consideration relevant circumstances, the Courts below rightly held that the
charge under Section 377 was not established, but on the other hand though the
evidence of P.W.2 coupled with the medical evidence does not disclose that
actually the accused involved in raping her and the medical evidence of P.W.22
also discloses that she had earlier sexual intercourse, which cannot be referred
to the charge of raping her when she did not speak about that aspect factually
and in fact basing upon some assumptions i.e., without any proof, the Courts
below upheld the charge under Section 376 IPC, which therefore is not tenable.
In the background of the contentions raised by the learned counsel for the
petitioner it has to be examined as to whether the Courts below properly
examined the matter and arrived at correct conclusions and imposed adequate
punishment for the charge of rape punishable under Section 376 IPC.
Emphasizingly, the Courts below assumed lot of things even though no
corresponding evidence was recorded. Pertinently, there is no evidence of rape
punishable under Section 376(f) IPC either from P.W.2 or from P.W.22-Medical
Officer, whereas the medical evidence of P.W.22 coupled with Ex.P19 medical
certificate dated 24.6.2002 would disclose that there was evidence of her
involvement in sexual intercourse earlier, which does not mean that she was
raped by the accused or she had intercourse with the accused at the relevant
point of time. But still it is observed by the Courts below that taking into
consideration the age of P.W.2 and the evidence of P.W.22, there was a
possibility of the accused having sexual intercourse while P.W.2 was in a
standing position and it is further observed that he committed rape against her
and P.W.2 being aged (8) years would not be in a position to give every minuet
details of the act and as the hymen was found ruptured, it must have taken place
due to the act of the accused and absolutely there is no reason or motive on the
part of P.W.1 or P.W.2 to create a false story of rape. It is further observed
that in a case of this nature, parents of a child would hesitate to come forward
to give police report and that may be the reason as to why the mother of the
victim (P.W.4) not supported the prosecution version. Further it is observed
that the prosecution established the charge punishable under Section 376(f) IPC.
In fact, the Courts below laid lot of emphasis on the medical evidence while
coming to such conclusions. 
Here the evidence of P.W.1, father of the minor girl (P.W.2), P.W.2 herself and
P.W.22 concerned Medical Officer is to be mainly looked into. P.W.1 was
examined on 22.9.2003 before the trial Court and he deposed that around more
than one year prior to his examination before the Court, on one day his daughter
informed him while weeping and with fear that the accused removed her drawer and
inserted his sexual organ into her anus, by reason of which, she sustained
bleeding injuries and on the next day, he approached the accused and asked about
the offence committed by him, but he did not give any reply, following which, he
gave the corresponding report to the police, which was marked as Ex.P1 and later
P.W.2 was sent for medical examination. He also identified her drawer and blue
petticoat with white and yellow designs, marked as M.Os.1 and 2 as the clothes
she was wearing at the relevant point of time.
On the other hand, P.W.2-minor girl deposed that the accused was working as 
Teacher in her school and on the date of incident, the accused forcibly removed
her drawer in her classroom and inserted his organ by force into her anus, by
reason of which, she sustained bleeding injuries at the anus and she informed
about it to her mother and father on the next day and later her father gave
report to the police, whereas neither in the evidence of P.W.1 nor in the
evidence of P.W.2 there is any narration of raping the second of them, which is
quite different from carrying out unnatural offence punishable under Section 377
IPC, which charge ended in the acquittal of the accused.
P.Ws.5 and 6 who according to the prosecution are the other victims in the hands
of accused of seducing them did not support that version. P.W.5 deposed that
one day as she did not study, the accused bet her and similarly P.W.6 deposed.
There is nothing from the evidence of P.Ws.5 and 6 also about the allegation of
rape against P.W.2. Therefore their evidence is not useful in the present
context.
On the other hand, P.W.22-Assistant Professor, Gandhi Hospital deposed that she 
examined P.Ws.2, 5 and 6 and insofar as P.W.2 is concerned, there was history of
blood stains on her clothes and on examination, hymen was found not intact and
it was admitting one finger and anal sphincter was intact and based on the
history/clinical examination, there was evidence of intercourse at earlier
period. In other words, in fact the medical evidence rules out that either the
offence punishable under Section 376 or 377 IPC was committed by anybody against 
P.W.2 on the relevant date, but quite surprisingly and having found that the
charge under Section 377 IPC was not established, the appellate Court in its
judgement, held that the accused committed the offence punishable under Section
376(f) IPC.
In this regard, it is necessary to distinguish what is meant by 'direct
evidence', and 'circumstantial evidence' which includes conclusions and
presumptions and also what is hearsay evidence and how far assumptions can be 
taken into consideration with regards to establishing a fact in issue before a
court of law. In other words, it is to be ascertained what is legal evidence
and what is not legal evidence. While disposing of a case every judge should
have knowledge of what is to be considered and what is not be considered in that
context.

