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2001 DIGILAW 1064 (PAT)

Abul Hasan v. State Of Bihar

2001-11-28

B.N.P.SINGH, R.N.PRASAD

body2001
Judgment R.N.Prasad and B.N.P.Singh JJ. 1. The sole appellant has been convicted for the offence under Section 376, IPC and has been sentenced to undergo rigorous imprisonment for 10 years. He has further been convicted for the offence under Section 302, IPC and sentenced to undergo imprisonment for life vide judgment and order dated 12.9.1995 passed by 1st Additional Sessions Judge, Araria in S.T. No. 294/603 of 1993/95. 2. The case of the prosecution is that one Sk. Chhedi gave his fardbeyan on 23.4.1992 at 8 a.m. before the Officer-in- charge of Mahalgaon Police Station that on last Tuesday i.e. 21.4.1992 at about 6 p.m. his daughter Zubeda Khatoon @ Jubi aged about 10 years was returning from her Mama Sk. Nazir of village Kakora to her house Chilhania. On way under a Jack fruit tree she was raped and was killed. He learnt about the incident on 22.4.1992 at village Rampur from one Shabbir of village Kakora. He returned to his house and found his daughter dead. He expressed suspicion that labourers working in the field and the persons of village Bagh Nagar would have committed the offence. 3. On the aforesaid fardbeyan formal first information report was drawn, investigation was taken up. On completion of investigation, charge-sheet was submitted against two persons i.e. appellant Abul Hassan and one Samid @ Samir. The Court took cognizance and committed the case to the Court of Sessions for trial. The trial Court convicted the appellant as indicated above. 4. The defence of the appellant was that he was innocent and has falsely been implicated in the case. 5. The prosecution in support of its case examined 8 witnesses, out of whom PW 1, the informant, PW 3 are hear-say witness. PW 2 has been declared hostile. PW 4 is witness to the inquest. PW 5 is maternal uncle of the victim girl who claimed to have seen the appellant and Samid @ Samir running away. PW 6 is child witness and an eye-witness to the occurrence. PW 7 is Doctor who held postmortem over the dead body and PW 8 is the Investigating Officer. 6. The death of Zubeda Khatoon @ Jubi is not in dispute. The dispute is with respect to commission of crime by the appellant. PW 6 is child witness and an eye-witness to the occurrence. PW 7 is Doctor who held postmortem over the dead body and PW 8 is the Investigating Officer. 6. The death of Zubeda Khatoon @ Jubi is not in dispute. The dispute is with respect to commission of crime by the appellant. The occurrence is alleged to have taken place on 21.4.1992 at 6 p.m. Fardbeyan was recorded on 23.4.1992 at 8 a.m. Victim Zubeda Khatoon @ Jubi was a minor girl aged about 10 years. She was returning from the house of her maternal uncle of village Kakora to her house at village Chilhania. At about 6 p.m. on way to village Chilhania she was raped and killed near a Jamun tree. PW 6 is the only child eye-witness to the occurrence. 7. Learned counsel for the appellant pointed out that conviction of the appellant on the evidence of sole child eye witness is illegal as there is no other corroborative evidence. In this regard it would not be out of place to mention herein that for proving the fact there is no requirement under the law to examine a number of witnesses. Section 134 of the Evidence Act says that no particular number of witnesses shall in any case be required for the proof of any fact. Therefore, it is evident that a number of witnesses are not required to prove any fact. However, in such case conviction can be upheld only when the evidence of the sole eye-witness is found to be wholly trust worthy. For the aforesaid proposition the decision in the case of Vadivelu Thevar V/s. The State of Madras, AIR 1957 SC 614 may be referred. Learned counsel for the appellant, however, relied upon a decision in the case of Panchhi and others V/s. State of U.P., 1998 (2) East Cr C 924 (SC) : (1998) 7 SCC 177 wherein the Apex Court has held that "it is not th law that if a witness is a child, his evidence shall be rejected, evep if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him Le. a child witness is an easy prey to tutoring. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him Le. a child witness is an easy prey to tutoring. Keeping in mind the aforesaid established rule of law we proceed to examine the evidence of sole child eye- witness, PW 6. His evidence is that the date of occurrence was Tuesday i.e. 21.4.1992. He was grazing cattle near the place of occurrence. Appellant Abul Hassan and one Samid were also grazing cattle. At about 6 P.M. Zubeda Khatoon @ Jubi daughter of the informant Sk. Chhedi was coming from village Kakora and was going towards her house at village Chilhania. The appellant caught her and Samid committed rape on her. Thereafter, appellant committed rape on her. Samid was catching hold of her neck. When the girl started crying, Samid pressed her neck. Samid brought a Pasuni (a pointed weapon) and punctured in the right hand of the girl. Culprit Samid and appellant Abul Hassan threatened to kill him if he would disclose about the incident to any body. Next day the appellant met near the river. They again threatened to kill if he would disclose incident to any one. The police came in the village and threatened that if correct position would not be disclosed villagers would be taken to task. Mukhia was making enquiry about the incident. Mukhia also enquired about the incident from appellant and Samid but they denied. However, he disclosed about the incident to the Mukhia. The police had taken his statement and subsequently his statement was also recorded in the Court. In cross-examination the witness stated that except him and two culprits there was none near the place of occurrence. It was not dark at the time of occurrence. No body had come at the place of occurrence. House of informant Chhedi is at a distance of 1 K.M. from his house. The