1992 Supreme(Guj) 306

Gujarat High Court
Judgename :J.N.Bhatt
STATE OF GUJARAT - Appellant
Versus
BACHMIYA MUSAMIYA - Respondent
CRIMINAL APPEAL 3060 of 1981
Decided On : 12/08/1992

Headnote:(a) Criminal Law — Appeal against acquittal — Scope for re-assessment and re-examination of evidence is very much circumscribed unless & until perversity or gross unreasonableness is pointed out — Also where two views are possible appellant Court should not reverse the order of acquittal.

       No doubt, it is true that the scope for re-assessment and re-examination of the evidence in an acquittal appeal is very much circumscribed. Unless and until perversity or gross unreasonableness in the appreciation of the evidence is successfully pointed out, this Court will be at loath to interfere with the acquittal recorded by the Trial Court. This Court is also conscious about the settled proposition of law that if two views on the evidence are reasonably possible, one supporting the acquittal and the other indicating the conviction, the appellate Court should not, in such a situation, reverse the order of acquittal recorded by the trial Magistrate. The appellate Court should not reverse the order of acquittal even if it is possible to take different view.

       [Para 13]

       (b) Criminal Trial — Child witness — Unsworn testimony of a child witness is not only admissible but also can be acted upon if found credible & reliable — Oath Act, 1969 — Secs. 3, 5 & 7 — Omission to administer oath to a child witness — Effect of.

       It may be mentioned that Sec. 5 of the Oaths Act provides that witnesses, interpreters and jurors may instead of making oaths may make affirmation. Incidentally, it may also be stated that Sec. 7 of the Oaths Act provides that the proceedings and evidence recorded in the Court shall not be invalidated by omission of oath or irregularity.

       [Para 20]

       In view of the provisions of the Oaths Act, it becomes clear that unsworn testimony of a child witness is not only admissible but also can be acted upon, if found credible and reliable. This Court can receive the evidence of a child witness who does not understand the nature of an oath and to whom, therefore, oath was not administered. Of course, the necessity of speaking truth is not dispensed with.

       [Para 29]

       (c) Criminal Trial — Child witness — Corroboration of his evidence — No rule of law that uncorroborated evidence of a child can not be relied on — In the present case the evidence child witness `A is quite credit-worthy and reliable — Besides it is also fully corroborated from evidence on record — Trial Court committed serious error in rejecting his evidence.

       In the case of Mohamed Sugal Esa vs. The King, reported in AIR 1946 PC 3, it was held that unsworn evidence of a child is admissible. Not only that it was also held that corroboration in material particular implicating the accused is not necessary. The corroboration goes only to weigh the value of evidence. It was further held in the said case that there is no any rule of law that uncorroborated evidence of a child cannot be relied on. The contention that the evidence of the child witness should not be relied upon without material corroboration also cannot be accepted. It is not necessary that the evidence of child witness should be corroborated on all the points. Evidence of a child witness who is the victim of sexual assault is not like the evidence of an accomplise. It is rightly said that it would be impossible and it would be dangerous to formulate the kind of evidence which should, or would, be regarded as corroboration because its nature and extent must be necessarily with the circumstances of each case and also according to the particular circumstances of the offence charged. There is no rule of law that the uncorroborated testimony of a child witness and or a victim of sexual offence cannot be relied on with corroboration. It may be true that the evidence of a child of tender age, may be examined, with more and extra caution or full of circumspection. If the evidence of the victim of sexual offence who is of tender age, if found creditworthy and reliable, can be accepted without any corroboration. In the present case the evidence of the child witness-Atul is quite credit worthy and reliable. The learned trial Magistrate has committed serious error in rejecting his evidence without corroboration. In fact the evidence of the child witness is creditworthy, reliable and acceptable without any corroboration. Although the evidence of the child-Atul is fully corroborated from the evidence on record, the learned trial Magistrate has observed that no corroboration is emerging from the evidence on record to the evidence of the child.

       [Para 30]

       (d) Criminal Trial — Corroboration — Difficult to formulate the kind of evidence required — Besides nature and extent would necessarily vary with circumstances of each case — Principles given to be kept in mind while seeking corroboration.

       It is extremely difficult to formulate the kind of evidence which should or would be regarded as corroboration because its nature and extent may necessarily vary with the circumstances of given case and also according to the particular circumstances of the culpibility charged. However, the following principles may be borne in mind while seeking for such corroboration in the light of the settle proposition :

       (1)

       It is not necessary that there should be an independent confirmation of every material circumstances in the sense that the independent evidence in the case apart from the testimony of the child witness should in itself be sufficient to sustain conviction. All that is required is that there must be some addition evidence rendering it probable that the story of the child witness is true and it is reasonably safe to act upon it.

