Suraj Singh @ Laala vs State NCT Of Delhi

FACTUAL MATRIX

“A) PW-1/Victim ‘I’ was examined-in-chief on 31.05.2022 and 20.08.2022. In her testimony recorded on 31.05.2022 entered into the witness box on 31.05.2022 and deposed that on 12.04.2020 she was studying in second class and she plays with her friends. PW-1 further deposed that she plays outside her house, but with her best friends. She plays inside her house and she knows Laalachacha as he used to live on the left side of her house. PW-I further deposed that she used to go outside to play in the evening at about 5:00 to 6:00 pm and after playing she would return to her house at about 8:00 pm. PW-1 further deposed that while she was studying in second class and went out to play. The said Laalachacha did bad touch with her in the manner that he kissed her on her lips and also squeezed her stomach below the breast area and apart from the said bad touch. The said Laala chacha did not do any other bad touch with her on the said day.

PW-1 further deposed that after returning to her house, firstly she told her mother about the bad touch done by the said Laalachacha and thereafter. she told her father about the same and her father alter calling the said Laala chacha at her house scolded him and thereafter called the police. She further deposed that she alongwith the police and her parents visited the hospital and after the incident one day she came to the court. where judge madam made inquiry from her. She further deposed that she can put her signatures in Hindi as well as English language and while she was studying in second class. she could write her name in English. PW-I was shown and read over her statement recorded under Section 164 Cr.P.C. (i.e. Mark-A) on which although she identified her signatures at Point X. however she deposed that she has not made the said statement before the judge madam as she did not ask anything to me. She correctly identified the accused as Suraj Singh@ Laala.

PW-1 was further examined-in-chief on 20.08.2022, wherein she deposed that while kissing her on her lips. Laala chacha put her in his lap. She further deposed that she does not remember if Laalachacha also pressed that part of her body which is used for urination. She also deposed that after appearing before the Judge madam she narrated the incident committed by Laala chacha with her.

In her cross-examination by the Ld. Defence Counsel, she admitted that on the date or incident. in the evening. a quarrel took place between her father and the accused. She further deposed that she does not remember if she told the police about the quarrel. She further deposed that she does not remember if she told the judge aunty about the quarrel between her father and the accused. She denied the suggestion that her mother refrained her to disclose about the said quarrel to the police. She further denied the suggestion she told the police and the judge aunty, whatever she was tutored by her mother to tell them. She further denied the suggestion that no such incident as alleged by her took place.

B) PW-2/Smt. ''N" (Mother of the Victim) “entered into the witness box on 09.10.2023 and deposed that she is a house-wife and she is a Graduate and she has one son and one daughter (victim) and her victim daughter ‘I’ is elder and at present she is IO years old and studying in class 5th. She further deposed that somewhere on 11/12.04.2020, around 06:00-07:00 PM, she was working in her house and her victim daughter alongwith other children of the street were playing outside the house in a vacant plot where the accused used to park his TSR. She further deposed that after sometime her victim daughter came home and informed her that Suraj@ Laala Chacha has done bad touch with her. In response to Court query as to the meaning of bad touch. she deposed that the victim told her that the accused has pressed her private part (vagina) and kissed on her lips.

PW-2 further deposed that she immediately told the same to her husband and her husband then called the accused suraj@ LaalaChacha at home and made enquiries about the same from him. She further deposed that the accused told her husband that he regularly plays with the children including the victim and also make them sit in his lap however he had no wrong intention to do any Wrong act With the victim child and the accused also apologized before her and her husband and he returned back to his house. She further deposed that thereafter she called the PCR and after sometime PCR arrived but they did not visit their home or made any inquiries from them but they came to know that the police had taken the accused to hospital since accused had cut his hand and then she, her husband and her victim daughter went to PS Sonia Vihar and at the PS she had given a complaint i.e. Ex. PW-2/ A.

