P L D 1957 (W (PLP)

CHANGEZ, J.‑

Muhammad Afzal alias Ajju, son of Ahmad Din, aged 32 years, railway employee has been convict ed under section 376 of the P. P. C. and sentenced to seven years rigorous imprisonment by Khawaja Muhammad Amin, section

30. Magistrate Lahore. The convict has appealed and Sayyed Muhammad Zafar, Advocate, has argued the appeal on his behalf. The facts of the prosecution case are that on the 24th of January 1956, Muhammad Abdullah (P. W. 5) received a message that his nephew Said Anwar had died, and he accord ingly went to the house of his nephew for condolence along with his wife and sons, leaving behind his eldest daughter. Wahida Nasim, aged 16 years, another daughter, aged 10 years, and Mah Jabin (P. W. 2). aged six or seven years. On the 25th of January 1956, Mah Jabin returned from the school at about 1 p m. and after taking her meals went out to play. At about laudewela, the accused met her in front of her house and took her to his kothri in Mohallah Namadgaran, and put ting the child on a cot he placed two pillows under her, and after removing her shalwar committed rape on her. The girl felt pain and cried. The accused gave her one anna and took her out of the kothri. On the way back he purchased some sweet drops for her and left her in Bazar Sirianwala. The girl returned to the house after sunset and narrated the incident to her sister Wahida Nasim. It appears that these girls who had been left behind had no one, through whom they could send information to their parents. The parents, however, re turned on the evening of the 26th of January 1956, and Mah Jabin informed her father, Muhammad Abdullah P. W., that Ajju accused had taken her to a kothri where he had, committed rape on her after placing two pillows under her bottocks. She also informed him that the accused had given her one anna and had also purchased some sweet drops from a shopkeeper and had left her in Bazar Sirianwala. As it had become dark and the night was chilly, the father did not immediately ask the girl to point out to him the kothri where rape had been committed on her. On the following morning at about 8 a.m., Mah Jabin led her father, Muhammad Abdullah, and Muhammad Umar (P. W. 3) to the kothri where she had been raped by the accused. The kothri was found locked and the accused was not there. Muhammad Abdullah made inquiries about the accused and he was informed by a boy that the accused had gone out for work and would return in the evening. In the evening, Mah Jabin again took them to the kothri of the accused and on the way Muhammad Akram (P. W. 6) also joined them. The accused was found standing in front of the door of the kothri, and the girl on seeing him cried out, "This is the man". Muhammad Abdullah P. W. then caught hold of Muhammad Afzal accused and inquired from him as to what he had done to the little girl. The accused confessed having committed rape on her, folded his hands and held the feet of Muhammad Abdullah and begged to be forgiven. At that time, the door of the kothri was open, and when Muhammad Abdullah and his companions asked him to accompany them, he locked the door of the kothri. They then took him towards the police post and when they were only a few paces from the police post, the accused inquired from them as to where he was being taken, and when he was told that he was being taken to the police post, the accused tried to give a slip. but he was caught again. He lay down on the ground and tried to resist, but he was forcibly taken to the police post where he was produced before Muhammad Iqbal Sub Inspector (P. W. 14). Muhammad Abdullah lodged the report, Exh. P. G., which was recorded at 8‑30 p.m. The accused was sent to the Civil Hospital, Lahore, for his medical examination. The key (Exh. P. 2) was recovered from the person of the accused and was taken into possession vide memo Exh. P. D. The shalwar of the girl, Exh. P. 1, which she was wearing at the time when she appeared at the police post, was also taken into possession vide memo Exh. P. C. On the following morning Mali Jabin led the police party to the kothri of the accused which was found locked. The Sub‑Inspector opened the lock, Exh. P. 4, with the key, Exh. P.

