Zamiir Ahmed vs The State
1996 Latest Caselaw 185 Del

JUDGMENT

Mohd. Shamim, J.

(1) This appeal is directed against the judgment and order dated 13/05/1992 passed by the learned Additional Sessions Judge. Delhi where through the convict (hereinafter referred to as the appellant for the sake of convenience) was found guilty under section 363/366/376 of the Indian Penal Code and sentenced various terms of imprisonment. He was sentenced to undergo life imprisonment with a fine of Rs. 2,000.00 under Section 376 of the Indian Penal Code. In case of his failure to clear the fine he was directed to undergo R. I. for two years. He was further sentenced to undergo R. 1. for a term of 7 years with a fine of Rs. 1000.00for an offence under Section 366 of the Indian Penal Code. In case of fine not being paid he was directed to undergo R.I. for a period of one year under the said Section. He was then sentenced to undergo R. I. for two years under Section 363 of the Indian Penal Code All the sentences were directed to run concurrently.

(2) The case of the prosecution as set out in D. D. report No19-A (Ex. Public Witness -2/A), F.I.R. Ex. Public Witness -9/A and the report under Section 173 Criminal Procedure Code . is as under : that Hc Omvir Singh (PW-13)was working as the duty constable on 10/01/1988 at R.M.L.Hospital for police station Mandir Marg. On the said date Mohd Qasim (PW-4) came to- the hospital and got his daughter Km. Qaisar(PW-5) admitted in the aforesaid hospital. He thereupon apprised the police station of the said fact which resulted in the recording ofD. D. No.19-A. A copy of the said D. D. report was handed over to A&I Narain Singh (PW.11) for the purposes of enquiry. He in connection therewith immediately left for R.M.L. Hospital. He collected therefrom M.L.C. in respect of Km. Qaisar (hereinafter referred to as the prosecutrix for the sake of brevity). The doctor declared the prosecutrix unfit for giving the statement. However,he also met father of the prosecutrix Mohd. Qasim (PW-4). He go this statement recorded vide Ex. Public Witness -4/A. He sent the said statement to the police station for registration of a formal F.I.R. (Ex.PW-4/A) alongwith his endorsement (Ex. Public Witness -11/A) whereupon an F.I.R. was recorded vide Ex. Public Witness -4/A by the duty officer ASI Narain Singh (PW-11).

(3) MOHD. Qasim ( Public Witness -4) stated in his statement Ex. Public Witness -4/Athat he was a resident of A-2/11, Sarai Khalil, Sadar Bazar, Delhi.He has been residing at the above said address alongwith his family members i.e. his wife and children. His daughter known as Km.Qaisar (PW-5) took one rupee from him to have some sweets at8.00 p.m. and went to the market. She returned therefrom after near about one-and-a half or two hours. She was crying. On being asked as to why she was screaming she informed him that while she was playing outside some unknown person took her inside an uninhabited and under semi-construction quarters at Sarai Khalil. He beat her and ravished her. She was bleeding at that time through her vagina. He took her immediately to the Lady Hardinge Hospital for treatment. They, however, referred her to the R.M.L. Hospital where she had been admitted. He suspected that someone hadenticed, away her daughter from outside the house and took her to some deserted place and committed rape on her. A case under Sections 363/376 of the Indian Penal Code was registered on: the basis of this statement.

(4) The prosecutor was discharged from R.M.L. Hospital on 19/01/1988. Subsequently, the prosecutrix was declared fit for statement whereupon her statement was recorded on 20/01/1988.

(5) The blood-stained trouser of Km. Qaiser, her sample blood and vaginal swab, sealed with the seal of Cmo, R.M.L. Hospital Were handed over to Asi Narain Singh who seized them vide recovery memo Ex. Public Witness -11/B. The frock of the prosecutrix. was also seized vide seizure memo Ex. Public Witness -6/A. All of them were sent toC.F.S.L. for Chemical analysis. The reports of Chemical examination are Ex. Pa, Pb, Pc and PD. The reports with regard to the medical examination of the prosecutrix are Ex. Public Witness -8/A andEx. Public Witness -8/B. The appellant was also got medically examined. The report in this regard is Ex. Public Witness -15/A. The statements of the prosecution witnesses were recorded and after completion of investigation the charge sheet was submitted against the appellant. "

(6) The learned Additional Sessions judge after the appraisal of the evidence came to the conclusion that the prosecution has succeeded in bringing home the guilt of the appellant to the halt. He thus convicted him and sentenced him to different terms of imprisonment under different section of the Indian Penal Code, alluded toabove,

(7) It is in the above circumstances that the appellant is before this Court.