PW-2 further deposed that thereafter police took her, her victim daughter and her husband to JPC Hospital where her daughter was medically examined and vide emergency registration card and MLC on which she identified he signatures and proved the same as Ex. PW-2/B and Ex. PW-2/C respectively. She further deposed that she had also shown the place of incident to the police and the police had also prepared a rough site plan of the same in her presence i.e. Ex. PW-2/D. She further deposed that after few days. she alongwith her husband and victim daughter had come to the court on the instructions of the IO and the statement of the victim daughter was recorded in the court. She correctly identified the accused as Suraj Singh @ Laala.

On being cross-examined on behalf of the accused, PW-2 deposed that she does not know what day of the week was on 11/12.04.2020. She admitted that at the time of incident Corona Pandemic was pervasive and on the date of the incident it was a complete lock-down due to corona pandemic. She further admitted that her daughter/victim used to visit the house of accused. prior to the alleged incident. She also admitted that prior to the alleged incident no quarrel had taken place with the accused. She further deposed that no quarrel had taken place on the date or incident between the accused with her husband. She denied the suggestion that a quarrel had taken place on the date of incident between the accused and her husband and for the same reason the neighbours had visited her house however she volunteered that the neighbours had come on the next day of the incident to convince them (her and her husband) not to lodge an FIR against the accused. She denied the suggestion that her daughter/victim had not disclosed to her that accused touched her private part (vagina).She further denied the suggestion that she had tutored the victim to state the facts which she had disclosed to the police or to the Judge Madam or before the court.

In her further cross examination, PW-2 deposed that she had called on l00 number at about 08:00 PM and at that time her husband was present at the house. She further deposed that when the victim had narrated the incident to her. her husband was at home at that time however she volunteered that she asked her daughter to narrate the incident to her husband too. She further deposed that she had stated to the police that "I asked my daughter to narrate the incident to my husband too”, however she was confirmed with her recorded. She further denied the suggestion that no such incident took place or the accused had been falsely implicated in the present case.”

C) PW-3/Sh. “S” (Father of the Victim) ”entered into the witness box on 09.10.2023 and deposed that he is a Graduate and he owns a business or printing press and he has one son and one daughter (victim) and his victim daughter “I” is elder who is 10 years old and studying in class 5th. He further deposed that somewhere in on 10/11.04.2020, around 07:00-08:00 PM. he came back to his house from neighbourhood and his wife informed him that the accused Suraj Singh @ Laalahas done some bad act (misbehave) with his victim daughter. He further deposed that he enquired from his victim daughter and she told that Laala uncle had kissed her and touched her private parts (vagina). He further deposed that the victim had told him that the incident had happened in a vacant plot where she was playing with other children and in the said vacant plot he usually park his car. however, since the said plot is lying vacant therefore people from the neighbourhood also park their vehicle if they find space. He further deposed that the said incident had happened around 07 :00-08:00 PM and thereafter he called the accused Suraj @ Laala Chacha who is their neighbor at home and made enquiries about the same from him. however, the accused did not say anything and remained silent and then he returned back to his house. He further deposed that thereafter he called at PCR number and after sometime the PCR arrived and made inquiries from him and his wife and then they asked them to accompany them to the PS.

PW-3 further deposed that he alongwith his wite and victim daughter went to PS Sonia Vihar alongwith the police officer and the police officer recorded the complaint of his wife while he as standing outside the room. He further deposed that thereafter he alongwith his wife and victim daughter were taken to JPC hospital where his daughter was medically examined and they returned back to their home around 02:00 AM. He further deposed that on the next day, he. his wife and victim daughter came to the court at the instructions of the IO and the statement of the victim daughter was recorded in the court. he further deposed that the police had arrested the accused vide arrest memo i.e. Ex. P-6 in his presence and the accused was also personally searched vide memo i.e. E.x. P-7. He Correctly identified the accused as Suraj Singh @ Laala.

