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Criminal Appeal No. 189 of 1962, decided on 11th December 1962.
, S. 376‑Sustaining conviction for offence on sole statement of prosecutrix‑Corroboration not always necessary‑Prosecutrix minor but consenting party‑Testimony at par with that of accomplice requiring corroboration.
There is no rule of practice that there must, in every case, be corroboration of the testimony of the prosecutrix before a conviction under section 376, P. P. C. can be allowed to stand. If the statement of the prosecutrix is in accordance with all the probabilities and has all the appearance of having been honestly made conviction can be founded on uncorroborated testimony of the prosecutrix. In the case of a prosecutrix who is below the age of consent, her consent would not matter so far as the case of rape is concerned, but if she consented, her testimony would be treated at par with that of an accomplice. As regards the nature and extent of corroboration, there must be some independent evidence which must not only make it safe to believe that crime was committed but in some way reasonably connect or tend to connect the accused with it by confirming in some material particular the testimony of the accomplice or complainant that the accused committed the crime.
Muhammad Abdul Khalique and others v. The State P L D 1960 S C (Pak.) 325 and Rameshwar v. The State of Rajasthan AIR 1952SC54rel.
S. Masoom Shah for Appellant.
Q. Abdul Wahab Khan for A. A.‑G. for Respondent.
Date of hearing : 11th December 1962.
Gulistan, son of Abdur Rehman, aged 32 years, of Bandi Maira, was charged for the offence under section 376, P. P. C., for having on the 19th of July 1962, at about noon time, committed rape on his co‑villager and next‑door neighbour, Mst. Zeenat Jan (P. W. 3), aged about 13 years. He has been found guilty and sentenced to seven years' R. I. and a fine of it Rs. 500 or in default one year's further R. I. by Abdul Salam Khan, Additional District Magistrate, Hazara. He appeals against his conviction and sentence.
2. The prosecution story, as narrated at the trial by prosecutrix, who was examined as (P. W. 3), was that at t time she went to the nearby fig trees and started picking figs in one of the trees, when in the meanwhile the appellant went t and asked her to come down and climb another fig tree. At bidding of the appellant she came down of the fig tree and hardly walked towards the other tree when the accused caught of her. Continuing the prosecutrix stated, "I raised alarm the accused put his hand on my mouth and lifted me. He took me to a nearby Nalla. Accused then tore off my salwar on the right leg. He then took off his own salwar. He unfastened my trousers string and then he put me on the ground. He put his hand on my neck and started committing rape with me. He thrust a part of his male organ in my vagina. I again r an alarm, accused then left me there and decamped. I lay unconscious for some time and then came home. My mother was away for cutting grass. She came and I informed her of occurrence."
3. The report of the occurrence was lodged by the secutrix at Police Post Bagnotar, at a stone‑throw distance the house of the prosecutrix, at 18 hours, wherein she substantially narrated the prosecution story as mentioned above. 20th of July 1962, at 12‑30 p.m., the prosecutrix was examined by Lady Doctor Farhat Khurshid, Incharge Zanana Hospital, Abbottabad, who found the following injuries or person--‑‑
"Examination I. M.‑Black mole inner corner of right Mole on left cheek. From her general appearance her was about 12/13 years. For confirmation X‑ray ad, No external injury on her person.
Examination P. V.‑Vulva showed abrasions on both right and left and below. Hymen showed a tear on the lower side. Tear old. Did not bleed on examination. Hymen lax and fimbriated in upper part. Admitted two fingers easily. The abrasion on mucous membrane of vulva appeared fresh about 1‑2 days." Two vaginal swabs were taken by the Lady Doctor and sent to Chemical Examiner, who under report Exh. P. C. confirmed the presence of semen.
4. Said Ali (P. W. 5) stated that on the day of occur at digar time he had seen the appellant running towards his from the side of his house. On cross‑examination the v) admitted that he had a case with Ismail, uncle of the appellant, under section 447, P. P. C., and that his house, adjacent to the house of the parties.
5. The accused pleaded not guilty to the charge, and asked as to why he was charged, he stated as follows :‑‑
Ismail is my father‑in‑law. I inherited some land him. Muhammad Zaman who is a nephew of Ismail the father of Mst. Zinat Jan also claimed the inheritance of Ismail and was annoyed with me. This case has been brought against me on account of that land dispute. I am an employee in Karachi and on coming to know that a false case had been lodged against me to P. P. Bagnotar when near the P. P. I was caught by L. A. C. Fazlur Rehman, I am innocent and falsely charged.
6. The appellant examined Musa Khan (D. W. 1), who deposed to the effect that there was long‑standing enmity between the appellant and Muhammad Zaman, father of the prosecutrix, over the estate of Ismail, the father‑in‑law of the appellant.
7. S. Masoorn Shah, learned counsel for the appellant, made the following two submissions :
(1) That as a rule of prudence which had hardened into rule of law, there should be some independent corroboration of the testimony of complainant in cases of rape or unnatural offences before conviction could be recorded.
(2) That the prosecutrix was not worthy of credit, and the story narrated by her at the trial did not at all. ring true, especially in view of her admission, in which she had stated "the accused had been committing sexual intercourse with me for a sufficiently long time."
8. Qazi Abdul Wahab Advocate, on behalf of the State, argued that it was not a rule of law that there should be some independent corroboration of the statement of prosecutrix, and that a conviction could be founded on the uncorroborated testimony of the prosecutrix, provided the Court found that the prosecutrix was giving a correct version of the occurrence.