(8) Learned counsel for the appellant Mr. I. U. Khan has vehemently contended that the learned lower court fell into a grave error by coming to the conclusion that the appellant was guilty.According to the learned counsel there is absolutely no such evidence on record to warrant such a finding. The learned counsel contends that the prosecution has miserably failed to prove that it was the appellant who committed the rape. Hence the instant case is a case of mistaken identity. The next limb of the argument advanced by the learned counsel is that the prosecutrix was admittedly five years of age at the time of the incident. Thus she was a child. Hence it would be highly unsafe to place enhance on her statement unless her evidence is corroborated in. material particulars. There is no evidence to corroborate the said statement of the prosecutrx.Consequently the learned lower court was wrong in placing reliance on the said statement and to base the conviction thercon. The statements of the prosecution witnesses are replete with material contradictions and inconsistencies which render nugatory the entire case of the prosecution.

(9) The learned Public Prosecutor. Mr. R. D. Jolly, has urged to the contrary. According to him, the statement of the prosecutrix is clear and unequivocal. It finds support from the medical evidence Ex. Pa, Pb, PC. and Pd and Ex. Public Witness -15/A and from the statements of her father. Mohd. Qasim (PW-4) and motherMst. Anjuman Ara (PW-6) Hence the learned lower court was right in its conclusion.

(10) Learned counsel for the appellant, Mr. I. U. Khan, has led us through the statement of the prosecution witnesses in order to show and Point out that the statements of the said witnesses are contradictory to and inconsistent with one another. Thus they do not lead us anywhere. The star witness in the instant case i.e.Mohd. Bashir (PW-3) has deposed to the fact the person whom.he caught hold of is not the same person who is present before thisCourt. He has thus gone back on his previous statement and as such,has not at all supported the case of the prosecution. According to the case of the prosecution it was Mohd. Bashir who apprehended the appellant and produced him before the police. The said statement is contradictory to and inconsistant with the statement ofPW12 Si Satpal Kapoor. According to him it was Mohd. Qasim(PW4) who produced the appellant before the police while he wason his patrolling duty. Curiously enough Public Witness 5 Km. Qaisar is conspicuously silent on this point. Thus the case of the prosecution is shrouded in mystery which has not been unravelled. No witness has thrown any light to arrive at a correct conclusion.

(11) It is true, as argued by the learned counsel for the appellant,that there are contradictions and inconsistencies in the statements of the prosecution witnesses, however, they do not go to the root of the matter end the case of the prosecution is not liable to be flung to the winds on the said score. A close scrutiny of the statement ofMohd. Bashir (PW3) reveals that it has been admitted by him tha the caught hold of a person on hearing the alarm by some person'catch hold, catch hold He subsequently goes on to state that hen either saw Mohd. Qasim (PW4) raising the alarm nor the prosecutrix, Km. Qaisar (PW5), at that time. However, on being cross examined it has been admitted by him that Public Witness 4 Mohd. Qasim was chasing a person and it was he (Mohd. Qasim) who was raising thealarn. Thus this statement of Public Witness 3 Mohd. Bashir corroborates the prosecution version as given out by Public Witness 4 Mohd. Qasim that at the instance of his daughter i.e. Km. Qaisar he chased a man who was subsequently caught hold by Public Witness 3 Mohd. Bashir and produced before the police.

(12) Now, the only question which comes to the tip of the tongue is as to whether this Court would be justified in placing reliance on the statement of a hostile witness? It is a well settled principle of law that simply because a witness has turned hostile his statement is not to be discarded and ignored in toto and is not washed off the record.If the Court finds that some thing is there in the statement of a hostile witness worth placing the reliance it will be free to do so. We are in lined over here to cite the observations of their Lordships of the Supreme Court as reported in Syed Akbar v. State of Karnataka, , wherein their Lordship relied on their earlier Judgment as reported in Sat Pal v. Delhi Administration , ... "Even in a criminal precaution when a witness is cross-examined and contradicted with the leave of the Court, by the party calling him, his evidence cannot, as a matter of law. be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still he believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completelyshaken, he may, after reading and considering the evidence of thewitness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process,the witness stands squarely and totally discredited, the Judge should,as a matter of prudence, discard his evidence in toto."

