1. This case arises on a certificate given by the Advocate General under Clause 26 of the Letters Patent. There were two accused. Accused No. 1 was charged with rape, and accused No. 2 was charged with abetment of rape and also with cheating.
2. The general ground-work of the prosecution story is not in dispute. The complainant Baloobai is a girl of about fifteen years of age, married, and accustomed to sexual intercourse with her husband for three months before the offence. On July 31, 1940, she was selling ghee near the sea-shore at Mahalaxmi. Accused No. 1, who was a police constable, was on fixed point duty at the junction of Pedder Road and Warden Road ; and, according to him, his sister with whom he lived in Kamatipura was returning to Bombay the next day from her native place, and he wanted to buy some ghee, so he asked Baloobai the price of her ghee, and it was arranged that she should sell him some ghee at the rate of twelve annas, and he asked her to take the ghee round to his room. She said that she did not know the way to his room, and he then told accused No. 2, who was an umbrella repairer who worked close to the place where accused No. 1 was stationed, to take the complainant round to the room in Kamatipura. That was done. Baloobai entered the room at Kamatipura, and, according to her, accused No. 1 arrived there subsequently, told the other people in the room to leave, and then fastened the doors and ravished her. He then asked accused No. 2 to take her to Mahalaxmi railway station. On the way there accused No. 2, by a device, deprived her of her ornaments and her pot of ghee and scales, and made off with them. Baloobai started to weep, and after sometime a police constable came along and asked her what was the matter. She said she had been robbed. So he took her round to the Agripada police-station, where a report was made to Sub-Inspector Reuben who was in charge. Sub-Inspector Reuben sent two constables-one of them being 3730,-with her to enquire into the alleged offence. Whilst they were going towards Mahalaxmi, the complainant sat down two or three times, and when asked why she was sitting down she complained that a police jamadar had raped her. P. C. 3730 thereupon rang up Sub-Inspector Reuben and asked for directions, and Sub-Inspector Reuben told him to ascertain who the alleged jamadar was. The complainant pointed out the place where the jamadar had been on duty, and from that it was easy to ascertain that the jamadar in question was accused No. 1. The complainant was then taken back to the police-station, and then, for the first time, her complaint of rape was recorded. That is exhibit 6. Later that night accused No. 1 was arrested. Accused No. 2 was also found, having imprudently returned to his former beat with the stolen ornaments upon him. In due course both the accused were prosecuted. The jury brought in a verdict against accused No. 1 of guilty of rape by a majority of eight to one. They acquitted No. 2 of abetment of rape, but returned a unanimous verdict of guilty against him of cheating. The learned Judge sentenced accused No. 1 to transportation for life and thirty stripes, and he sentenced accused No. 2 to five years' rigorous imprisonment. On the day after that sentence had been passed the learned Judge had the case placed in the list again, because he had discovered that it was illegal to pass a sentence of whipping in conjunction with one of transportation for life, and therefore he set aside the sentence of whipping.
3. I may say at once that to our minds the sentence of transportation is indefensible for an offence of this nature. The ordinary sentence for rape varies from three years to five years. In a very bad case seven years is sometimes given. But I have never myself known a sentence of transportation for life,- and Mr. Velinker says that in his fifty years experience at the criminal bar he has never heard of such a sentence,- in a rape case. The learned Judge took the view that the case was a particularly grave one, because the accused was a police constable. No doubt the complainant may have been induced to go to the accused's room more readily because she knew he was a police constable, but he was not on duty at the time when the offence is alleged to have been committed. It is not a case of a police constable taking advantage of his official position to rape a woman placed in his charge. It is certainly not a case so grave as. that reported in Emperor v. Mazarali : (1933)35BOMLR474 where the complainant had been allowed to spend the night in the Sub-Inspector's Office, because she had no home to go to, and two police constables took the opportunity to rape her. In that case the sentence passed was four years. Had we considered the conviction justified, we should certainly have very materially reduced the sentence.
4. The Advocate General has based his certificate not only on the excessive sentence ; he suggests that there appears mis-joinder of charges, illegal exclusion of evidence, and non-direction in relation to the question of corrobora-tion. So far as joinder of charges is concerned, I should entirely agree that if a woman is taken to a room and raped, and then on the way back from the room to her home she is cheated out of her ornaments, the two charges could not be tried together merely; because they took place within a short time of each other. But Sectyion 239 (d) of the Criminal Procedure Code provides that persons accused of different offences committed in the course of the same transaction may be charged and tried together. Now here it seems to us quite impossible to separate the two offences of rape and cheating. They are inextricably mixed up together. It was accused No. 2 who took the girl to accused No. l's room, where, it is alleged that the rape took place. Accused No. 2 escorted her away from the room at the request of accused No. 1 and cheated her of her ornaments. It was whilst the offence of cheating was being investigated that the complainant first alleged the offence of rape, and therefore the two offences were investigated together. If the two offences had been tried separately, it would have been necessary in each offence to lead evidence relating to the other offence, which would have been from some points of view undesirable, but unavoidable, and it seems to us that the learned Judge was right in allowing the two charges to be tried together.
