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Criminal Appeal No. 7-D of 1960, decided on 3rd June 1960.

(On appeal from the judgment and order of the High Court of East Pakistan, Dacca, dated the 13th November, 1959, in Appeal No. 310 of 1959).

Penal Code (XLV of 1860), S. 376-Rape-Victim's statement, and her condition, only evidence in case-Court to see whether statement is "in accordance with all probabilities, and has all appearance, of having been honestly made"-Recital of story to a number of relations shortly after occurrence, and communication by such relations to neighbours ; attempt by relations of accused to prevent victim's relations from reporting case to police ; or, suggestion of compromise-Not sufficient corroboration of woman's version-Courts not to be content with general observations e.g. that woman was "shy", or was "seven months gone with child" and so " it was not expected that she would be set up falsely to start a case of abduction and rape."

On principle, in a case of rape 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.

In a case of this kind, it is very necessary that before finding the accused persons guilty of rape, the Court should be satisfied that the woman's story is corroborated either by circumstantial evidence connecting the accused persons with the crime, or at least by some circumstance connected with the woman which

would serve by itself to show that her story of forcible intercourse is true. The mere fact of the story having been told to a number of relations shortly after the occurrence is insufficient corrobora tion. Equally, the fact of the story having been communicated by the relations to other neighbours and later to the authorities is by no means sufficient corroboration. Again, the mere fact that some relations of the accused persons had attempted, after the matter became public, to prevent the woman's relations from reporting the case cannot by itself be regarded as sufficient

corroboration, nor that accused's relation made an approach for a compromise.

Where the position was that there was nothing but a statement of the victim and the circumstances affecting her upon which the Courts relied for recording a conviction

Held, that this was a profound weakness of which the Courts below had not taken sufficient notice. They should not have been content to go on general observations such as that victim was shy, and that a woman of her type "cannot be made a tool to file a false case" and that since she was seven months gone with child, "it is not expected that she would be set up falsely to start a case of abduction and rape upon her against the accused persons in that state of her health."

[The Supreme Court directed acquittal of the Appellant.]

Ahmadur Rahman Khan, Advocate Supreme Court, instructed by A. Wadud Mian, Attorney for Appellants.

Abdul Hye Chowdhury, Advocate Supreme Court, instructed by Nandalal Das, Attorney for Respondent.

Date of hearing : 2nd June, 1960.

JUDGMENT

CORNELIUS, C. J.-There are four appellants in this case, namely, Muhammad Abdul Khaleque, Genda Sheikh, Hashmat Ali Akanda and Ashan Sheikh, who appear to be totally unconnected with each other. They have been convicted under

sections 366 and 376; Pakistan Penal Code, and given long terms of imprisonment, for offences against one Mst. Amena Khatun, P. W. 1, wife of a day-labourer Afsar Ali of the town Ramnagar.

Briefly, the prosecution story is that on the night in question while Amena Khatun was sleeping in her mother's but, the four appellants came inside, gagged her mouth so that she could not scream, picked her up and carried her outside to a field at some distance in which paddy was being harvested and laying her down on a cloth each one of them had sexual intercourse with her. They then went away, and she returned home quietly. Her mother was not sleeping in the house at the time, but her khala Mst. Amerrannessa, P. W. 2, was there, and was the first person to whom Amena Khatun described her plight. The next person to come was Bashar, husband of Mst. Amerannessa, and he too was told what had happened after which Fazlur Rahman, P. W. 4, who is Amena Khatun's brother returned, and he was asked to fetch the husband Afsar Ali to whom again the story was repeated. Afsar Ali became very disturbed in mind, and went the same night to one Nawab Ali Chowdhury, P. W. 6, a respectable resident of Ramnagar and reported the matter. This person was ill and said he could do nothing that night. He asked Afsar Ali to approach other respectables of the village. Afsar Ali did so and met four persons who said they would look to the matter in the morning. When they did not come in the morning, he went to them and was told that they would enquire and let him know in the evening. When he went to them in the evening they declined to do anything, and so the following morning he went to Jamalpur Police Station and made a report. Amena Khatun was with him and she was sent to the doctor at Jamalpur, who found a bite mark on her left cheek, a number of finger-nail scratches on the right cheek, a bruise over the left breast and a number of scratches on the back of the body. Internal examina tion showed that her private parts were congested with blood and there was a slight discharge. There was a small tear on her sari, but no stains of semen were found on the sari or, in her private parts, on account of washing. In the opinion of the doctor the woman was seven months gone with child, but it appears from the statement of her aunt Mst. Amerannessa that she gave birth to a child on the 16th of the Bengali month Falgoon while the incident occurred on the 10th of the Bengali month Agrayan, so that she was really six months gone at the time of the occurrence.

