Jammu & Kashmir High Court
Kuldip Kumar S/O Sh. Makhuli Ram Sharma vs State Of J&K Through P/S Ramnagar on 22 February, 2002
Equivalent citations: 2003(1)JKJ577
JUDGMENT S.K. Gupta, J.
1. Aggrieved by order dated 27th September, 2001 formulated by Sessions Judge Udhampur in dismissing the appeal and confirming judgement dated 10-7-2000 propounded by Judicial Magistrate, Ist Class, Ramnagar by virtue of which he has convicted Kuldip Kumar, petitioner, in proof of offences under Section 377/342 RPC and sentenced to suffer two year simple imprisonment and a fine of Rs. 1,000/- under Section 377 RPC and in default of payment of fine to further undergo a simple imprisonment of one month and also sentenced for six months simple imprisonment and a fine of Rs. 500/-under Section 342 RPC and in case of default of payment of fine to also undergo 15 days simple imprisonment, with both the sentences to go concurrently, impugned their correctness in this appeal.
2. The sheet anchor of the prosecution case that stems out of the record depicted in narration is that, Vijay Kumar, a child of eight years old had gone to a field for grazing his cattle in village Resain and while engaged in playing found his cattle missing. On inquiry from Kuldip Kumar about his missing cattle, who had also brought his cattle for grazing, the accused allured the victim Vijay Kumar, to his house on the pretext that his cattle are kept there, intending to quench his thirst in inhuman lust. Vijay Kumar was taken by the accused to his home and thereafter inside the room and subjected him to unnatural lust by the accused in penetrating his male organ into his anus and thereby committed sodomy, Vijay Kumar started bleeding from anus. Vijay Kumar when came out of the house of the accused, was taken to the house by his brother Sukhdev. The entire woeful tail of sodomy committed on Vijay Kumar was narrated to his mother, grand father and Sukhdev by the victim. The complaint abut the occurrence was lodged by one Jaffu, grandfather of the victim. The victim was examined medically. A case under Section 377/342 RPC stood registered and investigation ensued. On the conclusion of the investigation, the accused was finally sent up for trial for the alleged offence under Section 377/342 RPC and the Trial Court found him guilty and he was sentenced accordingly. An appeal preferred by the victim Kuldip Kumar before the learned Sessions Judge, Udhampur did not succeed and the conviction and sentence recorded by Judicial Magistrate stood confirmed on 27-9-2001.
3. Mr. P.K Jandial learned counsel appearing for the appellant, has assailed legality and propriety of the order and sentence awarded and ordered by the Court below on twin grounds. Firstly, that the court below has not appreciated the evidence in its proper perspective and based conviction solely on the evidence provided by the related and interested witnesses. Secondly, that the evidence provided by the witnesses examined during the trial suffered from glaring discrepancies and is contradicting and conflicting, and is highly insufficient to prove the guilt of the accused beyond any pale of doubt. The testimony of the witnesses relied upon by the prosecution is neither reliable nor believable, so as to inspire confidence in the court and, therefore, cannot be accepted to prove the implication of the accused in the commission of the offence. Mr. Sanjay Kakkar, learned Government Advocate, on the other hand, argued that the evidence relied upon by the prosecution is consistent only with the hypothesis that the accused had committed carnal intercourse with Vijay Kumar and incompatible with the innocence.
4. While assessing and evaluating the evidence of the witness the Court must adhere to two principles, namely whether in the circumstances of the case, it was pos-
sible for the witnesses to be present on the scene and whether there is anything inherently improbable or unreliable found in their testimony. Credibility of a witness has to be decided by referring to his evidence and finding out how he has fared in cross examination and what impression is created by his evidence taken in manner and context of the case and not by entering into realm of conjecture and speculation. (page 4)
5. The evidence relied upon by the Trial Court consisted of the statement of Vijay Kumar, victim of sodomy supported by Sukhdev, Kuldeep Kumar son of Munshi, to whom he narratted about the incident immediately after the occurence and Jaffa, grand father of the victim, to whom the woeful tale was also narrated after reaching home and FIR came to be lodged by him, which led to the registration of a case under Section 377/342 RPC. Medical evidence seizure of blood stained trousers of the victim and the underwear of the accused and the Serological report were relied upon by the prosecution in holding the accused guilty of the offence of unnatural lust and considered the child as reliable witness by the Trial Court because his statement is preceded by a number of question put to him to test his power of understanding. So was also done in case of Sukhdev as the age of witness being 12 years at that time. The Trial Court after putting number of question satisfied itself that they are competent witnesses before recording their statements on oath.
