New Delhi: The Supreme Court has delivered a significant judgment deprecating the routine practice of declaring witnesses hostile for minor inconsistencies, while upholding the conviction and life imprisonment of a man for kidnapping, raping, and criminally intimidating a minor girl belonging to a Scheduled Caste community. The Court emphasized that mere acquaintance with the victim’s family raises a presumption of knowledge of her caste identity.
The Bench comprising Justice B.V. Nagarathna and Justice K.V. Viswanathan made observations on the proper exercise of discretion under Section 154 of the Evidence Act (now Section 157 of the Bharatiya Sakshya Adhiniyam, 2023), the evidentiary value of school admission registers for age determination, and the application of amended provisions of the SC/ST Act.
The Court was addressing an appeal challenging the judgment passed by the High Court of Chhattisgarh at Bilaspur. It noted, “The present appeal calls in question the correctness of the judgment whereby the High Court confirmed the conviction and sentence as imposed on the appellant by the Special Judge (SC/ST Act), Surajpur.”
Addressing the convictions, the Court observed that “the Trial Court, by its judgment dated 22.10.2019, convicted the appellant for offences punishable under Sections 363, 366, 506 and 376 of the Indian Penal Code, 1860, Section 4 of the Protection of Children from Sexual Offences Act, 2012, and Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, and sentenced him to life imprisonment under Section 3(2)(v) of the SC/ST Act.”
The Court highlighted the facts of the case, stating that “on 14.05.2018, PW-1, the father of the prosecutrix, lodged a report stating that his daughter ‘P’, a minor, had on 10.05.2018 at 8.00 p.m. served food to everyone inside the house. Thereafter, she left the house saying she would return. When she did not return, a search was carried out, but she could not be found.”
Regarding the victim’s testimony, the Court observed, “PW-2 categorically deposed that the appellant, who was hiding near the Sendhwar tree, grabbed her, pressed her mouth, and threatened to kill her when she tried to scream. The victim clearly deposed that the appellant told her she would be made his wife and, after grabbing her, took her to the forest. There, in the forest, he undressed her and forcibly committed sexual intercourse.”
In a critical observation on the practice of declaring witnesses hostile, the Court stated, “We are at a loss to understand as to why the witness was treated as hostile in the first place. We are frequently coming across cases where the prosecutor, for no ostensible reason, wants to treat witnesses as hostile and the Court indiscriminately grants permission.”
Emphasizing the legal principles, the Court stated, “It is well settled, by judgments of this Court, that before a witness can be declared hostile and the party examining the witness is allowed to cross-examine, there must be some material to show that the witness is not speaking the truth or has exhibited an element of hostility to the party for whom he is deposing.”
On the exercise of discretion, the Court observed, “The contingency of cross-examining a witness by the party calling him is an extraordinary phenomenon, and permission should be given only in special cases. Small or insignificant omissions cannot be the basis for treating witnesses as hostile, and the Court, before exercising its discretion, must scan and weigh the circumstances properly and ought not to exercise its discretion in a casual or routine manner.”
The Court extensively quoted Sri Rabindra Kumar Dey v. State of Orissa (1976) 4 SCC 233, noting that “a party will not normally be allowed to cross-examine its own witness and declare the same hostile, unless the Court is satisfied that the statement of the witness exhibits an element of hostility or that he has resiled from a material statement made before an earlier authority.”
Further emphasizing, citing the same judgment, the Court observed, “Merely because a witness, in an unguarded moment, speaks the truth which may not suit the prosecution or which may be favourable to the accused, the discretion to allow the party concerned to cross-examine its own witness cannot be invoked. A witness should be regarded as adverse and liable to be cross-examined by the party calling him only when the Court is satisfied that the witness bears hostile animus against the party for whom he is deposing or that he does not appear willing to tell the truth.”
Regarding the treatment of hostile witnesses, the Court clarified by citing Bhagwan Singh v. State of Haryana (1976) 1 SCC 389, stating that “merely because a witness is declared hostile does not make him unreliable. The evidence remains admissible in the trial, and there is no legal bar to base a conviction upon his testimony if corroborated by other reliable evidence.”
On the issue of age determination, the Court observed, “PW-9 is the material witness whose deposition is crucial to ascertain the age of the victim. He is the teacher at the Government Primary School who deposed that, on the demand of the DSP who came to the school, he handed over the admission register. The victim’s name was mentioned at Sl. No. 209, and the date of birth was shown as 15.09.2004.”
The Court emphasized the evidentiary value of school records, stating, “The evidence of the father (PW-1), the evidence of the teacher (PW-9), and the school admission register seized under Ext. P-11 and marked by PW-9 inspire confidence in us to hold that the victim, as on the date of the incident—14.05.2018—was a minor.”
The Court also referred to State of Chhattisgarh v. Lekhram (2006) 5 SCC 736, noting that “a register maintained in a school is admissible in evidence to prove the date of birth of the person concerned in terms of Section 35 of the Evidence Act. Such dates of birth are recorded in school registers by the authorities in discharge of their public duty.”
Regarding medical evidence, the Court observed, “Dr. Suchita Nirmala Kindo (PW-10) clearly deposed that there was a cut injury on the hymen of the victim at the 6 o’clock position, and fresh blood was coming out. In her opinion, that indicated that forceful intercourse was committed.”
On the application of the SC/ST Act, the Court stated, “The incident is of 14.05.2018, i.e., after the amendment to Section 3(2)(v) on 26.01.2016. Post-amendment, the threshold of proving that the crime was committed on the basis of caste identity was reduced, and mere knowledge of the caste of the victim was sufficient to sustain the conviction.”
The Court emphasized the presumption under Section 8(c) of the SC/ST Act, observing, “Section 8(c) clearly indicates that acquaintance of the accused with the family of the victim is enough to presume that the accused was aware of the caste and identity of the victim, unless proved otherwise.”
On the evidence of acquaintance, the Court stated, “In the present case, the evidence on record clearly establishes that the accused was well acquainted with the victim and her family prior to the incident and was fully aware of their caste status. PW-1 categorically stated that the accused was their neighbour and used to frequently visit their house.”
In conclusion, the Court stated, “The above discussion clearly brings out the fact that the victim was kidnapped (Section 363 IPC) for the purpose of illicit intercourse (Section 366 IPC), was subjected to forcible intercourse (Section 376 IPC and Section 4 of the POCSO Act), and criminally intimidated (Section 506 IPC)—all this with knowledge that the victim was a member of the Scheduled Caste (Section 3(2)(v) of the SC/ST Act). We find no good reason to interfere with the concurrent judgments convicting and sentencing the accused for these offences. The appeal is hence dismissed.”
Case Title: Shivkumar @ Baleshwar Yadav v. The State of Chhattisgarh
