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Criminal Appeal No. 216 of 1965, decided on 24th ‑Septem ber 1965.
S. 376‑Rape‑Corroboration of complainant's story ‑Not always essential for sustaining convic tion‑Question to be examined in light of circumstances of each case‑Prosecutrix's own statement honestly made and in accordance with all probabilities‑Court would not refuse to sustain conviction.
Muhammad Abdul Khaliq and others v. The State P L D 1960 S C 325 ; Emperor v. Mahdeo Tatya A I R 1942 Bom. 121 and Rameshwar v. The State of Rajasthan A I R 1952 S C 54 ref.
S. 376‑Rape‑Absence of injuries on private parts of prosecutrix‑Can be explained by fact that she had had intercourse before.
Taylor's Commentary on Medical Jurisprudence, 11th Edn., Vol. II, p. 80 ref.
S. 376‑Absence of sper matozoa in vagina‑No proof that connection had not taken place.
Taylor's Commentary on Medical Jurisprudence, 11th Edn., Vol. II, p. 82 ref.
A. K. Brohi and Tufail Ali A. Rehman for Appellant.
M. Haleem, A. A.‑G. assisted by Usman Ghani for the State.
Dates of hearing : 7th and 8th September 1965.
The appellant Saleh Muhammad, aged 31 years an S. D. O. in the Public Works Department, has appealed against his conviction by the Additional District Magistrate, Sukkur empowered under section 30, Cr. P. C. of offences under sections 366 and 376, P. P. C. On the former count he has been sentenced to undergo 3 years rigorous imprison ment and to a fine of Rs. 1,000 in default R. I. for one year. Under section 376 he has been sentenced to 5 years rigorous imprisonment and a fine of Rs. 2,000 and in default 18 months further R. I. The sentences of imprisonment have been ordered to run consecutively.
2. The complainant in this case is a foreign girl aged 24 years named Miss Tabias Catherine, a national of Luxumberg. She had come to Pakistan as a tourist. Before she left her country she was studying in the Institute of Languages in Switzerland and was partly helped by her parents and partly by Government Scholarship. She had also undergone training in journalism and was contributing to a German and a Luxumberg paper. She was interested in world tour and on this particular trip she started from Luxumberg in September 1964 and first went to Naples in Italy by ship and from there to Alexandria. After spending a few days in Egypt she went to Beirut by ship and from Beirut to Syria and then to Jordan, Iraq and Kuwait. She spent 8 weeks in her travels from Beriut to Kuwait. All this she did through hitch hiking, by which it is meant that the tourist seeks lift on the road side from persons travelling in a motor vehicle. From Kuwait she flew to Dubai (a port in the Persian Gulf) by air and from Dubai she flew to Karachi where she reached on 12th May 1965. Here she stayed for four days and then proceeded to Thatta, a place of historical importance and then to Mohenjodaro. She stayed at Larkana for 7 days and then came by train to Rohri. She had intended to travel from there by the main road to Lahore and this she had hoped to do by hitch hiking. She reached Rohri Railway Station on the 24th of May at about 3 p.m. and then sought the main road by which she had hoped to travel towards Lahore. She had a suit‑case in her hand and a bag which is popularly described as haversack. After waiting for about 10 minutes by the roadside she saw a jeep on the road and enquired from the people in it whether they were going towards Lahore side. There were three persons in the jeep, namely the accused Saleh Muhammad, an overseer Nazar Muhammad (P. W. 3) and the driver Abdul Aziz who is a co accused in this case but who is absconding. The girl requested for a lift and was told that the party was going towards Lahore side on the main road up to about 20 miles. It may be mentioned here that the accused Saleh Muhammad, An S. D. Q. in the P. W. D. was employed in the canal department at that time and stayed in a house at Panoakil about 20 miles from Rohri. The accused with whom the girl mostly talked agreed to give her a lift and she told him to take her as far as he was on the main road. She sat in the front seat on which were sitting all the three persons but one of them, namely, Nazar Muhammad had vacated his seat at the edge of the door and gone to the rear seat. In the course of journey accused Saleh Muhammad told her that if she stayed the night at the village he would be able to give her lift for another 100 miles towards Lahore. She asked him whether there was a rest house and getting a reply in the affirmative she agreed. The jeep reached Panoakil about 4 p.m. and from there was taken into a garden. There were two houses in the garden and one of them was said to be the rest house but the accused took the girl to the other bungalow which he said was his residential house saying that he would give her a drink. Having reached there the accused asked her whether she would like to have some beer or whisky and the girl replied that she liked beer. Both of them then had been and in the meantime 'the overseer took leave and went away. He did not have any beer. It is the case of the prosecution and which has been deposed to by the complainant in her elaborate statement that after a little while the accused went out of the room and when he re‑entered he caught hold of her arms and asked for a kiss which she refused. When he insisted there was, according to the girl, a "small fight", she then called out to the driver to help her but he instead of doing that closed the door and the windows of the room. Then, both of them fell her down on the ground on the woollen carpet. Saleh Muhammad and the driver forcibly removed her clothes which consisted of a trouser and underwear and blouze. They pushed her to lie down and the accused Saleh Muhammad removed his pant and told her that there was no use shouting because nobody would hear her and then he attempted to have a forcible sexual intercourse with her which she resisted. Saleh Muhammad did not succeed in his attempt because of the resistence and struggle and then the driver intervened. He slapped her and he also then attempted to rape her. He also pointed out to a flower vase on the table indicating thereby that it could be used to silence her. Saleh Muhammad then told her that if she did not agree they would not leave her for the whole night and they would kill her. She, however, went on resisting and told them that it was cruel that two men should have intercourse at the same time. Saleh Muhammad then thrice attempted in the act and in this a part of his private part entered the person of the girl but she succeeded in pushing off. He then asked the driver to bring a bottle of cream