In Re: Boya Chinnappa

Somasundaram, J.—The applt, in this case has been convicted of the offence of rape � sentenced to seven years rigorous imprisonment &

a fine of Rs. 600 by the Ses. J. of Anantapur.

The facts of the case are these : The victim of the rape is P. W. 1 aged about ten years. She was living with her mother P. W. 3 who was

abandoned by her husband while P. W. 1 was a baby. P. W. 3 has been earning her livelihood by doing cooly work & sometimes by begging.

They were both living in a village called Garladinne. There was also a brother of P. W. 3 living in the same village almost next to her house.

Another brother of P. W. 3 lives at a place called Jambuladinne which is a hamlet of Garladinne & which is within a distance of about a mile from

the latter place. The village Mag. of the place lives at Jambuladinne & the accused also lives in the same village as P. W. 3.

According to the evidence of P. w. l, the victim, she left her village on 16-7-1949 at about 3 P. M. for Jambuladinne to fetch from her uncle''s

house Jaunapallu (milk got from a cow or buffalo within a few days after she calved). The milk was not available & her uncle P. W. 8 promised

that; he would send it the nest morning & she returned. While she was coming back to her village, she was met by the accused who was coming

from Garladinne. He is said to have been in a tipsy condition with red eyes. After making enquiries aa to where P. W. 1 was going, he is said to

have caught her arm & dragged her into a pit which is by the side of the path, laid her down on her back, himself sat down in front of her and

placed her legs on his thighs. P. W. 1 started weeping & shouting. The accused then gagged her mouth with her own cloth. She lost consciousness

& the only thing she knew when she regained conaciousness was that she found the accused tying her petticoat to her after washing it in water in a

ditch nearby. She found blood on her petticoat & also found her vagina bleeding. The accused is said to have asked her not to tell any one of what

happened threatening to kill her in case of disclosure. She was proceeding to her house weeping. On the way she met P. W. 6 who questioned her

as to why she was weeping. She complained to him of what the accused did to her. He advised her to go home and inform her mother. P. W. 1

went home & informed her mother of what the accused did. The mother & daughter thereupon went to the house of the accused who was already

known to P. W. 3 but did not find him there. P. W. 3 went to the place where he was alleged to be & questioned him. He is said to have

challenged her to do what she liked. The mother & daughter then went to Jambuladinne for the purpose of giving a complaint to the village Mag.

but he was not in the village. Thereupon, on the advice of P. Ws. 7 & 8 they went to Anantpur to obtain a medical certificate. It is alleged that the

doctor who examined P. W. 1 refused to give a certificate unless a fee was paid and as they were not in a position to pay, they came back without

a certificate. After their return, they again went to the village Mag. & made a. report orally which he reduced to writing & it is Ex. p. 2 in the case.

On his sending the reports to the police, the investigation started & the accused was arrested. On the requisition of the police, on 18-7-1949 the

lady doctor at Anantapur examined P. W. 1 & gave a certificate. Thereafter the charge sheet was laid against the applt.

The case against the accused rests mainly on the evidence of P. W. 1 & that of P. Ws. 3 and 6 who speak to the complaint made immediately

after the occurrence. The fact that the girl was raped is not seriously disputed & the medical evidence shows that she must have been raped. The

doctor found the following injuries : (1) contusion on the inner aspect of both thighs, (2) hymen torn & there was slight bloody discharge from the

vagina, (3) swelling over the labia major, (4) vagina admits a finger easily. The doctor was of opinion that the girl was raped & that there was

forced penetration bat for which, for a girl of her age, the vagina would not admit a finger. Vaginal smears were sent to the Chemical Examiner but

no trace of spermatozoa or gonococci was found The doctor is positive & her evidence admits of no doubt that the girl was raped. The only

question is as to who committed it whether it is the applt. or some one else committed it & it is falsely foisted on the applt.

Mr. Chinnappa Eeddi who appears for the petnr. contends that the case has been falsely foisted on the accused at the instance of one Kamma

Hanumappa on account of the ill-feeling between the said Hanumappa & his brother on the one side & the accused on the other. Advantage is

taken of the statement made by P. Ws. 1, 3 and 7 that they met Hanumappa just at the time when P. Ws. 1 & 3 were proceeding to Anantapur

during the night of 16-7-1949 for obtaining a medical certificate & it is urged that Hanumappa has instigated P. Ws. 1 & 3 to implicate the applt.

The learned Ses. J. has given good reasons for rejecting the suggestion that this case has been falsely foisted at the instance o� Hanumappa & I

entirely agree with him.

