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PETITIONER: SHEIKH ZAKIR

       Vs.

RESPONDENT: STATE OF BIHAR

DATE OF JUDGMENT02/06/1983

BENCH: VENKATARAMIAH, E.S. (J) BENCH: VENKATARAMIAH, E.S. (J) ERADI, V. BALAKRISHNA (J)

CITATION:  1983 AIR  911            1983 SCR  (2) 312  1983 SCC  (4)  10        1983 SCALE  (1)644

ACT:      Evidence Act-s.  133 and  illustration (b)  to s.  114- Evidence of  victim  of  rape-Whether  an  offender  can  be convicted on  uncorroborated testimony  of victim of rape-In what  circumstances   and  to   what  extent  does  it  need corroboration?

HEADNOTE:      The appellant  was convicted  under s. 376, I.P.C., for raping a  tribal woman  mainly on the evidence of the victim who  was   the  complainant,   her  husband  and  two  other witnesses, one  of whom  had deposed  that he  had seen  the appellant on  the body  of the  victim while  the other  had stated that  he had seen the appellant fleeing away from the scene of occurrence. The High Court dismissed the appeal and confirmed the conviction.      The appellant  submitted that the local Mukhiya to whom the complainant and her husband were alleged to have gone to complain  about   the   incident   immediately   after   its occurrence, the  police officer  who  was  alleged  to  have refused to record the complaint and also two other witnesses mentioned in  the complaint  had not  been examined  by  the prosecution and this, together with the absence of a medical examination report  given by  a doctor  after examining  the person of  the complainant immediately after the occurrence, was fatal to the prosecution case.      The  Mukhiya   and  one  of  the  two  other  witnesses mentioned in the complaint who had not been examined earlier were examined  pursuant to  the orders made by the Court and they did not support the prosecution case.      Dismissing the appeal, ^      HELD: Even though a victim of rape cannot be treated as an accomplice,  on  account  of  a  long  line  of  judicial decisions the  evidence of  the victim  in a  rape  case  is treated almost  like the evidence of an accomplice requiring corroboration. Section  133 of the Evidence Act says that an accomplice shall  be a  competent witness against an accused person and  a conviction  is not  illegal merely  because it proceeds upon the uncorroborated testimony of an accomplice. But the  rule of  practice is that it is prudent to look for corroboration of  the evidence  of an  accomplice  by  other

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independent evidence. This rule is based on human experience and is  incorporated in  illustration (b)  to s.  114 of the Act. There  must be  an indication  in  the  course  of  the judgment that  the judge  had this  rule in his mind when he prepared the judgment 313 and if in a given case the judge finds that there is no need for such corroboration he should give reasons for dispensing with  the   necessity  for  such  corroboration.  But  if  a conviction is based on the evidence of a prosecutrix without any corroboration  it will  not  be  illegal  on  that  sole ground. In  the case  of a  grown-up and married woman it is always  safe  to  insist  on  such  corroboration.  Wherever corroboration is  necessary it should be from an independent source but  is not necessary that every part of the evidence of the  victim  should  be  confirmed  in  every  detail  by independent evidence.  Such corroboration can be sought from either direct  evidence or  circumstantial evidence  or from both. [318 E-H; 319 A-D]      Rameshwar v.  State of  Rajasthan, [1952]  S.C.R.  377; Gurucharan Singh  v. State  of Haryana, [1973] 2 S.C.R. 197; Kishan Lal v. State of Haryana, [1980] 3 S.C.R. 305; King v. Baskerville [1916] 2 K.B. 658, referred to.      In the  instant case a reading of the deposition of the complainant shows that it has a ring of truth around it. Her evidence has  been corroborated  in material  particulars by the evidence of her husband and the other two witnesses. The statement made by the complainant to her husband immediately after the incident is admissible under s. 157 of the Act and has a corroborative value. [319 F-H]      The  Mukhiya  has  not  given  any  version  about  the incident but  has merely stated that the complainant and her husband had  not gone  to him to complain. It is significant that his  name figured  in the complainant as a witness. The complainant could  not have  taken the risk of including his name if  he had  not been  actually contacted by her. He was cited as  a witness  to  show  that  immediately  after  the occurrence the  complainant had  made a  statement regarding the crime  before him which would be corroborating evidence. It has  to be  borne in  mind that he was examined nearly 12 years after  the incident  and it  is  a  sufficiently  long period and  particularly for  persons of  easy conscience to make half-hearted statements in courts. In the circumstances it is  difficult to  hold that  the evidence  of  the  other witnesses before  the court  is in  any way  affected by the evidence of  the Mukhiya.  The same criticism applies to the evidence of  the  other  witness  examined  along  with  the Mukhiya. The  non-examination  of  the  police  officer  who declined to  record the  information said to have been given by  the  complainant  is  found  to  be  not  fatal  to  the prosecution. [317 C-H]      The complainant and her husband being persons belonging to backward  community like  the Santhal  tribe living  in a remote area  could not  be expected to know that they should rush to  a doctor. The absence of any injuries on the person of the complainant may not by itself discredit the statement of the  complainant. Merely  because the  complainant was  a helpless victim  who was  by force  prevented from  offering serious physical  resistance she cannot be disbelieved. [318 B-D]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No.