which was lying on the table and this he applied in the private part of the girl and was then able to effect penetration. The girl begged him then on the Holy Quran and Muhammad to promise to leave her after. having intercourse and not to trouble her then any more and that the driver should not touch her. She then gave up the fight and Saleh Muhammad had intercourse with her and the girl thought that he discharged inside. The accused then asked her to go to the bath room and wash. She was, however, feeling faint and had to be helped to the bath room by the accused and also the driver. She was crying and weeping at that time. In the bath room she poured water on herself but was careful to avoid the private parts. Before entering the bath room she had asked for her bag upon which the accused enquired whether she needed it to take out her knife but she replied that she wanted her bag. This was brought to her and when she opened it in the bath room she found that the knife was missing. She then took out her purse containing money and passport, etc. and after the bath put on her clothes and then attempted to climb out of the bath room as the walls were not very high. She used the bucket in climbing over the wall which was about 11 feet high than her stature. This caused some noise on which Saleh Muhammad and the driver both came running. It appears that by this time she was out of the bath room and was in the open. When she was intercepted she shouted to them saying "let me go, let me go". Saleh Muhammad then asked her to come inside the house but she refused. She was given a glass of water and when asked again to stay for the night in the house she relied that she would not enter it again. She then asked them to leave her on the main road to enable her to go to Lahore. Saleh Muhammad then asked the driver to bring the jeep and enquired from her if she wanted any money, but she replied that .she did not want any. After a few minutes the driver came with the jeep and there was another servant named Abdullah in it. This Abdullah has also been shown as an absconding accused. Abdullah put her baggage in the jeep and then they asked her, to sit in between the driver and Abdullah. The girl, however insisted on Abdullah not sitting by her, and so he took the rear seat. Saleh Muhammad told her that the driver would leave her at 20 miles away on the road from Panoakil. The girl did not trust these persons and as soon as she came to the main road she tried to jump out of the jeep. At that time the driver caught hold of her arms and it was then that the jeep automati cally slowed down upon which she succeeded in jumping down from the jeep. This happened at a point which was a few yards away from a Caltex petrol pump of Panoakil. There was also a tea shop a few yards away from there. When she got down the servant took out her luggage and kept it on the ground and ran away with the jeep. She straight approached the man in charge of the petrol pump named Ata Mohammad (P. W. 7) and enquired of him whether there was any telephone and getting a reply in the negative she asked for a police station and was informed that there was one. In the meantime, a taxi driver from the cafe came there and asked her as to why she was weeping and what had happened. She asked for the police station and he told her that he would take her there. She was then served with a cup of tea by an old man in the tea shop and a tonga was brought and in it she was taken to the police station Panoakil by the taxi driver Abdul Karim P. W. 4. At the police station there were three constables and Abdul Karim told them of what he had seen: Her luggage which had been left at the petrol pump was then brought by Abdul Karim at the instance of the policeman there. These constables did not know English and it was little later that A. S. I. Muslim, P. W. 12, came there and enquired from her as to what had happened. She narrated the whole story but he did not take down her statement whereupon the girl wrote out the whole thing but then Muslim told her that it would be better to go to the Chief of Police who was at Ghotki. She agreed and Muslim then took her to Ghotki. This was between 9 and 10 p.m. It may be added that she had reached the police station at about 7 p.m. At Ghotki Muslim took her to a house but later he informed her that the officer was not there. They then returned to Panoakil. It was then that Muslim wrote down her statement and then started transcribing the report in the police register. By this time it was past midnight and the girl was too tired and said that let the transcribing be done in the morning as she wanted to rest. Muslim then took her to the railway station where she might stay during the night but perhaps for want of space he brought her back to his house where his family members also resided. She passed the remaining part of the night in Muslim's house and next morning at about 6 Muslim came to her and asked her to change her statement which she had given in the night because the accused party was putting great pressure on him. He also told her that they were sorry for what had happened and that she should not make a case against the accused and that they were prepared to pay her money. Upon this the girl replied: "Look: Muslim, I will not do what you say and I will not change ‑the statement. I will go to Sukkur and will complain against him." According to the girl it was then that Muslim wrote down the report in the register. This is the F. I. R. in the case and is Exh. I‑A. The girl had asked Muslim during the night to send her to some lady doctor but had been told that it was too late and that she would be sent in the morning. She was sent to the lady doctor at Panoakil at about 1‑30 p.m. and was examined by her. On the following day, that is the 26th, Muslim secured from the girl her trousers and the underwear. In the evening the D. S. P. and the Sub‑Inspector came and the Sub Inspector said that he will investigate the case. She was taken to the scene of offence where she showed the bath room; the carpet and the articles lying in the room. The accused was not there and the girl identified the accused Saleh Muhammad and the driver from a photograph which was hung on the wall. There were two photographs and in one of them there was only the accused and in the other there were both the accused and the driver. She also took the police to the petrol pump where she had jumped down from the jeep and also to the cafe where she was recognised by the people. She was also examined by the Civil Surgeon and took part in an identification test where she correctly identified the accused, who had been arrested on the 28th.
