' The brief facts of the case are that on the day of occurrence Suleman minor boy was weeping while entering his home. He was bleeding from his anus and his Shalwar was steeped with blood.
When his mother Mst. Shamim and his uncle Hidayatullah, P.Ws. Herein, questioned him about his that painful state, he replied that Sameeullah, appellant herein took him to a Balakhana' and subjected him to carnal intercourse. On report of the incident a case was registered against the appellant under section 377, P.P.C. Read with section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, vide F.I.R. No,69, dated 12-2-2001.
2. After the arrest of the appellant and completion of the investigation, he was forwarded to the Court of the learned Additional Sessions Judge-I, for trial who on its conclusion sentenced him to 7 years' R.I. With a fine of Rs,20,000 under section 377, P.P.C., vide her judgment dated 20-2-2003.
Hence this appeal.
3. The learned counsel appearing on behalf of the appellant contended that the account furnished by the mother and uncle of the appellant is based on hearsay as such it is not admissible in evidence and cannot be considered for recording conviction, particularly when the victim on being examined in the Court did not breath even a single word about the person who committed this gruesome act. He next contended that even if this evidence is considered to be a res gestae, it cannot form basis of conviction because this can only be taken as corroborative and not evidence of the charge. The learned counsel to support his contention placed reliance on the case of Muhammad Aslam Shah v. The State 1993 PCr.LJ 704.
4. As against that, the learned D.A.-G. Appearing on behalf of the State assisted by the learned counsel for the complainant by placing reliance on the case of Sameeullah Khan v. State 2000 PCr.LJ 769, contended that the information furnished by the mother and uncle of the victim being res gestae is substantive evidence for all intents and purposes and can thus form basis of conviction, even if there is no other corroborative evidence as such type of crimes, more often than not, are committed in the chambers of secrecy, therefore, direct evidence in these cases is not at all possible. The learned counsel next contended that had the child been questioned about the incident he would have deposed about it but the trial Court without making proper queries proceeded to declare him unfit to give evidence on account of his tender age, therefore, this circumstance for having emerged from the act of the Court cannot be construed to the detriment of the prosecution as an act of the Court prejudices none. He in the alternative suggested that in the circumstances of the case, it be sent back to the learned trial Court for recording his evidence after making proper query in accordance with the provisions of Article 3 of Qanun-e-Shahadat.
5. I have gone through the record carefully and considered the submissions of the learned counsel for the parties.
6. A discrete assessm ent of the evidence on the record would reveal that admittedly the occurrence was not witnessed by any of the P.Ws. Even P.Ws. Mst. Shamim and Hidayatullah, mother and uncle of the victim have not witnessed the occurrence. Whatever was stated by them in the Court is based on the account narrated by the victim soon after the occurrence. Though the victim appeared in the witness-box but he did not depose about the incident because the learned trial Judge after making preliminary query, to test his competency as a witness, declared him unfit to stand the test of cross-examination on account of his tender age. So in this view of the matter, the Court is left only with the evidence of res gestae.
7. It is rather well-settled that the circumstances, facts and declarations which spontaneously grow out of the main fact and serve to illustrate its character being res gestae are admissible provided they are so contemporaneous with the main fact as to exclude the possibility of deliberation and fabrication. Such declarations being part of the res gestae are admissible in evidence even though the declarant is incompetent to testify or is not produced in the Court altogether. Similarly a spontaneous declaration of a child too young to be permitted to testify may nevertheless be admissible as part of the res gestae. There is also no cavil with the proposition that such unsworn declaration is to be treated at par with a sworn declaration.
