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Gangaram Nanhoosingh Vs. the Crown - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Judge
Reported inAIR1950Bom9; 1950CriLJ244
AppellantGangaram Nanhoosingh
RespondentThe Crown
Excerpt:
.....may, after paying attention to that warning, nevertheless convict. he added that it is open to a jury to convict without corroborating evidence, if they consider it safe to act on the uncorroborated evidence of the proseoutrix, and it will, therefore, not necessarily be wrong for a court to do so, if there are special circumstances that justify such a course. then set aside the conviction as there being no independent oorroboration of the prosecutrix's evidence he did not consider it safe to convict the accused on her evidence alone. remarked :it is next urged that the conviction is virtually baaed upon the testimony of only the girl who is the real prosecutrix, and that it is very unsafe to convict a person on aguish interested testimony. this may be so in other cases, but the..........away.3. when she regained her senses, she went to her house but her parents were not there. her father barelal (p.w. 1) was working in his field and her mother gora (p.w. 10) was at a singing party. sukko went to sleep in her house and was still asleep when her parents returned to it. next morning, barelal went to his field before she woke up and when she got up, she recounted to her mother gora what had happened to her. gorasent for barelal and after the matter had been reported to the village officers, sukko was taken to the narsingpur police-station 5 miles away, where she made the report ex. p. 3 at 3-30 p. m. on 21st may 1948 to shankerlal (p.w. 2), head constable, who seized from her the sari article a as there were blood. like stains on it.4. she was thereafter sent for.....
Judgment:
ORDER

Hemeon Ag. C. J.

1. The applicant Gangaram 16 years, was convicted Under Section 376, Penal Code by the Additional District Magistrate, Narsingpur, who ordered him to be detained in the Borstal Institute at Narsingpur for a period of 3 years; and his appeal was dismissed by the Additional Sessions Judge, Narsingpur. He has now come up in revision to this Court.

2. The prosecution case was, briefly stated, as follows. At about sunset on 20th May 1918, Sukko (P.W. 3), a 7 year old girl, had with Moslem females of the village, via, Singhpur, Narsinghpurtahsil, gone to the river for the immersion of sahra and while they were preoccupied with that ceremony, the went to ease herself behind bushes in the vicinity. When she returned, the females had gone to their houses and she accordingly set out for homo alone. On the way, the applicant met her, lifted her up, took her to a pit in the bed of the river and raped her. He left her there unconscious and went away.

3. When she regained her senses, she went to her house but her parents were not there. Her father Barelal (P.W. 1) was working in his field and her mother Gora (P.W. 10) was at a singing party. Sukko went to sleep in her house and was still asleep when her parents returned to it. Next morning, Barelal went to his field before she woke up and when she got up, she recounted to her mother Gora what had happened to her. Gorasent for Barelal and after the matter had been reported to the village officers, Sukko was taken to the Narsingpur police-station 5 miles away, where she made the report Ex. P. 3 at 3-30 p. m. on 21st May 1948 to Shankerlal (P.W. 2), head constable, who seized from her the sari article A as there were blood. like stains on it.

4. She was thereafter sent for examination to Miss Acquillil. (P.W. 5), Woman Assistant Medical Officer, who found no external marks of injury but on examination of her private parts found that the hymen was red and in. flamed and torn posteriorly and that blood was oozing from the torn pad of it. These injuries could, according to Miss Acqui1la, have been caused by rape but she also added that the rupture of the hymen might have resulted from the insertion of a finger or a stick. The applicant who was examined on the same day by Shri P. Mukerjee (P.W. 1), Assistant Medical Officer, was found to have no marks of injury or signs of violence on any part of. his person and it was also found that. there were no stains on it. On 12th June 1948, Shri S. A. Mitra (P.W. 12), Assistant Surgeon, examined him and found that he was potent and capable of engaging in sexual intercourse.

5. The applicant in examination disclaimed all connection with the occurrence and when asked why Sukko and others had testified against him, gave the following reply: 'I do not know. They say so out of enmity.' He added that at the relevant time he was in his house reading a book. Four witnesses were examined in defence; and of them Haiku (D. W; 1) declared that the applicant's father and Barelal were always quarrelling 'on account of the monkey nuisance.' He added that in April. May 1948 after Barelal's cow had drunk water from Nanhusingh's pot and broken it, there was an exchange of abuses between them. In cross. examination, however, he agreed that the quarrels such as they were never went beyond the stage of abuse and that the quarrel concerning the monkeys was 'a usual feature between the parties.'