6. According to Vijay Kumar, victim of sodomy, while grazing the cattle in the field near by, he got engaged in playing, soon after, he found that his catties are missing and approached the accused to inquire about his missing cattle. The accused carried Vijay Kumar to his home on the pretext that his cattle are there and took him to his room and subjected to carnal intercourse by penetrating his male organ to his anus, as a result of which his anus started bleeding and he suffered pain. It is also in the statement of Vijay Kumar that when he came out of the house of the accused after the latter fled, he narrated the whole episode to his brother Sukhdev and Kuldeep Kumar son of Munshi, PWs waiting outisde Vijay Kumar was taken home who was bleeding from his anus and told to his mother and grandfather, Jaffu, about the commission of unnatural offence by the acused with him. Vijay Kumar was got medically examined on the next date. The evidence provided by Vijay Kumar, with whom the accused had committed sodomy, stood fully corroborated in the testimony of Sukhdev and Kuldeep son of Munshi and Jaffu to whom he narrated about the incident immediately thereafter. The evidence of PW Sukhdev, is to the effect that he was grazing his sheep and goats in the field where Kuldeep Kumar son of Munshi and Vijay Kumar were also attending their cattle. Vijay Kumar was carried home by the accused. He heard the noise of Vijay Kumar weeping from the house of the acused. He alongwith Kuldeep son of Munshi went there and found Vijay Kumar weeping. When Vijay Kumar came out of the house, the accused fled away. According to this witness, Vijay Kumar narrated incident to him and Kuldeep Kumar son of Munshi about the accused having committed carnal intercourse with him. This witness further stated that Vijay Kumar was bleeding from his anus and his trousers was blood stained. It is also in his evidence that when Vijay Kumar was brought by the accused out of his house, Vijay Kumar was found bleeding from the anus and he narrated about the commission of unnatural offence of sodomy by the accused with him, to him and Kuldeep Kumar son of Munshi So is confirmed unequivocally in the testimony of PW Kuldeep Kumar son of Munshi. Both Sukhdev and Kuldeep Kumar son of Munshi have unambiguously stated in their respective evidence that -when Vijay Kumar, victim was released and came out of the house of the accused alongwith latter, they saw him bleeding from his anus and his trousers blood stained. It was, at that time, the accused seen fled away towards fields. Their evidence is consistent straightaway, cogent and positive and has inspired confidence in the Court. There is nothing found inherent and unreliable trotted out in their cross examination, so as to cause a speck of doubt on their veracity. Vijay Kumar has given cogent and convincing evidence and has given all the detail as to how the accused came to him, carried home from the field where he was grazing his cattle and committed unnatural offence by penetrating his male organ into his anus. His evidence is fully corroborated in the testimony of Sukhdev, Jaffu, the grant father, to whom he had narrated detail of occurrence after reaching home immediately and case stood registered with the concerned Police Station at the instance of his report, which implied corroboration not only as to the factum of crime but also to the connection of the accused with the crime. The statement of Vijay Kumar victim of sexual assault for anus, is so natural and convincing that provides corroboration the defence fails to establish his credibility.
7. Undoubtedly, Vijay Kumar, victim of sodomy, is a minor child of eight years old and his evidence provided by him has to be approached with great caution. His evidence, as ordinarily required, should be scrutinised with care and caution not only because he i s a child but also because he the only witness,who is to be an eye witness. In this case the statement of Vijay Kumar has been preceded by number of questions put to him to test his power of understanding and, therefore, it cannot be said that by reason of his immature understanding, his evidence should be disbelieved. The Trial Court after putting questions satisfied itself that he is competent witness before recording his statement. The statement of victim Vijay Kumar stood further corroborated in the testimony of Sukhdev and Kuldeep Kumar son of Munshi to whom he narrated the whole episode when brought out by the accused from the room bleeding from anus and his trousers blood stained. Both Sukhdev and Kuldeep Kumar son of Munshi are also minors of the age of 12 and 14 years old, but the Trial Court had taken by the prosecution to test maturity and understanding from their rationale answers to the questions put to them before recording their statements. Both these witnesses stated with unerring clarity that when Vijay Kumar, victim came out of the house of the acused alongwith the latter, he was bleeding from his anus and trousers blood stained. It is also exactedfrom the statement that the accused fled away from the spot and Vijay Kumar told them as to how the accused carried him to his room and committed carnal intercourse for anus. The evidence provided by these witnesses provided corroboration to the statement of Vijay Kumar and conclusively established the involvement of the accused in the commission of the offence. Where there are any unimpeachable and reliable circumstances on record, which lent an unfailing assurance that the child is a witness of truth and not a witness of the imagination their evidence is rendered truthful, acceptable and believable and sufficient to hold the accused guilty of the offence. Further support to the testimony is found in the evidence provided by Jaffu, complainant. The FIR stood proved in the evidence of Jaffu to whom Vijay Kumar also told about the commission of unnatural offence by the accused, in penetrating his male organ into his anus, immediately on reaching home. It has, therefore, been conclusively proved from the testimony of Vijay Kumar supported by Sukhdev and Kuldeep Kumar son of Munshi to whom he narratted about the unnatural offence committed by the accused immediately after released by the accused and the entire chain of events stood established when both these witnesses stated to have seen the victim bleeding from anus and trousers blood staind at that relevant time.