3. On the morning of 25th the lady doctor Miss S. M. Memon received a letter from the A. S. I. Muslim of Pano akil in which she was asked to examine the complainant Miss Catherine. This letter is Exh. 2‑A. The lady doctor deposed that when she received this letter the woman whom she had to examine was not sent to her and that she was sent to her at about 1‑30 p.m. Thereupon, she examined her and found the following injuries on her person:
"(1) Lineared transverse buise " x " on the right upper eye lid.
(2) Circular abrasion " in diameter on the back of right hand.
(3) Large irregular bruise almost filling the back of, the trunk."
She then examined her genitals and her evidence on that point may be reproduced:‑
"(a) No bruising, laceration or any other marks of violence present on the external genitals.
(b) old lacerations of the hymen present.
(c) vaginal canal spacious, admitting three fingers freely without tenderness.
(d) History of last day of menses‑as also evident from the blood present in the vaginal canal.
(e) Vaginal swab taken and sent to the Chemical Analyser, Karachi for examination."
In the opinion of the lady doctor the first injury had been caused by striking and the second by finger nails. The third injury could be the result of rubbing on a hard surface which could be a woollen carpet. She stated in her evidence that the girl was accustomed to intercourse before the incident. Asked whether she could say if intercourse had taken place or not she said she was not in a position to say so. Further asked she added that in the ordinary course semen should have been detected even though there was bleeding due to mestruation, particularly when it was the last day when she had examined her. She produced the report of the chemical examiner on the vaginal swabs which had been sent to her and the result was in the negative, that is no semen had been detected. The Civil Surgeon Dr. Ahmad Hasan P. W. 15 who had examined the girl on the 5th day of the occurrence, deposed that he had perused the certificate of the lady doctor of Panoakil and found the injury marks which were mentioned in her report. He gave his opinion that there were little chances about the detection of semen by a vaginal swab taken even during the last days of menstruation and if the swab had been taken about 20 hours after the act of intercourse. His reasons for this opinion were that ordinarily the sperms can survive for 2 to 3 days in the vaginal or utrine canal but during the course of menstruation the secretions of these canals are such that they are repellant to the survival of the sperms in these canals for a long time. With regard to the injury No. 2 (c), that is on the back, he stated that these practically covered the whole back of the trunk and could have been caused by pulling of dragging on a rough object such as a rough carpet. In cross examination he stated that the normal life period of sperms during menses is not more than 12 hours and it does not make any difference whether the menses are in the early stage or the last days.
4. In addition to the complainant Miss Catherine and the two doctors, the prosecution examined a large number of other witnesses amongst whom some may be mentioned. These are Nazar Muhammad, the Overseer P. W. 3 who stated that the girl had asked for a lift as deposed to by her and she was taken on in the jeep and brought up to Panoakil where she was taken to the garden residence of the accused where she had been served with beer. Abdul Karim, P. W. 4, the taxi driver, fully supported the story of the complainant and stated that a jeep came from Panoakil town side and stopped near the petrol pump and from which the complainant got down and a man from the jeep put the luggage on the road. He was standing at the hotel and he saw the girl going to the Petrol Pump and talking to the Pump walla. She was weeping and striking leer Bands against her forehead. He went there and she told them that she wanted to go to the police station whereupon a tonga was brought and she was taken to the police station and he had told the Jamadar that the girl was complaining about something and which he could not say what, because he did not understand English. The petrol pump Munshi, Ata Muhammad P. W. 7 stated that he was offering evening prayers and when he completed it he saw European lady (complainant) at the petrol pump and site enquired. from him about telephone and when he answered her in the negative she enquired about police station and he told her that there was the Panoakil police station. He also stated that the taxi driver, meaning thereby Abdul Karim, took her to the police station in a tonga. The remaining evidence is that of the police officers about the investigation, the Mashirs about the seizure of the clothes, the site inspection and the seizure of the carpet, the empty bottle of beer, the photographs, the jeep of the accused seized at Sukkur and the arrest of the accused on spy information on 28th May. The case of the prosecution is that the accused was absconding until he was arrested in a house at Sukkur on information being received to that effect.
5. When the accused was examined under section 342, Cr. P. C. he only made a short answer orally at the end of which he produced a written statement, Exh. 18. In this oral statement this is what he said:‑--
"I am innocent. The case is false. In spite of our consent I did net have sexual intercourse because she was in menses on that day. I had not induced her to go in my jeep to my house but I agreed to give her lift as requested by her. My driver had not entered the room where I and the complainant were sitting. I produce my statement in writing, Exh. 18."
