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Hamidulla @ Lalau vs State on 30 June, 2017




Case :- JAIL APPEAL No. – 1625 of 2011

Appellant :- Hamidulla @ Lalau

Respondent :- State

Counsel for Appellant :- From Jail, Akash Mishra (A.C.)

Counsel for Respondent :- A.G.A.

Hon’ble Manoj Kumar Gupta,J.

The instant appeal has been filed by Hamidulla @ Lalau challenging the judgement dated 26/27 November 2010 whereby he was convicted under section 376(1) IPC and sentenced to 10 years rigorous imprisonment and fine of Rs.25000/-. Out of the said amount, a sum of Rs.20,000/- was directed to be paid to the victim. The fine was to be deposited within one month failing which the appellant would have to undergo additional simple imprisonment of one year.

The prosecution story in brief is that on 14.2.2010 at 7:00 p.m. when the victim was on her way from her house to her father’s shop, she was taken to a field by the appellant and was raped. Allauddin, father of the victim and her mother Noor Jahan upon hearing her cries reached the spot. He ran away hearing the voice of Allauddin and Noor Jahan. They brought their daughter, the victim of the incident, to their house. Since it was dark by that time and the family was under fear, therefore, they could not lodge the first information report on the same day. On the next day i.e. on 15.2.2010, Allauddin, father of the victim lodged the first information report (Ex.Ka-1).The investigation was done by Kailash Singh, Sub Inspector (PW-6). The investigating officer found a watch and an old muffler from the site on 16.2.2010 and in respect of which a fard baramadgi (Ex.Ka-7) was prepared. On the same date, the accused was arrested. The victim was sent for medical examination to the District Hospital, Siddharth Nagar. Dr. Sushama Gupta, Female doctor in the hospital carried out medical examination of the victim on 16.2.2010 at 6:30 p.m. and gave report (Ex. Ka-4). She found hymen lacerated and anus torn at 12’O clock position extending upto rectum. She also found labia minora lacerated. The victim was referred for further examination by the Gynecologist to determine presence of any spermatozoa and to the surgeon for anal injury. She also prepared a slide of vaginal smear and sent the same for pathological examination. The Pathologist upon examination of smear found two dead spermatozoa. His report dated 17.2.2010 is Ex. Ka-9. The investigating officer after concluding investigation submitted charge sheet dated 28.2.2010 charging the appellant of committing offence under section 376 IPC.

The prosecution examined Noor Jahan, mother of the victim as PW-1, her father Allauddin as PW-2, the victim herself as PW-3, Dr. O.P. Singh, Radiologist as PW-4, Dr. Sushama Gupta, Female Doctor who carried out medical examination of the victim, as PW-5, Sub Inspector Kailash Singh as PW-6, Dr. J.P. Singh, Pathologist as PW-7 and constable Shesh Narayan Tiwari, the scribe of chik first information report as PW.8. The accused in his statement under section 313 CrPC denied the charge levelled against him. However, he did not examine himself nor adduced any other evidence in support of his defence. The court of sessions, by impugned judgement found the appellant guilty of offence under section 376 (1) IPC and accordingly convicted and sentenced him. The appellant has filed the instant appeal from jail.

The appellant having failed to engage any counsel on his behalf, this Court by order dated 18.5.2016 appointed Sri Akash Mishra advocate to appear on behalf of the appellant and to assist the Court in deciding the appeal.

Sri Akash Mishra, learned counsel submitted that according to the prosecution case, the victim was raped in the field having wheat crop. He submitted that the incident was of the month of February 2010 and therefore the wheat crop at that time must have been 2 to 3 feet in height. He pointed out that the medical report clearly states that no injury was found on lower part of abdomen or on private parts. It is urged that in case the prosecution story was correct, it was not possible that the victim would not have received any injury, in view of the standing wheat crop in the field where the incident allegedly took place. He further submitted that the victim was subjected to medical examination with considerable delay after 24 hours. He has doubted the correctness of the report of the Pathologist stating that two dead spermatozoa were found upon examination of vaginal smear. He further submitted that the mother and father of the victim had not seen the incident but they claimed that they saw the accused running away. The victim herself was only 8 years of age at the time of recording of her statement. There was no independent eye witness to prove the involvement of the appellant in the incident. He further submitted that the first information report does not mention about the source of light. The investigating officer had not carried out any identification parade. It could not be explained how the victim named the accused though she was only 8 years of age. Her statement under section 161 CrPC was recorded after about 6 months. According to him, her statement given to the court was a tutored one and no reliance could be placed upon it.

On the other hand, learned AGA submitted that the appellant is guilty of commission of heinous offence of rape on a minor girl and deserves no sympathy. He submitted that it was not necessary to mention source of light in the first information report. He referred to the report of medical examination, the statement of Dr. Sushama Gupta (PW-5), the lady doctor who examined the victim, as well as the statement of PW-1 and PW-2 in an attempt to bring home the charges against the appellant. He further submitted that the conviction could be upheld even on solitary statement of the victim though according to him, there was other evidence on record as well which independently establishes the commission of offence by the appellant.

