Child Witness’ Silence No Shield For Accused In Sexual Assault Cases: SC
A child traumatised at a tender age by the ghastly imposition upon her has to be relieved of being the basis on which her offender can be put behind bars, court said
The Supreme Court on Tuesday held that silence of a child witness cannot accrue to the benefit of the accused in a case of sexual assault if other evidence, medical and circumstantial, is available pointing to his guilt.
A bench of Justices Vikram Nath and Sanjay Karol set aside the Rajasthan High Court’s 2013 judgment which reversed the conviction and the sentence of seven years in jail awarded to respondent Chatra for committing rape upon a minor girl on March 3, 1986.
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“It is a matter of great sadness that this minor girl and her family have to go through nearly four decades of life, waiting to close this horrific chapter of her/their lives," the court said.
The bench observed that on March 3, 1986, an incident forever altered the trajectory of the minor girl’s life, who was referred to as ‘V’. She was discovered unconscious and bleeding from her private parts by one Gulab Chand after the accused had allegedly subjected her to sexual assault. Gulab Chand filed a report with the police station concerned on March 4, 1986.
Sessions Judge, Tonk, by the judgment of November 19, 1987, held the accused guilty and sentenced him to seven years imprisonment, relying upon the testimony of Gulab Chand and the doctor, who conducted medical examination of the victim.
However, the high court erroneously appreciated the evidence and reversed the judgment, the bench noted. The state appealed before the Supreme Court.
The apex court independently examined the evidence of the witness, by placing reliance on whom the trial court recorded the conviction of accused.
The bench noted that the child witness (victim) had not deposed anything about the commission of the offence against her. When asked about the incident, the trial judge recorded that ‘V’ was silent, and upon being further asked, only shed silent tears and nothing more. Nothing could be elicited from the testimony regarding the commission of the offence, the trial judge had noted.
“This, in our view, cannot be used as a factor in favour of the respondent. The tears of ‘V’ have to be understood for what they are worth. This silence cannot accrue to the benefit of the respondent. The silence here is that of a child. It cannot be equated with the silence of a fully realised adult prosecutrix, which again would have to be weighed in its own circumstances," the apex court said.
It pointed out that in Hemudan Nanbha Gadhvi Vs State of Gujarat (2019), it was held that a nine-year-old prosecutrix turning hostile would not be a fatal blow to the prosecution case when other evidence can establish the guilt of the accused.
In these facts, ‘V’ has not turned hostile, the bench opined. “Trauma has engulfed her in silence. It would be unfair to burden her young shoulders with the weight of the entire prosecution," the bench said.
The court pointed out the absence of evidence of the prosecutrix is, not in all cases, a negative to be accounted for in the prosecution case.
Coming to the high court’s decision, the bench said, “By way of a judgment running into all of six pages, the findings of guilt returned by the Trial Court were upturned and the respondent-accused was acquitted of the charges against him. Suffice it to say that we are surprised with the manner in which this matter was dealt with by the High Court. As the First Appellate Court, the High Court is expected to independently assess the evidence before it before confirming or disturbing the findings of the court below. This is the settled position of law".
The court also noted with some surprise that the high court had referred to the victim by name throughout. “This court in judgments, going at least a decade further back from the date of the impugned judgment, has highlighted the importance of abiding by such a restriction, preserving the privacy of the unfortunate victim, even though the restriction does not expressly apply to the high court or this court," the bench said.
It thus redacted the name of the child victim.
The court further observed that while remanding the matter to the high court might have been permissible under normal circumstances, the case’s 40-year history made such an approach unjust. Noting that the 1987 appeal was only decided in 2013 after 26 years, the court emphasised the need for a final resolution.
The court, therefore, allowed the appeal by the state government and directed the respondent-accused to surrender within four weeks to serve the sentence as awarded by the trial court.
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