MD KALAM Vs. STATE OF BIHAR

JUDGEMENT

(1.) The appellant suffered conviction under Section 376/511 of the Indian Penal Code on being tried by Sri P.K. Srivastava. Additional Sessions Judge, I, Katihar, was sentenced to undergo rigorous imprisonment for a term of ten years in Sessions Trial No. 166 of 1998. The appellant was also sentenced to a fine of Rs. 500/- in default of which he was to undergo further rigorous imprisonment for a period of two months.

(2.) The facts are too brief for elaboration. While Mosstt. Noor Jahan, PW 4, had been out of her house. Md. Kalam, the appellant, allegedly took Afsari Khatoon, the prosecutrix, to a nearby lonely place and violated her person. She had been weeping finding herself alone in the house. However, she could disclose her woes to her mother when she came down to the house in the night. Efforts were made to convene a Panchayti but that too failed and it is how that the mother of the prosecutrix after two days of the incident, took recourse to police authority and lodged a police case with Katihar Police Station. The investigation commenced, on conclusion of which the police laid charge sheet against the appellant under Section 376 of the Indian Penal Code for which he was also charged by the trial Court. In the eventual trial, eight witnesses were examined and the trial Court placing reliance on the testimonies of the mother, prosecutrix and the doctor rendered verdict of guilt and sentenced the appellant in the manner stated above which has been challenged by the learned counsel appearing for the appellant in this appeal.

(3.) A lot of arguments have been canvassed on behalf of the appellant and it is sought to be urged that if the testimony of PW 4, who happens to be none else but mother, and moved the police in motion and was the first person to be informed about the commission of rape on her minor daughter, is to be taken to be true on its face value, she noticed garment of her daughter stained with blood but there was no evidence that it was ever seized by the police or was ever produced before the police by the mother. Arguments were canvassed that much reliance was placed by the trial Court on the testimony of the doctor but that too was not in positive term about the commission of rape on the child as the only opinion expressed by the doctor was that from the findings, one can only say that attempt of sexual intercourse might have been done. In quick succession it is urged that the finding of the doctor about the redness on the inner aspect of labia major and labia minor did not conclusively suggest any commission of attempt of rape in absence of any evidence about presence of spermatozoa in the vaginal swab. Laying stress on the credibility of the evidence, learned counsel for the appellant would urge that two independent witnesses, namely, PWs 2 and 3 had turned hostile to the prosecution and if there evidences are excluded from the prosecution which ought to be, there was no corroboration from any quarter for attribution made to the appellant about commission of rape on a child. Learned counsel with regard to the credibility of a child witness, urged that as there was no corroboration from other quarters, it was not only hazardous but quite unsafe to place reliance on the testimony of a child witness, and reliance on this score was sought to be placed on a decision of the Apex Court reported in Panchhi and others V/s. State of U.P., 1998 7 SCC 177 wherein observations were made by the Apex Court that the evidence of a child witness cannot be rejected outright and evidence must be evaluated more carefully and with greater circumspection, because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring, and with the aid of the prosecutrix it would be urged that the very manner in which she rendered statement before the Court leaves no room to doubt that it was not voluntarily expression of the prosecutrix but she was under influence of others, and lastly it is urged that the very fardbeyan of the prosecution which is shown to be a sheet anchor of the prosecution was not legally brought on the record.