2. From the kothri he took into possession pillow (Exh. P. 6) chadar (Exh. P. 7) and dhoti (Exh. P 8). The chadar was spread over the cot and the pillow was lying on it. Dhoti (Exh. P. 8) was lying on the ground near the cot. He also found a few hair on the pillow which he collected and put them in a packet. Muhammad Abdullah (P. W. 5) produced before him the pajama, Exh. P. 3 of Mah Jabin. This was the pajama which she was wearing at the time of rape. All these articles were made into sealed parcels. The Sub‑Inspector then produced Mah Jabin before Chaudhri Ghulam Rasul, Magistrate 1st Class, and obtained his permission for her medical examination. He also got some hair of the girl clipped in the presence of the Magistrate and these were also made into a sealed parcel. All the parcles were then forwarded to the Chemical Examiner. Lady Doctor K. A. Chaughtai (P. W. 1) examined Mah Jabin on the 28th of January 1956, at 3 p.m. She found as follows :‑ (1) Hymen was torn. (2) Vulva was red and congested and tender. (3) There was a bleeding from the vagina. (4) Frank pus was coming out from the vagina. (5) Acute Vulvo‑Vaginitis was present. The lady doctor obtained two swabs from her vagina and also prepared two slides from the vaginal discharge and made them into sealed parcels and sent them to the Chemical Examiner whose report is Exh. P. A. According to this report, one of the swabs and one of the slides were found stained with semen and blood. The other swab and the slide were sent back to the lady doctor for getting them examined by the bacteriologist for the detection of gonococci. The lady doctor then sent the slide and the swab to the bacteriologist who sent the report Exh. C. W. 1/A. This report shows that gonococci were present on the swab as well as on the slides. According to the lady doctor. the age of the girl was seven years. The accused was examined by Dr. Mushtaq Ahmad Khan (P. W. 4) on the night between the 27th and 28th of January 1956, at 12‑5 a.m. He found the following injuries on his person :‑ (1) A reddish area, " X 1/3", on the front of glans. The mouth of the urethra was wet and redness was around the mouth. Two slides were prepared from the urethral mouth to detect the presence of semen, blood, or gonorrhoea. There was no other mark' of injury around the penis or perineum or thigh. (2) Two abraded areas, '' x '', each on the left knee, 3" apart on the front part. (3) Two abraded areas on the right cheek, '' x " x " apart. (4) Abraded area, '' X ", on the left cheek. Injuries Nos. 2, 3 and 4 were all simple and were of within 12 hours' duration. In the opinion of the doctor the accused was capable of performing the sexual act. The doctor sent the two slides to the Chemical Examiner Lahore, with a forwarding V. letter. He suspected that the accused was suffering from gonorrhoea. The report of the Chemical Examiner, Exh. P. T. however, did not mention anything about gonorrhoea. The report was only to the effect that no semen was detected on the slides. It appears that the Chemical Examiner had ignored the request of the doctor to detect on the slides, blood and material for gonorrhoea. During the course of the trial, the Magistrate wrote to the Chemical Examiner to explain the omission and he sent the reply that as the material was meagre, the slides were not tested to find out whether there were gonococci on the slides or not. Semen was detected by the Chemical Examiner on the two shalwars of the girl (Exhs. P. 1 and P. 3), chadar (Ex. P. 7) and dhoti (Exh. P. 8). He also expressed the opinion that the hair taken from the kothri and clipped from the head of the girl were indistinguishable. At the trial fourteen witnesses were examined in support of the prosecution case. The accused denied the commission of the offence and stated that he had been implicated on account of enmity. He also denied having ever lived in the kothri. He further denied the recovery of the key, Exh. P. 2, from his person. He also denied that there was any reddish area on the front of the glans of his penis at the time of his medical examination. He produced four witnesses in his defence, and at the close of his defence evidence he stated that on the night preceding the day of his arrest he had sexual intercourse with a woman and on the next morning his male organ had become. red and that he had never suffered from gonorrhoea. He also filed an application (Exh. D. 1) and two medical certificates (Exhs. D. 2 and D. 3). In support of the prosecution case reliance has been placed on the following, pieces of evidence :‑ (1) Statement of Mah Jabin. (2) She was seen by Muhammad Umar (P. W. 3) going in the company of the accused towards Sirianwala Bazar at about 6 p.m. on the day of the occurrence. (3) On that very evening the accused purchased some sweet drops for her from Chiragh Din (P. W. 7) and she was in tears. The girl pointed out the kothri of the accused in Mohallah Namadgaran to Muhammad Abdullah, Muhammad Umar and Muhammad Akram P. Ws. (5) She cried out on seeing the accused, " This is the man ". (6) The accused confessed having committed rape on the girl before Muhammad Abdullah, Muhammad Umar and Muhammad Akram P. Ws. (7) Key (Exh. P.2) was recovered ;from the accused with which the