1. The appellant Tapu Dharamshi has been convicted by the Sessions Judge, Jhalawad Division, oF rape Under Section 376, IPC and sentenced to two years rigorous imprisonment. The prosecutrix Shanta is aged about 17 or 18 years and is a married girl, but she does not live with her husband and is living with her father and brother at Gujarwadi. Her father who was then ill has since died. Hari's wife is the sister of Shanta's husband, and it appears that on account of family quarrels Shanta was not sent to her husband, and similarly Hari's wife was not sent by her parents. The accused is also from the same village and at the material time he was living in his field with his wife and children. The prosecution case is that in the noon of 29-1-1954 Shanta had gone out to collect cowdung and met a Ghanchi woman Halu and her daughter on the way and the three of them went together on the road to Mota Ankewalia village. Halu and her daughter stopped at their field which was on the way. Shanta had collected some cowdung which she kept near Halu's field and she proceeded alone. After collecting some more cowdung she was returning to the village when, it is alleged the accused who was working on his field, which is on the main road, suddenly came out, stood in her way and catching her by the hand dragged her and committed sexual intercourse without her consent. After the act was over she took the basket containing cowdung and also took the cowdung left near Halu's field, and started to return to the village. She was crying and she informed certain women whom she met on the way that the accused had raped her. On returning to her house she also told one Samn Luharan. Her brother Hart, who is a postman at Gujarwadi, was out on duty and returned in the afternoon and Samu informed him of the incident in the evening, and thereafter he and Shanta went to the Police station at Rajsitapur which is about 6 miles from Gujarwadi. Shanta's first information was recorded at 1 A. M. by the police station officer and the offence was investigated and the accused prosecuted. His defence was a total denial of having anything to do with the occurrence.
2. The questions arising for consideration are first whether Shanta was subjected to sexual intercourse at the time of the alleged occurrence in the noon of 29-1-1954, and if so whether the intercourse was committed by the accused and he did it without her consent. The only evidence regarding the incident is the prosecutrix's own and as to the sufficiency of such evidence a division Bench of this Court has held in 'Gadhvi Ayadan v. The State', 4 Sau LR 179 (A), that ordinarily it may not be safe to rely upon the uncorroborated evidence of the prosecutrix, and there should be other evidence to corroborate her, but that cannot be a hard and fast rule in all cases, and on the facts of a particular case an accused person can be convicted on the testimony of the prosecutrix alone provided the circumstances of the case show that the woman's story is true. Dealing with the question of the necessity of corroboration of the evidence of the prosecutrix, the Supreme Court has observed in 'Rameshwar Kalyan Singh v. State of Rajasthan' : 1952CriLJ547 .
The rule, which according to the cases has hardened into one of lay is not that coroboration is essential before there can be conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the Judge, and in jury cases must find place in the charge, before a conviction with out corroboration can be sustained. The tender years of the child which is the victim of a sexual offence, coupled with other circumstances appearing in the case, such, for example, a 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 a the case may be and be understood and appreciated 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.
His Lordship Bose J. who delivered the judgment of the Court further said:
It would be impossible, indeed it would be dangerous, to formulate the kind of evidence which should, or would, be regarded as corroboration. Its nature and extent must necessarily vary with the circumstances of each case and also according to the particular circumstances of the offence charged........It is not necessary that there should be independent confirmation of every material circumstance in the sense that the independent evidence in the case, apart from the testimony of the complainant or the accomplice, should in itself be sufficient to sustain conviction. The independent evidence must only make it safe to believe that the crime was committed but 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 corroboration must come from independent sources and thus ordinarily the testimony of one accomplice would not be sufficient to corroborate that of another........ The corroboration need not be direct evidence that the accused committed the crime. It is sufficient if it is merely circumstantial1 evidence of his connection with the crime.
3. Now it is admitted that the prosecutrix Shanta had never had any sexual intercourse with her husband and according to her she was a virgin right till the time of the present occurrence. Her evidence is that the accused forcibly dragged her and then took her in his arms was a result of which a bangle on her left hand broke, that the accused threw her on the ground near a babul tree and then had forcible sexual intercourse with her. (His Lordship then commented upon the absence of any injury on her body and also absence of bleeding. He referred to the examination made by the doctor thus):
The doctor's examination which took place at 11 A. M. the same day too did not disclose any injury on her person except the bruise below the elbow. The certificate issued by the doctor, Ex. 32 says that there was no congestion or redness in the vaginal canal, nor were any signs of semen found and she felt no pain whatever and her private parts were perfectly normal. There was no injury to the membrane and no signs of any bleeding as a result of the injury, and according to the doctor the girl1 must have been used to sexual inter-course before.' (His Lordship then continued): The prosecution has next relied on the find of pieces of a broken bangle lying at the scene of the offence.
However in the first information which was given at the police station, evidently after some . deliberation, there is no mention of the broken bangle and considering that the pieces were lying buried in dust, it will not be quite safe to construe the find of the bangle pieces as suggesting the use of force. But assuming that the bangle was broken and the pieces were lying there that by itself will not necessarily indicate force because it may well be that the person tried to drag her by the arm to overcome her initial reluctance and she may have then voluntarily agreed and gone with him.
