Baldeo Mahato vs Emperor

Das, J.—This is an appeal from jail in which Mr. Mangleshwar Prasad Sinha has very kindly assisted us. The appellant Baldeo Mahato has been found guilty of the offence u/s 376, Penal Code, by the learned Assistant Sessions Judge of Bhagalpur in agreement with the unanimous verdict of the jury, and has been sentenced to rigorous imprisonment for seven years.

The allegation against the appellant was that in the afternoon of 24th December 1944 he had committed rape on a girl called Mt. Lachhia, aged about 13, at a place called Manelia jungle. It was alleged by the prosecution that both the appellant and the girl Mt. Lachhia had gone to the said jungle to tend cattle. The appellant suddenly lifted Mt. Lachhia in his lap and took her to a ditch nearby. He placed her on the ground, removed her Sari and then committed rape on her. Mt. Lachhia tried to cry out, but her mouth was gagged. When the appellant left the girl, she found that she was bleeding from the vagina. She got up and painfully returned to her house, where she narrated to her mother what happened. The mother then took the girl to the house of the appellant''s step-father where, in the presence of certain other persons, the girl is stated to have narrated her story.

It was alleged by the prosecution that the mother of the girl removed the blood stained Sari and gave the girl another Sari to wear. The blood stained sari was then washed by the mother. The next morning the girl and her mother went to one Pathal Rai whose cattle the girl used to tend. On the advice of Pathal Rai, information was lodged at the police station. On that information an investigation was made, and the appellant was put on trial with the result stated above. The defence of the appellant was that he had been falsely implicated, because his step-father had given him some land which had caused annoyance to the mother of one Ritwa. Ritwa, it was alleged, was the brother of the girl Mt. Lachhia.

Mr. Mangleshwar Prasad Sinha, appearing on behalf of the appellant has placed before us the charge to the jury, and he has complained of a serious non-direction by the learned Assistant Sessions Judge and also of a misdirection regarding the nature of the evidence given in the case. The non-direction of which he has complained consists of the failure to give to the jury the usual caution that it is unsafe to rely on the uncorroborated evidence of the prosecutrix in cases of this nature. The learned Assistant Sessions Judge has several times reminded the jury that the (Solitary eye-witness of the occurrence is the victim herself, namely Mt. Lachhia, but nowhere has he told the jury that in cases of this nature it is unsafe to rely on the uncorroborated testimony of the prosecutrix. The duty of the judge in such a case has been very clearly laid down by this Court in Sachinder Rai v. Emperor AIR 1939 Pat. 536 where Harries, C.J. has observed as follows:

In my view, in oases of this kind the learned Judge must point out in the dearest language that it is extremely dangerous to base a conviction upon the girl''s evidence and he should stress the fact that before the jury can properly return a verdict of guilty, they must be satisfied that the girl''s evidence is corroborated by other independent testimony. Having given such a warning, the learned Judge should explain to the jury what amounts to corroboration. He should then point out to the jury what evidence can legally amount to corroboration and he should ask the jury to consider whether or not they accept such evidence. Finally, he should tell the jury that they should only convict if they are satisfied that the evidence tendered as corroboration is true and worthy of credence.

Reference has been made in that case to many earlier decisions where also the same point has been discussed, and it has been laid down that a warning about the danger of convicting a person in such cases upon the evidence of the woman alone is absolutely necessary and, must be emphatic, and in its absence, the conviction is vitiated, vide Emperor Vs. Nur Ahmed, and Chamuddin Sardar and Another Vs. Emperor, In the case under our consideration, the learned Assistant Sessions Judge has nowhere given the necessary warning to the jury.

On the contrary, he has left the jury to convict the appellant on the solitary testimony of the girl. It is clear that in doing so, the learned Assistant Sessions Judge has committed a very serious non-direction which vitiates the trial. There is, indeed, one case in Abdul Gafur Kotwal and Another Vs. Emperor, where it has been stated that the absence of the usual caution given to the jury in sexual cases to the effect that it is unsafe to rely on the uncorroborated evidence of the prosecutrix does not necessarily vitiate the verdict; the effect of such omission depends upon the facts of each case. These observations were made in a case in which the evidence of the girl was corroborated independently by very strong evidence and the learned Judge had. placed the entire evidence in the case fairly and impartially to the jury.