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440 of 1974. 314      Appeal by  Special leave  from the  Judgment and  Order dated the  17th September,  1974 of  the Patna High Court in Crl. Appeal No. 579 of 1969.      Davendra N. Goburdhan & D. Goburdhan for the Appellant.      S.N. Jha for the Respondent      The Judgment of the Court was delivered by      VENKATARAMIAH, J. This appeal by special leave is filed against the  judgment dated  September 17,  1974  passed  in Criminal Appeal  No. 579  of 1969  on the  file of  the High Court of Patna confirming the conviction of the appellant of the offence punishable under section 376 of the Indian Penal Code and  the sentence  of rigorous  imprisonment  for  five years imposed  on him  on December 20,1969 in Sessions Trial No. 107  of 1968 on the file of the Assistant Sessions Judge at Purnea in the State of Bihar.      The appellant  was committed  to face  the trial for an offence punishable  under section  376 of  the Indian  Penal Code by  the order  of the  Munsiff-Magistrate,  1st  Class, Purnea on  the basis of a complaint filed by the complainant Barki Devi  (P.W.  3)  before  the  Sub-Divisional  Officer, Sadar, Purnea  on August  9,1968 who  took cognizance of the Offence  and  transferred  the  case  to  the  file  of  the aforesaid Magistrate.      The allegations  made  in  the  complaint  are  briefly these: That  on August  1,  1968  at  about  5.00  P.M,  the complainant, who  was a married woman of about 25 years, was engaged in  the work  of uprooting of the paddy seedlings on her field  situated on  the southern  side of  her house  in Dhumra Badh  situated  in  Mouza  Dhamdaha,  Police  Station Dhamdaha, District  Purnea. There was a canal to the east of the field  and there  were no  houses nearby.  When she  was working on her field the appellant came near her and started cutting jokes  and suggested  that she  should  have  sexual intercourse with  him. On  the complainant protesting at his suggestion, the appellant suddenly caught hold of her, threw her down  on the  ground, removed  her clothes and committed rape on  her. On  hearing her  cry for  help,  some  persons arrived at  the place.  The appellant  immediately ran away. Thereafter the  complainant went  to her  house and narrated the  incident   to  her   husband,  Jitrai   (P.W.  4).  The complainant and  her husband  then went to the local Mukhiya who asked them to file 315 a complaint in the Court. Then they went to the police thana to give  information about  the crime but the police officer declined to  record the  information as the appellant was an influential person.  Then the  complainant went to the court on August  8, 1968  to lodge a complaint but as the time for lodging complaint  was over  by the  time the  complaint was drafted, she  filed it  on August  9, 1968 in the court. The complaint contained the names of some witnesses.      At the  trial the  complainant was  examined as P.W. 3. She belongs  to the  Santhal  tribe.  In  her  evidence  she described the  incident as  disclosed in  her complaint. She stated that  the appellant  forcibly had  sexual intercourse with her  against her  will. She  stated that on hearing her cry, Sheikh Lafid (P.W. I) came there and on seeing him, the appellant ran  away. She  also stated  that she narrated the incident to  Juman Nadaf  (P.W. 2), Chanda Kisku and Makbool who also  came there and that she showed the stains of semen on her clothes and also the trampling marks on the ground to them. She  also stated that she narrated the incident before her husband  and the  Mukhiya of  the village.  She  further

