JUDGMENT
Basudeva Panigrahi, J.
1. The accused in S.T. 19(2)/89 34/90/Cri. 189 In the Court of Additional Sessions Judge, 5th Court, Alipore is the appellant. The appellant was charged under Section 376 of Indian Penal Code to have committed rape upon the prosecutrix Smt. Jyotsna Mridha on 30th June 1983 at 2/ 37A, Vidyasagar Colony within Jadavpur Police Station, Calcutta-47 and convicted and sentenced to undergo rigorous imprisonment for a term of 10 years and also to pay a fine of Rs. 2000/-, in default to suffer rigorous imprisonment for six months more. Out of the amount of fine so realised, an amount of Rs. 1500/- was directed to be paid to the victim lady as compensation.
2. The skeletal picture of the prosecution story as revealed in the FIR is as follows:
That the husband of the victim Harekrishna, Mridha was an employee of O.B.G.C, at the relevant time. He was residing with the prosecutrix Jyotsna Mridha at 2/37A, Vidyasagar Colony on the date of incident. The husband of the victim used to remain absent between 8 a.m. and return home from the office at about 7-30/8 p.m. regularly. During that period the victim lady Jyotsna Mridha used to stay alone in the tenanted premises. It has been stated in the FIR that one day, that is, 3/4 days before the occurrence at about 10/10-30 a.m. during the absence of the victim’s husband, the appellant Babu Dey is said to have come to the tenanted premises and communicated bad gesture to Jyotsna which was resisted and the appellant threatened the victim with a dire consequences. When Jyotsna Mridha made a shriek, the appellant left the premises. Immediately after Jyotsna’s husband came to the house, she claimed to have narrated the incident.
3. On 30-6-83 at about 10-30 a.m. when the husband of the informant Jyotsna Mridha left for attending the office, the appellant is said to have come and entered into the tenanted premises clandestinely. At that time the informant was sleeping in her room. The accused after entering into the premises caught hold of the informant after getting himself on her chest and placed his hand on her mouth and thereafter the accused lifted her wearing saree and allegedly committed rape ori her. When Jyotsna attempted to make an outcry, the appellant threatened her by showing a knife. It is allegedly stated that the accused had committed rape on her by force without her consent and after 30 minutes the accused left the room with a warning that if the informant revealed this incident to others, she would be finished. The informant fell ill and she sustained pain on her private parts and other parts of her body. The informant narrated the incident to the landlady and a few persons of the locality. Since the informant was ill, there were some delay in lodging FIR at the Police Station.
4. After lodging the report at Jadavpur Police Station, the incident was registered as P.S. Case No. 1 dated 1-7-83 and the police immediately swung into action and the case was initiated under Section 376 of Indian Penal Code against the appellant. After closing the investigation the chargesheet was submitted against him under Section 376 of Indian Penal Code before the learned Sessions Judge, 24 Parganas (S), Alipore, which was transferred to the Court of the learned Additional Sessions Judge.
5. The defence of the appellant in the trial Court was of denial of occurrence and the accused has stated to have lent Rs. 2000/- to the victim. But as she did not repay, he had gone to the house of the victim for collection of his dues. On the following day a few supporters of the victim came to the house of the accused, assaulted him as well as his mother.
6. The prosecution has examined ten witnesses in support of its case to bring home the charge to the accused. The learned Additional Sessions Judge, however, after consideration of the evidence, was inclined to pass an order of conviction and directed the appellant shall undergo rigorous imprisonment for ten years with fine.
7. The learned Advocate appearing for the appellant has placed before us some unnatural circumstances, which, according to him would belie the prosecution story. It has been indicated by the appellant that the story has stated in the FIR has not been corroborated either by the prosecutrix or by any of the witnesses examined on behalf of the prosecution.