8. But where a child could not narrate the incident and name its author while being examined in the Court, as in this case, the question arises whether he could narrate the incident in the manner described by the prosecution? Whether the evidence furnished by the mother and uncle of the victim who, admittedly have not witnessed the occurrence can be considered sufficient to inspire moral certainty as to the involvement of the appellant in the crime and warrant conviction simply on the ground that whatever was stated by the victim to them soon after the occurrence being res gestae is admissible in evidence. My answer to this question would certainly be in the negative as this piece of evidence notwithstanding its admissibility, its contemporaneousness with the main fact and all the spontaneity, it may have, will not be sufficient to link him with the crime beyond any shadow of reasonable doubt without corroboration, in spite of the medical evidence, which, itself, cannot name or point to the author of the crime. The moreso when the very capacity of the victim to narrate the incident has been brought under a thick cloud of doubt because of his tender age as per observations of the learned trial Court mentioned above.
10. In the case Muhammad Din and 2 others v. The State 1988 PCr.LJ 238, the evidence of a child of 8/9 years coupled with her sworn testimony was relied upon while convicting the accused when it was corroborated by the evidence of Wajtakar and the dying declaration of the deceased.
11. In 'die case of Abdullah Shah v. The State 1968 SCM R 852, the Honourable Supreme Court maintained the sentence recorded on the testimony of a child only when she was held to have stood the test of cross-examination and her version found corroboration from the medical evidence and other circumstances of the case.
12. In the case of Umar v. The State 1969 SCM R 600, the testimony of a child of 9 years was relied upon when she stood the test of cross-examination and her testimony was amply corroborated by the evidence of three other witnesses.
13. In the case of Swal Das v. State of Bihar AIR 1974 SC 778, the Supreme Court of India refused to maintain conviction of the appellant which was solely based on the evidence of res gestae furnished by a child when there was no other evidence to corroborate it.
14. It is true that in the case of Faqir Muhammad v. The State PLD 1971 Lah. 929 conviction of the accused was recorded on the evidence of the father based on the narration of his victim child who was never produced in the Court, but in that case his testimony was corroborated by the testimony of another P.W. Who had seen the victim being taken away by the accused on a bicycle and being dropped by him after the occurrence but in this case there is no such corroboration.
15. In an unreported judgment of this Court rendered in Criminal Appeal No,46 of 1996 (Zahid v. The State) decided on 23-12-1996, this Court, set aside the conviction recorded on the sole evidence of res gestae furnished by the mother of the victim in view of the opinion of the Investigating Officer that the victim has no capacity to understand the nature of questions on account of his tender age.
16. A reference to the case of Muhammad Aslam Shah v. The State (supra) will also be relevant as in that case conviction and sentence awarded by the learned trial Court was upheld as the evidence of res gestae was Corroborated by the medical evidence as well as the evidence of recovery.
17. In the case of Muhammad Sugal Mamasan Rer Alalah v. The King AIR (33) 1946 PC 3, the Privy Council after holding that it is a sound rule in practice besides being the rule of prudence not to act on the uncorroborated evidence of a child whether sworn or unsworn, maintained the judgment of the protectorate Court only when satisfied that the learned Judge being fully alive to the rule, applied it and took into account the evidence corroborative of the unsworn evidence of the child.
18. It would, therefore, follow that under no circumstances, conviction on the basis of res gestae alone can be recorded without corroboration.
19. The case of Sameeullah Khan v. The State (supra) will not in any way tend to support the case of the prosecution as in view of the judgments of the Honourable Supreme Court even a sworn testimony of a child let alone, res gestae cannot form basis of conviction without corroboration.
20. The argument that the victim could not state anything about the incident as he was declared unfit to give evidence without making proper query, therefore, the case be remanded back for recording his evidence afresh, has not impressed me to the least, as no useful purpose is likely to be served by sending this case back for re-examining him after proper query as a child who while being in the Court does not know where and what for he was there cannot be relied upon for recording conviction, even if, he on remand of the case states that it was the appellant who subjected him to carnal intercourse as it will not be in accord with safe administration of justice to base conviction on his uncorroborated testimony. Needless to say that corroboration though a rule of prudence has now crystallized into a rule of law.
21. The sum total of the above discussion, is that the prosecution has failed to prove the case against the appellant beyond any shadow of reasonable doubt. This appeal is, therefore, allowed, the conviction and sentence recorded by the learned trial Court are set aside and the appellant be set free, if not required in any other case.