Asked as to why the witnesses were deposing against him he replied that he had already given his written statement. Ques tioned further he said that he had nothing more to say. This written statement is an elaborate document and since this consti tutes the whole defence of the accused it would be useful to reproduce it in extenso:---
"I am innocent. The complainant met me on the main road near Rohri Railway Station and requested me to give her lift in my jeep for some distance. I agreed to do so and had a talk with her for a few minutes. She became immediately familiar with me and I also took some liberty with her and then we got into the jeep. On the way we were talking in English and taking liberties with each other. I touched her thighs several times and hugged her and she responded with a smile, when we reached the bungalow I offered her beer which she accepted and herself opened a bottle and even offered a. glass of beer to the prosecution witnesses Nazar Muhammad. I however, suggested to Nazar Muhammad that he should better leave. When Nazar Muhammad left I took the complainant in my embrace and kissed her. She did not resent and told me that she needed money. I expressed my willingness to pay her any amount she wanted provided she agreed to satisfy me. She, however, said that she was prepared to stay with me for the night and satisfy me provided I paid her Rs. two hundred and fifty. As there was no bed in the room where we were sitting I, while making love to her, dragged her down on the carpet and undressed her. The love making was quite rough. We passionately embraced each other and reclined on the carpet for a long, time. Sometimes I. was lying on her some times she was lying on me. During this time the complainant unbuttoned my shirt and pant. I found that she had taken out some thing from her vaginal part and was trying to throw it off but when I enquired about it, she became evasive. I however, noticed that she was holding a piece of blood‑stained cotton. I also noted some wetness and bloodstains on her private part, which convinced rte that she was having menses at that time. I felt repulsion, and told her that it was no good having an intercourse during mestruation. She then went to the bath room and put on her clothes. Then she demanded money but I told her that there was no question of payment when the actual indulgence was not possible. She was enraged and became quite fussy about the payment. I, therefore, gave her a hundred‑rupee note which in the first instance she threw away but ultimately picked it up. Since she was not prepared to stay any more and I too was not interested in keeping her for the night, I accepted her suggestion that she may be left on the main road in my jeep. I myself lifted her luggage and having put it in the jeep, instructed the driver to leave her at any place she desired. I shook hands with her and bade her good‑bye. Besides the driver, my servant Abdullah accompanied her, I do not know what happened later on. I learnt after about three quarters of an hour that the jeep has returned. After about three hours Mr. Muslim A. S. I sent word to me through someone that woman wanted money and if I paid well and good otherwise a big case will be made against me. I have not committed any offence. I attended a meeting of P. W. D. officers at Ghotki on the next day.
The injuries on the back and the hand of the complainant might been caused when we were making love on the carpet and rolling thereon. As far as I recollect the complain ant had hit against the projection from wind screen, when she was getting into the jeep for the first time near the railway station and had immediately re‑acted to the blow by keeping her hand on the eye and hall cried in pain. When I had enquired about it she had asked me not to worry and had then kept kerchief over the eye for few minutes. I believe that the injury on her eye is attributable to this mishap.
I had not absconded. On 24‑5‑65 I was present in my house and on 25‑5‑65 also I was present and attended meeting of P. W. D. Officers at Ghotki. On 26‑5‑65 I sent an application for leave for three days as I had to attend funeral ceremony of my maternal‑uncle at my village and all the time I was at my village. On 28‑5‑65 my jeep was not in order, I left my jeep in the garage of Tasaduq Hussain at Sukkur for repairs. After this I heard the D. S. P. Ghotki had inquired about me and therefore I went directly to D. S. P. at Ghotki where I was arrested."
The accused led no defence evidence.
6. The learned Magistrate, however, believed the evidence of the girl by whose demeanour, he was greatly impressed. He found corroboration in the presence of injury on the person of the girl, her conduct which she exhibited as soon as she was free, her approaching the police without any loss of time, the lack of any possible motive on her part to falsely implicate the accused and other similar circumstances. He also relied upon the circumstance that the accused had absconded. He rejected the version of the accused which in effect he found to be worthless and improbable.
7. I have heard Mr. Brohi for the appellant at some length. He has strongly commented upon the absence of injury of the kind which would be crucial, the non‑discovery of sperms either upon the person of the complainant or in the swab which had been taken by the lady doctor or on the carpet or any other article. He strongly urged that the medical examination of the complainant was deliberately delayed so that the absence of semen or sperms could be later on plausibly explained by the prosecu tion. He also complained against the non‑production of the accused before any doctor for examination even though he had been arrested on the 5th day of the incident. He further sub mitted that the story given by the appellant was a plausible one and thus it reacted against the whole prosecution case and made it doubtful. Lastly, it was urged that the sending away of the girl by the accused on his jeep with the driver was not consistent with his guilt. He referred to two cases; firstly, the judgment of the Supreme Court in the case of Muhammad Abdul Khaliq and others v. The State (P L D 1960 S C 325) and secondly to a judgment of the Bombay High Court in the case of Emperor v. Mahdeo Tatya (A I R 1942 Bom. 121) and argued that there was no corroboration to the story of the complainant such as is required in a case of this kind.
8. A great deal in this case depends upon the evidence of the complainant and I have, therefore, very carefully examined it in the light of the circumstances on the record to satisfy myself whether she has honestly told her story in its material particulars and whether the version of the incident that she has given is rendered doubtful or improbable by the existence of any circum stance or having regard to the natural course of events. 'I have also examined her story in juxtaposition to the version given by the accused to see whether I could reasonably reach a conclusion that the latter version could be held to be true or that it in any appreciable measure rendered the story of the complainant such which it might not be safe to accept in order to base the conviction on it.
