1996 Supreme(Del) 467

High Court Of Delhi
SUDESH JHAKU - Appellant
Versus
K.C.J. - Respondent
Decided On : 05/23/1996

Headnote:Criminal Law - Witness — Child witness — Manner of recording the testimony — The witness already underwent the tragedy of sex abuse — Directions given to ensure sensitivity towards the witness during trial and to hold in the trial camera.

       Held:

       I feel it is time we in India give the subject a fresh look and evolve some principles which while protecting the child, do no harm to the defense. And, while I am on the subject, I cannot resist registering a strong protest at the manner the learned Metropolitan Magistrate recorded the statement of the child under Section 164 of the Code of Criminal Procedure. He should not have recorded the statement while police officer was in attendance. The record is in English (bad English, if I may say so) while the statement was made in Hindi. The Magistrate ought to have recorded the statement in Hindi only. If such grave mistakes are being committed despite our having given intensive and extensive training to the judicial officers, the system will take no time to collapse. I hope this feeling of despair would be conveyed to the Court on its administrative side.

       What should be done now?

       I hope that while the child is in the witness box every effort will be made by the learned trial judge to lessen her ordeal and that he will take care that nothing is said or done which causes unnecessary distress to her. The Prosecutor in his zeal might undervalue the childs feelings. There is need to keep a check on it. The defense counsel undoubtedly have a primary duty to their clients but they owe a duty towards the court and the judicial system also. They are expected to avoid needless abuse and harassment of the witness. If the court notices any departure from this course of conduct, it should rise to the occasion promptly and effectively. Child sexual abuse being one of the most serious and damaging criminal offences, the trial Judge shall handle the proceedings with considerable sensivity and ensure that the trial is fairly conducted. He should take care that questions asked are not complex or confusing. Questions containing a negative or double negative should be better avoided. The feasibility of giving breaks during questioning may also be kept in mind though such breaks need not be long. If the prosecution establishes to the satisfaction of the court that to obtain a full and candid account from the child witness the use of a screen would be necessary, the court may be inclined favourably to provide such a screen. I may notice that the reason for such a step may not necessarily be a fear of the accused. It may be of the courtroom itself. However, here is a word of caution. Since demeanour of a witness is always of some importance, the screen, if provided, should not come in the way of the trial judge to notice it.

       Interpretation of Statutes - Penal statute — Strict construction — Change in social conditions — Interpretation of an ongoing penal statute — Unless there is an ambiguity in language, resort to methods of interpretation, other than literal interpretation is not permissible.

       Undoubtedly a Judge should not make a fortress out of the dictionary but then in the pursuit of melody its notes cannot be ignored. The plain ordinary grammatical meaning of an enactment still affords the best guide though where the language is contradictory, ambiguous or leads really to absurd results other methods of extracting the meaning can be resorted to so as to keep at the real sense and meaning. Maxwell on Interpretation of Statutes 10th edn. p. 229. It is also to be remembered that penal statutes are to be construed strictly. The Court has to see that the thing charged is an offence within the plain meaning of the words used and must not strain the words. To put it in other words, the rule of strict construction requires that the language of a statute should be so construed that no case shall be held to fall within it which does not come within the reasonable interpretation of the statute. It is also a cardinal principle that in construing a penal statute, in case of doubt, the construction favourable to the subject should be preferred.

       Penal Code 1860 - Section 361 — Abduction — Enticing away by natural guardian — Where a young girl is enticed away by her natural father, it does not constitute abduction.

       Section 375 and 376 — Rape — Definition of — Penal Law if an ongoing legislation — Penetration — Meaning of — lt does not include penetration of any part of female body by any part of male body or by a foreign object — Words and Phrases.

       The definition of rape is based on the common law and in England, as well as in India the words "sexual intercourse" and "penetration" have all along been taken to mean the act of inserting the penis into the female organs of generation. It would not be permissible to strain the words and their well — understood and well — entrenched meaning so as to bring within their fold certain acts which do not come within the reasonable interpretation of the provision. It is not a case where the main object and intention of the provision is not clear. It is also not a case of absolute intractability of the language used. The language used also poses no difficulty in resolving the question before me or implementing the intention or spirit of the law. The duty to mould or creatively interpret the legislation does not thus arise.

       The concept of crime undoubtedly keeps on changing with the change in political, economic and social set-up of the country. The Constitution, thereforee, confers powers both on Central and State legislatures to make laws in this regard. Such right includes power to define a crime and provide for its punishment. Let the legislature intervene and go into the soul of the matter. Rape is a serious matter though, unfortunately, it is not attracting serious discussions. Not even in law schools. [Susan Estrich, Teaching Rape Law, The Yale Law Journal (1992) The seriousness of the offence with respect to oral intercourse or vaginal penetration otherwise than with penis is not realised though it involves an act of sadism which is likely to cause the victim far greater pain and physical damage than rape itself. [Jennifer Tenkin, Towards a modem law of rape. The Modem Law Review (1982)] Take, for example, vaginal penetration by a bottle. In such a case the shock, trauma and long-term psychological damage to the victim will be at least as serious as that which befalls rape victims and yet it would not be rape as defined in Section 375. Admittedly it would also be not an offence under Section 377 of the Code. It would thus be an offence punishable under Section 354 of the Code which provides maximum sentence of only two years. Does it not, to use the words of Wordsworth display "voluptuous unconcern" of the ground realities? This surely fails to protect the integrity of woman and shows a bias against them — a bias continuing right from the days when the law of rape was concerned with theft of virginity and protection of property rights. [See Bracton, The Laws and Customs of England, Vol. II FO 147] And when we think of integrity of the person violation of which "society cannot and must not tolerate, [Susan Estrich, Teaching Rape Law, The Yale Law Journal. ]

       We think not only of women clad in chiffon, draped in misty soft powder sprinkled with a swansdown puff challenging to sink ships and slop heart beats, though they also are no less important, but of also those bare-faced a la Bankim Chandra imprisoned within the confines of female subordination and restricted life chances.