       (2)

       The corroboration need not be direct evidence that the accused committed the offence in question. It can be also corroborated by substantial evidence. Thus, criminality of the accused could be transfixed on the basis of corroboration from the circumstantial evidence.

       (3)

       That the corroboration ordinarily should come from independent sources, but, of course, the circumstances may be such as to make it safe to dispense with the necessity of corroboration and in those special circumstances conviction could be based on the sole testimony of a rape victim or victim of sexual offence.

       (4)

       The independent evidence must not only make it safe to believe that the crime was committed but it must in some way reasonably connect or tend to connect the accused with it by confirming in some material particular to the testimony of the child witness that the accused committed the offence.

       When the corroboration of evidence is available and relied on by the prosecution it is also to be weighed and valued as with other evidence. There is also no rule or practices that in every case there must be corroboration before a conviction can be allowed to sustain.

       [Para 31]

       (e) Criminal Trial — Minor discrepancies — Finding — Minor discrepancies can not be allowed to operate as impediment if over all evidence of witness is credit-worthy & reliable — Observation of Apex Court in Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat, AIR 1983 SC 753 reiterated.

       It is a settled proposition of law that minor discrepancies cannot be allowed to operate as impedients if the overall evidence of the witness is found credit-worthy and reliable. It would be appropriate to reiterate the observations of the Apex Court in the case of Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat, AIR 1983 SC 753, in this regard, as under :

       Overmuch importance cannot be attached to minor discrepancies. The reasons are convious : —

       (1)

       By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.

       (2)

       Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attened to absorb the details.

       (3)

       The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one persons mind, whereas it might go unnoticed on the part of another.

       (4)

       By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.

       (5)

       In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimate by guess-work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which various from person to person.

       (6)

       Ordinarily a witness cannot be expected to recall accurattely the sequences of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.

       (7)

       A witness, though wholly truthful, is liable to be overawed by the Court atmosphere and the piercing cross- examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him — perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment.

       [Para 33]

       (f) Penal Code, 1860 — Sec. 377 — Offence under — Ingredients — Carnal intercourse against the order of nature — Even if there was no penetration in the anus of the child then also as the male organ is inserted or thrust between the thighs there is penetration to constitute unnatural offence — It is an offence distinct from rape which requires sexual intercourse to complete the offence.

       Even assuming that there was no penetration in the anus of the child as per the case of the prosecution, then also, the accused cannot escape from the provisions of Sec. 377 of IPC as there was intercourse between the thighs of the child-Atul and it would also constitute an unnatural sexual intercourse. To decide whether there was an intercourse or not what is to be considered is whether the visiting male organ is enveloped atleast partially by the visited organism. In intercourse between the thighs, the visiting male organ is enveloped atleast partially by the organism visited, the thighs; the thighs are kept together and tight. As could be seen from the dictionary meaning the word `penetrate means `find access into or through, pass through. When the male organ is inserted between the thighs kept together and tight, is there no penetration? The word `insert means, `place, fit, thrust. Therefore, if the male organ is `inserted or `thrust between the thighs, there is `penetration to constitute unnatural offence. What is required to be considered is not the definition of rape but the definition of unnatural offence as contemplated under the provisions of Sec. 377 of the IPC and any act of committing intercourse between the thighs is unnatural offence punishable under Sec. 377 of IPC. Distinction may be observed between the provisions of Secs. 376 and 377 of the IPC. The offence under Sec. 376 of the IPC is sexual intercourse whereas the definition given in Sec. 377 of IPC is unnatural intercourse against the order of nature.

       [Para 46]

       (g) Criminal Trial — Benefit of doubt — Admissibility — Benefit of doubt should not be of a man of timid nature who is afraid of legal consequences — Only requirement in such criminal cases is that substratum of prosecution story is succinctly established with out any doubt — In order to give such benefit situation giving doubt must be rational & reasonable — In the instant case there is no doubt about the commission of alleged offence by accused.