4. On account of the normal condition of the girl's private parts and the absence of injury on others parts of the body the learned pleader for the appellant has submitted that Shanta must not have had any intercourse at all at the time of the alleged offence. But it has to be remembered that she was used to sexual intercourse and the absence of injuries on her private parts would not necessarily rule out the fact of the sexual intercourse altogether; all the more so if it was with her consent. Stains of semen were found on her skirt which also corroborates the story of the intercourse. The accused is a Koli while Shanta is a Kanbi and no ill-will is alleged against him and it is quite improbable that she would fabricate the story of rape altogether, if there was no sexual intercourse at all. We are therefore not prepared to hold that the girl had no sexual intercourse at all at the time of the incident.
5. The prosecution had laid stress on the fact that on her way to the village she had complained to several women of the accused having raped her. As for this, the first information only says that she spoke to one Vijaya Sutharan whom she met on the way as Vijaya was proceeding in the direction of Ankewalia, and then on reaching home she (Shanta) had talked to Samu Luharan. At the trial she says that two Koli women named Shanta and Saku had also met her as she was relating her misfortune to Vijaya. No doubt Vijaya, Shanta and Saku fay that the prosecutrix Shanta had met them, but according to Vijaya the prosecutrix Shanta did not tell her of the incident in the presence of the Koli women and she (Vijaya) asked them to take Shanta.
Vijaya did not tell them that Shanta had been raped by the accused, and it was only after the Koli women and Shanta proceeded further towards the village that they enquired what had happened and Shanta related the story to them. Stopping here for a moment, it is significant that Shanta (prosecutrix) had not said anything to Halu and Sakina on her way back, though Halu was near. They had seen her crying but they did not enquire, nor did she herself speak to them. Her evidence also is that two Sathwara women named Putli and Milhi had also met her and she spoke to them.
Similarly it is alleged that she had also informed a Bharwadan Bai Kuki but the first information makes no mention of these facts and we are not satisfied that Shanta had actually met any of the women excepting Vijaya or had complained to them. It is probable that the said women might be going by the road at the time and that they have been called by the prosecution for that reason. But assuming that Shanta met Vijaya and the other women as well and -shad talked to them, that does not constitute sufficient corroboration, in this case having regard to the unnatural story related by Shanta herself. It is true that they would be statements made to the witnesses 'on or about the time when the fact took place,' and would be admissible as corroboration Under Section 157, Evidence Act. However, the weight to be attached to them is another matter, and though they may emanate from the same source their evidentiary value may be nil if the source itself is tainted. The value of the evidence of these women therefore will depend upon whether the story related by Shanta is itself probable and reliable.
6. Now here the offence is alleged to have taken place on the border of the accused's field which adjoins the main cart road and according to the evidence of panch Devshanker Ex, 4 the spot is about fifteen feet from the road itself. That it was close to the road is also admitted by the investigating Head Constable Baudin, and though the rape is said to have been committed near a babul tree the place was quite open and clearly visible from the road and there was no real obstruction at all, and if the woman raised cries they would be clearly audible from the road. This is admitted by Bauddin himself.
It seems to us most improbable that the rape would be committed on such an open public place bordering the main road, at mid-day when people were passing along the road. Admittedly Balubha, another postman, had gone ahead of Shanta towards Ankewalia and people were also coming from the direction of Ankewalia of which the Koli and the Satwara women are said to be instances. In fact Vijaya too was proceeding by the same way and it being the main road normally people would be passing by. It was again a season for watching the gram crop in the fields and people would be found in the neighbouring fields too although Shanta has suggested that they may have gone into the village because of a Bhagwat Parayan, a suggestion which is not supported by any other evidence.
The accused was having his own hut about sixty feet away from the road in which he lived with his wife and children. Therefore it was highly improbable that the accused would drag a woman forcibly, throw her down and commit rape at a place like this. If she had raised cries, as she says she did, they might have been heard by the people passing by the road or by the neighbours, but that has not happened and that also adds to the improbability of the story.
The scene, of the offence is found to be soft & dusty and it is urged for the prosecution that no injury therefore would be caused to the girl but in that event we would expect to find some signs of disturbance on the ground but no such marks have been at all found and excepting for the two pieces of bangle seen there, the next afternoon at about 5-30 p.m. when the panchnama was made, the place showed not the slightest sign of any disturbance. This place therefore does not seem to us to be the scene of the occurrence.
7. In our opinion the intercourse must have taken place with the consent of Shanta and she is aged about 17 or 18, no question of rape arises. As for the person having the intercourse with her, we are also satisfied that it was the accused. She had named him to Vijaya and Samu and his name has been also mentioned in the first information. We do not see any reason why Shanta should have implicated the accused if the accused had nothing to do with the occurrence. There was no illwill between the two and none is suggested. No doubt the male organ of the accused which was examined by the medical Officer in the noon of 31-1-1954, nearly two days after the offence, did not show any marks but that was quite natural:, particularly so, if tile intercourse had taken place with the consent of the girl.
The 'chorna' which is said to have been worn by him at the time of the occurrence did not show any spermatozoa, but. that again is not improbable considering that it was attached the next evening and might have been changed by the accused. We are inclined to believe the story of Shanta that the person who had the intercourse with her was the accused, but we believe that it was with her consent. She was used to illicit sexual intercourse and it seems to us that being afraid that she had been found out by others she has changed the incident from voluntary sexual intercourse into one of rape. We are not prepared to put implicit reliance on her evidence having regard to the facts and circumstances of the case referred to above and we find that although the accused did have the intercourse with her that was with her consent and that no offence has been committed. We therefore allow the appeal set aside the conviction and the sentence and acquit the accused.
8. Baxi, J.
9. I agree.