Certain discrepancies were relied on by the learned advocate to show that the version given by P. W. 1 is not a true one. The learned Ses. J.

has carefully considered every one of them & has pointed out how they do not affect the fundamental fact in this case that the accused committed

rape on P. W. 1. There is no doubt one discrepancy which the learned Judge himself points out as inexplicable. In the commital Ct., P. W. 1 stated

that by the time she regained consciousness, the accused was not present. But in the Sessions Ct. she stated that when she regained consciousness,

the accused was present & that he washed her langa in water in a side ditch & had asked her not to tell anyone on pain of being thrown into a well.

The evidence of the Circle Inspector shows that there was no water anywhere near the scene when he examined the scene of occurrence two days

after, i. e., on 18-7-1949 & P. W. 6 also stated in the Sessions Ct. that he saw P. w. 1. wearing wet clothes when he saw her weeping which he

did not state in the committal Ct. As the learned Judge points out, there is no doubt that there is this discrepancy but it does not affect the truth of

the prosecution version. There seems to be no object in improving the version given in the committal Ct. & I agree with him. This does not affect

the truth of the story given by P. W. 1.

The nest contention of Mr. Chinnappa Eeddi is that the evidence of this girl should not be acted upon unless it is corroborated by independent

testimony connecting the accused with the crime. As already stated, the commission of rape not being disputed, the only question is whether the

accused committed it. It is urged that the evidence of P. W. 1 should not be acted upon without corroboration by independent testimony

connecting the applt. with the crime. It is further contended that the corroboration of P. W. 1''s story by P. Ws. 3 & 6 is not such a corroboration

as their evidence is only corroboration of her own previous statements u/s 157, Evidence Act. Stress is laid that apart from her previous statements

made immediately after the occurrence, there should be independent corroboration. No decision of this Ct. or authority of a binding nature has

been cited before me either in support of or contrary to the proposition contended for by the learned advocate for the applt. But he relies on the

decisions of other Cts. & they are Surendra Nath Das Vs. Emperor, , Emperor v. Nur Ahmed, AIR 1034 Cal. 7: 36 Cr. L. J. 796, Sikandar Mian

Vs. Emperor, , U Toe Sein v. The King, A.I.R.1939 Bang. 128 : 40 Cr. L. J. 552, Emperor v. Mahadeo'' Tatya, A. I. R. 1942 Bom. 121 : 43

Cri. L. J. 621 and Nura and Others Vs. Rex, . In Surendra Nath Das Vs. Emperor, , the medical evidence showed that the victim had lost her

virginity at least tbree months before the occurrence & she had frequent intercourse prior to the occasion complained of. She was intimate with a

prostitute who was connected with the accused & the learned Judge has found that there were other improbabilities in the story. In fact, the facts

clearly show that the accused could not be convicted on the story of the victim. Being a jury case the learned Judges stated that the story of such a

girl should not be accepted unless it is corroborated by independent evidence in material particulars connecting the accused & for corroboration

they referred to the well known case of Emperor Vs. Nur Ahmed, which is a case of an accomplice. In Hex v. Baskarville, (1916) 2 K. B. 658 ;

86 L. J. K. B. 28 which is also a jury case, Lort-Williams J. stated as follows :

The accused being Mahammadans & the girl a Hindu it is unfortunate that the Jury was composed as it was"" (the jury consisted of three Hindus

and two Muhammadans. The verdict was guilty by a majority of three to two) ""It is obvious from the reference which I have made to the evidence

that this case is unsatisfactory from many points of view apart from the direction given by the Judge to the jury.

The learned Judge then found that there has been a miscarriage of justice. It is clear in this case, therefore, that the learned Judge was satisfied that

the evidence was not acceptable & they even characterised the composition of the jury as unfortunate as is clear from the observations referred to

above. They followed the principle laid down in Surendra Nath Das Vs. Emperor, that the evidence of the prosecutrix must be corroborated by

independent evidence & they put the prosecutrix in a rape case on the same footing as an accomplice in other cases.

In Sikandar Mian Vs. Emperor, , the learned Judges were dealing with a case where there was independent evidence which was not put to the

jury. It must be mentioned here that they refer to the case in Surendra Nath Das Vs. Emperor, & Henderson J. who was a party to the judgment in

that case states as follows :

I do not think that any useful purpose would be served by taking the individual words of Lort-Williams J. & weighing them in a balance in view of

the fact that his judgment was delivered ex tempore as far as I remember, I do not think he intended to lay down any more than what was laid

down by my learned brother in Sarat Chandra Chakravarty and Others Vs. Emperor, .

