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Minor rape victim pleads with SC for a chance to be ' heard'.

Delhi HC had ruled that agirl, now nine and who was allegedly raped in 2007, was unfit to be awitness on account of her age

A NINE- YEAR- OLD rape victim, found unfit to be a witness on account of her tender age in the initial stage of the trial three years ago, has approached the Supreme Court for a second chance after attaining some degree of maturity. This could ultimately set a precedent for trial in child rape cases.

Baby Stuti ( name changed), who was allegedly raped at the age of five- and- a- half years, moved the apex court after the Delhi High Court held that the victim -- who was found to be incapable of giving rational answers when examined at the age of six -- could not be re- summoned by the court for recording her statement at a later stage of the trial.

Taking note of the importance of the matter, a bench presided over by Justice Markandey Katju issued notice on the petition moved by the minor through her father. The outcome of the case would be of great significance as the statement of a victim is crucial in a case of rape.

Stuti, who was allegedly raped on January 29, 2007, was first put up as a witness by the prosecution about eight months after the incident but the trial court discharged her as a witness after it found that she did not understand questions and was unable to answer whether she should speak the truth or lie in court.

However, on an application by the prosecution at a later stage, the trial court on January 21 this year directed Stuti to be summoned for her examination in the case.

Brushing aside objections by accused Hari Prasad Meena, the trial judge, observed that the court's endeavour was to reach the truth. She said the fact that the victim was found incapable of disposing at an earlier stage did not come in way of recording her statement at a subsequent stage.

Taking note of the argument that the victim could be tutored, the trial judge said the examination of the victim would not prejudice the accused as he would have ample opportunity to cross- examine her. Besides, the question of tutoring could be raised at an appropriate stage, she added.

Aggrieved with the decision, Meena approached the high court in appeal.

Setting aside the trial court order, Justice S. N. Dhingra said once a child was declared unfit to be a witness because of immaturity, re- summoning the same child witness after " she becomes little more mature, is fraught with dangers since the child witness can be tutored by the parents or by the investigating officer to depose in a particular fashion". " She was found incapable of deposing by ASJ ( additional sessions judge) in September, 2007, now summoning the child wit- ness, in fact, would amount to summoning a tutored witness," Justice Dhingra said.

He, however, did not elaborate as to how her case was different from a girl of her age -- equally susceptible to tutoring -- deposing in a case for the first time.

Justice Dhingra also brushed aside the contention that crossexamination was an important tool in the hands of the accused to expose tutoring of child witnesses.

" No doubt, the tool of cross examination is available with the defence to test the veracity of deposition of every witness, but, the issue is whether such a witness can be permitted under law to be re- summoned or not.

I consider that the answer is in negative," Justice Dhingra said in his judgment on September 21.

Talking about the present case, he said the child was summoned to the court after about 8 months of the alleged incident, but she was not examined as a

witness because she was not able to make the distinction between a truth and a lie.

" If the child who has now grown to 9 years of age is asked to depose, it is obvious that this deposition of the child would not be natural but would be one tutored to her," Justice Dhingra said.

ON A QUEST FOR JUSTICE

JANUARY 29, 2007: The fiveand- a- half- year- old girl is allegedly raped

SEPTEMBER 22: The victim, now six, appears before the trial court to depose but is found to be incoherent and unfit to be a witness

JANUARY 21, 2010: With most witnesses having been examined, the trial court resummons the victim, who had turned nine, for deposition

SEPTEMBER 21: High court sets aside the order re- summoning the victim

NOVEMBER 12: Supreme Court issues notice on a petition by the victim challenging the high court order

LEGALSPEAK

Section 118 of the Indian Evidence Act bars a person who is unable to understand questions or give rational answers because of tender age, extreme old age, disease or any other cause from deposing as a witness

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Publication:Mail Today (New Delhi, India)
Geographic Code:9INDI
Date:Nov 22, 2010
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