offence was committed near Jack fruit tree. He was knowing Zubeda from before. The informant was not his relation. While culprits were committing offence he was standing at a distance of about one Rassi. He had asked them not to commit such offence. However, he did not raise hulla. The offence was committed near Jack fruit tree. He was knowing Zubeda from before. The informant was not his relation. While culprits were committing offence he was standing at a distance of about one Rassi. He had asked them not to commit such offence. However, he did not raise hulla. On the next day of occurrence i.e. Wednesday he had gone near the river where the appellant and his companion met him and threatened him by drowning in water of the river. There was no one at that very time except the appellant and his companion. The Mukhia had asked him to tell correct position. The police had threatened the people of the village to disclose correct position. He had disclosed about the occurrence before the Mukhia. The police did not ask him to point out the place where he was grazing cattle. Assault by Pasuni was made on the leg and hand. The witness denied the suggestion that he out of enmity implicated the appellant. 8. From the discussion of evidence of the witness, PW 6, it is evident that witness has given vivid picture of the occurrence. The witness is neither related to the victim girl nor had any enmity with the appellant. There is nothing on the record to show that he was tutored by others as no one has come to support the occurrence as an eye-witness. The witness was cross-examined at length but nothing could be elicited to doubt the evidence of the witness. Moreover, the evidence of the witness is corroborated by PW 3 who stated that PW 6 stated before him that the appellant and his companion, namely, Samid committed rape and killed her and they threatened him to kill if he would disclose about the occurrence to any one. 9. The evidence of PW 6 is also corroborated by the evidence of doctor, PW 7 who held postmortem over the dead body. The doctor held postmortem over the dead body on 23.4.1992 at about 3 p.m. i.e. within 48 hours of committing offence. The doctor has found two penetrating wounds on the right arm with swelling and bruise in the adjoining area. Vaginal wall was lacerated. Hymen recently ruptured. Blood and blood clots were found present in the perennial area. Vaginal swab was taken and examined microscopically. The report did not show any spermatozoa dead or alive. The doctor has found two penetrating wounds on the right arm with swelling and bruise in the adjoining area. Vaginal wall was lacerated. Hymen recently ruptured. Blood and blood clots were found present in the perennial area. Vaginal swab was taken and examined microscopically. The report did not show any spermatozoa dead or alive. He also found blood and blood clots in the mouth and nostrils. The tongue was protruded. He found compression of the neck and upper part of chest. The doctor has opined that injuries were ante-mortem. Death was due to asphyxia as a result of compression of neck and upper part of chest. The girl was probably raped before murder. Penetrating injuries could be possible with hard penetrating substance. Time elapsed since death was within 72 hours. The victim was aged about 10 years. In cross-examination the witness stated within 72 hours mean between 36 hours to 72 hours. The witness also stated that dead body was received in condition of early decomposition. Rigour mortis was absent in four limbs. In winter season decomposition starts after 48 hours and in summer it starts after 24 hours. Therefore, from the evidence of Doctor as discussed above it becomes obvious that allegation of committing rape and murder is supported by medical evidence. The injury found on the person also corroborates the evidence of PW 6. The evidence of PW 6 is also corroborated by the evidence of PW 8, the Investigating Officer. The witness has given vivid picture of the place of occurrence. He found the dead body near Jamun tree. He also found blood stain on the cloth of the victim girl. He found bleeding injury on the private part of the girl and also injury caused by pointed weapon on her leg and hand. He prepared inquest report at the post in presence of witnesses which supports evidence of PW 6. Thus we are of the view that evidence of PW 6 is wholly trust worthy and moreover, his evidence is also corroborated by other witnesses as indicated above. 10. Learned counsel for the appellant pointed out that evidence of PW 6 is not worthy of reliance as he did not disclose about the incident soon after the occurrence. Thus we are of the view that evidence of PW 6 is wholly trust worthy and moreover, his evidence is also corroborated by other witnesses as indicated above. 10. Learned counsel for the appellant pointed out that evidence of PW 6 is not worthy of reliance as he did not disclose about the incident soon after the occurrence. It is evident from the evidence of PW 6 that he was present at the time of occurrence and the appellant and his companion threatened him to kill if he would disclose about the incident to any one. Not only this, he was also threatened on the next day by the appellant and as such late disclosure about the incident by PW 6 in our opinion would not affect the prosecution case in the circumstances as indicated above. 11. Learned counsel for the appellant, however, pointed out that PW 6 stated in his evidence that his statement was recorded by the police officer alter 6-7 days, whereas PW 8 the Investigating Officer stated that his statement was recorded on 23.4.1992. the date on which the fardbeyan was recorded. Such minor discrepancy in the evidence of PW 6 is possible as he is child witness and he was examined in the Court after two years of the occurrence and for the said reason his evidence cannot be discarded. 12. Thus on consideration, as discussed above, we find no merit in the appeal. Accordingly, it is dismissed.