Referring to the previous statement he laid down that the corroboration of a previous statement though admissible u/s 157, Evidence Act, is not the

kind of corroboration expected in such a case. He states that the rule is a rule of prudence & lays down the proposition that a previous statement

made by the prosecutrix cannot possibly be corroboration within the meaning of this rule. In U Toe Sein v. The King, AIR 1939 Bang. 128 : 40

Cr. L. J. 652, Sharpe J. follows the decisions in Emperor Vs. Nur Ahmed, and he seems to think that the corroboration that is sought for is of the

same kind as that of an accomplice. In Emperor v. Mahadeo Tatya, A. I. R. 1942 Bom. 121: 43 Cri. L. J. 621 KB., the facts were found against

the rape. On the medical evidence no injuries were discovered on the private parts of the victim & the judgment seems to indicate that the offence

of rape has not been committed. But in dealing with this point of corroboration, Beaumont C. J. states :

I do not think that I am prepared to go as far as the Calcutta H. C. went in Surendra Nath Das Vs. Emperor, in saying that the corroboration of

the complainant''s evidence in a rape case must be dealt with on the same footing as the corroboration of an accomplice''s evidence.

The subsequent conduct of the complainant in a rape case is the type of corroboration which has no application in the case of an accomplice. It is

of course obvious as pointed out by the Calcutta H. C. in Harendra Prosad Bagchi Vs. Emperor, that a prosecutris in rape cases is not an

accomplice. In Nura and Others Vs. Rex, the facts showed that there was no rape at all. The learned Judge finds that the girl appears to have had

some previous experience of sexual life & the fact that there was no mark of injury in any portion of her body clearly suggested that there had been

no tussle between her & the other person alleged. In fact they seem to hold that no rape has been committed on her.

As against these decisions, the Public Prosecutor reliea on Harendra Prosad Bagchi Vs. Emperor, which has been referred to in the judgment of

Beaumont C. J. in Emperor v. Mahadeo Tatya, A. I. R. 1941 Bom. 121 :43 Cri. L. J. 621 . In the above Calcutta case which is also a decision of

a Bench, Sen J. who delivered the judgment referring to Surendra Nath Das Vs. Emperor, observes as follows :

There the girl was older & used to sexual intercourse before the occurrence. No signs of rape were found on medical examination. On the

contrary, the doctor said that the indications were that no force had been used. The Ct. found that the evidence indicates clearly that she had

consented & that she told untruths in many matters. In such a case a warning to the Jury of the kind referred to by the learned Judge would be

necessary & I agree that the omission to give the jury such a warning on the facts of that case rendered the charge bad. But if the learned Judge

was expressing the view that in every case of rape the Judge must direct the Jury that they should not convict the accused on the testimony of the

prosecutrix unless it was corroborated in material particulars to the same extent as is required in the case of an accomplice evidence, then I would

most respectfully & emphatically dissent from it. The laying down of such a rule would be tantamount to saying that every prosecutrix in a rape

case should be treated as if she were an accomplice so far as her credibility is concerned. Beference was made to certain observations of Judges in

England in regard to this matter. The manners, customs & mode of life of women in this country are very different from those of women in England.

A rule or practice which appropriately may be of general application there would not necessarily have the same utility or application here. If this be

the English rule or practice, I do not think that it is desirable in cases of this description to import it without qualification here. The Indian Law of

evidence nowhere suggests such an inflexible rule, & conditions here do not, in my opinion, warrant the engrafting of such a rule in our system.

In Soosal Bania v. Emperor, A. I. R. 1925 Nag. 74 : 25 Cri. L. J. 1214 which is not referred to in any of the decisions above nor cited by

either side the learned Judge says that where a tender girl was alleged to have been raped, a statement made by her, stating that she was raped &

uttered immediately after the rape, crying & weeping is admissible as explaining her act of crying u/s 8 & by way of corroboration u/s 157,

Evidence Act. When the victim of an offence of rape is an innocent girl of tender age, her evidence will carry great weight. A statement made by

her by way of disclosure immediately after the occasion will strongly corroborate her credibility & go to prove the consistency of her conduct &

also her want of consent.

It is clear from the above decisions that the view of Lort-Williams J. that the evidence of a prosecutrix in a rape case requires corroboration in

the same manner as that of an accomplice though it is shared by Ghosh J. in Emperor Vs. Nur Ahmed, is not shared by Henderson J. who was a

party to the judgment in Surendra Nath Das Vs. Emperor, as is clear from his remarks in Sikandar Mian Vs. Emperor, . At any rate such a view is

dissented from in the later decision of the Calcutta H. C. in Harendra Prosad Bagchi Vs. Emperor, . The view of Sen J. in the above case has been

approved by Beaumont C. J. in Emperor v. Makadeo Tatya A. I. R. 1942 Bom. 121 :43 Cri. L. J. 621 . The Rangoon & Allahabad decisions

specifically do not refer to this aspect.

