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Criminal Appeal No. 504 of 1960, decided on 13th November 1961.
S. 376‑Rape‑No independent eye‑witness‑Only evidence of prosecutrix or of persons to whom it was reported‑Expert evidence as to person or garments of pro secutrix sine qua non‑Court having no objective test to guage truth of story‑Charge of rape not sustainable.
Muhammad Abdul Khaleque's case P L D 1960 S C (Pak.) 325 rel.
Md. Fazlul Karim for Appellant.
Syed A. N. M. Nasiruddin for the State
‑This appeal is directed against the judgment and order of M. S. K. Kalimuddin, Assistant Sessions Judge, Bogra dated 7‑5‑60 convicting the appellant Mofizuddin Mondal under sections 366 and 376 of the Pakistan Penal Code and sentencing him to rigorous imprisonment for three years for the offence under section 366 of the Pakistan Penal Code and to rigorous imprisonment for four and half years for the offence under section 376 of the Pakistan Penal Code. The sentences in both were ordered to run concurrently.
2. The prosecution story is that in the village Jamura under Khetlal Police Station in the district of Bogra there lived a poor family of one Safiruddin consisting of himself, his young wife Ayna Bibi aged 19, his mother and brother. It is alleged that at dusk on Sunday (21‑11‑59) the exact time not given, the appellant carried away by force the prosecutrix. namely, Ayna Bibi, the young wife of Safiruddin when she had resorted to a ditch to the south of their homestead for easing herself. The story is that thereafter appellant detained and raped the prosecutrix for two consecutive nights in his south facing hut. The appellant is a man of 35 years of age having wife of his own and two little children already by her to his credit and his but is only 50 yards away from that of the prosecutrix. It is alleged that at the relevant time the wife and children of the appellant were away. Safiruddin husband of the prosecutrix was also away from home at the time the appellant seized upon the prosecutrix by wrapping a gamcha around her neck so as to still her voice. It is alleged that the actual wrapping having been perpetrated at the point of dagger she had to bear in silence.
3. The aggrieved husband failing to trace her out on his return home late in the same evening took the help of a salish and it was settled that the villagers would search every house of the village. It is alleged that the appellant and his father did not allow the villagers to search their house and, there fore, some of the villagers took upon themselves to keep vigil on the second night, that is, Monday around their house. During the last part of this Monday night, Barkatullah step‑father of the appellant and the appellant together brought the prosecutrix out to the gate of their house, thus giving the voluntary night watch men the opportunity to rescue the prosecutrix.
4. Getting back home the prosecutrix narrated the story tale to her husband and other P. Ws. She also showed semen mark on her saree to her husband which is claimed to have been also seen by one of the husband's nephews in the moon light.
5. It was on Thursday nearly four days after the incident that the prosecutrix and her husband came over to Bogra and filed a petition before the Military Court without lodging any information at the nearest police station.
6. The petition was forwarded to the Officer‑in‑Charge Khetlal Police Station for inquiry and report. After investigating the Officer‑in‑Charge submitted a charge‑sheet on 1‑1‑60 against the appellant and his step‑father Barkatullah.
7. The Investigating Officer seized the gamcha Exh. 1 and also the mat Exh. 2 from the south facing but of the appellant which was supposed to be the place where the prosecutrix was detained and raped.
8. After a preliminary enquiry by First Class Magistrate, the appellant was committed to the Court of Sessions for trial under sections 366 and 367 of the Pakistan Penal Code. Prosecu tion examined 10 witnesses. Defence examined no witness.
9. The accused pleaded not guilty and contended that Basir Sk. and Pocha Sk. father and nana of the prosecutrix (complainant) have a dispute over possession of some land with the accused and it is out of that grudge that the complaint has been got up by them to implicate the accused falsely.
10. The trial was held that with the aid of three assessors all of whom held the opinion that the appellant was guilty on both the counts and in agreement with them the learned Assistant Sessions Judge convicted and sentenced the appellant as above.
11. Mr. Md. Fazlul Karim the learned Advocate appearing for appellant has after taking us through the judgment, the deposition and the records, has argued that the charges must fail owing to want of legal evidence; that it is a case of no evidence. More precisely his contention is that there is no evidence of force or the use of deceitful means in taking away the prosecutrix, far from there being any evidence of actual raping.
12. He has drawn the attention of the Court to the following features
(a) Hour of alleged abduction being at dusk when it was difficult to escape detection, the sole evidence of the prosecutrix cannot be relied upon.
(b) the actual carrying took place from a ditch within a few cubits of the prosecutrix's but and also from those of others.
(c) not a word of protest was raised although it is alleged by the prosecutrix that she was forcibly taken.
(d) no chemical examination was made of her saree ;
(e) no chemical examination was made of her person ;
(f) the interested nature of the evidence, the witnesses being mostly relations ;
(g) the only witness independent of relationship, namely, P. W. 3 is not really independent ;
(h) that abduction and rape did not follow from the mere fact, if true at all, that the night watchmen rescued her on the last part of Monday night when she was brought out by the appellant and his step‑father Barkatullah to the gate of their house.