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stated that  when she  and her  husband went  to the  police station, they  were threatened and driven away by the police officer there.  She also  told about her going to Purnea and lodging the  complaint. Sheikh  Lafid (P.W.  1) corroborated the evidence  of the  complainant by  deposing that  when he reached the  scene of  occurrence he saw the appellant lying on top  of the body of the complainant. Juman Nadaf (P.W. 2) stated that when he went near the scene of occurrence he saw the appellant  fleeing away  from there.  He stated that the complainant had narrated before him the details of the crime committed by  the appellant.  Jitrai (P.W. 4) the husband of the complainant  stated that  in the  evening of  the day of occurrence the  complainant told  him about  the  manner  in which she  had been  ravished by the appellant and also gave evidence about  his going  to the  Mukhiya and to the police station  and   what  happened   there  as  narrated  by  the complainant. Rama  Kant Thakur  (P.W. 5)  was the lawyer who drafted the  complaint. He has stated that the complaint had been prepared under the instructions of the complainant.      The trial  court on  a consideration  of  the  material before it  found that  the appellant  was guilty of rape and accordingly  convicted   the  appellant   of   the   offence punishable under  section 376  of the  Indian Penal Code and imposed on  him a sentence of rigorous imprisonment for five years. The High Court dismissed 316 the appeal  filed by  the appellant.  This appeal by special leave is  filed against the judgment of the High Court. When the appeal  was heard by this Court on March 6, 1980, it was ordered that  the trial  court should record the evidence of the Mukhiya,  Makbool and  Chanda Kisku  and to  submit  the record to  this Court.  The evidence  of the  Mukhiya and of Makbool was  accordingly recorded  and has been submitted to this Court.  Chanda Kisku  is reported to be dead. The other two witnesses have not supported the prosecution case. It is apparent that  these two witnesses who had been mentioned as witnesses in  the  complaint  itself  were  not  willing  to support the  prosecution even  at the  time of  the trial as otherwise they  would have  been examined.  It is  not quite strange that  some witnesses  do turn  hostile but  that  by itself would  not prevent  a court  from finding  an accused guilty if  there is otherwise acceptable evidence in support of the  prosecution. In  the instant  case, both  the  trial court and  the High  Court have  believed  evidence  of  the prosecutrix  and  the  evidence  of  the  other  prosecution witnesses who had been examined at the trial.      The point for consideration in this case is whether the approach adopted  by the  High Court  and the trial court to the case  is correct  and whether the material is sufficient to warrant the conviction recorded by them.      In the  case before  us the  complainant has  given her version of the incident in her deposition and the High Court and the  trial court have not found it to be unreliable. The case of  the appellant,  however, was  that on  account of a land dispute  between one  Mohamed Halim and Mohamed Naiyeem on the  one hand  and himself  on the other which ultimately had ended  in his  favour this false case had been got filed by them  through the  complainant and her husband Jitrai who were working  as servants under them. The non examination of the Mukhiya  and the  police officer  who  had  declined  to record the  information alleged  to have  been given  by the complainant and  her husband  is stated  to be  fatal to the prosecution. It  is further  stated that in the absence of a medical examination report given by a doctor after examining the  person   of  the   complainant  immediately  after  the

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occurrence it  was not  possible  to  conclude  whether  the complainant had been raped.      The trial  court has  negatived the  contentions of the appellant. The  trial  court  held  that  it  had  not  been established that  the complainant and her husband were under the thumb of Mohamed Halim and 317 Mohamed Naiyeem.  The husband  of the complainant owned some lands and  the complainant and her husband were also working as labourers.  The trial  court  was  of  opinion  that  the complainant had  not given  a false  complaint in  order  to oblige Mohamed  Halim and  Mohamed Naiyeem.  It further held that the  proceeding relating to land filed by Mohamed Halim and Mohamed  Naiyeem was  one instituted  in the  year  1964 nearly four  years before the incident and that there was no immediate provocation  for them  to engineer the filing of a false  case  against  the  appellant.  The  High  Court  has concurred with  the  conclusions  of  the  trial  court.  As regards the  non-examination at the trial of the Mukhiya who is now examined pursuant to the order of this Court it is to be observed  that it  has turned  out to be inconsequential. The Mukhiya  has now  stated that  the complainant  and  her husband had  not gone to him to complain about the incident. He does  not give  any version about the incident. It has to be borne  in mind  that he  was examined nearly twelve years after the  incident. It is significant that his name figured in the  complaint as  a witness.  The complainant  could not have taken the risk of including his name if he had not been actually contacted  by her.  The complainant and her husband have stated  in their  depositions that they had gone to him on the date of occurrence. He was cited as a witness to show that immediately  after the  occurrence the  complainant had made a  statement regarding the crime before him which would be corroborating  evidence. An interval of twelve years is a sufficiently long  period and  particularly for  persons  of easy conscience  to make  half-hearted statements in courts. In the  circumstances it  is  difficult  to  hold  that  the evidence of  the other  witnesses before the court is in any way affected  by the  evidence  of  the  Mukhiya.  The  same criticism applies  to the  evidence of  Makbool who  is  the other witness  examined in  the year  1980  along  with  the Mukhiya. Makbool’s  evidence is  that he did not go near the scene of  occurrence on  the date  on which it is alleged to have taken  place. As  regards the  non-examination  of  the policeman who  declined to  record the  information said  to have been given by the complainant, it has to be stated that it would  be asking  the complainant  to do  something which would be  almost impossible  to  perform.  How  many  police officers who  have in  fact not  performed their  duty would come before  court as  witnesses and  admit  that  they  had failed to  discharge their  duty  ?  The  court  may  safely presume  that   notwithstanding  the   allegation   of   the complainant being  true she  would not  have  even  able  to secure the evidence of such a negligent police official. The fact remains the complainant has referred to 318 this in  her complaint  on the very next day and she and her husband ran  a grave  risk in  making such  an allegation of dereliction of  duty against  the police  in the  complaint. Nothing however  turns on  the non-examination  of the  said police official in this case. In so far as non-production of a medical examination report and the clothes which contained semen, the  trial courts  has observed  that the complainant being a  woman who  had given  birth to four children it was likely that  there would  not have  been any injuries on her