6. The evidence of Habib (D. W. 4) possessed no relevant value to the case; and Kishore (D. W. 2) and Halli (D. W. 3) affirmed that Sukko had gone to and returned from the river with the Moslem females. With regard to the applicant, Kishore added that he had not seen him at the river on that occasion but had seen him there in the morning, while Halli asserted that he (the applicant) had not gone to the river on the day in question. The defence regarded as a whole was thus inconclusive, and it was doubtful whether there had been friction of any kind between the applicant's father and Sukko's father Barelal. Barelal was not himself cross-examined with regard to the cow and the broken pot incident and he denied that there were any differences concerning the monkey question. Gora (P.W. 10), Barelal's wife, denied that there had been any disputes with Nanhusingh concern-ing either of these matters; and although Thin ghai (P.W. 7) admitted that there was behind Barelal's house a tree from which monkeys jumped on to the house of the applicant, he was not asked whether this constituted a grievance on Nanhusingh's part. Moreover, Moti (P.W. 11), hotwar of the village, was not interrogated in the matter and the friction such as it was between Nanhusingh and Barelal would perhaps not appear to have been so bitter as to induce Barelal falsely to incriminate Nanhusingh's son in a grave case of this kind.

7. Before turning to the prosecution evidence, I propose to repel the contention raised by the applicant's learned Counsel to the effect that an accused in a rape case cannot be convicted unlesa the evidence of the proseeutrix is corroborated. There is a bead roll of decisions which indicate that although in cases of this kind corroboration of the testimony of a proseeutrix is desirable, it is not a sine qua non for the purposes of conviction. In the well known case of Albert George Winfield, 37 Cr. a pp. E. 139, the Court of Criminal Appeal made the following observations:

In oases of a sexual character it is eminently desirable thru the evidence of the complainant should be strengthened by other evidence implicating the accused - person in dome material partioular. It is tiara that there is nothing in law to prevent a jury from convicting on the uncorroborated evidence of such complainant, but it is the established rule of this Court that the presiding Judge must direct the jury in such a cage On the desirability of there being corroboratiou of the complainant's evidence.

8. In The King v. Baskerville (1916) 2 K.B 668 : 86 L. J. K. B. 28 another, well known case, Beading C. J. referrad to the long-standing practice at common law for the judge to warn the jury of the danger of convicting a person on the uncorroborated testimony of an accomplice or accomplices, and, in the discretion of the judge, to advise them not to convict upon such evidence, although he should point out to the jury that it is within their legal province to convict upon such unconfirmed evidence. That is the law regarding the evidence of accomplices, but here i am dealing with the evidence o a girl who was not an accomplice but rather the victim of an offence; and in Within Crocker, 17 Cr App. R 46, the Court of Criminal Appeal ruled that in a case of that kind it was not prepared to accept the contention that the evidence of a girl, who was the victim of the offence, is on the same plane with that of the evidence of an accomplice. Their Lordships explained that the objection in a case of that kind was not on the ground of complicity, but because the case was one of an oath against an oath.

9. Pollock J. in Conroy v. Emperor I. L. R (1045) Nag. 226 : A.I.R. 1941 Nag. 245 : 46 Cri. L.J. 68 held that it's well settled that in England the proper direction to be given to the jury in such a case is that it is not safe to convict upon the uncorroborated testimony of the proseeutrix, but that the jury, if they are satisfied of the truth of her evidence may, after paying attention to that warning, nevertheless convict. He added that it is open to a jury to convict without corroborating evidence, if they consider it safe to act on the uncorroborated evidence of the proseoutrix, and it will, therefore, not necessarily be wrong for a Court to do so, if there are special circumstances that justify such a course. Pollook J. also referred to Emperor v. Mahadeo Tatya A.I. R. 1942 Bom. 121: 43 Cri L J. 621 in which Beaumont C. J. in delivering the judgment of the Full Bench discussed the de. cision in Barendra Prasad Bagchi v. Emperor, : AIR1940Cal461 and said :

It is of course obvious, as pointed out by the Calcutta High Court...that a prosecutrix in rape case is not an accomplice...But in our view the Calcutta High Court ha3 not thrown any doubt on the general rule that the evidence of the proseoutrix in a rape case must be corroborated.

Pollock J. then set aside the conviction as there being no independent oorroboration of the prosecutrix's evidence he did not consider it safe to convict the accused on her evidence alone.

10. In Soosalal Bania v. Emperor A.I.R. 1925 Nag 74 : 25 Cri. L.J. 1214 Kinkheda A. J. C. remarked :

'It is next urged that the conviction is virtually baaed upon the testimony of only the girl who is the real prosecutrix, and that it is very unsafe to convict a person on aguish interested testimony. This may be so in other cases, but the peculiar nature of the offence with which we are concerned here makes the evidence o the raviehad girl of grant value and her statement by way of disclosure immediately after the occasion is a strong piece of evidence corroborating her credibility and proving the confidence of her conduct.