lock of the kothri was opened. (8) Chadar (Exh. P. 7) and dhoti (Exh. P. 8) were recovered from the kothri which were found to be stained with semen. (8) Some hair striking to the pillow (Exh. P. 6) were taken into possession which were found identical to the hair which were clipped from the head of the girl in the presence of Chaudhri Ghulam Rasul, Magistrate. (10) Blood and semen were found on the swabs taken from the vagina of the girl, and gonococci were also detected. (11) The accused was found suffering from urethritis which may have been due to gonorrhoea. (12) Medical evidence as regards the examination of the girl. Learned counsel for the appellant has attacked these items of evidence on various grounds. He has reiterated before me the points which he had raised before the learned Magistrate. The statement of the girl has been criticised on the ground that she is a child witness and as such is untrust worthy and should not be relied upon. In support of this contention he has placed reliance on Manni v. Emperor (A I R 1930 Oudh 406) where a Division Bench of the Oudh Chief Court while dealing with the evidence of a child witness, aged six years, observed as follows :‑‑ " There is no more dangerous witness than a young child. Any mistakes or discrepancies in their statements are ascribed to innocence or failure to understand; and undue weight is often given to what is merely a well‑taught lesson. Children have good memories and no conscience. They are easily taught stories and live in a world of make‑believe so that they often become convinced that they have really seen the imaginary incident which they have been taught to relate " In that case the witness was produced to prove that she had seen the accused throttling his wife on the night of murder. The learned Judges held that she was under the influence of her grand‑mother who believed that the accused had murdered the woman and whose conduct showed that she wished that he should be convicted. It was, therefore, held that the child being under her influence could have been easily taught by her what to say in Court. He has also relied on Abbas Ali Shah v. Emperor (A I R 1933 Lah. 667) where a Division Bench of the Lahore High Court while deal ing with the evidence of a child witness quoted with approval the following passage from "The Outlines of Criminal Law", paged 386, by Dr. Kenny, Downing Professor of the Laws of England, Cambridge University :‑ "Children are a most untrustworthy class of witnesses for, when of a tender age, as our common experience teaches us, they often mistake dreams for reality, repeat glibly as of their own knowledge what they have heard from others, and are greatly if influenced by fear of punishment, by hope of reward, and by desire of notoriety." In this case also the child was produced as an eyewitness of murder, and she admitted in her cross‑examination that she had been compelled by the Deputy Sahab to mention the name of the accused. She also admitted that the Thanedar had also told her that she should state that she had identified the accused. It is not clear from the judgment what was the age of the witness in this case. Dealing with the above quoted passage, a Division Bench of this Court recently held in Khalil v. State (P L D 1956 Lah. 840) that just because children are a most untrustworthy class of witnesses, for, when of tender age, they often mistake dreams for reality, repeat glibly as ‑ of their own knowledge what they have heard from others, and are greatly influenced by fear of punishment, by hope of reward,, and by desire of notoriety,' their testimony in no case is to be relied, is to lay down a principle contrary to law. It was further held that what weight the statement of a witness is entitled to in each case is to be determined by the Tribunal called upon to consider it, and except in the case of an accomplice, the law does not lay down that any witness should be considered to be unreliable unless corroborated by other evidence on the record. The facts of the above‑mentioned cases are clearly distinguishable from the facts of the present case. In my opinion no general rule of universal application can be laid down that in no case the evidence of a child wit ness should be believed. Each case would depend upon its A particular facts and circumstances. However, the evidence of a child witness before it is acted upon should of course be subjected to a close and careful scrutiny. I have gone through the evidence of Mah Jabin very carefully. Before recording her statement the Magistrate had recorded a note after putting her certain questions that he was satisfied that the witness was intelligent and was capable of making rational answers to questions put to her. A perusal of her statement shows that she made the statement in a frank and straightforward manner. It is the case of the prosecution, which is not disputed, that the accused had lived for about two years in front of the house of Mah Jabin and she knew him well. A girl aged seven years would certainly be able to name the person. who had committed rape upon her if she knew him. She was taken to the kothri in broad day light by the accused and there can be no doubt that Mah Jabin could not have mistaken the accused for