In a case of this kind, it is very necessary that before finding the accused persons guilty of rape, i.e. of sexual intercourse without the consent of the woman, the Court should be satisfied that the woman's story is corroborated either by circumstantial evidence connecting the accused persons with the crime, or at leas by some circumstance connected with the woman which would serve by itself to show that her story of forcible intercourse is true. The mere fact of the story having been told to a number of relations shortly after the occurrence is insufficient corroboration. Equally, the fact of the story having been communicated by the relations sufficient. corroboration. In this case there is some suggestion Afsar Ali, who is a man of lowly position was supported in his complaint against the four accused persons who appear to be of superior position in life to his own, by one Osman whose brother Baqu was once beaten by the accused Khaleque and others.

Again, the mere fact that some relations of the accused persons had attempted, after the matter became public, to prevent the woman's relations from reporting the case cannot . by itself be regarded as sufficient corroboration. Here, Afsar Ali has stated that Khaleque's father came to him for a compromise, but he

refused.

There is no other evidence such as might serve to connect any of the accused persons with the commission of the alleged crime.

They lived in houses surrounding the but in which Mst. Amena Khatun was at that time living with her mother, but there is nothing to show that on that night they were away from their homes or that they were seen in the vicinity of the spot that night.

The hour was not so late that there could not have been a few persons up and about at the time. Therefore, the position develops that there is nothing but a statement of Amena Khatun and the circumstances affecting her upon which the Courts have relied for coming to a conclusion in the present case. That is a profound weakness of which the Courts below have not taken sufficient notice. They have been content to go on general observations such as that Amena Khatun was shy, and that a woman of her type "cannot be made a tool to file a false case" (Judgment of the High Court), and it has also been said that since she was seven months gone with child, "it is not expected that she would be set up falsely to start a case of abduction and rape upon her against the accused persons in that state of her health" (by the Assistant Sessions Judge).

In fact she was only six months gone with child. Examining her evidence a little more carefully than has been done by the Courts below, the first noticeable thing is that the woman never raised any cry of any kind at any stage. At the moment that she was picked up and before she was gagged, with her aunt sleeping nearby, a slight cry from her would have been sufficient to give the alarm and the rest of the incident would never have occurred. There must necessarily have been a number of occasions during the entire transaction, which could hardly have been completed in less than half an hour, when she could have cried out. The story of complete gagging is inconsistent with the clear bite mark on her cheek. The possibility that she went out of the but quietly of her own accord and that everything happened with her consent must therefore be borne in mind. Nothing can be made of the injuries found on her person, for the simple reason that on being questioned in cross-examination, she admitted that the accused persons "did not use much force when they raped me." The injuries on the body are such as might have been sustained by a woman who was laid on the ground for the purpose of sexual intercourse even with her own consent ; she admitted that a cloth had been placed under her. Those on the

face

could be the result of passion.

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 4 probabilities and has all the appearances of having been honestly made. That cannot be said concerning the evidences of Amena Khatun 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 dis pensation of justice in cases of this kind.

It was for these reasons that we allowed the appeal and directed the acquittal of the appellants by our order of the 3rd June, 1960.

A.H. Appeal allowed.

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