9. There are certain facts and circumstances in this case which are not in dispute. These are:‑(1) That the complainant was waiting on the roadside at Rohri and asked for a lift in the jeep of the accused to take her as far as he could on the road to Lahore and that such a lift was given; (2) that the accused took the complainant up to Panoakil and from there to his place in the garden where they reached at about 4 p.m (3) that the accused wanted to have sexual intercourse with the complainant; (4) that the complainant was to resume her journey to Lahore the next morning; (5) that the complainant left the house of the accused at about 7 p.m. and came in the jeep to the main road and then came down from it and immediately approached the petrol pump in‑charge asking for a telephone and failing that the location of the police station; (6) that she promptly complained to the police A. S. I. that she had been raped; (7) that three injuries were found on her person and one of them consisting of bruises covered the, whole of her trunk at the back and (8) that the. complainant was absolutely alone and a stranger and had no friends or acquaintance in the place. Let us in the light of these facts examine the story of the complainant keeping in view what the accused (by which is meant the appellant) has stated to be his version of the case.
10. The complainant is a young lady who is fond of foreign travel and of seeing places of historical importance, has a background of good education and is trained in journalism and works as such. Earlier in this judgment I have recorded her full story and it is not necessary to repeat it. Her mode of travel and seeing the world is to do so at as little expense as possible. Thus she does by which hiking. This mode of travel is known to have become quite popular at least on the continent from where the complainant hails. Having come to Pakistan she went to see Thatta which has quite a few specimens of old architecture and then proceeded to Mohenjodaro. to which place most of the foreign tourists go. When this incident happened she was on her way to Lahore and had then hoped from there to go to India presumably by road. Having got the lift from the accused on the jeep and having been promised to be taken as far as 20 miles, it is her case that the accused promised to take her another 100 miles on the next day and so she agreed to stay the night in a rest house. She was then taken by the accused to his house because he had offered her drinks and they partook of beer. Now, as against this, let us see what the accused has to say as to this part of the case. He admits that the complainant met her on the road and asked for a lift in his jeep for some distance. He agreed and then he goes on to say that she immediately became familiar with him and he also took some liberty with her and when they got into the jeep. On the jeep they took liberty with each other and he touched her things several times and hugged her and she responded with a smile and when they reached the' bungalow he offered her beer which she accepted. At that point Nazar Muhammad was asked by him to leave. I find this story of the girl becoming immediately free with him to enable him to take such liberty with her, as he alleges, to be extremely' unnatural and unworthy of credit. From what the accused says it would appear as if the complainant was on the look out to find a man with whom she could immediately start having good time. If that was her object it would not have been necessary for her to wait on the road with her suit‑case and haversack and seek a lift for her onward journey to Lahore. The conduct imputed by the accused to the complainant is such as to make her appear as a professional street‑walker seeking for a customer. This roll by, no means fits the complainant. This story of the accused is also falsified by the evidence of Nazar Muhammad who was his own overseer and would have therefore been quite willing to tell the truth to support him. As to what happened at the bungalow has been graphically stated by the complainant which has been set out in the earlier part of the judgment. Her story is that when the complainant made advances to her she resisted it and called for help but when the driver came he bolted the door and the windows and then the two of them fell her down and the accused attempted forcible intercourge and that she resisted for almost two hours and it was only in the end, finding herself to be helpless and exhausted, that she begged of him to . let her go after he had satisfied his lust and that the servant shall not touch her. However, the accused says that after Nazar Muhammad left he took the complainant in his embrace and kissed her and instead of resenting she asked for money and he told her that he would pay her any amount provided she agreed to satisfy him, and she replied that she was prepared to stay the night for that purpose and that he should pay her Rs. 250. This again is a story which I am unable to accept. If the complainant had been wanting money by selling her body she would not have to go to Panoakil. She would have found it far easier and lucrative to do this trade at Karachi where she was for four days. She was very closely cross‑examined by Mr. Tufailali in the trial Court as to her resources in comparison to her expense on the travel which she had so far done and how much was left with her. Nothing 'came out in this cross examination to show that she was living either affluently or was spending in a manner as to suggest that she had earned during her sojourn in, Pakistan. On the contrary, it became clear that she was living a most frugal life and saving as much as she could upon her travel and other needs. Such a person would not ask for money from a complete stranger by submitting herself to sexual intercourse. The conduct imputed to her does not fit in with her background, her education and cultural interest.