       It is true that the prosecution is obliged to establish the offence of the accused beyond any shadow of doubt. There can be no any quarrel on this proposition of criminal jurisprudence which is applicable to the proceedings in our criminal Courts. However, the benefit of doubt should not be of a man of timid nature who is afraid of legal consequences. It is the main anxiety of the Court in such a case to see as to whether the substratum of the prosecution story is succinctly established without any doubt. The benefit of the doubt to be accorded to the accused in such a situation is a doubt which a rational and reasonable man would entertain. It cannot be contended even for a moment that there is any doubt to transfix the culpability of the accused with the offence punishable under Sec. 377 of the IPC. Therefore, there is not an iota of doubt in establishing the guilt of the accused for the offence punishable under Sec. 377 of the IPC. In the circumstances, the observations of the learned trial Magistrate in according the benefit of doubt and resultant acquittal of the accused from the aforesaid charge are neither weighty nor sustainable.

       [Para 49]

       (h) Penal Code, 1860 — Sec. 377 — Unnatural offence — Finding as to — Circumstances unerringly supporting the prosecution & indicating culpability of accused beyond all reasonable doubt given.

       The following circumstances unerringly support the prosecution version and indicate the culpability of the accused beyond all reasonable doubts.

       (1)

       The child-Atul though aged 7 years at the relevant time has narrated the entire incidence in a very natural way, directly involving the accused and his evidence is found quite trustworthy.

       (2)

       The evidence of the child-Atul is also supported by the evidence of his mother and father.

       (3)

       Immediately after the incident of ghastly sodomy, the child-Atul tearfully and painfully narrated the incident to his mother, who in turn, took Atul at the residence of the accused, who is their neighbour.

       (4)

       Immediately thereafter the father of the child-Atul, Ramjibhai, who is the complainant, is informed by the child and the mother of the child and he took the child to the police station immediately.

       (5)

       The FIR came to be recorded as narrated by the father of the child within two hours after the incident.

       (6)

       Find of injury marks on the anus portion by the medical officer immediately after the complaint was lodged on examination by the medical officer at Palanpur Hospital.

       (7)

       Medical certificate at Ex. 21 in respect of the injuries sustained by the child shows that the child-Atul had sustained serious injuries on the portion of anus.

       (8)

       The accused was arrested from his residence within 3 hours after the incident.

       (9)

       As per the medical evidence, the accused had sustained injuries on his penis.

       (10)

       According to the serological report, the under-garment (white coloured chaddi) of the accused was tainted with human blood and the pant of the child was also found to be tainted with human blood of same group and also with semen.

       [Para 50]

       In the light of the entire conspectus of the testimonial collections, while viewed in the light of the overwhelming and supporting evidence, there is no slightest hesitation in holding that the prosecution has established the complicity of the accused beyond any shadow of doubt for the offence punishable under Sec. 377 of the IPC.

       [Para 52]

       (i) Criminal Procedure Code, 1973 — Sec. 235 — Opportunity of hearing to the accused on the question of sentence — Accused does not avail of for reasons including absconding or fleeing — No reason to hold that opportunity of hearing not afforded to accused — Sentence processing has to be concluded.

       The question which has arisen before Court in this appeal is- whether in a given case, like the one on hand, opportunity of hearing on the question of sentence of the accused can be said to have been given or not. For this purpose, the following aspects require consideration.

       (i)

       the accused came to be convicted by this Court for the serious offence under Sec. 377, IPC;

       (ii)

       he is found to have done an unnatural act with a minor boy aged about 7 for the purpose of satisfying his ultimate sexual lust;

       (iii)

       order of conviction came to be recorded on 8.12.1992 in this appeal. Thereafter, non-bailable warrant came to be issued.

       (iv)

       despite repealed attempts and serious efforts, warrant could not be executed as the accused is absconding and is not traceable;

       (v)

       list of events right from June, 1983 till today has been submitted by the prosecution on record.

       (vi)

       the accused is also reported to have been involved in a murder case of one Arjan Bharat and the alleged trial has not been proceeded in CR No. 181/88 on account of abscondence of the accused. Right from 8.12.1982 till July, 1998, the prosecution made serious attempts to trace the accused.

       (vii)

       even the proceedings under Secs. 82 and 83 of the Code were held by me Cri Misc. Application No. 659/98.

       (viii)

       Section 82 of the Code provides for proclamation for a person absconding. After following the procedure prescribed under Secs. 82 and 83 of the Code, the accused has been proclaimed absconder.

       [Para 52]

       In the circumstances, this Court is left with no alternative and has to raise its hands in helplessness and without having the benefit of version of the accused on the quantum of sentence, considering the facts and circumstances of the case, the sentencing process has to be concluded which has remained inconclusive since last more than six years.

       [Para 52]