On being cross-examined on behalf of accused. PW-3 deposed that he does not know what day of the week was on 12.04.2020. He admitted that at the time of incident Corona Pandemic was pervasive. he further admitted that on the date of the incident it was a complete lock-down due to corona pandemic. He further deposed that at the time of incident. he was running a printing press at Vishwas Nagar. Shahdara and there were no fixed working hours. he further deposed that on the date of incident. his office was closed due to Corona Pandemic. He further deposed that at the time of incident. he was not at home but he was present in his neighborhood however he volunteered that he came around 07:30 PM and the incident had happened around 10-15 minutes prior to the time when he reached home. He further deposed that his wife had told him about the incident and thereafter his victim daughter told him about the incident. She admitted that his wife had told him that the accused had touched the private part (vagina) of the victim. he further admitted that his daughter/victim used to visit the house of accused. prior to the date of incident however he volunteered that she used to visit once or twice in a week. He further deposed that the family of accused comprises of his parents. his two brothers and their wives and children. He further deposed that prior to the date of incident. the victim had not made any complaint against the accused and he and his family never doubted the diameter of the accused or that the accused had any ill intention towards his victim daughter. he admitted that prior to the date of incident no quarrel had ever taken place between him and the accused. He denied the suggestion that a quarrel had taken place on the date of incident between him and the accused regarding car parking. he further denied the suggestion that neighbours had come in between and tried to pacify the altercation.

In his further cross-exmination, he deposed that after coming to know about the incident, he called the PCR. He further deposed that he does not remember the exact time when he called the PCR. He further denied the suggestion that his victim daughter had not disclosed to him that accused had touched her private part (vagina). He further denied the suggestion that he had tutored the victim to state the fact which she had disclosed to the police or to the judge madam or before the court. He further denied the suggestion that no such incident took place or the accused had been falsely implicated in the present case. He further denied the suggestion that even as on date the victim visits the house of the accused.”

D) PW-4/St Jagpal Singh

“entered into the witness box and deposed that on 12.04.2020, he was posted as SI at PS Sonia Vihar and he was on emergency duty from 08:00 PM to 08:00 AM and at around 09:15 PM, he received DD No. 44-A and thereafter he alongwith Ct. Hanuman Prasad went to H. No. 4 complete address withheld) where they met the victim and her parents. He further deposed that after coming to know about the incident he called PSI Pooja at the spot and he also came to know that the accused had himself caused injury on his hand and Ct. Hanuman Prasad took the accused to JPC Hospital on PCR van. He further deposed that after some time, PSI Pooja came to the spot and alter initial inquiry. she made call on 181 number and since he was marked another DD so he left the spot to attend the same. He correctly identified the accused as Suraj Singh @laala.

On being cross-examined on behalf of accused. he deposed that he alongwith Ct. Hanuman Prasad reached at the house of victim at about 9:30PM and neighbours were also present at that time. He further deposed that SI Pooja did not make any inquiries from any neighbor in his presence however he volunteered that when SI Pooja reached at the spot. he briefed her and then he left to attend some other DD which was marked to him. he further deposed that Ct. Hanuman Prasad had taken accused Suraj to hospital in his presence at around 9:30PM only through PCR vehicle and no one from the family of accused or neighbor had accompanied the accused to hospital He further deposed that he does not know whether the family members of accused were present at the spot at that time. He denied the suggestion that he had not visited the place of incident. He further denied the suggestion that he did not participate in the investigation and my statement was recorded by the IO at the PS.”

