1. In this case the appellant was charged with rape under Section 376, I.P.C., and tried by the Sessions Judge of Burdwan and a jury who found him guilty by a unanimous verdict, and he was sentenced to five years' rigorous imprisonment. The case for the prosecution was that the girl Rajlakshmi Debi lived with her parents at Kalna. On 10th Jaistha it is alleged that she went out to the house of one Panchu Moira to a wedding of Panchu's daughter. On the way she met the appellant's wife, who asked her if she would pluck out the grey hairs from her head. She said that she would, and asked her to sit down by the roadside. But the appellant's wife asked her to go to her house to do it, so she went there. While there the appellant came in, and according to her story she was made to lie down on the bed, when the appellant's wife produced a pot containing oil, which the appellant applied to the girl's private parts and to his own, and then raped her. His wife, who was a woman of 26 stood by and watched the rape, and further she held the girl's hands and gagged her while this was going on. Afterwards she asked the girl to come with her to a tank to get her cloth washed and said that when she came back she would give her same churis. The appellant's wife then took her to a tank but left her there. Rajlakshmi instead of coming back to the appellant's house went home. She was bleeding, and the blood was trickling down her legs. Her mother observed this and called the girl's father. When he came and asked her what she had been doing, she made a complaint saying that the appellant had raped her, and gave the particulars to which I have referred. On medical examination it was found that there was a tear in her vagina, and some congestion around her private parts. The evidence goes to show that she was under 14 years of age. Therefore no question of consent arises in this case, but she was developed far beyond her age. The orifice was much larger than usual, and the doctor said that this indicated that she had intercourse prior to the present occasion. Further he said that the evidence showed that she could not have been raped, and that the connexion must have been with her consent.
2. There are a number of improbabilities in the girl's story. The Court called two witnesses, whom the prosecution said had been won over by the defence, but as the Judge observes there was no evidence of this. They said that no marriage had been held on that day in Panchu's house, and that such a marriage was impossible according to the Hindu calendar. With regard to the times stated by the girl for her coming in and going out she says that she left her home at 3; her mother says that she left at 12 o' clock mid-day and returned at 4 o' clock. If this be true no explanation has been given for her absence for over four hours. She had never spoken to the appellant's wife before, though she knew her by her sight. It seems unlikely therefore that the woman would ask her to pluck out her grey hairs, and still more unlikely that the girl would have gone to her house. The girl did not scream when the attack of which she complained was being made upon her. Apparently she did nothing while the appellant's wife was going for the oil, or while the oil was being applied to her private parts and to those of the appellant. The appellant and his wife occupied two rooms in this hut, and according to the girl the outside door, and the inner doors were open during the time when the rape was taking place. Further she said that two women were in the second room, of which the door was open. That is what she said before the Magistrate. Before the Sessions Court she said that they were not there at the time but that she knew that they lived there, and she described their relationship to the appellant. This seems to show that she knew much more about the people in this house than she pretended. The fact alleged, that the wife helped in this disgusting business seems very unlikely, not only because she was the appellant's wife, but because of her age. The only possible suggestion for such conduct would be the superstition that a man can get rid of his venereal disease if he has connexion with a virgin. In such cases, as I understand, a wife in this country may assist her husband, but far from there being any evidence that the appellant had venereal disease, he was examined by the doctor who said that he had none, nor was there any trace that he had it previously. The hut in question was surrounded by other huts and shops. It was opposite Panchu's house and was within 100 yards of the girl's home. The accused's cloth was examined and no blood was found upon it. He was examined by the doctor and there was no injury found on his penis. There were no oil marks on the cloth of the girl or that of the accused nor was any oil found in the hut. The girl said that when she went to the tank she was not weeping, nor did she speak to any one, although there were shops on both sides of the road leading to the tank.
3. The medical evidence showed that she was not a virgin at the time when she said that the rape was committed. There were remains of a hymen, and the doctor said that her condition indicated that she must have lost her virginity at least three months before, and that she had frequent intercourse since. There were no outside injuries, either on the orifice or on the vulva. According to the doctor he would expect to find such marks in a case of rape. This indicates clearly that the girl consented to whatever was done, though this was not material to the present charge. Evidence was also given to show that the girl was intimate with a prostitute named Sasi, who was connected in someway with the appellant, and that she had been to her house in the evening. Two witnesses spoke to this.