13. We find that P. W. 1 the prosecutrix has stated that she was forcibly taken at dusk on Sunday from a ditch to the south of her but where she had gone to ease herself. P. W. 2 her husband has stated that on return home after dusk he came to know from his mother and brother that his wife had gone to case herself and thereafter she did not return. P. Ws. 3, 4 and 6 have stated that they were reported about the missing of the girl r the same night. P. W. 5 who joined the search party has also stated that she was missing since dusk.
14. The evidence as above seems to indicate that she had been missing since the dusk of Sunday from, the ditch where she had gone to ease herself.
15. How far the ditch is from the but is not before us in evidence. Safiruddin, the husband being a day labourer we can take it that it is within bearing distance from his hut. At any rate, the ditch was within the hearing distance from the but of Nabir and Badal as stated by the prosecutrix herself, She has stated "the house of Nabir and Badal is at a distance of 4 or 5 cubits from the place where I was easing".
16. The whole distance from the place where she was easing herself to the place where she was carried was 50 yards as stated in cross‑examination by the prosecutrix. She stated in cross, "the house of the accused is at a distance of 50 yards from the place where I was easing myself."
17. The time being dusk the world was wide awake. It could not be said that the inmates of her but and those of Nabir and Badal were asleep at that hour. Even the least cry on her part should have been audible. In her examination‑in‑chief she stated:
"When I was about to come back the acced (id) Mofiz suddenly appeared there and wrapped a gamcha around my neck and caught hold of me and forcibly carried me to his south facing but and shut the door. When I was about to cry he threatened me with a dagger then he forcibly ravished me against my will."
In cross she stated, "I could not raise alarm as I was pressed by ganicha. Blood came out from my mouth due to pressure to my teeth". In cross she brought the gamcha from the neck to the mouth, to justify her silence. The husband P. W. 2 does not say in so many words that she told about the story of gagging although he says that she told that she was forcibly taken.
18. Further she said in cross, "I was carried aloft by Mofiz to his house. "I Str7uggled when I was ravished and my thighs were forcibly separated. I got injury in and my thighs were forcibly separated. I got injury my thighs. I stated this fact to my husband and others and shalishdars and to the moharir. ( was going to be carried by the south‑west of their house. I was carried aloft by Mofiz to his house." Unless Mofiz was a Hercules of which we have no evidence, it is difficult to accept the position that Mofiz could carry her aloft while continuing to gag her successfully.
19. Mr. Nasiruddin, the learned Advocate for the State tried to explain away her conduct of silence on the theory of gagging. On the evidence as disclosed above, we cannot accept the position.
20. Further she was not medically examined at all and there is no evidence of legature mark around her neck or any mark of injury on her mouth except her own statement.
21. Coming to the story of rape itself we find that she has stated:
"I told there that the accused caught hold of me while I was about to come back after easing myself in the southern ditch in the dusk of Sunday and took me forcibly to his south facing b but and forcibly ravished me against my will and that on the following night also he forcibly ravished me against my will. My wearing cloth was stained with semen. I showed to my husband and others. I washed it as I had no other cloth to wear."
And further as quoted above, she stated that she got injuries in her thigh by reason of forcible raping.
22. It is unnatural for her to have washed her saree. If she was so very chaste her first instinct as also of her relations would have been to preserve the saree intact at any cost particularly when there was no eye‑witness except the prosecutrix herself.
23. The husband P. W. 2 has gone one degree further. He claims to have seen not only the semen mark but also blood, and stated:
"I saw semen and blood on the cloth of my wife while she was rescued."
P. W. 5, nephew of the husband P. W. 2, also claims to have seen semen mark and stated:
"We found stain of semen on the wearing cloth of Ayna while we rescued her."
It is rather difficult to see semen mark in the moon‑light.
24. It is also noticeable that while P. W. 1 speaks of injuries on her thigh the husband, P. W. 2 who had the liberty to see it, does not say anything about thigh injury. It is difficult to accept the story of raping on the evidence as above, particularly, when there was no medical examination of the saree and the person of the prosecutrix. It is also strange that not even the mat Exh. 2 recovered from the south facing hut, was medically examined.
25. Now coming to the witness, we find that except the formal witnesses and one other all are relations of the prosecutrix and her husband. P. W. 2 stated in cross:
"P. W. Mofiz is my distant cousin. Kifatulla is my sister's husband. Osim is not related with me and Kifatullah, is Mondal of the village. I call him bhai by village courtesy. My nephew Abdul Ali."
So, P. Ws. 4, 5 and 6 are all relations the only non‑relation witness is P. W. 3, Asimuddin Mondal who is a Madbar of the village. There is a suggestion of enmity with him though denied "Barkatulla did not file any 107‑case against myself and some P Ws," This witness P. W. 3 stated in cross:
"On Monday no choukidar or dafadar was called as that was a Panitala Hat day. On the following day I asked Safirud din to call choukidar and dafadar but they did not attend. I sent Safiruddin to them."