Section 59 of Evidence Act provides;
"Proof of facts by oral evidence: All facts, except the contents of documents or
electronic records may be proved by oral evidence."

 By oral evidence is meant the testimony of living persons, examined in the
presence of the court or Commissioners appointed by the court. Oral evidence
does not always mean words falling from the lipse of men and it may include
signs made by person who on account of some illness or physical injury is unable
to speak.
 Section 60 of the Evidence Act postulates;
 "Oral evidence must be direct: Oral evidence must, inall case whatever, be
direct; that is to say-
if it refers to a fact which could be seen, it must be the evidence of a witness
who says he saw (it);
if it refers to a fact which could be heard, it must be the evidence of a
witness who says he heard (it);
if it refers to a fact which could be perceived by any other sense or in any
other manner, it must be the evidence of a witness who says the perceived (it)
by that sense or in that manner;
if it refer to an opinion or to the grounds on which that opinion is held, it
must be the evidence of the person who holds that opinion on those grounds:
Provided that the opinions of experts expressed in any treatise commonly offered
for sale, and the grounds on which such opinions are held, may be proved by the
production of such treatises if the author is dead or cannot be found, or has
become incapable of giving evidence or cannot be called as a witness without an
amount of delay or expense which the Court regards as unreasonable.
Provided also that, if oral evidence refers to the existence or condition of any
material thing other than a document, the Court may, if it thinks fit, require
the production of such material thing for its inspection.

 It is quoted in Sarkar on Evidence, 15th Edition, Reprint 2002 at page
1039; 

 "This section rests on the cardinal rule that the best evidence available
must always be given. As LORD ESHER said in Lucas v. Williams, 1892, 2 QB 166, 
'different kinds of evidence may be used to prove the same fact.' Every
relevant fact may be proved by direct or circumstantial evidence, or by both.
This section requires that oral evidence must always be direct or positive.
Evidence is direct when it goes straight to establish the main fact in issue,
eg. when a witness says that he saw B inflicting a wound on C with a knife, or
that he saw B pay money into C's hands, this is direct evidence. Paras 2, 3 and
4 refer to facts and lay down that if the fact to be proved could be seen,
heard, touched, tasted or smelt it. In other words, the testimony must be of
the person who perceived the fact through the medium of his own senses (See Hals
3rd Ed Vol 15 para 486)".

Circumstantial Evidence:

 All judicial evidence is either direct or circumstantial. By 'direct
evidence' is meant when the principal fact, or factum probandum, is attested
directly by witnesses, things or documents. To all other forms, the term
'circumstantial evidence' is applied; which may be defined, that modification of
indirect evidence, whether by witnesses, things or documents, which the law
deems sufficiently proximate to a principal fact or factum probandum to be
receivable as evidentiary of it. And this also is of two kinds - conclusive and
presumptive: 'conclusive' when the connection between the principal and
evidentiary facts - the factum probandum and factum probans - is a necessary
consequence of the laws of Nature: 'presumptive' when the inference of the
principal fact from the evidentiary is only probable, whatever be the degree of
persuasion which it may generate (Best, 11th Ed s 293). Circumstantial evidence
is evidence of circumstances as opposed to what is called direct evidence (R v.
Ali Cassim, 4 Bur LT 97). Evidence which proves or tends to prove the factum
probandum indirectly by means of certain inferences of deduction to be drawn
from its existence or its connection with other 'facts probantia' it is called
circumstantial evidence (Chakuna Orang v. State of Assam, 1981 Cri LJ 1661, 1662
(Gauhati).