(13) The above view was again reiterated in State of U.P. v. ChetRam and others, , . . . ."The High Court has brushed aside his entire evidence, which fully corroborates Public Witness 3,merely on the ground he had been declared a hostile witness. The High Court has failed to bear in mind that merely because a witness is declared hostile, his entire evidence does not get excluded or rendered unworthy of consideration."

(14) The second question which arises for adjudication in the instant case is as to whether the contradictions pointed out by the learned counsel for the appellant are so material as to set at night the entire case of the prosecution? Our reply to the above query is an emphatic'no'. It would be a hard not to crack to find out a case which is benefit of embellishment, exaggeration, contradictions and inconsistencies. The said things are natural. Such contradictions and inconsistencies are bound to creep in with the passage oftime. If the witnesses are not tutored they would come out with a natural and spontaneous version on their own. The two persons on being asked to reproduce a particular incident which they have witnessed with their own eyes would be unable to do so in like manner.Each one of them will narrate the same in his own words, according to his own perception and in proportion to his intelligence power ofobservation.

(15) The above view which we are taking finds support from the opinion of the Hon'ble Supreme Court. It was opined in Boya Ganganna and another v. State of Andhra Pradesh, .... "Minor contradictions are bound to appear when ignorant and illiterate women are giving evidence. Even in case of trainedand educated persons, memory sometimes plays false and this would be much more so in case of ignorant and rustic women. It must also be remembered that the evidence given by a witness would very much depend upon his power of observation and it is possible that some aspects of an incident may be observed by one witness while they may not be witnessed by another though both are present at the scene of offence."

(16) It has next been contended by the learned counsel for the appellant that no implicit reliance can be placed on the statement of the prosecutrix unless she is corroborated in material particulars. IT is all the more so when the prosecutrix happens to be a child. We are sorry we are unable to agree with the contention of the learned counsel.There is no such law which requires corroboration before the statement of the prosecutrix is acted upon. Admittedly, a prosecutrix isa competent witness (vide S. 118 of the Evidence Act). She is notan accomplice within the domain of Section 133 of the EvidenceAct. Thus, her statement does not require a corroboration within the meaning of Section 114B of the Evidence Act which provides that an accomplice is unworthy of credit unless he is corroborated in materialparticulars. The prosecutrix is a victim like any other victim of any other offence. Hence the same weight is to be attached to her statement which requires to be attached to the statement of an injured person. Therefore, if the statement of the prosecutrix is quite clear and unequivocal on the point as to who has revishedher, there is no reason, whatsover, as to why the said statement, without any corroboration from any quarter, whatsoever, cannot form the basis of conviction. Thus her statement is to be scrutinised like thestatement of say other witness and if there is a ring of truth about it and if it inspires confidence the Courts would be under an obligation to rely thereupon. In that eventuality they need not look for corroboration.

(17) There is another aspect of the matter Such type of offences like molestation and rape are committed on the sly. The accused persons are always on the look out for secluded places which are not frequented by the public for the commission of such type of offences. Thus more often than not no other ocular witness, to corroborate the testimony of a prosecutrix would be available in such circumstances. Hence to look for corroboration in such type of cases would be a shear exercise in futility.

(18) We are fortified in our above view by the observations of their Lordships of the Supreme Court as reported in State of Maharashtra v. Chanderprakash Kewalchand Jain, , wherein Hon'ble Mr. Justice Ahmadi, speaking for the Court observed as under : "We think it proper, having regard to the increase in the number of sex violation cases in the recent past, particularly cases of molestation and rape in custody, to remove the nation, if it persists, that the testimony of a woman who is a victim of sexual violence must ordinarily be corroborated in material particulars except in the rarest of rare cases. To insist on corroboration except in the rarest of rare cases is to equate a woman who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her story of woe will not be believed unless it is corroborated in material particulars ]as in the Cmc of an accomplice to a crime. Ours is a conservative society where it concerns sexual behaviour. Ours is not a permissive society as in some of the Western and European countries.Our standard of decency and morality in public life is not the same as in those countries. It is however, unfortunate that respect for womanhood in our country is on the decline and cases of molestation and rape are steadily growing. .... Courts, must also realise that ordinarily a women, more so a young girl, will not stake her reputation by levelling a false charge concerning her chastity."

(19) The above view was reiterated in Karnel Singh v. State of M.P., (vide para B).