P. W. 4 stated in cross:
"About 20 or 25 persons were present on the first day. On the 2nd day all the villagers including choukidar and dafadar were present."
The only independent witness in the case, namely, P. W. 3 has thus been contradicted by a relative witness, P. W. 4. It would be strange for the Choukidars and dafadar to have not attend even on the 2nd day when the whole village was astir.
26. Antecedents of the abduction are not in evidence. All that we get is that Barkatulla and his son brought her out to the gate in the last part of the second night when rescuers rescued her. P. W. 1 the prosecutrix stated:
"In the last part of that night the accused and the 2nd husband of his mother Barkatulla Kazi brought me out from that hut. Then they took me out of their gate. At that time my father Basir Shek, husband Safiruddin, my nana Sukra, our villager Kifatulla and others rescued me from their hands. The accused and Barkatullah entered into their house and shut the gate".
P. W. 2 the husband stated:
"I, my brothers, Ayenuddin and Sabed Ali, my sasur Basir Shek, my mama sasur Sukra, my nephew Abdul Ali and Kifatullah kept the guard. In the last part of the night the accused Mofiz (id) Barkatullah brought out my wife from their house. As soon as they come out of their gate I caught hold of my wife. The accused Mofiz and Barkatullah ran into their house and shut the gate, I recognised them in the moonlight."
27. As it will appear, the rescuers are all relations, which shows too much want of chivalry in our time. Further, the normal course for an unwilling victim would have been to run to the road on her own will as soon as the door of the house was opened by the appellant and his father. At any rate, it seems difficult to believe that the old step‑father along with the appellant himself escorted the girl to the gate to be so easily detected. When literally the whole village was searched as a result of salis. it is difficult to understand why the circle of the night watchmen who rescued the prosecutrix should be confined to the relations only.
28. We have also considered the length of time over which she was detained in the house of the appellant from Sunday even ing to almost Tuesday morning. It is not that she was in gagged condition all the time, there were houses all round and people were moving about in quest of her and own words was only 50 yards away. Not a cry was raised. In the circumstances such as above, we cannot hold that there has been sufficient corrobora tion of what the prosecutrix stated, Mere fact of her reporting the incident and the interested relations seeing the semen mark which was not chemically examined, cannot make the story of rape acceptable. In a case of allegation of rape of the present kind where there is no independent eye‑witness and the only evidence is that of the prosecutrix herself and of those to whoml it was reported; the Courts are not left with any objective test for gauging the truth of the story of the prosecutrix. Expert examination of the person of the prosecutrix and of the garment she ha dl worn at the time and of the place where the rape took place is sine qua non in such cases.
29. At any rate, the corroboration of the statement of prosecutrix in the present case falls far short of the standard laid in the well known decision of the Supreme Court in the case of Muhammad Abdul Khaleque and others v. The State (P L D 1960 S C (Pak.) 325), of which the facts and decisions are as under:
"On principles, 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 would at least be found that the woman's statement is in accordance with all the probabilities and has all the appearance of having been honestly made.
In the 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 corroboration. Equally, the fact of the story having been communicated by the relations to other neigh bours 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 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."
30. The facts of the two cases are not very dissimilar and as a matter of fact the facts of the case cited are much stronger. In our present case also we find that the learned Assistant Sessions Judge has introduced a general information of the kind deprecated in the Supreme Court decision, namely the following lines at the bottom of the evidence of P. W. I. "The girl appears to be simple having a sickly body."
31. It may be that the learned Judge was obsessed by this feature alone.
32. Further, it was not till Wednesday, that is three days since Sunday, the first night of rescue, that the aggrieved husband and the victimised wife came over to Bogra instead of going to the nearest police station at Khetlal and got the petition of complaint drafted by a muharir or Muktear which again they did not file before the Military Court till next day, i.e. (Thursday). This is a feature of the case which also throws much doubt on the truth of the prosecution story.
33. Before concluding we also find that the examination under section 342 of the Code of Criminal Procedure was far from satisfactory. The question asked was as under:
You have heard the evidence adduced by the pro secution side. The witnesses state that on the 22nd November 1959, last corresponding to the Agrahayan 1366 B. S. you forcibly abducted Ayna Bibi, wife of Safiruddin Mondal of village Jamura under P. S. Khetlal for the purpose of forcing her to illegal sexual intercourse. The witnesses state further that on the said 5th Agrahayan you forcibly committed rape on the said Ayna Bibi against her will. What is your defence
I am innocent. I did not commit anything at all. I have been falsely implicated.
Will you adduce evidence in defence
No."
34. The incriminating circumstances and the criterion of the guilt, namely, that the appellant was seen to bring the prosecutrix out of his house to the gate at the last part of Monday night was not put to the accused for explanation. Considering all the circumstances stated above, the conviction and sentence of the appellant cannot be upheld.
35. In the result, the appeal is allowed and the convictions and sentences are set aside and the appellant is acquitted. The appellant is directed to be set at liberty forthwith unless wanted in any other connection.
----I agree.
S. B./A. H.
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