REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 239 OF 2002

Md. Kalam   …Appellant

Versus

The State of Bihar …Respondent  

J U D G M E N T

Dr. ARIJIT PASAYAT, J

1. Challenge in this appeal is to the judgment of a learned

Single Judge of the Patna High Court dismissing the appeal

filed  by  the  appellant  by  which  he  had  questioned  the

correctness of conviction for offence punishable under Section

376 read with Section 511 of the Indian Penal Code, 1860 (in

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

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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

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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

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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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