The law in regard to admissibility of the evidence of a child witness as well as its credibility is no more res integra. The Indian Evidence Act 1872 does not prescribe any age for determining competence of a witness to depose on oath. Section 118 of the Evidence Act provides that all persons shall be competent to testify unless the Court considers that they are prevented from understanding the question put to them, or from giving rational answers to the questions, because of tender year, extreme old age, disease whether of mind, or any other cause of same kind. Thus, the testimony of a minor could be relied upon in case it is found that he/she has intellectual capacity to understand the questions and give rational answers thereto. At the same time, the Court has to ensure that the testimony is free from influence and/or tutelage as a child is more susceptible to be swayed away by those in fiduciary relationship with him/her. The Supreme Court in Dattu Ramrao Sakhare v. State of Maharashtra1 has held as under :-

“A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored.”

Again the Supreme Court in a subsequent decision in Shivasharanappa v. State of Karnataka2 has approved the view taken by the High Court that conviction can be recorded on the basis of sole testimony of a child witness. The Supreme Court observed that the only precaution which the Court has to bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored. In this regard it has been laid down thus :-

“Thus, it is well settled in law that the court can rely upon the testimony of a child witness and it can form the basis of conviction if the same is credible, truthful and is corroborated by other evidence brought on record. Needless to say, the corroboration is not a must to record a conviction, but as a rule of prudence, the court thinks it desirable to see the corroboration from other reliable evidence placed on record. The principles that apply for placing reliance on the solitary statement of witness, namely, that the statement is true and correct and is of quality and cannot be discarded solely on the ground of lack of corroboration, applies to a child witness who is competent and whose version is reliable.”

In Mohd. Kalam v. State of Bihar3 the Supreme Court taking lead from the previous decisions held as under :-

“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 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 her mother 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 by the trial Court and maintained by the High Court would meet the ends of justice.”

In Nivrutti Pandurang Kokate and others v. State of Maharastra4 the Supreme Court held that the question whether a child witness has sufficient intelligence for his testimony being relied upon or not rests primarily with the trial judge “who notices his manners, his apparent possession or lack of intelligence, and the said judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the Trial Court may, however, be disturbed by the higher Court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaken and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the Court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness”.

The legal position which emerges from the aforesaid decisions is that before recording conviction on the testimony of a child witness, the Court has to ensure that the witness has sufficient intelligence to understand the questions and give rational answers thereto, he is free from influence or tutelage, and his testimony is trustworthy and reliable.

In the instant case, the victim was 8 years of age at the time of incident on 14.2.2010. Her statement was recorded on 21.8.2010 i.e., within a short period of six months from the date of incident. The Trial Judge, in order to assess her intellectual capability to answer the questions, posed questions of general knowledge. She answered the questions correctly. The Trial Judge upon being satisfied of her intellectual capability permitted her to depose on oath. She stated in her statement that while she was on her way from her house to her father’s shop to handover tiffin to him, she was intercepted by appellant Lalaua near the pulia. She duly identified the accused who was in the court at the time of deposition by pointing out that he is the same person who took her to the wheat field and despite resistance, raped her. Thereafter he ran away seeing the father and mother of the victim coming to the place of incident. She was subjected to thorough cross examination but nothing came out which may dent the veracity of her deposition. She categorically denied the suggestion by the defence that she had wrongly implicated the accused in the incident. The victim was subjected to medical examination on 16.2.2010 by Dr. Sushama Gupta, Lady Doctor at the District Hospital, Siddharth Nagar, in which, though no injury was found on the lower part of abdomen or private parts, but the anus was found torn at 12’O clock position extending upto rectum. Hymen and labia minora were found lacerated. The slide of vaginal smear was prepared on the same day. The pathological examination of the slide establishes presence of two dead spermatozoa. Dr. Sushama Gupta was examined as PW-5 and she proved the report of medical examination and also the condition of the victim at the time of medical examination and suggested possibility of rape of the victim. PW-1 Noor Jahan mother and PW-2 Allauddin father of the victim deposed on oath that when they heard their daughter screaming, they reached the site of the incident. By that time, the accused had committed rape and having found them approaching him he ran away with his clothes in his hand. When they reached the site of incident, they found the victim lying naked in unconscious state. They identified the victim in the light of torch which was being carried by PW-2.

Although PW-1 and PW-2 are not eye witnesses of the incident of rape but they found the accused running away with clothes in his hand. Concededly, the accused is from same village and was known to them. Both PW-1 and PW-2 had categorically denied the suggestion from defence that the accused had been wrongly implicated because of enmity. The defence also could not establish any specific reason for enmity or false implication of the accused. Although it is sought to be suggested that the prosecution had improved its case by introducing a source of light in the statement of PW-1 and PW-2 but as observed above, accused being native of same village and there being no evidence of any enmity, this Court is unable to accept that the accused has been falsely implicated.

