Mahammad Alam vs The State

Ajit Kumar Sengupta, J.—This revisional application is directed against the judgment and order dated August'' 10, 1985, passed by the learned Additional Sessions Judge, Alipore, affirming the order of conviction and sentence passed by the learned Assistant Sessions Judge, 8th Court, Alipore, u/s 376 of the Indian Penal Code. The petitioner was sentenced to suffer rigorous imprisonment for four years and to pay a fine of Rs.5oo/- in default to suffer further rigorous imprisonment for three months. Shortly, stated the prosecution case is that on 15th October, 1982 at about 2 P.M. at 7, Sk. Muslim Road, Kamarhati within police station Belghoria, the petitioner Mahamud Alam, who is a tenant under the defacto complainant Nazm Ahamrned took Nazma aged about 3 and 1/2 years, daughter of another tenant Md. Munir, to his room and forcibly committed rape on her. Nazma cried and came out of the room. Being asked Nazma told that the accused opened her jangia. Thereafter the defacto complainant along with others took the victim to Sagar Datta Hospital wherefrom she was taken to R. G. Kar Hospital. On perusal of the materials on record, prima facie case u/s 376 of the Indian Penal Code having been established charge has been framed accordingly. The accused pleaded not guilty to the charges and claimed to be tried.

The learned Judge in convicting the petitioner has considered the testimony of the mother of the victim Nazma. But in this case the victim was examined by the learned Judge the girl appeared to be 5/6 years old. She was asked the following questions: What is her name, what is her father's name and whether she reads in school or not. According to the learned "judge "the witness gave proper replies and as such he was satisfied that "she will understand questions and she will be capable of giving replies." The witness was therefore administered oath. Then he recorded the evidence of the girl as follows:

My name is Nazma. I have seen the accused (witness could not say where she saw the accused).

It will be apparent from the said evidence of the girl that she has not named any one nor did say any thing about the incident. But P.W.5 in her deposition has said what is stated to have been said by her daughter to her. Her evidence is as follows:

Nazma Khatoon is my daughter. About 2 years ago one day at about 1-30 P.M. went our for playing. After a while she returned weeping and I saw blood was profusingly coming from private part of Nazma. Nazma told that father of Babudin lay her on a cot in his room and "cut dia". Father of Babudin is present in court room (identified on dock). I told female inmates of the house about the incident. Thereafter Nama was taken to hospital with her jangia and frock by the landlord and others. Nazma was about 3 and 1/2 years old then. These are jangia and frock of Nazma. These were on the person of Nazma while she went to hospital.

The learned assistant Sessions Judge, who tried the case, held as follows:

P. W. 1 has said that Nazma told him that father of Mahamadin took her on the cot inside his room and cut her private part. He has identified the accd. as the father of Mahamadin. P.W.5 mother of Nazma has said that Nazma went out for playing at about 1-30P.M. and after a while when she returned weeping she (P.W.5) saw blood was corning out from private part of Nazma and Nazma told her that father of Babudin lay her on a cot inside his room and "kat diya". She had identified the accd. as father of Babudin Evidence of P. Ws. 1 and 5 shows that the victim girl Nazma told them the reasons for coming out of blood from her private part and who is responsible for that. P.S.3 has said that his wife and some other female told him that the accd. committed rape upon Nazma. P.W.6 has said that hearing (from his wife the blood was coming out from private part of Nazma., he went to courtyard and saw many female assembled there and on his query female inmates informed that Nazma told that father of Babudin (identified the accd.) Burai Kiya and that Nazma also told him that father of Babudin took her on a cot and "Kat Diya" P.W.2 is Nazma herself. She has said that she saw the accd. but he could not say where she saw him.

The learned trial Judge concluded:

It is not impossible for a child to recollect what happened two years back even if tutored but it is not impossible to give an account of the incident in her own way to her mother and other known persons of the house soon after that incident took place. In the instant case it transpires from evidence that Nazma told that the accused took her on the cot inside his room and "Bura Kiya" "kat diya". She has no knowledge of intercourse and as such when blood came out of her private part because of the accused's intercourse she cannot but deem the action of the accused as "Kat Diya". For the reasons stated above, it cannot be expected that proper evidence would come from Nazma in Court room. That being so, recording of Nazma u/s 114 of the Criminal Procedure Code in unknown environment to her would have served no useful purpose considering this impact before Court, if we have other cogent evidence.

On appeal, the learned Additional Sessions Judge, 8th Court, Alipore, affirmed the finding and conclusion of the trial Judge. It will be evident from the appellate order that the Appellate Court also relied on the evidence of P.W. 5 and her evidence has been taken as a substantive piece of evidence to sustain the conviction. Both the trial court and the appellate court in their anxiety to sustain the conviction on the charge u/s 376 of the Indian Penal Code took into account the evidence of the mother of the girl as the substantive piece of evidence which in our view is wholly erroneous. As already indicated, the girl in the deposition has neither said anything about the incident nor about the accused. She said that she had seen the accused but could not say when she has soon him. She had not implicated the accused in her evidence. Her previous statement that she was raped shortly after the crime can of course be relied as corroborative evidence u/s 157 of the Evidence Act of the testimony in Court but in the absence of any such substantive piece of evidence from the victim girl, this Cannot be proved by the evidence of the mother which is only hear-say evidence and no conviction can be based on such hear-say evidence. In our view the contention of the learned Advocate appearing for the petitioner that the conviction is based on no evidence has substance.

We, accordingly, set aside the order of conviction and sentence passed by the learned courts below. This Rule is made absolute. Let the petitioner be discharged from his bail bond.