9. I first address myself to the legal question as to whether, as a matter of law, no conviction can be founded on the uncor roborated testimony of prosecutrix in rape cases. This question does not present much difficulty, in view of the high authority of Supreme Court of Pakistan as also of the Supreme Court of India, wherein it has been held that there is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand. A. R. Cornelius C. 1., delivering the judgment for the Supreme Court in Muhammad Abdul Khalique and others v. The State (P L D 1960 S C (Pak.) 325 at p. 329) while dealing with this very point, tersely summed up the discussion as follows :
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 Khatun in this case, and we consider that to main tain 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."
The Supreme Court of India in Rameshwar v. The State of Rajasthan (A I R 1952 S C 54) among other questions, was called upon to decide the very same question. Bose, J. at page 57 lucidly expounded the proposition of law in the following words :‑
In my opinion, the true rule is that in every case of this type the rule about the advisability of corroboration should be present to the mind of the Judge. In a jury case he must tell the jury of it and in a non-jury case he must show that it is present to his mind by indicating that in his judgment. But be should also point out that corroboration can be dis pensed with if, in the particular circumstances of the case before him, either the jury, or, when there is no jury, he himself, is satisfied that it is safe to do so. 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 dipense with it, must be present to the mind of the Judge, and in jury cases, must find place in the charge, before a conviction without corroboration can be sustained. The tender years of the child, coupled with other circumstances appearing in the case, such, for example, as its demeanour, unlikelihood of tutoring and so forth, may render corroboration unnecessary but that is a question of fact in every case. The only rule of law is that this rule of prudence must be present to the mind of the Judge or the jury as the case may be and be understood and appre ciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand."
10. Having held that there is no rule of practice that there must, in every case, be corroboration before a conviction can be sustained, it remains to decide whether the statement of the prosecutrix, in the words of A. R. Cornelius, C. J. "is in accor dance with all the probabilities and has all the appearances of having been honestly made." After giving the statement of the prosecutrix my careful consideration, I have formed the opinion that the story of the rape does not ring true. I now proceed to give my reasons.
11. The statement of the prosecutrix that she was subjected to rape a few paces from her own house and that of the accused and one or two others, is highly incredible. She admitted on cross‑examination that the fig trees were at a distance of 5‑10 paces from her house and that the house of Hasham Ali, which was inhabited by him, his wife and children, was at a distance of 5‑10 paces from her house. She also admitted that the house of the appellant, in which the appellant's wife, his mother, mother‑in‑law and children lived, was also adjacent to her. It is indeed difficult to believe that the appellant, who was a married man, should subject the prosecutrix to rape a few paces away from his own house and the houses of the prosecutrix and one Hasham Ali. Again, the admission of the prosecutrix, that the accused had been committing sexual intercourse with her for a sufficiently long time, renders the case of the rape highly improbable, in that if the prosecutrix was readily agreeable to commit sexual intercourse with the appellant there was no necessity of doing it with force.
12. At the trial the prosecutrix had stated‑"accused then tore off my salwar on the right leg." The trousers (Exh. P. 1) was taken from the possession of the prosecutrix, but there is nothing to suggest that the same was torn. There is no mark of violence on the body of the prosecutrix which would re‑inforce the suggestion of the rape. Again, the conduct of the pro secutrix in walking quietly to her house without raising an alarm or apprising anybody of the occurrence till the arrival of her mother, even if it be accepted that her mother arrived late, does not fit in with the story of rape. Lastly but not the leastly, the admission of the prosecutrix, that she had been following the appellant to commit sexual intercourse with her for sufficiently long time, would make her position as that of an accomplice, and hence the necessity for some independent corroboration tending to connect the accused with the offence. I am aware that in the case of the prosecutrix, who is below the age of consent, her consent would not matter so far as the offence of rape is concerned, but if she consented, her testimony would be treated at par with that of an accomplice. I am fortified in this view by the weighty observations of Bose, J. in A I R 1952 S C 54. At page 56 his Lordship, while dealing with this aspect of the case, tersely summed up the position in the following words :‑
Now a woman who has been raped is not an accomplice. If she was ravished she is the victim of an outrage. If she consented there is no offence unless she is a married woman, in which case questions of adultery may arise. But adultery presupposes consent and so is not on the same footing as rape. In the case of a girl who is below the age of consent, her consent will not matter so far as the offence of rape is concerned, but if she consented her testimony will naturally be as suspect as that of an accomplice. So also in the case of unnatural offences. But in all these cases a large volume of case law has grown up which treats the evidence of the com plainant somewhat along the same lines as accomplice evidence though often for widely differing reasons and the position now reached is that the rule about corroboration has hardened into one of law. But it is important to understand exactly what the rule is and what the expression "hardened into a rule of law" means.
13. In the light of the above observations, the testimony of the prosecutrix in view of her admission of having sexual intercourse with the appellant is to be treated at par with that of an accomplice, and therefore, it would not be consistent with safe administration of justice to form conviction on her uncorroborated statement. As regards the nature and extent of corroboration, there must be some independent evidence which must not only make it safe to believe that crime was committed, but C must in some way reasonably connect or tend to connect the accused with it by confirming in some material particular the testimony of the accomplice or complainant that the accused committed the crime. The reason for this part of the who has been guilty of a crime himself will always be able to relate the facts of the case, and if the confirmation be only on the truth of that history, without identifying the persons, that is really no corroboration at all . . . . . It would not at all tend to show that the party accused participated in it."
14. For all the foregoing reasons, I hold that the case against the appellant has not been proved beyond reasonable doubt, and giving him the benefit of doubt, I accept the appeal, set aside the conviction and sentence, and acquit him.
K. B. A. Appeal accepted.
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