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private parts. The complainant and her husband being persons belonging to  a backward  community like  the Santhal  tribe living in  a remote  area could not be expected to know that they should  rush to  a doctor.  In fact the complainant has deposed that she had taken bath and washed her clothes after the incident.  The absence  of any injuries on the person of the complainant may not by itself discredit the statement of the  complainant.  Merely  because  the  complainant  was  a helpless victim  who was  by force  prevented from  offering serious physical  resistance she  cannot be  disbelieved. In this situation  the non-production of a medical report would not be  of much  consequence if the other evidence on record is believable.  It is, however, nobody’s case that there was such a report and it had been withheld.      A reading  of the  deposition of  the complainant shows that it  has a  ring of  truth around it. Section 133 of the Indian Evidence  Act says  that an  accomplice  shall  be  a competent witness against an accused person and a conviction is  not   illegal  merely   because  it  proceeds  upon  the uncorroborated testimony  of an  accomplice. But the rule of practice is  that it is prudent to look for corroboration of the evidence of an accomplice by other independent evidence. This rule  of practice  is based  on human experience and is incorporated in  illustration (b)  to  section  114  of  the Indian  Evidence  Act  which  says  that  an  accomplice  is unworthy of  credit unless  he is  corroborated in  material particulars. Even  though a victim of rape cannot be treated as an  accomplice, on  account of  a long  line of  judicial decision rendered in our country over a number of years, the evidence of the victim in a rape case is treated almost like the evidence of an accomplice requiring corroboration. (Vide Rameshwar v.  The State of Rajasthan,(1) Gurucharan Singh v. State of  Haryana(2) and Kishan Lal v. State of Haryana).(3) It is accepted by the Indian courts 319 that the  rule of corroboration in such cases ought to be as enunciated by  Lord Reading  C.J. in King v. Baskerville.(4) Where the case is tried with the aid of a jury as in England it is  necessary that  a Judge  should draw the attention of the  jury   to  the   above  rule   of  practice   regarding corroboration wherever  such corroboration  is  needed.  But where a  case is  tried by a judge alone, as it is now being done in  India, there must be an indication in the course of the judgment  that the  judge had this rule in his mind when he prepared  the judgment  and if  in a given case the judge finds that there is no need for such corroboration he should give reasons  for dispensing  with the  necessity  for  such corroboration. But  if a conviction is based on the evidence of a  prosecutrix without  any corroboration  it will not be illegal on  that sole  ground. In the case of a grown up and married  woman   it  is   always  safe  to  insist  on  such corroboration. Wherever corroboration is necessary it should be from  an independent  source but it is not necessary that every part of the evidence of the victim should be confirmed in very  detail by  independent evidence. Such corroboration can be  sought from either direct evidence or circumstantial evidence or  from both.  The trial  court has  in  the  case before us  found that  the evidence  of the  complainant had been corroborated in material particulars by the evidence of Sheikh Lafid (P.W. 1), Juman Nadaf (P.W. 2) and Jitrai (P.W. 4) the  husband of  the complainant. The High Court also has acted on the evidence of these witnesses. Sheikh Lafid (P.W. 1) has  stated that  he saw the appellant on the body of the complainant and that the complainant had also told him about the crime.  Juman Nadaf  (P.W. 2)  has stated  that when  he

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heard the  cry of the complainant at the time of occurrence, he saw the appellant fleeing away from that place. The trial court and  the High  Court have not found any good ground to discard their  testimony. Jitrai (P.W. 4) has told the court that the complainant had mentioned to him all the details of the incident  within a short while after it took place. Rama Kant Thakur  (P.W 5.),  the lawyer who drafted the complaint has stated that he had prepared the complaint which contains all the particulars of the offence under the instructions of the complainant.  Apart from  the evidence  of Sheikh  Lafid (P.W. 1)  and Juman  Nadaf (P.W. 2) about what they saw, the statement made by the complainant to her husband immediately after the  incident is  admissible under  section 157 of the Indian Evidence  Act and  has a  corroborative value.  After considering carefully the entire material 320 before us  including the  evidence of the witnesses examined pursuant to  the order  made by  this Court  earlier in  the light of  the submissions made at the Bar we are of the view that the  judgment of  the High  Court does not call for any interference under Article 136 of the Constitution.      The appeal  therefore, fails  and it  is dismissed. The appellant who  is on  bail is  directed to  surrender and to undergo the remaining part of the sentence imposed on him. H.L.C.                                     Appeal dismissed. 321