E) PW-5/Ct. Hanuman Prasad

“entered into the witness box and deposed that on 12.04.2020. hewas posted as Constable at PS Sonia Vihar and he was on emergency duty from 8:00pm to 8:00am with SI Jagpal Singh and at around 9:15 PM, a PCR call vide DD no. 44A was received by SI Jagpal Singh and then he alongwith SI Jagpal Singh went to place of incident i.e. H No. 4 (complete address withheld) and when they reached at the spot they found the victim as well as her parents and some neighbours and one boy namely Suraj Laala,was present with his family members. He further deposed that the parents of the victim informed them that Suraj@ Laala had done ched-chad with the girl child and he has also cut his right wrist and he was bleeding and since, the matter was related to sexual assault upon a girl child. therefore, SJ Jagpal called SI Pooja from the PS. He further deposed that thereafter. on the direction of SI Jagpal. he took the accused Suraj@ Laala to JPC Hospital where he got medically examined vide MLC No. 2402/2020 at around 10:00 PM and thereafter the doctor gave the MLC whereafter. he alongwith Suraj @Laala returned back to PS and he handed over the custody and MLC to SI Pooja

On being cross-examined on behalf of accused. he deposed that the accused was residing adjacent to the house of victim and the house of victim and accused was situated at around l .5 kms from the P.S. He further deposed that he and SI Jagpal Singh reached at the place of incident at around 9:30PM through his own bike. He admitted that many neighbours were present when he and SI Jagpal Singh reached at the place of incident. He further deposed that when he had taken the accused to JPC Hospital, none of his family members had accompanied them. He Further deposed that SI Jagpal had called SI Pooja in his presence and SI Jagpal only made oral inquiries from the neighbours but did not record anyone statement in his presence. He further deposed that SI Pooja did not reach at the place of incident in his presence since he had already left for hospital with the accused. He denied the suggestion that he had not participated in the investigation. He further denied the suggestion that his statement and signature were taken by the IO at the PS.”

F) PW-6/SI Pooja

“entered into the witness box and deposed that on 12.04.2020. she was posted as SI at PS Sonia Vihar and at around 9:30pm when she was present at her home. she received a call from DO and he informed her that SI Jagpal had received a PCR call regarding sexual assault with the minor girl child and she was accordingly summoned to the PS. She further deposed that at around 10:30PM. she reached at the PS and she alongwith PCR officials went to the place of incident i.e. Rampal Chowk. Sabhapur. She further deposed that after reaching at the place of incident, she saw that SI Jagpal. victim 'I' and the parents of victim were present and then SI Jagpal Singh informed her that the accused Suraj@ Laala had cut his wrist and Ct. Hanuman Prasad had taken him to hospital. She further deposed that she made inquiries from the victim but she was unable to disclose anything, therefore, she called the CIC Counsellor and at around 12:00 midnight, CIC counsellor also reached at the place of incident and she counselled the victim. She further deposed that in the presence of counsellor, the victim told that she had gone to the house of Suraj@ Laala Chacha and then Suraj@ LaalaChacha has made her sit on his lap and kissed on her lips and also touched her private part (susu wali jagah) and when she started crying then he left her and she returned back to her house and then she informed everything to her mother and her mother informed to her father. She further deposed that the counsellor made a report and handed over the same to her i.e. Ex.PW6/ A.

PW-6 further deposed that she took the victim and her mother to JPC hospital Where the victim Was medically examined vide MLC no. 207/2020 and the victim told aforesaid facts to doctor as well and the victim and her mother had refused for internal medical examination. She further deposed that thereafter. they returned back to the house of victim and she recorded statement of mother of victim i.e. Ex.PW2/A. She further deposed that thereafter. she returned back to PS and prepared the tehrir and gave it to the DO for registration of FIR i.e. E.x.PW6/B and thereafter. the FIR was registered by the DO and he handed over the copy of the same to her. She further deposed that on the same day i.e. 13.04.2020, at around 10:00 AM, she again went to the house of victim and recorded the statement of victim in qucstion- answer form and also recorded the statement of father of victimand supplementary statement of the mother of victim. She further deposed that at the instance of mother of victim. she prepared site plan i.e. Ex.PW2/D and thereafter she left the house of victim and told the father of victim to come to PS. She further deposed that when she reached at the PS. Ct. Hanuman Prasad alongwithaccused Suraj@ Laala were also present and he handed over the MLC of accused as well as the custody of accused to her.