CONDUCT:
8. The conduct of the victim Vijay Kumar on narrating the occurrence to Sukhdev and Kuldeep Kumar son of Munshi when corroborated by these witnesses, is clearly admissible under Section 157 of the Evidence Act. The statement made by Vijay Kumar to these two witnesses, namely Sukhdev and Kuldeep Kumar son of Munshi immediately after the incident is admissible under Section 157 of the Evidence and therefore has corroborative value. Vijay Kumar victim has given the cogent and convincing evidence and was satisfactory to its minutest details and further stood corroborated in medical testimony that the injuries perceptible to the manner of the carnal intercourse.
Section 157 of the Evidence Act provides an exception to the general rule excluding hearsay evidence and in order to bring the statement within exception the duty is cast on the prosecution to establish by clear and inequivocal evidence the proximity of time between taking place of the event and making of the statement. The statement to be admissible must have been made at or about the time, which means within a reasonably short time after the event. There can be no hard and fast rules about the "at or about the time" conditions in Section 157. The main test is whether the statement was made as early as can reasonably to be expected in the circumstances of the case and before there was opportunity for tutoring or concoction. The statement made by Vijay Kumar, victim of unnatural offence, to Sukhdev and Kuldeep Kumar son of Munshi, PWs, immediately after brought out from the room by the accused bleeding from anus with blood stained on his trousers, in narrating that it was the accused and accused alone, who penetrated his male organ into his anus, is held admissible under Section 157 and has a corroborative value (Sheikh Zakir v. State of Bihar; AIR 1983 SC 911). Both these witnesses have corroborated in all details of the incident narrated to them by Vijay Kumar, victim, within a short while after it took place.
9. It was, however, contended by appellant's counsel that both Sukhdev and Kuldeep Kumar son of Munshi are related to the accused and their evidence being interested and tainted, smack of partisanship and, thus, cannot be basis of conviction without corroboration from independent testimony. It is difficult to accept the plea that after the witness is shown to be related to the victim and in the absence of any evidence of hostility of victim towards assailant, his general evidence cannot be accepted. It is pertinent to point that the relation witnesses, would least depose to falsely implicate the accused or substitute him in place of the real culprit. It is not the law that the evidence of a interested witness should be equated with that of a tainted or that of a truthful witness, so that required corroboration as a matter of necessity. The evidence of an interested witness does not suffer from any infirmity as such but however, the Court is required to as the rule of prudence and not a rule of law that the evidence of such witnesses should be scrutinised with little care once that appraoch is made and the Court has satisfied that the evidence of related witnesses have a ring of truth. Such evidence could be relied upon even without corroboration. Indeed, there may be circumstances where only interested evidence may be available and no other as in the instant case. In such a case, it would not be proper to insist that their evidence should be disbelieved merely because they are related and, therefore, hapened to be interested, as is held by the apex Court in Sawan Singh and others versus State of Punjab AIR 1976 SC 2304. Even partisanship by itself is not a valid ground for discrediting or rejecting it is not sole testimony nor can it be laid down as an invariable rule that the interested evidence can never form unless corroborated in material particular by an independent evidence, thus, necessary is that the evidence of related and interested witnesses should be subjected to careful scrutiny and accepted with caution. Both these witnesses, namely Sukhdev and Kuldeep Kumar son of Munshi have corroborated in full details as to the manner in which the offence has been committed with Vijay Kumar, who told them about the incident that the accused has committed unnatural offence for anus, after he released by the accused and came out from the latter's house. It is a clear exception of spinity of the victim by the unnatural assault as for anus by the accused, renders his evidence natural and untutoring supported by the statements of Sukhdev and Kuldeep Kumar son of Munshi having corroboratrive value under Section 157 of the Evident Act. Their evidence, therefore, I do not find any reason for good ground to dub them as 'interested' or 'partisam' witnesses to brush aside their otherwise reliable testimony. The contention of the appellant's counsel is, therefore, unfounded both legally and factu-
ally.