5. The allegation that evidence was improperly excluded rests on this, that counsel for the accused is said to have been refused a copy of the first information whilst the complainant was giving her evidence, and after the first information was put in by a police-officer, the learned Judge refused to allow the complainant to be recalled and cross-examined upon it. It is difficult to ascertain from the record whether anything like a formal request was made to the learned Judge to direct a copy of the first information to be supplied to counsel for the accused, but in our opinion there can be no doubt that in fairness counsel for the accused ought to have been supplied with a copy of the first information when the complainant was giving her evidence. The first information would have supplied strong material for cross-examination on several points. As an illustration, I may point out that in the witness box the complainant says that accused No. 2 took her to the room of accused No. 1, and she says, ' I went and sat in the room. After a short time accused No. 1 came.' Now, if she had been pressed in cross-examination for details, she would probably have explained how she got into the room, in which there was a servant, how she persuaded the servant to allow her to go into the room, and where she sat, and so forth ; and having, as she probably would have done, committed herself in that way, it would then have been very relevant to point out that in her first information she says that ' accused No. 2 then seated me outside the house on the road, and awaited the arrival of the constable. I remained there for nearly two hours, after which the constable arrived there in plain clothes.' Contradictions of that sort may very seriously discredit a witness, and counsel for the accused ought to have been given the material to cross-examine her.
6. However the more serious ground on which the conviction is challenged is upon the question of corroboration. It is a very well settled rule of practice in this country, following the English rule, that in rape cases the evidence of the complainant must be corroborated. It has been pointed out many times that a charge of rape is a very easy charge to make and. a very difficult one to refute, and in common fairness to accused persons, the Courts insist on corroboration of the complainant's story. The nature of the corroboration must necessarily depend on the facts of each particular case. Sometimes rape is clearly proved or admitted, and the only question is whether the accused committed the offence. At other times, as in this case, the association of the accused and the complainant is admitted, and the question is whether rape was committed. Where rape is denied, the sort of corroboration one looks for is medical evidence showing injury to the private parts of the complainant, injury to other parts of her body, which may have been occasioned in a struggle, seminal stains on her clothes or the clothes of the accused, or on the places where the offence is alleged to have been committed ; and in all cases importance is attached to the subsequent conduct of the complainant. Whether she makes a charge promptly or not is always relevant. Now, in this case there is no corroboration of the actual offence of rape. No doubt a great deal of the complainant's story as to what happened before she reached the accused's room and as to what happened afterwards is corroborated, but whether, when she was in the accused's room, she merely negotiated the sale of ghee, as the accused says, or whether he raped her, as she says, depends entirely on her evidence. She was examined by the Police Surgeon the next day, and again two days later, and no signs of rape were discovered. No injuries were discovered on her private parts, or any part of her person. Her skirt and the bed; spread on the cot in the accused's room were sent to the Chemical Analyser, and no seminal stains were found upon them. Therefore we really have no corroboration, apart from her own subsequent conduct; and subsequent conduct, by itself, although important, is not enough, because, as has been said, a witness cannot corroborate himself. Moreover her subsequent conduct was not altogether convincing. She did not, on leaving the accused's room, make any complaint. She admitted herself, in cross-examination, that if she had not been subsequently robbed she would not have made a complaint; she would have gone home to her husband. It was only her indignation aroused by the robbery which induced her to make this charge against accused No. 1. When she met the policeman in the first instance she did not make any charge of rape, and when she was taken to the police-station she made no charge of rape. It was only after that, when she was sent out with the police constables, that she purported to find a difficulty in walking, and then came out with the story of rape. That seems to me not a very convincing story. She had already walked from Kamatipura to Maha-laxmi and then to the police-station, and then back to Mahalaxmi, with apparently no inconvenience. The next morning, about twelve hours after this, she was examined by the doctor, and no signs of injury or inflammation in her genitals were discoverable, and I find that evidence rather difficult to reconcile with her sudden inability to walk during the previous night. It is possible that she started to sit down on the road because she wanted the police constable to raise a question as to what was the matter with her in order to justify her in making a charge against accused No. 1, and it is conceivable that her indignation against him had been aroused by the loss of her ornaments, for which she thought he was primarily responsible in having sent her out with accused No. 2. I do not feel altogether assured that this is a true case against accused No. 1, but whether it be true or not, I am satisfied that the learned Judge did not sufficiently direct the jury on the issue of corroboration. In our opinion, in a case such as this, the Judge is bound to tell the jury that it is a rule of the Court, in cases of rape, not to act on the evidence of the complainant without some corroboration, and where there is no corroboration, as in this case, to direct them that their proper course is to return a verdict of not guilty. We have not got a copy of the learned Judge's charge, but on the notes counsel made and from the statement the learned Judge has made to us, there is no doubt that he did not go nearly as far as that. He referred to the rule which requires corroboration, and pointed out, accurately enough, that it is not a statutory rule and that the verdict of a jury based on the uncorroborated testimony of the complainant would not be bad in law. But he certainly did not tell the jury that it was their duty not to act on the uncorroborated testimony of the complainant in view of the experience of the Courts that such evidence is not sufficiently reliable. That is the rule both in this country and in England. I do not know that I am prepared to go as far as the Calcutta High Court went in Surendra Nath Das v. Emperor1 in saying that the corroboration of the complainant's evidence in a rape case must be dealt with on the same footing as the corroboration of an accomplice's evidence. Subsequent conduct of the complainant in a rape case is a type of corroboration which has no application in the case of an accomplice. It is, of course, obvious, as pointed out by the Calcutta High Court in Harendra Prasad v. Emperor2 that a prosecutrix in rape cases is not an accomplice. If she was, the offence would not be rape unless she was under fourteen years of age. But in our view the Calcutta High Court has not thrown any doubt on the general rule that the evidence of the prosecutrix in a rape case must be corroborated.
7. On that ground alone we think the conviction of accused No. 1 must be set aside. Whether the refusal to direct the supply of a copy of the first information to counsel for the accused would have been sufficient to justify us in setting aside the conviction, it is not necessary to consider, but such copy ought to have been supplied or the complainant recalled.
8. In the case of accused No. 2, there is really no defence whatever. He was found in possession of the stolen articles, and there is no ground for interfering with his conviction and sentence. But we must set aside the conviction of accused No. 1 and direct that he be acquitted and discharged.