11. The accused then attempted to give some kind of explanation of the injury on the person of the complainant and on this point he stated that "as there was no bed in the room he, while making love to her, dragged her down on the carpet and undressed her. The love‑making was quite rough. We passionately embraced each other and rolled on the carpet for a long time. Sometimes I was lying on her and sometimes she was lying on me." I do not see why it should have been necessary for the accused to drag the complainant from the chair if she was herself anxious to be made love to. I also find this story of rolling over the carpet with one party getting on the top of the other by turn as a pure fabrication, and I am also definitely of the opinion that this does not explain the substantial injury on the back of the girl which, according to the doctor, had covered the whole of the trunk. This injury clearly fits in with the story o f the girl that she was made to lie forcibly on the carpet and Was resisting the violent attempt of the accused and his driver to have forcible intercourse with her. Then we come to that part of the accused's case where he gives his reason for not having sexual intercourse with the complainant in spite of all the love‑making and rolling over. He stated that "during this time the complainant unbuttoned my shirt and pant. I found that she had taken out some thing from her vaginal part and was trying. to throw it off, but when I enquired about it, she became evasive. I, however, noticed that she was holding a piece of blood‑stained cotton; I also noted some wetness and bloodstains on her private part, which convinced me that she was having menses at that time. I felt repulsion, and told her that it was no good having an intercourse during menstruation. She then went to the bath room and put on her clothes. Then she demanded money but I told her that there was no question of payment 'when the actual indulgence was not possible. She was enraged and became quite fussy about the payment. I, therefore, gave her a hundred‑rupee note which in the first instance she threw away but ultimately picked it up. Since she was not prepared to stay any more and I too was not interested in keeping her for the night, I accepted her suggestion that she may be left on the main road in my jeep". I again find this story to be wholly unnatural. If the accused had gone so far with the girl, as he says, he had and having reached that pitch his story that he suddenly recoiled because he found her to be in menses, sounds very thin. The fact that the girl was in menses would be greater reason for her to refuse sexual intercourse and according to her she resisted it with all her strength, and for so long until she was completely exhausted. It seems to me that this part of the story of the accused consists of an attempt to explain why the complainant got annoyed and went to make a report to the police. I agree with the learned Magistrate that if the complain ant had wanted to hide the fact that she was in menses she could have easily gone into the adjoining bath room and thrown away the package without the knowledge of the accused. I am also unable to see how the complainant would have insisted for payment of money in the circumstances alleged by the accused that he had declined to have intercourse with her. I also do not see why the accused should have paid her hundred rupees which he says he did. I am also unable to find any cogent reason why at that hour when it was about sunset time the complainant should have left the shelter which she could have conveniently used for the night. Why did she take the risk of being left alone on the road at that hour Having received Rs. 100 and the accused having told her that he did not want to have intercourse with her, the natural thing for her to do would have been to stay the night in the bungalow and leave the next morning. I believe the story of the complainant that it was she who was able to get out of the house and refused to enter it again and insisted on leaving. The accused may well have thought that considering her situation she would make no further trouble and, therefore, he let her go. We do not, know what instructions he had given to his driver. It has not been explained as to why it was necessary to. send a servant (Abdullah) along and why was it attempted that the girl should sit between Abdullah and the driver. The learned Magistrate has thought that the accused might have other heinous design. In any case, it seems to me quite natural that after what had happened the accused would want the complainant to be as far away from his bungalow as possible.
12. For the incidents which happened after Nazar Muhammad had left and the complainant was brought to the road we have her story as against the version given by the accused. That version I have no hesitation in rejecting as being most unnatural if not absurd. The story of the girl on the other hand is honest, straightforward and natural. She showed a great deal of courage and the will to resist until she was overpowered by two persons and was completely exhausted. I have no doubt that she was raped by the appellant. The injuries on her person, particularly the one which covered the whole of her trunk, strongly support her story and their existence is inconsistent with consent. The absence of injuries on the private parts in this case can easily be explained by the fact that the complainant had had intercourse before. (Taylor, IInd Volume, page 80, 11th edition) As to what happened after the complainant had been brought to the road there is not only her word alone. There is the evidence of Abdul Karim. There is also the evidence of Ata Muhammad. I believe the evidence of the complainant that it was she who succeeded in getting down from the jeep and that this was in spite of the efforts of the driver and the servant. I cannot believe that these persons who were acting on the instructions of the appellant would have themselves left her at a place so near from the scene of the offence and where because of the petrol pump and the tea‑shop there would be a number of people. It may be noted that the distance between this spot and the bungalow was not very far. From the moment that the complainant became free her conduct is extremely significant and in my opinion it is inconsistent with the story of her either agreeing to the act of intercourse or leaving the place because the accused had declined to participate in it as he says. The petrol pump man Ata Muhammad says that he was offering prayer and so he did not see how she got down but he admits that the very first thing that she asked him was about the telephone and he replied in the negative she asked for the police station. The question is why was she asking for the police station Why was she so anxious to go and make a report Was it merely because she wanted another Rs. 150 of the alleged bargain in which she had not even fulfilled her part The suggestion is absurd on the face of it. The story of the complainant is then further supported by the evidence of Abdul Karim, the taxi driver. The complainant was a complete stranger to him. He had no reason to tell a lie against the accused but he has given the circumstances how the girl got down from the jeep and how she was weeping and expressed her anguish and wanted to be taken to the police station straightway. There was no cross‑examination of Abdul Karim at all and there is no reason why his evidence, which fully supports the version of the complainant, should not be accepted.