anyone else. If a child is produced as a witness of having seen some occurrence and there are circumstances to indicate that the child might have been tutored, then certainly the principle laid down in the aforesaid rulings would apply. But where the offence has been committed upon a small girl herself and she is intelligent enough to know as to what has been done to her and if she had sufficient time and opportunity to identify the , culprit and had no motive to falsely implicate him, I see no reason whatsoever why the statement of such a child witness should not be believed. Though the accused! has suggested that the case had been made out against him on account of enmity, but he did not disclose that enmity, and nothing has been brought out in the cross‑examination of any of the prosecution witnesses to suggest that they were in any way inimical to the accused. The only suggestion which could occur to the accused was that when Muhammad Abdullah was being cross‑examined a question was put to him that at first he had inquired from the accused about the address of one Muhammad Afzal, and when the accused had told him that he had gone out to purchase something he was given a beating and was then forcibly taken away to the police station and was involved in the case. The question was of course replied in the negative. This version was sought to be proved by the statement of Ata Muhammad (D. W. 4), which in the circumstances of the case does not appear to be true. Is it believable that a father, whose little daughter had been raped by a certain known person, would leave him and falsely implicate an innocent person in his place ? I have not been able to discover any valid reason to reject the testimony of Mah Jabin. Much capital was made of an answer given in the affirmative by the girl, when she was questioned if she had not repeated the story to her father quite often. It must be remembered that she had to stand in the witness box and had to undergo the ordeal of being cross‑examined by experienced lawyers. If in the state of nervousness the father asked her to repeat to‑ him as to what had happened to her, is it a reason for doubting the veracity of the child ? In the peculiar circumstances of the case, I am inclined to uphold the conviction of the accused merely on the statement of Mah Jabin supported as it is by medical evidence. But if any corroboration is needed, material corroboration of her statement is to be found in the various pieces of evidence enumerated above. Muhammad Umar (P. W. 3.) saw the accused taking away the girl on the evening of the day of occurrence. He is no relation of the child and bears no ill‑will against the accused. He was named in the first information report and had actually taken part in taking the accused to the police post. Then there is the evidence of Chiragh Din Hawker who sold some sweet drops to the accused and the little girl was with the accused at that time and she was in tears. It was argued that on the day when this witness was examined, the accused was not given any opportunity to cross‑examine him and the case was adjourned to the next day. It appears that at the very outset a request was made by the Prosecuting Sub‑Inspector that in the absence of the girl the statement of this witness should not be recorded, but the Magistrate proceeded to record his statement, and when the question of identifying the girl arose the learned Magistrate had to adjourn the case till the following day and on that day he identified the girl. He is also an independent witness and nothing has beers elicited in his cross‑examination to shake his credit. Besides, when the accused was confronted by the child, he confessed before Muhammad Abdullah. Muhammad Umar and Muhammad Akram P. Ws., that he had committed rape on her. Learned counsel for the appellant has conceded before me that there is no doubt that rape had been committed upon the girl and that it had been committed in the kothri pointed out by the girl, but he leas maintained that in fact one Afzal Husain used to live there and he might have committed rape on her. This kothri is at a distance of about a furlong from the house of Mah Jabin, and one has to pass through certain bazars to reach there. It is not even suggested that the girl knew this Afzaal Husain. Could she have accompanied a stranger to that kothri 9 There is not the slightest evidence to show that the girl was ever seen in the company of Afzaal Husain, Cnanan Din (D. W. 2), owner of the kothri, was original cited as a prosecution witness, but was given up as having been won over. He appeared in defence and stated that one Afzaal Husain had taken the kothri on rent from him and that the accused had never been his tenant. He further stated that he had issued the receipt Exh. D. A to Afzaal Husain for rent pertaining to the month of December 1955. It appears that this receipt was produced by the learned counsel for the appellant, but it is not known where from he had obtained that receipt. Afzaal Husain was not produces: at the trial. Chanan Din admitted that no rent deed had been executed in his favour by Afzaal Husain. He did not know the name of the father of Afzaal Husain. At first, he stated that the receipt, Exh. D. A., had been written