11. The girl in that case was about 11 years of age; and in Bishram v. Emperor Digby J. after consideration of these two Nagpur cases decided that the evidence of the proseeutrix, a girl of 10 years of age, did not require independent corroboration on the point of the accused's identity. The relevant passage runs as follows:

It is the existence of possible motives for false incrimination which might attract the necessity for corroboration, and where no such motives can even be suggested it cannot be said that there is any rule of law or prudence which makea independent corroboration necessary as to the culprit's identity.

The story of rape as such was in Digby J.s view amply corroborated and big observations were directed to the question of the need for independent corroboration of the young proseeutrix's identification of the culprit. He did not differ from the view of Pollock J. and in fact said that he had nothing to add to the exposition of law given by him in the Gonroy case : I.L.R. (1945) Nag. 226 : A.I.R. 1944 sag 245 : 46 Cri. L.J. 88 He also cited with approval the observations of Kinkhede A. J. C. in Soosalal v. Emperor A.I.R. 1925 Nag. 74 : 25 L.J. 1214 supra.

12. Stltandar Miyan v. Emperor, I. L. R. (1937) Cal. 345 : A.I.R. 1937 Gal. 821 was a case in which the girl raped was about nine years of age; and in it the Division Bench held that although it was open to the jury to conviot the accused on her uncorroborated testimony it was incumbent upon the presiding Judge to warn, them of the danger of convicting him on such testimony.

13. From these decisions it is clear that, although permissible legally, it is dangerous to convict an accused in a sexual case on the uncorroborated evidence of a prosecutrix. This rule would necessarily apply whether the proseoutrix were an adult or, as here, a girl of only seven years of age; and, as Lord Goddard pointed out in Mohamed Sugal Esa v. The King A.I.R. 1946 PC 3 : 222 I.0. 304 it is a sound rale in practice not to act on the uncorroborated evidence of a child, although under the Indian law the rule is a rule of prudence and not of law.

14. That it would not be safe to rely upon Sukko's uncorroborated evidence is clear for the following reasons. Although she was in pain and bleeding, she did not on her way home stop to tell the kiln worker3 of her misadventure; and even when she reached her house and went to the singing party she did not make for her mother and apprise her of her distressed condition. Her mother too would not have failed to notice it and to question her. Conduct of this kind was extremely unnatural on the part of a child of her age and it is difficult to believe her statement that she slept so soundly through the night that she had no opportunity of speaking to her parents then or to her father on the following morning. Moreover, her paternal grandfather and grandfather lived with them and Barelal admitted that his father- in-law and mother-in-law spent their nights at his house. To them also no report was made by Sukko who on her own version placidly had supper and went to bed after her ordeal.

15. It was also significant that the prosecution attempted to show that the applicant had made an extra-judicial confession, but the evidence of Moti (P.W. 11), kotwar, was rightly held to be false and that of Thinghai (P.W. 7) was properly disregarded. Further, there was some delay in the making of the first information report. Although Barelal heard of the incident in the early morning of 21st May 1948 and the police-station is only 6 miles from his village, the report was not made until 3.80 p. m. It too was not the type of report a child such as Sukko could have made, although it purports to have emanated from her and her father declared y that the head constable recorded verbatim what she said. He had, however, in the course of his deposition stated that the head constable also wrote down what he said; and Sukko herself affirmed that the contents of the report had been recounted by her father and maternal uncle.

16. It is true that the lady doctor opined that Sukko's injuries might have been caused by rape, but she qualified this by adding that the hymen could have been ruptured by the insertion of a finger, stick or some other foreign body. The hymen of a child is situated more deeply than that of a more mature person (Modi's Medical Jurisprudence, Edn. 9 p 279) and it seems to be clear that if penetration had been effected by human agency there would have been lacerations or other injuries on her private parts. Cox in his Medico-Legal Court Companion, Edn. 3, points out at p, 277 that the orifice of the hymen of children under ten is very small and will rarely admit the tip of the little finger and at p. 282 that if the hymen is ruptured in a child below the age of ten, it indicates that either the penis is more attenuated than normal or intromission has been accomplished with brute force. Such intromission, he adds, must always be accompanied by severe tearing of the genital organs, and here there was no tearing of that kind. There was also nothing to suggest that the applicant's penis wa3 attenuated and in fact Shri S. C. Mitra, Assistant Surgeon, stated that it was well developed. If the penetration had been merely partial, there would not have been the injuries to the hymen referred to by the lady doctor.

17. The medical evidence cannot in the circumstances be said to corroborate Sukko's evidence and it would appear that her injuries may have been caused by the insertion of a finger or stick, Be that as it may, it would not be proper to hold that they were caused by the applicant and it would seem that responsibility was foisted upon him as the son. of a not too frienaly neighbour. There was also, as his learned Counsel Shri A. P. Sen urged in the course of his ably marshalled arguments, a legitimate doubt of his guilt.

18. The conviction and sentence are set aside and the applicant is acquitted.


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