13. What happened at the Police Station and the course which the investigation took was the subject of considerable comment by Mr. Brohi. His contention was that the report had been lodged as it appears to have been lodged at 7‑0 p.m. and the story of the girl that it was put off in one way or .the other is not true and that all this story has been engineered merely to explain the delay which took place in the medical examination by the lady doctor of the complainant. This, according to Mr. Brohi, was purposely delayed by the complainant so as to explain the absence of sperms which, according to him, the girl knew would not be found on her examination I shall deal with the medical evidence later but I am satisfied that the report of the complainant was not recorded at 7 p.m. as it is made out. I see no reason why the complainant should be hesitant to make a report when she had rushed to the police station as soon as she became free agent, Having carefully examined the evidence of the A. S. I. Muslim and other circumstances the impression that I have got is that Muslim was trying to hush up the matter if it could be done. The accused was not living far from the Police Station. He was known to Muslim and he may have hoped to avoid the scandal considering that a European lady tourist was involved and that if sometime was allowed to pass the complainant might be persuaded not to pursue the matter any further. Indeed, from the cross‑examination of the complain ant and also from the written statement of the accused it would appear that until 10 p.m effort was being made by Muslim to get the accused to shell out money otherwise he would get into serious trouble. In my own mind, I have no doubt that if the complain ant could be, purchased of, the accused would have been too willing to do so. The fact is that the girl was adamant on having the wrong‑doers punished. She has stated and I believe her statement that even in the morning Muslim told her that great pressure was being brought on him by the accused party that they were sorry for what had happened and that she should change her statement. This, she firmly declined to do and said that, if he did not take down the report and take action she would go to Sukkur and make a complaint, and it was only there that her statement was recorded. This version of the comp lainant as against the version of the A. S. I. Muslim finds support from a significant circumstance. Muslim has stated that he has. given the complainant a letter addressed to the lady doctor for her examination the same night, that is on the 24th of May, but she said she was too tired to go to the lady doctor. However, we find from the evidence of the lady doctor that she receives: the letter, Exh. 2A, from the S. H. O. Panoakil at 8 a.m. on the 25th but the woman, whom she was to examine, was not sent along with that letter. This letter, Exh. 2A, bears, the date of 24th May 1965. The complainant, however, was not sent to the doctor until 1‑30 p.m on 25th May. In dating the letter, as 24th and sending it to the way doctor on the morning of 25th without the complainant with is Muslim was only trying to cover up his own failure in not 1‑akiiug acted in the matter promptly I find the suggestion of Mr. Brohi as too far‑fetched that the complainant herself was delaying to go to the lady doctor because she was hoping by that means to explain the absence of sperms in her vaginal swab. We would have to credit her with a lot of knowledge of medico legal jurisprudence if we were to hold that she knew that if she went to the lady doctor after the lapse of 20 hours she could hereby explain the absence of sperms, I am, therefore, satisfied that the complainant Herself was not responsible for any delay that took place in her examination by the lady doctor or in the recording of the report or in the further progress of the investigation. I find it hard to believe that if Muslim had recorded the report at 7 p.m. and done most of the investi gation the same night and visited the scene of occurrence and made the seizure of various articles he would have not met the accused or taken steps to have him apprehended or at least questioned. His story that he had attempted to secure the accused and had gone to Sukkur on this account has been rightly disbelieved by the learned Magistrate because he was not able to support this story by the police diary. I need not pursue the course of investigation or what has been said about it because nothing of importance has come out of it. What is important to note is that the complainant gave her story to Muslim which the latter admits as soon as she met him at the police station. It is this story which has been recorded in the F. I. R. It is plain that it is in the language of the complainant and this report contains a full statement of the complainant's case of all that had happened and the way it had happened. It is in complete accord with the evidence which she gave in. Court. I do not believe that the complainant, situated as she was alone and friendless, would spin out a long story of falsehood in order to implicate the accused and his driver into the offence and that too merely, because she had not received full payment. I am inclined to think that if what the complainant says had not happened she would be too anxious to continue her journey to Lahore and not interrupt her whole tour and programme by starting a police case which she must have known would take considerable time before it was decided in a Court of Law.
14. Coming to the medical evidence reliance was placed by Mr. Brohi upon the statement of the lady doctor wherein she said that semen should have been detected even though there was bleeding due to menstruation, particularly when it was the last day when she examined her. This evidence is at variance with the evidence of the Civil Surgeon who stated that the chances of detecting semen by a vaginal swab were very little during menstruation even if it was in its last days and if the swab had been taken after 20 hours of the alleged act. He has given his reasons for this opinion which has been reproduced earlier in the judgment. He has stated that during the course of menstruation the secretions are such that they are repellant to the survival of the sperms. His opinion finds support from Taylor's Commentary on Medical Jurisprudence, 11th Edition, Volume II at page 82. The heading of the para. is "Evidence from the presence of an Emission". This is what the learned author says
"The presence of spermatozoa in the vagina is conclusive proof of connection, but not of rape their absence is no proof that connection has not taken place, for they may have been removed by washing or by discharges."
The complainant in her evidence has stated that she thought that the appellant had discharged. 24th was her last but one day of her menses. The absence of sperms in the vaginal passage may, therefore, be explained by the fact that she was menstruating. I have carefully considered this feature in the light of all the circum stances of the case, the evidence of the complainant, the finding of the injury on her back, and I am satisfied that the non‑discovery of the sperms in the vaginal passage or the absence of its discovery on the carpet does not disprove the version of the complainant as to the act of forcible intercourse. I am convinced that considering that the accused had got this woman into his house in a lonely place and had given her beer and drunk it himself, and having attempted the intercourse he would not have let her go until he had done the act. The time factor in this respect is extremely important. She reached the bungalow at 4 p.m. and it was not until about 7‑0 that she was released. It seems to me that if the act had not been done to her forcibly she would not have been so anxious to have the accused prosecuted for rape. To admit‑ rape and full sexual intercourse would be a matter of shame for an unmarried girl, and if this had not really happened, I am sure, the complainant would not have insisted on saying so and would have been quite content to state that a forcible attempt to rape had be n made and that she had been able to repulse it. I am also not able to see why the complainant would have also involved the driver as well unless what she says had in fact happened. He had made no bargain with her and had not gone back on any, which is the motive suggested by the appellant for what he alleges is a false allegation against him.