8. It has been indicated in the FIR that on the date of incident while the victim was sleeping in her room, the appellant clandestinely entered into the premises and raped against her will and without consent. But in evidence another story has been narrated by the victim who has been examined as P.W. 8. She stated that on the date of incident namely 29-6-83, when her husband left for his duty at about 10 a.m. she was cleaning her room. At that time the appellant entered into the premises and sexually assaulted her. If the version narrated in Court is true, we do not understand as to why she did not make an outcry, so that the other neighbours could have immediately come and over powered the accused and caught him red-handed. The victim stated in her evidence that she narrated the incident to her landlady and other neighbours. But, unfortunately, neither the landlady nor any of the neighbours has supported this version.
9. P.W. 1, who was the victim’s landlady, did not support the prosecution version except to the extent that Jyotsna Mridha came to her crying and reported that the accused did ‘Atyachar’. But P.W. 1 has narrated that the victim did not reveal as to how she was subjected to ‘Atyachar’ and what type of ‘Atyachar’ was meted to her. She narrated in her evidence that the house of Mantu Ghosh, Netai Ghosh and Kesto Ghosh are adjoining to her house, but none of them supported the prosecution story. According to Jyotsna, she also stated about the incident to P.W. 2; but P.W. 2 did not support the prosecution story, save and except that Jyotsna was subjected to manhandling (Tanatani). Even the husband of the victim, who allegedly has been told about the incident immediately after his return, did not corroborate the victim’s statement and he was declared hostile by the prosecution.
10. P.W. 3, who claimed as the Secretary of the Vidyasagar Colony at the relevant time, has testified that P.W. 1 reported him that the appellant had outraged her modesty. P. Ws. 4 and 5 of course did not support the prosecution case.
11. The testimony of P.W. 6 also has not lent assurance to the prosecution case. He was the medical officer, who examined the victim and the appellant on 6th July, 1983. On examination he did not notice any incriminating material either on the victim or on the appellant. He did not notice any sign of injury of intercourse on her person. Had she been subjected to forcible intercourse followed by any resistance by the victim, there must have been some injury on her person. Although the wearing garments of the victim lady as well as the appellant had been sent to forensic laboratory, but from the report it does not come out anything which could be used against the appellant. The victim as well as the accused were examined on 6th July, 1983 by the Medical Officer. No explanation whatsoever has been offered by the prosecution as to why they were not sent soon thereafter for medical examination. This circumstance positively goes in favour of the appellant.
12. If the evidence of the victim in a rape case does not suffer from basic infirmities of the probabilities factor, it does not render unworthy credence as a general rule. There is no reason to insist upon corroboration on medical evidence.
13. The learned Advocate appearing for the appellant has submitted a decision in the case of Rameshwar Kalyan Singh v. State of Rajasthan wherein it was held that:–
There is a class of cases which considers that though corroboration should ordinarily be required in the case of a grown up woman it is unnecessary in the case of a child of tender years. Bishram v. Emperor AIR 1944 Nag 368, is typical of that point of view. On the other hand, the Privy Council has said in Mohamed Sugal Esa v. The King AIR 1946 PC 3 at p. 5, that as the matter of prudence a conviction should not ordinarily be based on the uncorroborated evidence of a child witness. 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 he should also point out that corroboration can be dispensed 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 case 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 dispense with it, must be present to the mind of the judge’, and injury 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 or prudence must be present to the mind of the judge or the jury, as 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.
It was further held that:–
I turn next to the nature and extent of the . corroboration required when it is not considered safe to dispense with it. Here, again, the rules are lucidly expounded by Lord Reading in Baskerville’s case, (1916) 2 K.B. 658 at pp. 664 to 669. Itwould 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. But to this extent the rules are clear.