The report of medical examination of the victim (Ex. Ka-4, Ex. Ka-5 and Ex. Ka-9), evidence of PW-1 and PW-2 as well as the statement of Dr. Sushama Gupta, (PW-5) are sufficient to uphold the conviction, but apart from these, there is also statement of the child witness, the victim herself (PW-3), which the court below has found to be of unimpeachable character. The trial judge, as noted above, has fully satisfied himself about her intellectual capacity before recording her statement. A perusal of her testimony reveals that she was having full understanding of questions posed to her and gave rational answers despite being of tender age. She repelled the suggestion made by the defence that the accused has been falsely implicated. She duly identified the accused in Court. Concededly the victim is the native of the same village. It had come in evidence that she used to go to her father’s shop carrying food for him. It seems that the victim who was from the same village was aware of the said fact and had evil eyes on her. On the fateful day, he took the minor victim to adjoining field and committed the most heinous offence of rape on her. In Nagam Gangadhar v. State5, the Supreme Court considered a case with almost identical facts and held as under :-

“It is then contented that P.W.3 is a child witness and no importance can be attached to that evidence. It is true that the evidence of P.W.3 cannot be given the same weight as a grown up victim in a case of rape, the reason being that she is aged four years at the time of occurrence. However, she appears to have communicated to her parents that the revision-petitioner has committed an act due to which she was getting pain in her private part. P.W.1 as well as P.W.2 have sworn to the fact that P.W.3 disclosed the said act. Even if the testimony of P.W.3 is to be ignored, the circumstances set out supra are in my view sufficient to bring home the guilt of the revision-petitioner.”

(emphasis supplied)

The Supreme Court in Bharwada Bhoginbhai Hirjibhai v. State of Gujrat6 taking into consideration the position of a girl in Indian context observed that there would hardly be a case where a false deposition would be made regarding sexual assault on her. It has been observed thus :-

“Without the fear of making too wide a statements or of overstating the case, it can be said that rarely will a girl or a woman in India make false allegations of sexual assault on account of any such factor as has been just enlisted. The statement is generally true in the context of the urban as also rural Society. It is also by and large true in the context of the sophisticated, not so sophisticated, and unsophisticated society. Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites. Because: (1) A girl or a woman in the tradition bound non- permissive Society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. (2) She would be conscious of the danger of being ostracised by the Society or being looked down by the Society including by her own family members, relatives, friends and neighbours. (3) She would have to brave the whole world. (4) She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered. (5) If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family. (6) It would almost inevitably and almost invariably result in mental torture and suffering to herself. (7) The fear of being taunted by others will always haunt her. (8) She would feel extremely embarrassed in relating the incident to others being over powered by a feeling of shame on account of the upbringing in a tradition bound society where by and large sex is taboo. (9) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy. (10) The parents of an unmarried girl as also the husband and members of the husband’s family of a married woman would also more often than not, want to avoid publicity on account of the fear of social stigma on the family name and family honour. (11) The fear of the victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her innocence. (12) The reluctance to face interrogation by the investigating agency, to face the court, to face the cross examination by Counsel for the culprit, and the risk of being disbelieved, acts as a deterrent.”

Having regard to the facts of the case and the evidence on record, this Court is of the firm opinion that the prosecution has succeeded in bringing home the guilt of the accused beyond any iota of doubt. There is nothing on record which may cast doubt on the testimony of the victim. It is found to be reliable, free from influence and tutelage. It stood fully corroborated by the other oral and documentary evidence. This Court does not find any force in the contention of counsel for the appellant that since the incident had allegedly taken place in a field having wheat crop, it was not possible that in case incident was true, the victim would not have received injury. The investigating officer has prepared a site plan (Ex. Ka-6). The place where the incident had taken place has been shown with mark ”X’. The said place has been shown to be open land and wheat crop is shown standing on the northern side thereof. The description given in the first information report or in the narration of the witnesses regarding incident having taken place in the wheat field does not mean that the offence was committed over the standing crop. The naksha-nazri clearly indicates that the site of incident was open land in the wheat field and it fully explains why the victim did not receive any physical injury. Concededly, she was a small girl of 8 years and there was likelihood of her not being in a position to offer resistance to the evil design of the accused and it also explains absence of any physical injury on her body but as found in the report of medical examination and the statement of witness, there is cogent evidence to establish commission of offence of rape.

The appellant has been sentenced to 10 years rigorous imprisonment, the minimum prescribed. Having regard to the same as well as the gravity of offence, this Court does not find any error in the quantum of sentence awarded by the trial judge. The appeal is bereft of merit and is accordingly dismissed.

(Manoj Kumar Gupta, J.)

Order Date :- 30 June 2017




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