by his daughter, but in the next breath changed his statement by saying that it was not written by his daughter. He stated that he did not know who had written the receipt. He, however, admitted that the accused used to visit the kothri of Afzaal Husain. This is the only piece of evidence on the basis of which it was claimed that the accused did not reside in that kothri. The evidence of this witness does not inspire confidence, but even if it be true, it is clear from his statement that the accused used to visit this kothri. Therefore, assuming that it was rented to Afzaal Husain the accused had the opportunity of using the same in his absence or with his connivance. In fact, when Muhammad Abdullah and others went to the kothri in question in the evening the accused was found standing in front of the kothri which was lying open and when he was asked to accompany them he himself locked the door and at the time when he was arrested by the Sub Inspector, key (Exh. P. 2) was recovered from his possession, with which the lock of the kothri was opened by the Sub‑Inspector on the following day. There is no reason to doubt the testimony of the Sub‑Inspector and other witnesses as regards the recovery of the key from the possession of the accused. This establishes beyond doubt that whether the accused was a tenant of Chanan Din or not he was certainly in possession of the kothri in those days. From this kothri were recovered chadar (Exh. P. 7) and dhoti (Exh. P. 8) which were found to be stained with semen, Some hair sticking to tile pillow (Exh. P. 6) were also taken into possession and were found identical to the hair which had been clipped from tile head of the girl in the presence of a Magistrate. The girl's statement, therefore, stands fully corroborated that she was actually raped in this very kothri. The learned counsel for the appellant has argued that the medical evidence belies tile prosecution case and in this connection he relies on the testimony of Lady Doctor K. A. Chauglitai who stated in her cross‑examination that tile tear of the hymen was fresh, and explaining the word " fresh " she stated that she meant within 24 hours. If this be correct, then obviously the prosecution case, must fail. But it appears from her statement that she had only one year's service to her credit and had, iii all probability, very little experience about such cases. In her report (Exh. P. B.) in the column of "probable duration of injury" she did not mention the duration at all at the time of the examination of the girl. It cannot be said that she omitted to mention the duration inadvertently, because as against this column she had put a pencil mark which clearly shows that she could not make up her mind to give the approximate duration. She was cross‑examined at length by both the parties and she had to admit at one stage, and that too in the further cross examination by the learned counsel for the appellant, that she could not say definitely if she was absolutely correct oil the point of duration of the injuries. It appears from the statement of the lady doctor that at the time of the examination of the girl frank pus was coming out the vagina, and she stated in her cross‑ examination that this pus had been introduced into the vagina by the sexual act its lf. She also admitted that the child was suffering from gonorrhoea infection. In the well‑known text book oil medical juris prudence by Modi, it is mentioned that the period of incubation of gonorrhoea is very usually from two to eight days, although it may be as short as 24 hours and as long as two weeks. And Dr. Mushtaq Ahmad Khan (P. W. 4) when examined as C. W. 1 stated that frank pus in the vagina indi cates ail infection of 24 hours or a few days. He further stated that it takes at least 24 hours to 48 hours for the pus to form, and if the pus is frankly coming, it indicates more than 48 hours or so. He expressed the opinion that when during the sexual intercourse by an infected person, semen mixed with some infected material like gonorrhoea is discharged into the private parts, then it is after some time that the infected material starts its own places of inflammation and pus formation. He also stated that the frank pus formation in his opinion was the result of infection that had worked in the tissues for some time and was not the result of pus deposited as a result of sexual intercourse. He is an experienced doctor and is supported by Modi's text book on medical jurisprudence. The opinion of the lady doctor that the frank pus, which she had seen coming out from the vagina at the time of the examination of the girl, had been introduced into tile vagina by the sexual act, does not appear to be correct. As reported by tile bacteriologist, gonococci were found ill the swabs taken from the vagina of the girl. There is, therefore, no room for any doubt that the girl had been infected with gonorrhoea by the person who had committed sexual intercourse on her and the frank pus had been coming out of the vagina as a result of the infection having worked in the tissues of the genital tract. Learned counsel for the appellant has also contended that the prosecution has failed to prove that tile accused was suffering from gonorrhoea at the time of the