PW-6 further deposed that while she was interrogating the accused, the father of victim also reached at the PS and the accused was arrested vide arrest memo i.e. Ex. P-6 in the presence of father of victim and his personal search was also carried out vide memo i.e. Ex. P-7. She further deposed that she also recorded disclosure statement of accused i.e. Ex.PW6/C and she also recorded statement of Ct. Hanuman Prasad and supplementary statement of father of victim. She further deposed that thereafter, she alongwith Ct. Ankit brought the accused to Karkardooma Court and produced him before concerned court and he was sent to JC. She further deposed that thereafter, she returned back to PS and recorded the statement of SI Jagpal Singh. She further deposed that on 14.04.2020, she got the statement of the victim recorded u/s 164 Cr.P.C by moving an application i.e. Ex.PW6/D. PW-6 further deposed that on 20.04.2020. she collected and verified the age documents of the victim from her school and as per the same. DOB of victim is 06.04.2014 and she also recorded statement of Manager of her school and seized the age documents of victim i.e. Ex. P-2. Ex. P-3 and Ex. P-4 vide seizure i.e. Ex.PW-6/E. She further deposed that during investigation. she collected the PCR form i.e. Ex. P-9 and DD no. 44A i.e. Mark X. She further deposed that atter completion of investigation. she filed charge-sheet. The identity of the accused was not disputed during her testimony.

On being cross-examined on behalf of accused. she deposed that she reached at the house of victim at around 11:00PM on 12.04.2020. She further deposed that when she reached at the spot, none of the neighbours were present and there were 3-4 other houses apart from the house of victim and the accused in the said street. In response to court query. she deposed that when she reached at the place of incident. victim alongwith her parents. SI Jagpal Singh and family members of accused were present however she did not make any inquiries from any neighbor after she reached at the place of incident. She further deposed that no CCTV camera was found installed near the house of victim or the accused and the house where the victim was residing was constructed upto 2 floors and she was residing with her family on the second floor. She further deposed that she did not enter into the house of accused since the place of incident was the open area outside the house of victim and the accused. She admitted that relatives of victim were residing on the first floor on the same building where the victim was residing however she did not make any inquiries from the relatives of victim. She further deposed that father of victim had called the PCR at around 9:00 PM. She further deposed that she did not get the victim tested for COVID-I 9 at the time or medical examination. She further deposed that she has never made any inquiries from the relatives of victim or any neighbor in the present case. In her further cross examination. she denied the suggestion that she has not fairly investigated in the present case. She further denied the suggestion that the victim had not levelled any allegation of sexual assault in her presence as stated by her. She further denied the suggestion that the accused has been falsely implicated by the parents of victim. She further denied the suggestion that since no such incident as recorded by her in Ex.PW2/A had happened therefore, she had not inquired either the relatives of victim or neighbours of said vicinity.”

“DW-1/Hridya Kumar Ghosh

“entered into the witness box and deposed that he has been residing at H. No. 12. Gali No. 1. Khasra No. 520, near MCD School. Sonia Vihar since 2010 and somewhere in the year 2012-13, the accused alongwith his family also came to reside in his neighborhood and thereafter around one year. the victim and her parents also came to reside in the neighborhood. he further deposed that the victim and the house of the accused are adjacent to each other. He further deposed that on 12.04.2020, at about 05:00 to 05:30 PM. he heard some noises between his neighbours namely 'S' (father of the victim) and Laala and found that they were having a quarrel on parking issue. He further deposed that at around 07:30 PM. he again came outside and saw that one police van was parked near the house of the accused and some neighbours were also present there and thereafter, he reached at the spot and saw that the accused had cut his wrist and blood was oozing out and thereafter police official took him to the hospital in the police van. He further deposed that he was never called at the PS by the police.

