PETITIONER:
SHEIKH ZAKIR
Vs.
RESPONDENT:
STATE OF BIHAR
DATE OF JUDGMENT02/06/1983
BENCH:
VENKATARAMIAH, E.S. (J)
BENCH:
VENKATARAMIAH, E.S. (J)
ERADI, V. BALAKRISHNA (J)
CITATION:
1983 AIR 911 1983 SCR (2) 312
1983 SCC (4) 10 1983 SCALE (1)644
ACT:
Evidence Act-s. 133 and illustration (b) to s. 114-
Evidence of victim of rape-Whether an offender can be
convicted on uncorroborated testimony of victim of rape-In
what circumstances and to what extent does it need
corroboration?
HEADNOTE:
The appellant was convicted under s. 376, I.P.C., for
raping a tribal woman mainly on the evidence of the victim
who was the complainant, her husband and two other
witnesses, one of whom had deposed that he had seen the
appellant on the body of the victim while the other had
stated that he had seen the appellant fleeing away from the
scene of occurrence. The High Court dismissed the appeal and
confirmed the conviction.
The appellant submitted that the local Mukhiya to whom
the complainant and her husband were alleged to have gone to
complain about the incident immediately after its
occurrence, the police officer who was alleged to have
refused to record the complaint and also two other witnesses
mentioned in the complaint had not been examined by the
prosecution and this, together with the absence of a medical
examination report given by a doctor after examining the
person of the complainant immediately after the occurrence,
was fatal to the prosecution case.
The Mukhiya and one of the two other witnesses
mentioned in the complaint who had not been examined earlier
were examined pursuant to the orders made by the Court and
they did not support the prosecution case.
Dismissing the appeal,
^
HELD: Even though a victim of rape cannot be treated as
an accomplice, on account of a long line of judicial
decisions the evidence of the victim in a rape case is
treated almost like the evidence of an accomplice requiring
corroboration. Section 133 of the Evidence Act says that an
accomplice shall be a competent witness against an accused
person and a conviction is not illegal merely because it
proceeds upon the uncorroborated testimony of an accomplice.
But the rule of practice is that it is prudent to look for
corroboration of the evidence of an accomplice by other
independent evidence. This rule is based on human experience
and is incorporated in illustration (b) to s. 114 of the
Act. There must be an indication in the course of the
judgment that the judge had this rule in his mind when he
prepared the judgment
313
and if in a given case the judge finds that there is no need
for such corroboration he should give reasons for dispensing
with the necessity for such corroboration. But if a
conviction is based on the evidence of a prosecutrix without
any corroboration it will not be illegal on that sole
ground. In the case of a grown-up and married woman it is
always safe to insist on such corroboration. Wherever
corroboration is necessary it should be from an independent
source but is not necessary that every part of the evidence
of the victim should be confirmed in every detail by
independent evidence. Such corroboration can be sought from
either direct evidence or circumstantial evidence or from
both. [318 E-H; 319 A-D]
Rameshwar v. State of Rajasthan, [1952] S.C.R. 377;
Gurucharan Singh v. State of Haryana, [1973] 2 S.C.R. 197;
Kishan Lal v. State of Haryana, [1980] 3 S.C.R. 305; King v.
Baskerville [1916] 2 K.B. 658, referred to.
In the instant case a reading of the deposition of the
complainant shows that it has a ring of truth around it. Her
evidence has been corroborated in material particulars by
the evidence of her husband and the other two witnesses. The
statement made by the complainant to her husband immediately
after the incident is admissible under s. 157 of the Act and
has a corroborative value. [319 F-H]
The Mukhiya has not given any version about the
incident but has merely stated that the complainant and her
husband had not gone to him to complain. It is significant
that his name figured in the complainant as a witness. The
complainant could not have taken the risk of including his
name if he had not been actually contacted by her. He was
cited as a witness to show that immediately after the
occurrence the complainant had made a statement regarding
the crime before him which would be corroborating evidence.
It has to be borne in mind that he was examined nearly 12
years after the incident and it is a sufficiently long
period and particularly for persons of easy conscience to
make half-hearted statements in courts. In the circumstances
it is difficult to hold that the evidence of the other
witnesses before the court is in any way affected by the
evidence of the Mukhiya. The same criticism applies to the
evidence of the other witness examined along with the
Mukhiya. The non-examination of the police officer who
declined to record the information said to have been given
by the complainant is found to be not fatal to the
prosecution. [317 C-H]
The complainant and her husband being persons belonging
to backward community like the Santhal tribe living in a
remote area could not be expected to know that they should
rush to a doctor. The absence of any injuries on the person
of the complainant may not by itself discredit the statement
of the complainant. Merely because the complainant was a
helpless victim who was by force prevented from offering
serious physical resistance she cannot be disbelieved. [318
B-D]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
440 of 1974.
314
Appeal by Special leave from the Judgment and Order
dated the 17th September, 1974 of the Patna High Court in
Crl. Appeal No. 579 of 1969.
Davendra N. Goburdhan & D. Goburdhan for the Appellant.