10. Accordingly to P W Dr. Tara Singh Charak, who examined Vijay Kumar, Victim on 6-8-1994 at 3.35 p.m his anus was swollen and pinkish in colour and slightly deltation was present. He further opined that penetration of male organ into anus was made about 20 to 36 hours prior to the time of examination and certificate (ExP W) to this effect bored the signatures and seal, was issued by him. The doctor further stated that the penetration was very small only upto annal spinter. Annal spinter and annal orifice are almost at the same place. According to him, penetration was just at the door of the opening. The evidence provided by the doctor both in point of time of the occurrence and injury on the anus of the victim Vijay Kumar fully supported what has been deposed by Vijay Kumar and corroborated by Sukhdev and Kuldeep Kumar son of Munshi. Where the evidence of the victim, a minor boy of eight years old, was found satisfactory in its details and corroborated by the evidence of other witnesses, who had seen him bleeding from anus when released by the accused from his house and further affirmed in the medical testimony irresistbely points accusing finger towards the accused and brings a nexus between the accused and the commission of the offence beyond and pale of doubt. Medical opinion pointing out to alternative cause of the injury in the anus in view of such a copious evidence both oral and medical cannot be accepted.
11. Another limb of argument advanced by appellant's counsel is that the non-mention of names of the witnesses in the FIR is a strong circumstance in favour of the accused. It may be pointed out that the First Information Report can not be used as a substantive piece of evidence but can be used only to corroborate the informant under Section 157 of the Evidence Act or to contradict under Section 145 of the Evidence Act. It can not, however, be used to contradict others persons or discredit them. In other words, FIR cannot be used to discredit the witnesses. So, omission in the FIR in not mentioning the names of the witnesses is not material when it is not given either by the eye witnesses or victim either. In these circumstances, if the names of the witnesses are not mentioned in the FIR such omission is of no consequence. This contention of the learned appellant's counsel is also without substance and does not merit acceptance.
12. Serological report revealed that the stains found on shalwar (small size) apparently stained with semen and blood, when examined chemically and microscopically, confirmed the presence of semen and human spermatozoa, this shalwar was presented by the victim before the police and seized during investigation. It is also found in the report that 9 seals on the packet containing stained shalwar of the victim were found intact at the time of opening. The Serological report further revealed that stained underwear of the accused sent to it for examination, which accordingly to the prosecution was of the accused and seized during investigation by the police and on chemical and microscopical examination showed the presence of semen/ human spermatoza. The report of the chemical examiner further lent assurance to the prsecution case with regard to the commission of unnatural commission of sodomy with a minor boy of eight years old by the accused to be truthful and trustworthy. Where unnatural offence by the accused with the boy of eight years age supported by other convincing and reliable evidence, there is no reason for false implication of the accused when anus of the victim was found swollen medical evidence supporting the prosecution case and affirmed in the Serological report, taken in cumulative proves the guilt of the accused beyond hilt.
13. Mr. Jandial learned counsel appearing for the appellant further pleaded that Vijay Kumar sustained injury by a fall on a sharp edged stone while playing near the pond. In view of the consistent positive and cogent evidence provided by Vijay Kumar, victim of the assault, supported by Sukhdev and Kuldeep Kumar son of Mumshi further corroborated by medical tyestimony, the defence plea manifestly appears to be hypothetical, vague, indifinite and falacious. Both Sukhdev and Kuldeep Kumar son of Munshi, PWs have seen the victim Vijay Kumar coming from the room of the accused alongwith accused bleeding from his anus to whom the victim narrated immediately there and then that the accused has committed unnatural offence by penetrating his male organ into his anus. This contention of the apellant's counsel stood whittled down by overwhelming evidence produced by the prosecution supported by medical testimony to prove that it was the accused alone, who had committed sodomy with Vijay Kumar by finding him into room after having allured from the filed on the pretext that the missing cattle of the victim are in the house of the accused. It is also pleaded that the accused has been implicated falsely on account of enemity between the parties over a land. No evidence has been brought on record to substantiate this contention except the bald assertion of Isher Dass examined in defence. His evidence too is vague and unnatural and, therefore, cannot be believed and accepted. In the absence of any positive evidence either with regard to back ground of hostility between the parties or enemity between the accused and the victim, there is no reason why should the accused be falsely implicated. This contention of the appellant is also devoid of legal force and therefore, cannot be accepted.
14. As noticed above, the evidence produced by the prosecution coupled with medical testimony unerringly point out to the guilt of the accused and are inconsistent with his innocence. Both the Trial Court and the Appellant Court have weighed, assessed and estimated the evidence produced by the prosecution fairly and reached a correct lecision in holding the accused juilty and recorded his conviction and awarding him sentence. I am of the opinion that the Trial Court has rightly rejected the evidence poduced by the defence because neither plea taken by the accused nor the evidence produced by the defence inspired confidence in the Court. The order of conviction and sentence recorded by the Trial Court and confirmed by the Appellat Court against the accused under377/342 RPC is neither leglly lacunic nor factually frail waranting any interference in Re-
vision.
15. In the result, there is no merit in this Revision. The Revision therefore, is hereby dismissed. The petitioner, who is on bail, his bail bonds stand cancelled and he is directed to surrender and undergo the sentence imposed upon him.