On being cross-examined by Ld. APP for the State, he deposed that he has a jewelry shop at Karol Bagh and he is running the said shop since 2005-06 and he leaves for his shop at around 11:00 AM and returned back at around 10:00 PM and Mondays are weekly off. He further deposed that on 12.04.2020. he was at home since his shop was closed due to Covid-19 pandemic and the accused was residing in a house next to his house. He further deposed that his family and the family of the accused are on visiting terms however he volunteered that mostly on Mondays. some time he and his family or the accused and his family visit each other and they also meet in the street. he further deposed that he had come to know on 12.04.2020 that the accused was taken by the police due to some quarrel between the accused and the father of the victim. On being specifically asked as to whether he came to know at the spot that the accused had committed any wrongful act with the victim he replied in negative however he volunteered that after few days, he came to know that the accused has been sent to Jail for committing some wrongful act with the victim.

In his further cross-examination, he deposed that he did not visit the police station nor made any complaint to the police or any authority to inform them that on the date of incident, the accused and father of the victim had quarrel on parking issue and no incident of any wrongful act with the victim was committed by the accused. He further deposed that at present also. accused is residing at the same house. He denied the suggestion that since accused is his friend therefore. he is deliberately not disclosing the true facts in order to save the accused from legal punishment.”

“82.

Although the testimony of the victim, as noted above, is sufficient enough to bring home the guilt of the accused however a careful perusal of the testimony of the parents of the victim also corroborates the version of the victim that on the date of incident the accused had kissed on the lips of the victim and touched her private part. It is a matter of record that the accused was the neighbor of the victim and the victim used to visit his house and thus the victim posed complete trust in the accused and it is difficult to believe that one fine day, the victim would level false allegations against the accused of kissing on her lips and touching on her private part and thus the acts of the accused clearly amounts to assaulting the victim to outrage her modesty and commission of aggravated sexual assault.

83.

In the overall facts, circumstances and the testimony brought on record, this Court is of the considered opinion that the prosecution has successfully beyond reasonable doubt all the charges framed against the accused and the accused has failed to rebut the presumption envisaged under Section 29 and 30 of the POCSO Act and as such accused Suraj Singh @ Laala is liable to be convicted of the offences/charges u/s 354 IPC and Section 10 of the POCSO Act.

CONCLUSION

84.

Accordingly, the accused Suraj Singh @ Laala is acquitted of the charge u/s 363 IPC however he stands convicted for the charges u/s 354 IPC and Section 10 of the POCSO Act.”

“19.

Section 42 of POCSO Act does not take in its ambit Section 354 IPC however considering the provisions of Section 71 of IPC as well as 42 of POCSO Act, the convict need not be separately sentenced for the offences under Section 354 IPC since Section 10 of the POCSO Act carries higher punishment and thus the convict be sentenced for the offences under Section 10 of the POCSO Act.

20.

Considering all the aggravating and mitigating factors as well as the submissions made by the respective parties, the convict Suraj Singh @ Laala is sentenced to rigorous imprisonment for 05 years (Five years) and fine of Rupees Five Thousand only (Rs. 5,000/-) under Section 10 of the POCSO Act. In default of payment of fine, the convict shall further undergo Rigorous Imprisonment of 06 months.

21.

The convict has not paid the fine of Rs. 5000/- or any part thereof.

22.

All the sentences shall run concurrently.

23.

Convict shall be entitled to the benefit of Section 468 BNSS (earlier Section 428 Cr.P.C.).”

SUBMISSIONS ON BEHALF OF THE APPELLANT

SUBMISSIONS ON BEHALF OF THE STATE

ANALYSIS AND CONCLUSION

“Section 7 - Sexual assault Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.”

“(n)

whoever, being a relative of the child through blood or adoption or marriage or guardianship or in foster care, or having domestic relationship with a parent of the child, or who is living in the same or shared household with the child, commits sexual assault on such child; or”

“Whoever, commits aggravated sexual assault shall be punished with imprisonment of either description for a term which shall not be less than five years but which may extend to seven years, and shall also be liable to fine.”