As stated already no decision of this Ct. or any authority of a binding nature has been cited before me in support of the view that the evidence

of a prosecutrix in a rape case is on the same footing as that of an accomplice. An accomplice is a person who voluntarily participates in the

commission of the crime along with others. In fact, he is as much an offender as the accused in the dock except that he is taken as a witness against

the others. In the ase of a prosecutrix for rape she is a victim of the offence & not an offender. If she is a consenting party it ceases to be an

offence except in the case of those who are below a certain age & in such cases, the falsity is not so common as in the other cases. The case of an

accomplice, therefore, materially differs from that of a prosecutrix for rape and the evidence of both cannot be placed on the same footing. I agree

with the view expressed in Harendra Prosad Bagchi Vs. Emperor, which is approved in Emperor v. Mahadeo Tatya A. I. R. 1942 Bom. 121 : 43

Cri. L. J. 621 . In law, therefore, the evidence of a prosecutrix does not require corroboration like that of an accomplice.

The next question is whether the rule of prudence requires that there should be corroboration. Henderson J. in Sikandar Mian Vs. Emperor,

states that the rule of prudence requires that the evidence of a prosecutrix in a rape case must be in material particulars by independent testimony

connecting the accused with the crime & he further states that the previous statement of the prosecutrix though corroboration u/s 157, Evidence

Act, is not the kind of corroboration sought in such cases. He even states that it is not a rule of prudence but is a rule of folly to depend upon such

former statements as corroborative evidence. There is no doubt that in sexual offences utmost caution & scrutiny of the evidence of the prosecutrix

are necessary before it is acted upon. It will be clear from the decisions which lay down the rule as to the necessity for corroboration the facts are

such that either no offence of rape can be inferred or the accusation against the accused is based on a background of enmity and ill-feeling & the

cases--many of them--were tried with the aid of a jury who returned a verdict of guilty in circumstances in which the Ct. would not find the

accused guilty. It was natural, therefore, that Judges who had to deal with such cases should express themselves strongly in favour of

corroboration. Beaumont C. J. also has expressed himself strongly in favour of corroboration in Emperor v. Mahadeo Tatya A. I. R. 1942 Bom.

121 : 43 Cri. L. J. 621 . There also the facts of the case throw considerable doubt whether rape was committed. The case was tried with the aid

of a jury who found the accused guilty. In my opinion, even the rule of prudence is enunciated on account of the peculiar facts of the case which

normally would not end in a conviction but the jury, however, returned a verdict of guilty. I have yet to see a case where as in the present case, a

young girl of immature years & tender age has been raped & who has made a disclosure of it at the earliest possible opportunity to her mother &

another, the Ct. still insisted upon corroboration by independent testimony connecting the accused with the crime. Each case depends upon its

facts & if after taking all the circumstances into consideration the evidence of the prosecutrix could be believed, then the accused could be

convicted on her evidence alone, although there is no corroboration by independent testimony connecting the accused with the crime. Section

114(b), Evidence Act, says that ""an accomplice is unworthy of credit unless he is corroborated in material particular"". There is no such provision

for a prosecutrix in a rape case. This shows that neither law nor prudence requires such corroboration. As stated already each case depends on its

facts & on the credibility or otherwise of the prosecutrix. If she is proved to be a credible and a satisfactory witness, no corroboration in my

opinion is necessary.

In assessing the value of her evidence her conduct immediately after the offence is committed is of great value. Such a conduct is relevant u/s 8.

The clause itself makes a distinction as to what is relevant u/s 8 & what may be relevant u/s 157. A complaint relating to the crime in circumstances

under which it was made & the terms of it are relevant whereas a mere statement that she was ravished is not relevant u/s 8 though it may be u/s

157 or Section 32(1). The complaint in the section does not mean complaint to Ct. as denned in the Cr. P. C. It means merely an allegation against

a person who has committed the outrage on the prosecutrix. Such a complaint has been held to be admissible even under English law--vide Reg. v.

Lillyman, 1896-2 Q. B. 167 : 65 L. J. M. C. 195. It has been pointed out by Hawkins J. in the above case that not only the fact that the complaint

was made by the prosecutrix shortly after the alleged occurrence but also the particulars of such a complaint may be given in evidence not as being

evidence of the facts complained of but as evidence of the consistency of the conduct of a prosecutrix with the story told by her in the witness box.

In this case, there is the evidence of P. W. 6 who saw her weeping immediately after the occurrence & to whom she told what happened & this

was followed by what she told her mother P. W. 3 as soon as she reached the village. Their evidence shows that her conduct was consistent with

the story given in the witness box. There is, therefore, no reason to disbelieve her story that it was the applt. who committed the outrage on her. I

agree with the learned Ses. J. in the appreciation of her evidence & find the accused guilty of the offence of rape. The conviction is accordingly

confirmed. As regards the sentence, a sentence of five years rigorous imprisonment & the fine imposed by the lower Ct. will meet the ends of

justice. The sentence of imprisonment is, therefore, reduced to five years rigorous imprisonment & the fine is confirmed. The order of the

compensation will stand. With this modification the appeal is dismissed.