In
The Supreme Court of India Criminal Appellate Jurisdiction Criminal Appeal No.
239 of 2002
Md.
Kalam Versus The State of Bihar
JUDGMENT
Dr.
ARIJIT PASAYAT, J
1. 1. Challenge in
this appeal is to the judgment of a learned Single Judge of the Patna High
Court dismissing the appeal filed by the appellant by which he had questioned
the correctness of conviction for offence punishable under Section 376 read
with Section 511 of the Indian Penal Code, 1860 (in shortthe `IPC') and
sentence of 10 years rigorous imprisonment and fine of Rs.500/- with
default stipulation, as imposed by learned Additional Sessions Judge I,
Katihar.
2. Background facts in a
nutshell are as follows:First Information Report was lodged on 27.11.1997 by
mother of the victim, aged about 6 years, alleging that the appellant had taken
the victim to a lonely place and forcibly raped her on 25.11.1997. The victim
suffered terrible pain.Persons of the locality tried to intervene in the matter
and there was some delay in lodging the FIR. Investigation was undertaken and
charge sheet was filed for alleged commission of offence punishable under
Section 376 IPC. The victim was examined as PW-6 while her mother, the
informant was examined as PW-4. The trial Court and the High Court relied on
the evidence of PWs 4 and 6 to hold the appellant guilty of offence punishable
under Section 376 read with Section 511 2 IPC and sentenced him as afore-noted.
The appeal before the High Court did not bring any result.The basic challenge
in this appeal appears to be that the evidence of the child witness should not
have been accepted particularly in the absence of any corroboration. It has
also been indicated that the sentence is harsh.Learned counsel for the State
has urged that the testimony of a child witness particularly in case of this
nature does not require corroboration if the testimony of the victim is
credible. It is also pointed out that the victim had immediately after
occurrence told her mother about the incident and, therefore, her evidence is
of considerable importance.
3. Since the age of the
victim was 6 years at the time of incident, the appropriate conviction would
have been under Section 376(2)(f) IPC if conviction would have been for
rape.Under Section 376(2)(f) the permissible sentence is life sentence with
minimum of 10 years. 3
4. Section 511 IPC reads
as follows:"Punishment for attempting to commit offence punishable with
imprisonment for life or other imprisonment- Whoever attempts to commit an
offence punishable by this Code with imprisonment for life or imprisonment, or
to cause such an offence to be committed, and in such attempt does any act
towards the commission of the offence, shall, where no express provision is
made by this Code for the punishment of such attempt, be punished with
imprisonment of any description provided for the offence, for a term which may
extend to one half of the imprisonment for life or, as the case may be, one half
of the longest term of imprisonment provided for that offence, or with such
fine as is provided for the offence, or with both." (Underlined for
emphasis)
5. 5. In Panchhi and
Ors. v. State of U.P. (1998 (7) SCC 177) it was observed by this Court that the
evidence of a child witness cannot be rejected outright but the evidence must
be evaluated 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. The Court has to assess as to whether the statement of
the victim before the Court is the voluntary expression of the victim and that
4 she was not under the influence of others. The trial Court and the High Court
have found the evidence of the child witness cogent, credible and had grain of
truth. The High Court found that the evidence of victim was free from any
influence. Therefore, the trial Court and the High Court have relied upon the
evidence of the victim. Additionally, it would be appropriate to
take note of the observations of this Court in Rameshwar S/o Kalyan Singh v.
The State of Rajasthan (AIR 1952 SC 54). At para 25 it reads as
follows:"Next, I turn to another aspect of the case. The learned High
Court Judges have used Mt.Purni's statement to hermother as
corroboration of her statement. The question arises can the previous statement
of an accomplice or a complainant be accepted as corroboration?"
6. The answer was it was
to be treated as corroborative.
7. Therefore, the High Court
as noted above has rightly held the appellant guilty. Coming to the question of
sentence, according to us, 5 years' custodial sentence with fine imposed 5 by
the trial Court and maintained by the High Court would meet the ends of
justice.
8. The appeal is allowed
to the aforesaid extent.
..........................................J.
(Dr. ARIJIT PASAYAT)
.........................................J.
(P.P. NAOLEKAR) New Delhi, June 13, 2008
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