(20) Learned counsel for the appellant has further argued that in the instant case the prosecutrix is simply a child, five years of age.Hence it would be highly unsafe to place reliance on her statement without corroboration in material particulars. The learned counseling support of his contention has relied upon the observations of their Lordships of the Supreme Court as reported in Caetano Piedade Fennandes and another v. Union Territory of Goa, Daman & Diu,Panaji, Goa, . Their Lordships opined" "Turning first to the evidence of Xavier, it may be pointed out straightway that he was a child witness aged only 6 years at the time when he gave evidence. His evidence is, therefore, to be approached with great caution. He was, according to the prosecution, the only eyewitness to the crime. We have carefully gone through his evidence-,but we are constrained to observe that even after making the Utmost allowance in his favour in view of the fact that he is a child witness,we find it difficult to accept his testimony."

(21) To the same effect are the observations of a Division Bench of the Assam High Court as reported in Sukuram Khadia v. State,1986(2) Crimes 540, and of a Division Bench of this Court in Vijay Kumar v. The State, 1981 Cr. L.J. NOC138 (Delhi).

(22) It is manifest from above that the settled legal position with regard to the testimony of a child witness is that before it is reliedupon. Courts must insist on corroboration. Thus, the question which falls for decision before this Court is as to whether there is sufficient corroboration to the statement of Public Witness 5 i.e. the prosecutrix. She has in her own words that of a child, in unequivocal terms deposed to the fact that the accused i.e. the present appellant beat her and had done'dirty thing' to her private parts as a result whereof she bled.

(23) The above statement of the prosecutrix finds support from the statement of Public Witness B, Dr. Rani Jain of R.M.L. Hospital who examined her person immediately after the occurrence. She found abrasion and bruises on her right cheek. On local examination, she observed complete perineal tear (vide Ex. Public Witness 8/A). She has in goes on to state that she was operated upon for repair of perineal falls for decision before this Court as to whether there is sufficient tear (vide Ex. Fw 8/B). Her case sheet is Ex. PA. on being asked as whether the said perineal tear could be caused on account of rape, the doctor opined in the affirmative. She has further very categorically stated that there is no possibility, ofperineal tear having been caused on account of a fall. She has further deposed to the fact that the injury could have endangers the life in the absence of the surgical aid.

(24) There is further corroboration with regard to the identity of the appellant also in the form of the statement of Public Witness 4 Mohd. Qasimi.e. the father of the girl whom she reported immediately after theoccurrence, and Public Witness 6, her mother i.e. Mst. Anjuman Ara. Both of them found the child bleeding from her private parts as a result where of her frock was smeared with blood. There was further a tooth bit mark on her right cheek as per the statement of Mst. Anjuman Ara(PW6). Mohd. Qasim (PW4) has deposed to the fact that on 26/01/1988 at about 4.00 p.m. while he was carrying the prosecutrix Km. Qaisar in his lap, on the road his daughter all of sudden screamed. On being asked as to what had happened to her she pointed out towards the appellant and said that he was the saidperson. The appellant thereupon started running. He shouted "catchhold, catch hold" whereupon he was chased by one Mohd. Bashir(PW3), and certain other persons who were returning offering theirprayers. Mohd. Bashir caught hold of him and produced him before the police. Public Witness 3, Mohd. Bashir, it is true has resiled from his previous statement However, he has corroborated the statement of Public Witness 4 Mohd Qasim to this extent that Mohd. Qasim (PW4) was running after certain person and was raising the alarm. Then it is in the statement ofPW12, Si Satpal Kapoor, that the appellant was produced before him by Mohd. Qasim. The said statement of Public Witness 12 Si Satpal Kapoor has been assailed by the learned counsel for the appellant on the ground that it is contradictory to the statements of Mohd. Qasim(PW4) and Mohd. Bashir (PW3).

(25) We do not find any such contradiction inasmuch as the policeofficers, including Public Witness 12 Si Satpal Kapoor reached the spot wherethe appellant had been apprehended and it was thereafter that the appellant Was arrested. Thus there were a large number of persons at that time. Therefore, there is nothing strange in such a situation. Public Witness 12SI Satpal Kapoor mentioned the name of the complainant Mohd. Qasim is the person who produced the appellant. Thus we feel that nothing turns on that.