S.N. Jha for the Respondent
The Judgment of the Court was delivered by
VENKATARAMIAH, J. This appeal by special leave is filed
against the judgment dated September 17, 1974 passed in
Criminal Appeal No. 579 of 1969 on the file of the High
Court of Patna confirming the conviction of the appellant of
the offence punishable under section 376 of the Indian Penal
Code and the sentence of rigorous imprisonment for five
years imposed on him on December 20,1969 in Sessions Trial
No. 107 of 1968 on the file of the Assistant Sessions Judge
at Purnea in the State of Bihar.
The appellant was committed to face the trial for an
offence punishable under section 376 of the Indian Penal
Code by the order of the Munsiff-Magistrate, 1st Class,
Purnea on the basis of a complaint filed by the complainant
Barki Devi (P.W. 3) before the Sub-Divisional Officer,
Sadar, Purnea on August 9,1968 who took cognizance of the
Offence and transferred the case to the file of the
aforesaid Magistrate.
The allegations made in the complaint are briefly
these: That on August 1, 1968 at about 5.00 P.M, the
complainant, who was a married woman of about 25 years, was
engaged in the work of uprooting of the paddy seedlings on
her field situated on the southern side of her house in
Dhumra Badh situated in Mouza Dhamdaha, Police Station
Dhamdaha, District Purnea. There was a canal to the east of
the field and there were no houses nearby. When she was
working on her field the appellant came near her and started
cutting jokes and suggested that she should have sexual
intercourse with him. On the complainant protesting at his
suggestion, the appellant suddenly caught hold of her, threw
her down on the ground, removed her clothes and committed
rape on her. On hearing her cry for help, some persons
arrived at the place. The appellant immediately ran away.
Thereafter the complainant went to her house and narrated
the incident to her husband, Jitrai (P.W. 4). The
complainant and her husband then went to the local Mukhiya
who asked them to file
315
a complaint in the Court. Then they went to the police thana
to give information about the crime but the police officer
declined to record the information as the appellant was an
influential person. Then the complainant went to the court
on August 8, 1968 to lodge a complaint but as the time for
lodging complaint was over by the time the complaint was
drafted, she filed it on August 9, 1968 in the court. The
complaint contained the names of some witnesses.
At the trial the complainant was examined as P.W. 3.
She belongs to the Santhal tribe. In her evidence she
described the incident as disclosed in her complaint. She
stated that the appellant forcibly had sexual intercourse
with her against her will. She stated that on hearing her
cry, Sheikh Lafid (P.W. I) came there and on seeing him, the
appellant ran away. She also stated that she narrated the
incident to Juman Nadaf (P.W. 2), Chanda Kisku and Makbool
who also came there and that she showed the stains of semen
on her clothes and also the trampling marks on the ground to
them. She also stated that she narrated the incident before
her husband and the Mukhiya of the village. She further
stated that when she and her husband went to the police
station, they were threatened and driven away by the police
officer there. She also told about her going to Purnea and
lodging the complaint. Sheikh Lafid (P.W. 1) corroborated
the evidence of the complainant by deposing that when he
reached the scene of occurrence he saw the appellant lying
on top of the body of the complainant. Juman Nadaf (P.W. 2)
stated that when he went near the scene of occurrence he saw
the appellant fleeing away from there. He stated that the
complainant had narrated before him the details of the crime
committed by the appellant. Jitrai (P.W. 4) the husband of
the complainant stated that in the evening of the day of
occurrence the complainant told him about the manner in
which she had been ravished by the appellant and also gave
evidence about his going to the Mukhiya and to the police
station and what happened there as narrated by the
complainant. Rama Kant Thakur (P.W. 5) was the lawyer who
drafted the complaint. He has stated that the complaint had
been prepared under the instructions of the complainant.
The trial court on a consideration of the material
before it found that the appellant was guilty of rape and
accordingly convicted the appellant of the offence
punishable under section 376 of the Indian Penal Code and
imposed on him a sentence of rigorous imprisonment for five
years. The High Court dismissed
316
the appeal filed by the appellant. This appeal by special
leave is filed against the judgment of the High Court. When
the appeal was heard by this Court on March 6, 1980, it was
ordered that the trial court should record the evidence of
the Mukhiya, Makbool and Chanda Kisku and to submit the
record to this Court. The evidence of the Mukhiya and of
Makbool was accordingly recorded and has been submitted to
this Court. Chanda Kisku is reported to be dead. The other
two witnesses have not supported the prosecution case. It is
apparent that these two witnesses who had been mentioned as
witnesses in the complaint itself were not willing to
support the prosecution even at the time of the trial as
otherwise they would have been examined. It is not quite
strange that some witnesses do turn hostile but that by
itself would not prevent a court from finding an accused
guilty if there is otherwise acceptable evidence in support
of the prosecution. In the instant case, both the trial
court and the High Court have believed evidence of the
prosecutrix and the evidence of the other prosecution
witnesses who had been examined at the trial.
The point for consideration in this case is whether the
approach adopted by the High Court and the trial court to
the case is correct and whether the material is sufficient
to warrant the conviction recorded by them.