‘परसों शाम को मैं अपने दोस्तों के साथ घर के सामने खेल रही थी। तभी लाला चाचा मुझे मेरी फ्रेंड के घर के सामने खड़ी कार के पीछे ले गए। फिर लाला चाचा ने मेरे होंठों पर किस किया और नीचे मेरी पेशाब करने वाली जगह पर हाथ से दबा दिया। उन्होंने मुझे गोद में भी लिया। तभी मम्मी ने आवाज लगाई, तो मैं घर आ गई। फिर मम्मी ने मुझसे पूछा, “बेटा, क्या हुआ?” तब मैंने मम्मी को सारी बात बताई कि लाला चाचा ने मेरे होंठों पर किस किया, नीचे दबाया और मुझे गोद में भी लिया। मम्मी के कहने पर मैंने पापा को भी सारी बात बता दी। इसके बाद पापा ने पुलिस को सूचना दे

“While I was studying in second class and went out to play, the said Laala chacha did bad touch with me. The said Laala chacha did bad touch with me in the manner that he kissed me on my lips and also squeezed my stomach below the breast area. Apart from the said bad touch, the said Laala chacha did not do any other bad touch with me on the said day.”

“CROSS-EXAMINATION (By Mr. Manish Vashisth, Advocate for the accused along with the accused in person.).

It is correct that on the date of incident, in the evening, a quarrel took place between my father and the accused. I do not remember if I told to the police about the quarrel. I do not remember if I told the judge aunty about the quarrel between my father and the accused.

It is incorrect that my mother refrained me to disclose about the said quarrel to the police. It is incorrect that I told the police and the judge aunty, whatever I was tutored by my mother to tell them. It is incorrect that no such incident as alleged by me took place. It is incorrect that I am deposing falsely at the instance of my mother.”

“……in my house and my victim daughter alongwith other children of the street were playing outside the house in a vacant plot where the accused used to park his TSR. After sometime my victim daughter came home and informed me that Suraj @ Laala Chacha has done bad touch with me. On court query about the bad touch, the witness states that the victim told her that the accused has pressed the victim’s private part (vagina) and kissed on her lips. I immediately told the same to my husband. My husband then called the accused Suraj @ Laala Chacha at home and made enquiries about the….”

58.

We summarize our conclusion as under:-

(I)

The Evidence Act does not prescribe any minimum age for a witness, and as such a child witness is a competent witness and his or her evidence and cannot be rejected outrightly.

(II)

As per Section 118 of the Evidence Act, before the evidence of the child witness is recorded, a preliminary examination must be conducted by the Trial Court to ascertain if the childwitness is capable of understanding sanctity of giving evidence and the import of the questions that are being put to him

(III)

Before the evidence of the child witness is recorded, the Trial Court must record its opinion and satisfaction that the child witness understands the duty of speaking the truth and must clearly state why he is of such opinion.

(IV)

The questions put to the child in the course of the preliminary examination and the demeanour of the child and their ability to respond to questions coherently and rationally must be recorded by the Trial Court. The correctness of the opinion formed by the Trial Court as to why it is satisfied that the child witness was capable of giving evidence may be gone into by the appellate court by either scrutinizing the preliminary examination conducted by the Trial Court, or from the testimony of the child witness or the demeanour of the child during the deposition and cross-examination as recorded by the Trial Court.

(V)

The testimony of a child witness who is found to be competent to depose i.e., capable of understanding the questions put to it and able to give coherent and rational answers would be admissible in evidence.

(VI)

The Trial Court must also record the demeanour of the child witness during the course of its deposition and crossexamination and whether the evidence of such child witness is his voluntary expression and not borne out of the influence of others

(VII)

There is no requirement or condition that the evidence of a child witness must be corroborated before it can be considered. A child witness who exhibits the demeanour of any other competent witness and whose evidence inspires confidence can be relied upon without any need for corroboration and can form the sole basis for conviction. If the evidence of the child explains the relevant events of the crime without improvements or embellishments, the same does not require any corroboration whatsoever.