(26) Public Witness 4 Mohd. Qasim has further got this to say with regard to the identity of the appellant that immediately after the occurrence his daughter told her that a person wih big eyes, wearing while shirt took her away on the pretext of arranging the sweets, to a place partly constructed and known as 'Ganda Ghar" and ravished her and threatened her with a knife that her family would be liquidated. The is admissible in evidence under Section 8, Illustration (j) of the Evidence Act. It is in the following words :-

(27) "THE question whether A was revished. The facts that, shortly after the alleged rape, she made a complaint relating to the crime,the circumstances under which, and the terms in which, the complaint was made, are relevant."

(28) It was urged before us that a test identification parade of the appellant was required and the same was deliberately not resorted to as the child was made to identify the appellan as the culprit at the police station. There is no merit in this contention inasmuch as Public Witness 4Mohd. Qasim had deposed that the appellant was identified on pointing out by the child and thus was apprehended and handed over to the police. There is no plea of the appellant that he was apprehended and arrested in any other way. So later identification of the appellant by the child at the police station was of no consequence. As such,test identification parade was also not required.

(29) Furthermore, to be on our tiptoe and guard and ex abundanticautela we had sent for the appellant and we found that the appellent had prominent eyes on his face and as such, the description given by the prosecutix corresponds fully with his features.

(30) Moreover, we are of the view that the children are most innocent and innocuous creatures. They are not prone to tell Fesunless they are taught to do so. By that time they have not learnt the art of telling lies which they subsequently learn from their elders.They are very nice observers and as such they perceive even the slightest wrong which is done to them. They are very inquisitive and try to learn things. It was rightly observed by Richter "The smallest children are nearest to God, as the smallest planets are nearest the Sun."

(31) We are also tempted here to cite a few lines from the observations of a Division Bench of this Court in Vijay Kumar v. The Stale,Cr. Appeal No. 165178 dated 9/03/1981. At the same time, if otherwise the testimony of a child witness is not shown to be tainted with any such infirmities, it calls for due credence. A child in the innocent purity of its mind and unsophistication is more lively to come-forth with version which is unbiased, unsoiled, natural andforthright."

(32) There is yet another aspect of the matter. Admittedly the appellant is a stranger. This is not his defense as set out in his statement under Section 313 Criminal Procedure Code . that the prosecution witnesses are immically disposed towards him. Thus it does not appeal to the reason as to why the complainant and his other family members would like to falsely implicate an innocent person. It is but natural that they would like to see only the guilty person to be punished.

(33) While dealing with a similar situation it was observed in Prithi Chand v. State of Himachal Pradesh, , "ITi sot possible to believed that the prosecutrix and her parents would allow the real culprit to escape and falsely involve an innocentperson, for the commission of the crime."

(34) Learned counsel for the appellant has then contended that the appellant is a young man with no previous viction against him.He is a married person. His aged parent and wife are dependent on him fort thr bread inasmuch as he is the sole bread-earner of hisfamily. He has been sentenced to undergo life imprisonment for an offence under Section 376 of the Indian Penal Code. The said punishment is out of all proportion. The appellant should have been dealt with by the learned lower court leniently. The punishment should always be awarded keeping in view the gravity of the crime committed by the accused- Thus it should be commensurate with the gravity of the offence.

(35) We agree with the learned counsel on the point of sentence.It is a well established principle of law that the accused persons should be death with condign punishment which is just and proper in the circumstances of a given case keeping in view the gravity of the offence and the circumstances of the crime under which the alleged offence was committed. Thus punishment awarded must be consistent with and conform to the gravity of the crime after taking into consideration all the circumstances under which the said offence wascommitted. It is also a well recognised principle of the theory of punishment that the compassion need not be given the go-by to at the time of passing the judgment. The appellant was admittedly a youngman 21 years of age at the time of the commission of the offence.He committed the said offence on account of an erotic impulse and with a view to satisfy the same. The prosecutrix after the operation has recovered. She is hale and hearty now.

(36) Keeping in view the above circumstances we think a sentence of ten years R.I. with a fine of Rs. 2,000 would be sufficient enough to meet the ends of justice under Section 376 of the Indian .Penal Code. In case of his failure to clear the fine die appellant would undergo Ri for six months. The sentences awarded by the learned lower court under other Sections of the Indian Penal Code are herebymaintained. The sentences would run concurrently as per the direction of the lower court.

(37) In view of the above, the conviction is maintained. The appeal is allowed to the above extent only and the judgment and order passed by the learned lower court are modified accordingly.