I shall presently discuss the question as to whether there is any such corroborative evidence in this case as is required in cases of this nature. It is sufficient to state here that this was not a case in which there was very strong corroborative evidence in support of the story given by the girl. It was, therefore, all the more necessary for the learned Judge to give the usual caution to the jury that in cases of this nature it is unsafe to rely on the uncorroborated testimony of the girl.

As to the mis-directibn, Mr. Sinha appearing for the appellant has drawn our attention to the fact that the learned judge has treated the girl''s own statements to other witnesses as corroborative evidence. Here also the learned Judge was in error. The nature of the corroborative evidence required in such cases has been explained very fully and clearly in the leading case in the King v. Baskerville (1916) 2 K.B. 658. The learned Lord Chief Justice had observed therein that:

The evidence in corroboration must be independent testimony, which affects the accused by connecting or tending to connect him with the crime. In other words it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed, but also that the prisoner committed it.

It has further been observed that:

The nature of the corroboration must necessarily vary according to the particular circumstances of the offence charged. It would be in high degree dangerous to attempt to formulate the kind of evidence which would be regarded as corroboration, except to say that corroborative evidence is evidence which shows or tends to show that the story of the accomplice that the accused committed the crime is true, not merely that the crime has been committed, but that it was committed by the accused.

Referring to the statements of the girl herself in such cases, it has been observed by the learned Lord Chief Justice, Lord Hewart in Job Whitehead (1928) 21 Cri. AR 23 that "corroboration should come from another person altogether". In Emperor Vs. Nur Ahmed, it has been observed that what the prosecutrix says to other person is not corroborative evidence within the meaning of the rule referred to above, The learned Assistant Sessions Judge has, however, referred to the statements of the girl herself made to other witnesses as affording corroboration of her story. In this respect the learned Judge has committed a serious misdirection.

Apart from the two defects mentioned above, the learned Judge has not properly explained to the jury the ingredients which are necessary for an offence u/s 875, Penal Code. Section 375, Penal code, which defines the offence of rape mentions the various circumstances under which sexual intercourse with a woman will amount to the offence of rape. The learned Assistant Sessions Judge has merely told the jury that any of those five circumstances in which sexual intercourse may be committed will constitute the offence of rape, without telling the jury what is the particular circumstance under which the present case comes. The allegation was that the appellant had committed rape on a girl aged about 13. If the age of the girl was below 14, then the question of her consent would be immaterial, still the question of consent with reference to the age of the girl should have been explained to the jury. The learned Assistant Sessions Judge does not appear to have focussed the attention of the jury on this point. He left the jury to find out under which of the several circumstances enumerated in Section 375 the offence would come. This, however, would not have been a very material defect, if the learned Assistant Sessions Judge had given the usual caution to the jury and had explained to them the nature of the corroboration which is required in cases of this nature.

I am therefore of the view that the verdict of the jury in this case is vitiated by very serious non-direction and misdirection. The next question which arises for consideration is whether the case should go back for a retrial or hot. Learned Counsel for the Crown has placed the evidence before us and has conceded with great fairness that there is no direct corroboration of the evidence of the girl with regard to the complicity of the appellant. There is no doubt corroboration of the fact that somebody had sexual intercourse with the girl; it may even be that the sexual intercourse was either with or without her consent. The medical evidence in the case disclosed that the hymen had been ruptured. It further disclosed discharge of blood from the vagina in which red blood corpuscles were, present. The doctor further said that the vagina was inflamed and tender to the touch. These facts would no doubt corroborate the story of the girl to the effect that she had been subjected to sexual intercourse; but as stated above, the corroborative evidence must be of such a character as would tend directly or indirectly to connect the accused with the crime. Such corroborative evidence is absent in this case. The girl no doubt had stated to different persons that she had been raped by the appellant.

I have observed above that the statements of the girl herself, subsequently made to other persons cannot be said to be corroborative evidence of the nature required in such cases. There being no corroborative evidence in support of the story of the girl, it would not serve any useful purpose to send the case back for retrial.

For the reasons given above, I would allow this appeal, set aside the conviction and sentence passed against the appellant and acquit him. The appellant should forthwith be released from custody.

Pande, J.

I agree.