Further reliance has also been placed on the decision in the case of Gurcharan Singh v. State of Haryana wherein it has been held that:–
The point most seriously canvassed in this Court on behalf of the appellant was that the solitary statement of the prosecutrix without corroboration in material particulars is not enough to sustain the conviction of the appellant. The learned counsel appearing for Gurcharan Singh contended that Dalip Singh and Sanjha Ram may have been rightly convicted. But so far as the appellant is concerned the evidence against him is neither reliable nor sufficient for bringing home to him the offences of abduction and rape beyond reasonable doubt. The basic question which, therefore, arises is as to how far the testimony of the prosecutrix before us can form the basis of the appellant’s conviction. It is well settled that the prosecutrix cannot be considered as an accomplice and, therefore, her testimony cannot be equated with that of an accomplice in an offence. As a rule of prudence, however, Court normally looks for some corroboration of her testimony so as to satisfy its conscience that she is telling the truth and that the person accused of rape on her has not been falsely implicated. The matter is not res integra and this Court has, on more occasions than one, considered and enunciated the legal position in Remeshwar v. State of Rajasthan , this Court observed:–
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 complainant somewhat along the same lines as accomplice evidence though often for widely different 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.
After referring to the well-known English decision in King v. Baskerville (1916) 2 KB 658 from which the observations of Lord Reading, the Lord Chief Justice of England, were quoted with approval, the law in India was stated to be exactly the same so far as the accomplice are concerned and it was observed that in case of sexual offences it could not be any higher. The view taken by the High Court in that case that as a matter of law no conviction without corroboration was possible was disapproved. The true rule, after consideration of decided cases is stated thus:
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 he should also point out that corroboration can be dispensed with it, 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 dispense with it, must be present to the mind of the judge, and in a jury case, 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 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.
Adverting to the nature and extent of corroboration required when it is not considered safe to dispense with it this Court added:
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 neeessarily vary with circumstances of each case and also according to the particular circumstances of the offence charged.
14. In Pratap Misra v. State of Orissa , the Supreme Court has narrated the grounds as to in which manner the evidence of the prosecutrix need to be scrutinised. There can be no doubt that it is not a sine qua non that in each and every case corrobora-tion to the testimony of the prosecutrix is necessary. But in cases where the evidence of the prosecutrix is not beyond the reproach, the Court as a rule of prudence should ask for some corroborative evidence to lend assurance to the testimony of the victim. Keeping this principle in mind, let us now advert to the evidence of the victim placed before us.
15. In the FIR the incident is said to have occurred on 30-6-83 at 10-30 a.m. In her evidence she claimed that the incident had taken place on 29-6-82. The matter was reported on 1st July, 1983 at about 19.45 hours. There has been no explanation as regards the delay as to why it is lodged at such a belated stage. The learned Advocate appearing for the State, has, however, invited our attention that the victim being a lady in the absence of her husband, could not have lodged a report at the Jadavpur Police Station. But we are unable to accept this statement, inasmuch as, when in the absence of her husband she could reveal the incident to the landlady as well as to the neighbours, why she defaulted in lodging a report at the police station. On scrutiny of the evidence it is found that the victim lodged a report on the date of incident. If that be so, it should have been registered on 30-6-83, but not on 1st July, 1983. We have already indicated hereinabove as to the manner how the prosecution story is different in the FIR from that of her statement in Court. Although this incident was relayed to the other neighbouring persons, but at least this aspect that the neighbours were apprised of the incident, did not receive corroboration from any other witnesses. The Court should not rely on her evidence without corroboration by other witnesses. The appellant was known to the victim prior to the incident. She stated in her evidence that she secured an employment only with the help of the accused three months before the incident and the appellant was habituated in visiting her house.
16. The appellant, however, in his statement made under Section 313 of the Code of Criminal Procedure offered an explanation that as the appellant lent rupees two thousand to the prosecutrix, he went to collect the dues. At that moment there was an altercation followed by an outcry. The amount of proof as is required by the prosecution to bring home the charge, the same amount of proof is not necessary to the defence on a broad and expansive consideration. We find that the plea of the defence is some what believable, that he had gone to the house of the victim on the date of incident for collection of his dues.
17. In absence of any other corroborative evidence in lending assurance to the victim’s evidence, we, however, feel unsafe to thoroughly rely upon the prosecutrix evidence to bring home the charge against the appellant. Accordingly, we hereby acquit the accused under benefit of doubt and allow the appeal.
18. In the result, conviction and sentence are hereby set, aside and the appeal is allowed. Bail bond, if any stands cancelled.
D.P. Kundu, J.
19. I agree.