Md. Kalam vs State Of Bihar

short the `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.

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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. 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 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

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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