15. It was argued that the girl was not of a good moral character and had experience of sexual intercourse, on her own admission, at least with her fiance before her marriage. Reference was also made to the fact that she had stayed for a week at Larkana in a house of one Shafi Muhammad Shah, a young man who was living alone in his house. This it was suggested must have been for an immoral purpose. This argument would have been effective if this was the case of an unsophisticated girl. But here we are dealing with a German girl who was on a world tour and who was quite mature and had seen a lot of the world and lived a rough and adventurous life. For such a person to be in the company of a man does not necessarily suggest an immoral purpose. It is known that a large number of girls on the continent travel by hitch hiking, spend their night in youth hostels and move in the company of young man as a matter of normal way of life. I am convinced that if a person such as the complainant had agreed to an act of intercourse she would not have made such a fuss about it or, started a police case. Such a story as given by the accused apart from its many absurdities does not fit in with the kind of person as the complainant.
16. As to the argument that there was no corroboration in this case one has to bear in mind circumstances of this case. As to what happened in the bungalow in the garden, there could have been no other evidence. The driver and the other servant are absconding and even if they had been found they would not have gone against their own master. But the conduct of the complainant as soon as she became free and the evidence of injury on her person provides strong circumstantial evidence which corroborates the story of the complainant. The question of corroboration must be examined in. the light of the circumstances of each case. It becomes all the more necessary if the evidence of the prosecutrix itself shows some infirmities or is found to be improbable in certain respects. The observation of Cornelius, C. J. made in the case cited above may be usefully reproduced:
"However that may be, on principle, in a case of this kind where the evidence and condition of the prosecutrix form the only evidence which the Court has to go upon, it is necessary in order to sustain a conviction, that it should at least be found that the woman's statement is in accordance with all the probabilities and has all the appearances of having been honestly made. That cannot be said concerning the evidence of Amena Khatoon in this case, and we consider that to maintain the conviction upon her evidence which is unnatural in some respects and dubious in others will not be consistent with the safe dispensation of justice in cases of this kind."
If I may say so with respect this ‑is the right approach in the matter. In a case of this kind after taking into consideration all the circumstances if the conclusion is reached that the woman's statement has been honestly made and is in accordance with all probabilities, then the Court would not refuse to sustain the conviction of the accused on the ground that there should have been some corroboration. In the present case I have pointed to the various circumstances which leave no doubt as to the truthfulness of the story of the complainant and render it safe to accept her evidence in all material parts for the purposes of basing the conviction for the, offence of rape.
17. In the Bombay case in which it was held that the evidence of the complainant must be corroborated, it was recognised that the nature of corroboration must necessarily depend on the facts of each particular case. In that case, it was found as a fact that the woman had, on leaving the room of the accused, made no complaint. She had not done so in the first instance even when she went to the police. She had admitted that if she had not been subsequently robbed she would not have made a complaint. That really is the crux of the matter. It is the story of the woman herself examined in the light of all the surrounding circumstances which has to be tested. In almost all the cases which have come to my notice I have found that emphasis .on corroboration has been laid where the woman's story itself has been found to be infirm or unnatural in certain respects. Even in the case of our Supreme Court from which an extract has been quoted earlier, the learned Chief Justice found that,
"These circumstances all point to the girl having been associated with one or more of these men before, and it is necessary then to look for some reason why, although every thing had taken place quietly on this particular occasion, the matter had come to light. The reason might perhaps be that on this occasion tell‑tale marks had appeared on the girl's face which she could not possibly hide."
The learned Chief Justice had also noted that though the girl alleged that she had' been taken out of her but forcibly she had not cried out so as to arouse her aunt who was sleeping nearby.
18. It was held by the Supreme Court of the Indian jurisdiction in the case of Rameshwar v. State of Rajasthan (AIR 1952 S C 54).
"The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the Judge, and injury cases must find place in the charge, before a conviction without corroboration can be sustained."
In conclusion I hold that the story given by the complainant in all material parts is a true and is not tainted by any ulterior interest or motive. That story finds support from the injuries on her person, particularly the back injury and her conduct immediately on being released from the control of the accused.
19. For the reasons given I uphold the conviction of the accused under section 376, P. P: C. having regard to all the circumstances of the case, I am of the opinion that a sentence of three years' rigorous imprisonment on this account will meet the ends of justice. The appellant as a result of this conviction would lose his job and it will probably finish his career. That by itself would be a considerable punishment. I, therefore, reduce the sentence on this count from 5 years' to 3 years' R. I. The sentence of fine of Rs. 2,000 and imprisonment in default as imposed is maintained.
20. As regards the conviction of the accused under section 366; P. P. C. it may be noted that the inducement by deceitful means which is an ingredient of the offence of abduction is stated to consist of the accused having taken the complainant from the main road to his bungalow promising that the next day he would take her 100 miles towards her destination which was Lahore while in fact he had not intended to do so and had merely used it as a ruse to take her to his bungalow and there force her to illicit intercourse. This may well have been so, but I cannot upon the material on record say that such a finding would be free from any reasonable doubt. I have already held that so long the party was on the jeep there was no improper overture. So, when the accused told the complainant in the course of the journey that he would give her a lift for another hundred miles the next day he may have thought of doing so and at the same time hoped to explore the chances of having a good time. Be that as it may, there is not enough material to establish without a reasonable doubt the ingredients of the offence under section 366, P. P. C. I, therefore, give the appellant the benefit of doubt and' set aside his conviction and sentence under section 366, P. P. C. With this modification and the reduction of sentence from 5 to 3 years' R. I. under section 376, P. P. C. I dismiss this appeal.
K.B.A. Appeal partly dismissed.
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