ISHWAR CHAND Vs. STATE

JUDGEMENT

(1.) RAPE is abominable. What makes it worse is when a child is subjected to it. The Prosecutrix's injury and humiliation is compounded when it is her own father who is the perpetrator of the crime. There are scores of children in our cities, towns, and villages who are subjected to unwanted physical contact by adults. Most of it does not get reported. When it does get reported, they are subjected to the same grueling process of testimony and cross -examination in an unfamiliar, unfriendly and often unnerving court room atmosphere to which a hardened criminal is exposed. The result is incoherent testimony which is then torn to shreds by a skilful lawyer trained to pick holes and point out inconsistencies and contradictions; cast doubts about the prosecution's case and probalise his innocence. It is the time that the legislature considers bringing about changes, at least in certain areas as regards the role of judges, and therefore courts from being umpires in a typically adversarial system to donning an inquisitorial role. Offences against children may perhaps be an area to bring about this change. There is an imminent need for the legislature to look closely at the following issues, in respect of, offences related to children:

(2.) IN the instant matter, the prosecution case is thus: - Smt. Bimla, who is wife of the accused, on 19.09.2005 in the course of altercation was thrown of the roof of the house by the accused. Smt. Bimla left the house along with two of her three daughters; the prosecutrix who is the youngest was left behind. To be noted that the accused was booked for the said offence under Section 107/151 of the Cr.P.C. and kept in custody. The oldest child, that is, the son had left the house much earlier due to the unbearable behaviour of the accused. In the night of 19.09.2005, it is alleged the accused came home drunk. The prosecutrix being alone and vulnerable, was an easy prey. The accused forced himself on the prosecutrix and committed rape. Smt. Bimla (PW2), that is the mother, was informed the next day by the prosecutrix. Out of shame, Smt. Bimla (PW2) found it difficult to discuss the incident. Finally, after two months, she informed her brothers, which is when the incident was reported to the police. The prosecutrix was sent for medical examination. The medical examination revealed that prosecutrix's hymen was torn. Based on the complaint, a FIR was registered on 27.11.2005. On 08.12.2005, the prosecutrix was presented before the learned Magistrate for recording her statement under Section 164 of the Cr.P.C.; which was not recorded, since the learned Magistrate was of the view that the prosecutrix was tutored by Smt Bimla (PW2), i.e., the mother. Much has been made out of this aspect of the matter. I shall deal with this at a later stage.

(3.) PROSECUTION examined six witnesses. The main witness was the prosecutrix (PW1). The prosecutrix in her testimony, related her ordeal to which she was subjected to, on the night of 19.09.2005. Her testimony, being crucial for arriving at a decision, is extracted hereinafter: