Jammu & Kashmir High Court
Sameer Ahmad Ganai vs State Of J And K on 1 September, 2007
Equivalent citations: 2008(1)JKJ542
Author: Aftab Alam
Bench: Aftab Alam
JUDGMENT
Aftab Alam, Acting C.J.
1. This appeal arises from the judgment and order dated February 3, 2005 passed by the learned 4th Additional Sessions Judge, Srinagar in file No. 202-B by which the sole appellant was convicted under Sections 363 and 354 RPC and was sentenced to undergo rigorous imprisonment for two years and a fine of R.S. 1,000.00 for the offence of abduction and rigorous imprisonment for one year for the offence of molestation. The two sentences of imprisonment were directed to run concurrently, but it is not clear as to the consequences of default in payment of the fine.
2. The prosecution case is that on 10th August, 2002 Uzma, the minor daughter of the informant, Feroz Ahmad Khan (PWI), returned from school at about 4.30 in the evening. She then changed her clothes and proceeded for the Darsgah (local religious seminary). On her way to the Darsgah, she came across the appellant. He picked her up on his cycle by giving inducement of a cycle ride to an orchard promising to give her fruits there. The girl was about six years old and she knew the appellant from before as he some times used to work on her father's truck for loading or unloading goods and for washing and cleaning the vehicle etc. The appellant brought her to an orchard about 2 kilometers away from the place where he picked her up. In the orchard, he took her towards some bushes. There he removed her clothes and undressed himself and tried to commit rape to her. On removal of the clothes, the child raised an alarm that attracted some passersby, namely, Muhammad Ashraf Dar and Muhammad Altaf Joo (PWs 4 and 5, respectively). Another person, namely, Muhammad Amin Joo (PW6), who at that time was passing on the road, adjacent to the place of occurrence, driving his water-tanker, was also stopped by Muhammad Ashraf Dar and Muhammad Altaf Joo. All the three people went to the place of occurrence and found the appellant, who was in nude state, trying to commit rape to the child. On seeing the witnesses approaching, the appellant tried to flee away but he was apprehended by the witnesses. Muhammad Ashraf took the child to her house on his scooter and informed his father, the informant, about the occurrence. The informant then came along with Muhammad Ashraf Dar where the appellant was kept. The appellant was then brought to the Police Station where the case was instituted on the basis of the statement made by the girl's father. It may be noted that the girl's father, Feroz Ahmad Khan, was not a witness to any part of the occurrence and his statement was, therefore, based on what he came to learn from Muhammad Ashraf Dar and his daughter, Uzma, the victim and other witnesses. His statement was registered as FIR No. 57/2002.
3. The Police sent the child for medical examination and recorded her statement. The statements of other witnesses, including Muhammad Ashraf Dar, Muhammad Altaf Joo and Muhammad Amin Joo were also taken. On completion of the investigation, the police submitted charge-sheet aga inst the appellant under Section 376 read with Section 511 of the RPC.
4. Charges were framed, against the appellant under Sections 363 and 376/511 of the Ranbir Penal Code. And he was put on trial.
5. Before The trial court, the prosecution examined seven witnesses PWs 1 to 3 are the father and the mother respectively of the child. PWs 1 and 5 are Muhammad Ashraf Dar and Muhammad Altaf Joo, who was passing through the road and who, according to the prosecution, was attracted by the girl's shouts. PW6, Mohammad Amin Joo, is the driver of the water-tanker who was passing through the road at that time and who was stopped by Muhammad Ashraf Dar and Muhammad Altaf Joo and all the three together went to the place of occurrence where they found the appellant in a nude state trying to commit rape to the girl. PW8 is the I.0.PW2, the most important of all is the child. Uzma himself. It needs to be clarified here that the trial court has assigned numbers to the prosecution witnesses as per their number in the police challan and as a result witnesses given preceding numbers appear to have been examined on later dates and vice versa.
6. The doctor, who examined Uzma on the day following the occurrence, was not examined nor was the medical report bought on record. But that is not of much relevance as the medical certificate did not indicate any intercourse and it was for that reason, perhaps, that in the end the trial court convicted the appellant under Section 354 and not under Section 376 read with Section 511 RPC.
7. From the prosecution case, as stated above, it is clear that the parents of the child would not be eye witnesses, because they were, admittedly, not present either in the orchard where the offence was committed or at the spot from where the appellant picked up Uzma. Their evidences are thus based on what they came to learn from Uzma, Muhammad Ashraf and other witnesses of the case. Their evidences, therefore, are only of a corroborative nature. The other three prosecution witnesses, Muhammad Ashraf Dar, Muhammad Altaf Joo and Muhammad Amin Joo, according to their statements before the Police, were the eye witnesses who had not only actually seen the appellant trying to commit rape to the child, but had also apprehended him. They were, accordingly, cited by the prosecution as eye witnesses. Before the trial court, however, they changed their stand substantially and relegated themselves to the position of corroborative witnesses.
8. Both Muhammad Ashraf Dar (PW4) and Muhammad Altaf Joo (PW5) stated before the court that on the date of occurrence they started from their homes to Khunmoh. On their way, they were stopped by some army personnel who had the appellant in their custody and a six year old child was also with them. The army people wanted to know if they knew the accused. They said they did not know either the accused or the child. The army people told them that they had found the appellant trying to commit rape to the child. On being asked, the appellant admitted his guilt. The child told them that her home was in Khunmoh, whereupon the army people sent her to her home along with one of them (the two witnesses) on a scooter. A litter later, the girl's father was also brought there. A police man was also with them. A tanker driver (PW6) also arrived there at that time and before him, too, the accused admitted his guilt.
9. Muhammad Amin Joo (PW6) similarly stated before the Court that he was driving his water-tanker to Khunmoh when on reaching Krishan Kadal, he was stopped by Muhammad Ashraf Dar and Muhammad Altaf Joo. On getting down from the vehicle he was told by Muhammad Ashraf Dar and Muhammad Altaf Joo that some army people, who were also present there, had caught the accused while he was trying to commit rape to the child. When the accused was apprehended, both of them were in a nude state. On being asked, the accused admitted his guilt. Muhammad Altaf Joo then took the girl to her home and brought back her father to that place.
10. Thus, the three prosecution witnesses disclaimed to have personally witnessed the occurrence and the actual discovery of the alleged offence and the apprehension of the appellant ere attribute to some unidentified army people.
11. The IO (PW8) in his statement before the Court confirmed that all the three witnesses, i.e., PWs 4 to 6, had stated before him that they had actually seen the appellant in a nude state, trying to commit rape to the child and they had apprehended him in that state....
12. The change of stand by PWs 4 to 6 leaves the prosecution without any eye witness of the occurrence, excepting the child herself and that makes her deposition specially important.
13. The statement of Uzma was recorded by the Court in the form of a memorandum and not in the first person narrative in question and answer form. The child identified the accused in the court and stated that he was called by the name of Shimba. She said, he used to work on the vehicle at her home. She further stated that she went to an English Medium school and at the time of the occurrence she was in UKG. She further stated that on the date of occurrence, while she was returning from the school, the accused met her outside her house and told her that he would take her to an orchard and give her apples to eat there. The accused picked her up on cycle and took her to an orchard at some distance from her house. He gave her apples, but then she immediately said that accused did not give her any apples. She further said that the accused then took her to a stream where he removed her clothes on which she started crying and shouting loudly, whereupon two people came there and they took her to their home. The child further said that she could not say why and with what intent the accused removed her clothes. She also stated that after removing her clothes, the accused also pressed her neck. She also said that after removing her clothes, the accused sat over her. In reply to the cross-examiner, she said that before that occurrence she had never gone to an orchard with the accused. Further, in reply to the cross-examiner, she stated that the road passed close by the Nallah. But at that time no children were playing on the road and there was no one else on the road. In reply to further question by the cross-examiner, she said that when the accused took her to the orchard, there were no apples on the trees. She said that she did not remember the colour of the clothes she was wearing on that day, but the accused was wearing a 'pheran' and pant. She did not remember the colour of the clothes of the accused.
14. Mr. Mushtaq Ahmad Dar, counsel appearing for the appellant, strenuously assailed the evidence of Uzma and submitted that it would be wholly unsafe to place any reliance on it. He submitted that her age was only about 6 years and she could be easily tutored. He further submitted that the trial court had committed a serious error in not testing the mental abilities of the child before taking her deposition. Learned Counsel submitted that it was incumbent upon the trial court to first satisfy itself that the child properly understood the questions being put to her and was in a position to give conscious answers to those questions. Ho also submitted that the trial court committed the graves error in recording her deposition in the form of a emorandum and not in the first person narrative in the question and answer form. He submitted that these omissions and commissions in recording the evidence of the child witness had made it completely unworthy of any reliance. In support of the submissions, learned Counsel relied upon number of decisions in Suresh v. State of UP 1981 Cr. Law Journal SC 746; Ramu alias Ram Kumar v. State of Rajasthan 2006 Cr. Law Journal Rajasthan 4363; Arbind Singh v. State off Bihar 1994 Cr. Law Journal SC 1227 and State of Karnataka v. Yenkappa 2003 Cr. Law Journal Karnataka 3558.
15. I am unable to accept the submissions and I find that the decisions relied upon by Mr. Dar were on basically different sets of facts and those decisions have no application to the case in hand. All the decisions relied upon by Mr. Dar related to cases in which young children came to depose as eye witnesses of some murder or similar other offences. But here is a case in which the child witness herself was the subject of sexual abuse and molestation. She told the court how her clothes were removed, how this upset her and made her cry and shout on which the accused tried to gag her by pressing her neck. She appears to be so innocent and truthful that she did not even know why the accused removed her clothes. A case in which a child comes as a witness to describe a scene of murder or any other similar offence is fundamentally different from the case of a child witness who is herself himself the victim of some sexual abuse and is narrating the incident before the court. In the latter category, the evidence of the child witness cannot be discarded on grounds urged by Mr. Dar and for reasons discussed in the decisions relied upon by him.
16. As to tutoring by parents, the case of molestation of the child again stands on a totally different footing than a case in which a child is produced as a witness of murder or any other similar offence. No parents would tutor their six year old girl to say in court that she was molested or sexually abused by the accused.
17. On carefully going through the evidence of Uzma, I find a ring of truth in it and see no reason to disbelieve it. In my considered view, the conviction of the appellant can be very safely based on the statement of Uzma, coupled with the corroborative evidences of her parents and even the three other witnesses.
18. Mr. Dar next submitted that the statements of PWs 4, 5 and 6 completely changed the prosecution story and for that reason alone the prosecution case was liable to be rejected. He submitted that the prosecution went to the court with the story that the commission of the offence was discovered by the three witnesses, PWs 4, 5 and 6 and it was they who caught the appellant. But as things turned out in the court, the alleged occurrence was discovered by some unidentified army people and it was they and not PWs 4 to 6 who caught the appellant.
19. I am unable to see any change in the prosecution story. The core of the prosecution story is that the appellant took the child to the orchard by giving her inducement and there he sexually abused and molested her. Whether the discovery of the occurrence was made by A or X is no part of the prosecution case, it is only a matter of evidence. As seen above, the evidence of Uzma appears to me to be absolutely reliable and that is sufficient to sustain the conviction of the appellant.
20. On a careful consideration of the submissions made on behalf of the appellant and the materials on record, I am satisfied that the appellant's conviction under Sections 363 and 354 of the RPC does not merit any interference in appeal,
21. I therefore, uphold the conviction.
22. In my view the sentence of imprisonment awarded to the appellant would sufficiently meet the ends of justice and there is no need to impose the monetary fine. I, accordingly, set aside the fine of Rs. 1,000.00/- imposed by the trial court under Section 363 RPC. In the result, the appeal is dismissed subject only to the setting aside of the monetary fine. In other respects the judgment and order passed by the trial court stands affirmed.