(VIII)

Corroboration of the evidence of the child witness may be insisted upon by the courts as measure of caution and prudence where the evidence of the child is found to be either tutored or riddled with material discrepancies or contradictions. There is no hard and fast rule when such corroboration would be desirous or required, and would depend upon the peculiar facts and circumstances of each case.

(IX)

Child witnesses are considered as dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded and as such the courts must rule out the possibility of tutoring. If the courts after a careful scrutiny, ind that there is neither any tutoring nor any attempt to use the child witness for ulterior purposes by the prosecution, then the courts must rely on the confidence-inspiring testimony of such a witness in determining the guilt or innocence of the accused. In the absence of any allegations by the accused in this regard, an inference as to whether the child has been tutored or not, can be drawn from the contents of his deposition.

(X)

The evidence of a child witness is considered tutored if their testimony is shaped or influenced at the instance of someone else or is otherwise fabricated. Where there has been any tutoring of a witness, the same may possibly produce two broad effects in their testimony; (i) improvisation or (ii) fabrication. (i) Improvisation in testimony whereby facts have been altered or new details are added inconsistent with the version of events not previously stated must be eradicated by first confronting the witness with that part of its previous statement that omits or contradicts the improvisation by bringing it to its notice and giving the witness an opportunity to either admit or deny the omission or contradiction. If such omission or contradiction is admitted there is no further need to prove the contradiction. If the witness denies the omission or contradiction the same has to be proved in the deposition of the investigating officer by proving that part of police statement of the witness in question. Only thereafter, may the improvisation be discarded from evidence or such omission or contradiction be relied upon as evidence in terms of Section 11 of Evidence Act. (ii) Whereas the evidence of a child witness which is alleged to be doctored or tutored in toto, then such evidence may be discarded as unreliable only if the presence of the following two factors have to be established being as under:-

Opportunity of Tutoring of the Child Witness in question whereby certain foundational facts suggesting or demonstrating the probability that a part of the testimony of the witness might have been tutored have to be established. This may be done either by showing that there was a delay in recording the statement of such witness or that the presence of such witness was doubtful, or by imputing any motive on the part of such witness to depose falsely, or the susceptibility of such witness in falling prey to tutoring. However, a mere bald assertion that there is a possibility of the witness in question being tutored is not sufficient. 

Reasonable likelihood of tutoring wherein the foundational facts suggesting a possibility of tutoring as established have to be further proven or cogently substantiated. This may be done by leading evidence to prove a strong and palpable motive to depose falsely, or by establishing that the delay in recording the statement is not only unexplained but indicative and suggestive of some unfair practice or by proving that the witness fell prey to tutoring and was influenced by someone else either by crossexamining such witness at length that leads to either material discrepancies or contradictions, or exposes a doubtful demeanour of such witness rife with sterile repetition and confidence lacking testimony, or through such degree of incompatibility of the version of the witness with the other material on record and attending circumstances that negates their presence as unnatural.

(XI)

Merely because a child witness is found to be repeating certain parts of what somebody asked her to say is no reason to discard her testimony as tutored, if it is found that what is in substance being deposed by the child witness is something that he or she had actually witnessed. A child witness who has withstood his or her cross-examination at length and able to describe the scenario implicating the accused in detail as the author of crime, then minor discrepancies or parts of coached deposition that have crept in will not by itself affect the credibility of such child witness.

(XII)

Part of the statement of a child witness, even if tutored, can be relied upon, if the tutored part can be separated from the untutored part, in case such remaining untutored or untainted part inspires confidence. The untutored part of the evidence of the child witness can be believed and taken into consideration or the purpose of corroboration as in the case of a hostile witness.”

CONCLUSION