commission of the offence. Dr. Mushtaq Ahmad Khan (P. W. 4), who had examined the accused on the night between 27th and 28th of January 1956, at 12‑5 a.m., had found a reddish area, x the front of the glans of his penis. The mouth of the urethra was wet and there was redness around the mouth. He had prepared two slides from the urethra mouth and had forwarded the same to the Chemical Examiner and according to him the wetness of the urethra and its redness bore physical symptoms of gonorrhoea, and in order to clarify this issue he had sent the slides to the Chemical Examiner, but unfortunately because of the meagre material the Chemical Examiner could not test tile slides for finding out if gonococci were to be seen oil those slides. The statement of the accused under section 342 of the Code of Criminal Procedure and his subsequent statement after the close of the defence evidence in explanation of the reddish area found on the glans of his penis are not without significance. The fact, however, remains that from the very outset because of the physical symptoms found on the person of the accused it was suspected that he was suffering from gonorrhoea, and the finding of gonococci in the swabs taken from the vagina of the girl confirmed the suspicion that the accused had been suffering from gonorrhoea. Dr. Mushtaq Ahmad Khan and Dr. Abdul Hamid (D. W. 3) have both stated that arthritis found oil the person of the accused could have been due to causes other than gonorrhoea. As such, it is no doubt true that the prosecution has failed to establish that the accused was suffering from gonorrhoea at the rime of the commission of the offence, Dr. Mushtaq Ahmad Khan has, however, maintained that complete cure of gonorrhoea is possible by the use of modern medicines within 48 hours. The offence was committed oil the evening of the 25th of January 1956, and the accused was examined by the doctor three days later. The possibility is, therefore, not excluded that he may have been cured during those three days or it may be that he was being treated for some time past before the commission of the offence. In Modi's Medical Juris prudence it is noted that in India as in other countries rape on children is common owing to the superstitious belief that gonorrhoea and syphilis are cured by the sexual intercourse with a virgin, and the younger a girl the greater is the probability of her being a virgin. It may be that under this superstitious belief the accused had used this small child for satisfying his lust. The accused got himself examined as soon as lie was released oil bail and he placed two medical certificates (Exhs. D. 1 and D. 3) on the file, but could not produce the doctor who had examined him in support of his allegation that he had never suffered from gonorrhoea. He, however, put in the application, Exh. D 1, alleging therein that the doctor had been won over by the prosecution. Be that as it may, it is clear that the accused has also failed to establish that he was not suffering from gonorrhoea on the day of the commission of the offence. For proving the offence of rape the prosecution had to establish a mere penetration of a part of the virile member of the accused within the labia of the pudendum of the girl and no more. Of course it would have been better if it had been established that the accused was suffering from gonorrhoea on the date of occurrence, but in view of the circumstances narrated above, this could not be done, but that does not mean that the case should fail on that score, when the evidence of the guilt of the accused is otherwise cogent, clear and reliable. Lastly, it has been urged by the learned counsel for the appellant that there was considerable delay in the lodging of the first information report, but it is clear from the evidence of Muhammad Abdullah (P.W. 5) that he and his other family members had gone to the house of his nephew in some other part of the city for the purpose of condolence and had remained there till the evening of the 26th of January 1956. Wahida Nasim, who is aged about 16 years, was the only person in the house to look after her two little sisters and it appears that she could not send information to her father. It may be that she did not realise the full implications of this outrage, or did not disclose it to others out of shame and modesty. Muhammad Abdullah has explained that on his return when he learnt from Mah Jabin that the accused had committed rape on her in a kothri in the neighbourhood he wanted to satisfy himself because he had learnt a few days earlier from the father of the accused that they had shifted to Faruq Ganj, which was at a considerable distance, and on the following day the girl's statement was verified by finding out the accused in front of the kothri where he had committed rape on Mah Jabin. This explanation appears to be perfectly plausible. On the evidence on the record I am fully convinced that the accused had committed rape on Mah Jabin on the evening of the 25th of January 1956. I accordingly uphold his convic tion under section 376 of the P. P. C. The sentence awarded to the accused for this diabolical and heinous crime is by no means excessive. I, therefore, dismiss this appeal. Z.A.S./A.H. Appeal dismissed.