 Further, circumstantial evidence means the evidence afforded not by the
direct testimony of an eyewitness to the fact to be proved, but by the bearing
upon that fact or other and subsidiary facts which are relied upon as
inconsistent with any result other than the truth of principal fact (Wills: Cir
Ev 6th Ed p6) as quoted in the same edition at page 63. Further, in Shankarlal
Gyarasilal Dixit v. State of Maharashtra, (1981 SC 765, 770 : 1981 CriLJ 325),
it is held that the simple expectation is that the judgment must show that the
finding of guilt, if any, has been reached after a proper and careful evaluation
of circumstances in order to determine whether they are compatiable with any
other reasonable hypothesis. Further, in Kottari Suri v. State of Orissa, (1994
CriLJ NOC 121) it is held that circumstantial evidence means a fact on which an
inference is to be founded and that the facts must be closely knitted and must
carry conviction to the mind of a judge.

Further, in S.D.Sony v. State of Gujarat 1, the Supreme Court observed;
 "It is well settled that when a case rests on circumstantial evidence,
such evidence must satisfy three tests: (i) the circumstances from which an
inference of guilt is sought to be drawn, must be cogently and firmly
established; (ii) those circumstances should be of a definite tendency
unerringly pointing towards the guilt of the accused; (iii) the circumstances,
taken cumulatively, should form a chain so complete that there is no escape from
the conclusion that within all human probability the crime was committed by the
accused and none else". 

With regards to presumption, which forms part of circumstantial evidence,
Section 114 of Evidence Act contemplates; 
"Court may presume existence of certain facts : The Court may presume the
existence of any fact which it thinks likely to have happened, regard being had
to the common course of natural events, human conduct and public and private
business, in their relation to facts of the particular case."

In T.Shankar Prasad Vs State of Andhra Pradesh,2 the Supreme Court held as 
follows:

"Presumption is an inference of a certain fact drawn from other proved facts.
While inferring the existence of a fact from another, the Court is only applying
a process of intelligent reasoning which the mind of a prudent man would do
under similar circumstances. Presumption is not the final conclusion to be drawn
from other facts. But it could as well be final if it remains undisturbed later.
Presumption in law of evidence is a rule indicating the stage of shifting the
burden of proof. From a certain fact or facts the Court can draw an inference
and that would remain until such inference is either disprove or dispelled."

In SYED ABRARUL HASSAN Vs Union of India,3 it is held; 

"Judicial evidence with which the Evidence Act deals is a species of the genus
"evidence", and, according to Best, is for the most part nothing more than
natural evidence, restrained or modified by rules of positive law. The statutory
provisions contained in the Law of Evidence may be said to be based on the
doctrine that that system of law is best which leaves least to the Judge's
discretion. That is why "the laws of every well-governed State have established
rules regulating the quality, and occasionally the quantity, of the evidence
necessary to form the basis of judicial decision." It is in its attempt to
regulate the production of and proof by evidence in a judicial enquiry that the
rules of evidence refer to certain presumptions either rebuttable or
irrebuttable. The term "presumption" in its largest and most comprehensive
signification, may be defined to be an inference, affirmative or disaffirmative
of the truth of false hood of a doubtful fact or proposition drawn by a process
of probable reasoning from something proved or taken for granted. Thus,
according to Best, when the rules of evidence provide for the raising of a
rebuttable or irrebuttable presumption, they are merely attempting to assist the
judicial mind in the matter of weighing the probative or persuasive force of
certain facts proved in relation to other facts presumed or inferred. The whole
scheme of the Evidence Act is thus intended to serve the objective of regulating
the proof of facts by subjecting the production of evidence to the rules
prescribed in that behalf."

 From a reading of the decisions cited above, it is categorical that in
order to establish a fact in issue, there should be some basis, whereas when
direct evidence is adduced, the same is the basis to ascertain relevant fact in
issue and when there is circumstantial evidence, which includes presumptions or
conclusions, the possibility of inferring some proved set of facts
correspondingly is the basis to establish a fact in issue.