4. In view of these facts it is clear that the utmost care must be taken by the Judge and the jury before they convict the accused. This sort of complaint is very common. The girl comes home bleeding and the blood is noticed by her mother or her parents. They ask for an explanation, and she has to give one on the spur of the moment. She is unwilling to admit that she has had intercourse with anybody so suggests that she has been raped. In the urgency of the moment there is no telling whom she will accuse of the attack which she alleges has been made upon her.
5. In such cases therefore it has been the practice for many years, for the Judge to warn the jury not to accept the evidence of the girl unless they find that it is corroborated in some material particular implicating the accused. But he ought to tell them that if, inspite of his warning, they come to the conclusion that they believe the girl, and think the accused guilty, then they have the right to convict him on her uncorroborated evidence. In this case there was no corroborative evidence. A witness saw the girl going with the appellant's wife into his house. But this did not implicate the appellant. There was no evidence that he was there. The blood found upon her cloth, and the complaint which she made, are not corroborative evidence such as is required by the rule. Firstly because it does not implicate the accused, and secondly because, upon this point, the girl cannot be allowed to corroborate herself. The corroborative evidence must be that of an independent witness. I have examined the learned Judge's charge carefully, and I cannot find a word of warning upon these points nor any direction that they ought not to convict without some corroborative evidence. In fact, he never used the word corroboration throughout the whole of his charge. Moreover the evidence about Sashi was most important, because it affected the character of the complainant, but the Judge has not even mentioned it. In cases such as this, before a jury are justified in accepting the testimony of the complainant they must be satisfied that she is a witness of truth, and if they find that she is a person of had or loose character obviously they will be reluctant to accept her evidence.
6. When I drew attention to these omissions from the Judge's charge, Mr. Khondkar said that the law does not require corroboration in rape, or that any such warning should be given to the jury. I confess that it is somewhat disconcerting to be so informed by the Deputy Legal Remembrancer about a rule which is so well recognized, and which has been a rule of practice familiar to me during the whole course of my professional life. There cannot be any doubt that recognized practice requires that such a warning should be given. The rule is stated categorically in Russell on Crimes, Edn. 8, at p. 2138, thus:
In the case of rape, corroboration is required in fact, hut not as a matter of law. In archibold's Criminal Pleadings, 28th Edn., at p 1047, the rule is stated thus: Corroboration of the story of the prosecutrix is not essential, but it is the practice to warn the jury against the danger of acting upon her uncorroborated testimony, particularly where the issue is consent or no consent.
7. In R. v. Thomas James Jones (1925) 19 Cr. App. Rep. 40 at p. 41 which was a case of indecent assault, the learned Lord Chief Justice said:
The proper direction in such a case is that it is not safe to convict upon the uncorroborated testimony of the prosecutrix, but that the jury, if they are satisfied of the truth of her evidence may, after paying attention to that warning, nevertheless convict.
8. The kind of corroboration required is described in Archibold, the same edition at p. 473 as follows, when dealing with the evidence of accomplices:
The kind of corroboration required is not confirmation by independent evidence of everything the accomplice relates, as his evidence would be unnecessary if that were so. What is required is some independent testimony which affects the accused by tending to connect him with the crime, that is, evidence, direct or circumstantial, which implicates the accused, which confirms in some material particular not only the evidence given by the accomplice that the crime has been committed, but also the evidence that the accused committed it.' R. v. Baskerville (1916) 2 KB 658.
9. It is clear therefore from the facts which I have stated that there was no such proper direction in this case. The learned Judge failed to direct the jury on material points, therefore the conviction and sentence must be set aside and the appellant acquitted. In view of the improbabilities of the case and as there is no corroborative evidence, it does not appear to be necessary to send this case back for retrial.
10. Mr. Khondkar argued that inasmuch as in the present case the question of consent is immaterial the failure of the learned Judge to warn the jury was of little practical importance. But, in my judgment, that does not really affect the matter. The fact remains that the case made by the girl was that so far from her consenting it was a forcible rape. The medical evidence makes it quite clear that this was untrue. The other parts of her story which were capable of being tested aliunde were also found to be untrue. It is therefore obvious that it would be very dangerous to convict the accused on the uncorroborated evidence of a witness whose evidence, so far as it could be tested, has been proved to be false.