 With regards to the question of 'hearsay evidence', the Supreme Court in
J.D.Jain v. Management of State Bank of India4, observed as under:

 "The term 'Hearsay' is rather ambiguous and misleading and it has
therefore been purposely excluded from the Evidence Act. The word 'hearsay' is
used in various senses, sometimes it means whatever a person is heard to say;
sometimes it means whatever a person declares on information given by someone 
else. When A makes a verbal complaint in the presence of 4 persons, the evidence
of these 4 persons is not hearsay evidence. As pointed out above, in its narrow
sense, it means statements made out of court which are used to prove the truth
of the matters stated. What is commonly known as 'hearsay' is secondary
evidence of any oral statement purporting to contain the statement of a man who
is not called as a witness. The statement of a witness of what he says he heard
from a third person, being hearsay, is generally excluded. Thus if A repeats
orally or in writing, a statement alleged to have been made to him or to another
person about a certain event by B who is not produced before the court, it is
hearsay and inadmissible unless the statement is covered by S.32 and B is proved
to be dead. It is rejected because A did not personally observe the event and is
not qualified to speak to it. B must be called before the court to give his own
account of what he saw or did or heard. If B is called as a witness, the
objection to hearsay disappears, for then it becomes the original evidence of B
who can be cross-examined about the truth of his statement."

 Further, as per OXFORD Dictionary, the meaning of 'assumption' is
acceptance as true or being the case without having proof. Assumption is quite
different from presumption as presumption, which is taken as circumstantial
evidence is basing upon and accepting proved set of circumstances to establish a
fact in issue about which there is no direct evidence. When the observation
made by the Courts below is only an assumption without any basis, the same 
cannot be taken into consideration. In RAMAN KUMAR v. STATE OF PUNJAB5, the 
Supreme Court while referring to a decision in HAZARILAL v. STATE OF M.P. 
[(2009) 13 SCC 783] relied upon paras 8 and 9 thereon, observed and held as:
 "8. The evidence of P.Ws.1 and 2 show that they spoke about the dowry
to be the basis for suicide. The High Court came to the conclusion that because
the deceased had given birth to a child there was no reason for her to commit
suicide. The evidence of the parents of the deceased, P.Ws.1 and 2 was only
relatable to dowry. The High Court held that there was no question of demand of
dowry, and in fact, the appellant was financing the father of the deceased,
P.W.1. There being no other material to show as to how the deceased was being
harassed or subjected to cruelty, the conclusion of the High Court that because
the deceased committed suicide there must be some harassment and cruelty is 
insupportable and indefensible. There was no material to substantiate this
conclusion. Merely on surmises and conjectures the conviction could not have
been recorded.
9. There is a vast difference between 'could have been', 'must have been'
and 'has been'. In the absence of any material, the case falls in the first
category. In such a case conviction is impermissible".

That decision is quite applicable to the facts and the circumstances of the
case.
What is mean by 'hearsay evidence' and what is mean by 'assumption' do have same 
footing with regards to establishing a fact which is in issue before a court of
law, in other words, when hearsay evidence or assumption got no basis, the same
cannot be made use of for establishing the fact in issue as it is not legal
evidence. These aspects cannot be equated with the question of establishing a
charge on the basis of direct evidence or circumstantial evidence, which provide
good basis to do so.
Therefore, for the reasons discussed, the conviction and sentence imposed by the
trial Court for the offence punishable under Section 376(f) IPC are not tenable
and accordingly the same is liable to be set aside and accordingly set aside.
In the result, the Criminal Revision case is allowed.

?1 AIR 1991 SC 917 
2 AIR 2004 SC 1242 

3 AIR 1962 SC 1052 
4 AIR 1982 SC 673 
5 (2009) 16 SCC 35 
 

About advocatemmmohan

ADVOCATE

Discussion

Comments are closed.

Blog Stats

  • 2,850,411 hits

ADVOCATE MMMOHAN

archieves

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,901 other followers

Follow advocatemmmohan on WordPress.com