In the case before us the complainant has given her
version of the incident in her deposition and the High Court
and the trial court have not found it to be unreliable. The
case of the appellant, however, was that on account of a
land dispute between one Mohamed Halim and Mohamed Naiyeem
on the one hand and himself on the other which ultimately
had ended in his favour this false case had been got filed
by them through the complainant and her husband Jitrai who
were working as servants under them. The non examination of
the Mukhiya and the police officer who had declined to
record the information alleged to have been given by the
complainant and her husband is stated to be fatal to the
prosecution. It is further stated that in the absence of a
medical examination report given by a doctor after examining
the person of the complainant immediately after the
occurrence it was not possible to conclude whether the
complainant had been raped.
The trial court has negatived the contentions of the
appellant. The trial court held that it had not been
established that the complainant and her husband were under
the thumb of Mohamed Halim and
317
Mohamed Naiyeem. The husband of the complainant owned some
lands and the complainant and her husband were also working
as labourers. The trial court was of opinion that the
complainant had not given a false complaint in order to
oblige Mohamed Halim and Mohamed Naiyeem. It further held
that the proceeding relating to land filed by Mohamed Halim
and Mohamed Naiyeem was one instituted in the year 1964
nearly four years before the incident and that there was no
immediate provocation for them to engineer the filing of a
false case against the appellant. The High Court has
concurred with the conclusions of the trial court. As
regards the non-examination at the trial of the Mukhiya who
is now examined pursuant to the order of this Court it is to
be observed that it has turned out to be inconsequential.
The Mukhiya has now stated that the complainant and her
husband had not gone to him to complain about the incident.
He does not give any version about the incident. It has to
be borne in mind that he was examined nearly twelve years
after the incident. It is significant that his name figured
in the complaint as a witness. The complainant could not
have taken the risk of including his name if he had not been
actually contacted by her. The complainant and her husband
have stated in their depositions that they had gone to him
on the date of occurrence. He was cited as a witness to show
that immediately after the occurrence the complainant had
made a statement regarding the crime before him which would
be corroborating evidence. An interval of twelve years is a
sufficiently long period and particularly for persons of
easy conscience to make half-hearted statements in courts.
In the circumstances it is difficult to hold that the
evidence of the other witnesses before the court is in any
way affected by the evidence of the Mukhiya. The same
criticism applies to the evidence of Makbool who is the
other witness examined in the year 1980 along with the
Mukhiya. Makbool’s evidence is that he did not go near the
scene of occurrence on the date on which it is alleged to
have taken place. As regards the non-examination of the
policeman who declined to record the information said to
have been given by the complainant, it has to be stated that
it would be asking the complainant to do something which
would be almost impossible to perform. How many police
officers who have in fact not performed their duty would
come before court as witnesses and admit that they had
failed to discharge their duty ? The court may safely
presume that notwithstanding the allegation of the
complainant being true she would not have even able to
secure the evidence of such a negligent police official. The
fact remains the complainant has referred to
318
this in her complaint on the very next day and she and her
husband ran a grave risk in making such an allegation of
dereliction of duty against the police in the complaint.
Nothing however turns on the non-examination of the said
police official in this case. In so far as non-production of
a medical examination report and the clothes which contained
semen, the trial courts has observed that the complainant
being a woman who had given birth to four children it was
likely that there would not have been any injuries on her
private parts. The complainant and her husband being persons
belonging to a backward community like the Santhal tribe
living in a remote area could not be expected to know that
they should rush to a doctor. In fact the complainant has
deposed that she had taken bath and washed her clothes after
the incident. The absence of any injuries on the person of
the complainant may not by itself discredit the statement of
the complainant. Merely because the complainant was a
helpless victim who was by force prevented from offering
serious physical resistance she cannot be disbelieved. In
this situation the non-production of a medical report would
not be of much consequence if the other evidence on record
is believable. It is, however, nobody’s case that there was
such a report and it had been withheld.
A reading of the deposition of the complainant shows
that it has a ring of truth around it. Section 133 of the
Indian Evidence Act says that an accomplice shall be a
competent witness against an accused person and a conviction
is not illegal merely because it proceeds upon the
uncorroborated testimony of an accomplice. But the rule of
practice is that it is prudent to look for corroboration of
the evidence of an accomplice by other independent evidence.
This rule of practice is based on human experience and is
incorporated in illustration (b) to section 114 of the
Indian Evidence Act which says that an accomplice is
unworthy of credit unless he is corroborated in material
particulars. Even though a victim of rape cannot be treated
as an accomplice, on account of a long line of judicial
decision rendered in our country over a number of years, the
evidence of the victim in a rape case is treated almost like
the evidence of an accomplice requiring corroboration. (Vide
Rameshwar v. The State of Rajasthan,(1) Gurucharan Singh v.
State of Haryana(2) and Kishan Lal v. State of Haryana).(3)
It is accepted by the Indian courts
319
that the rule of corroboration in such cases ought to be as
enunciated by Lord Reading C.J. in King v. Baskerville.(4)
Where the case is tried with the aid of a jury as in England
it is necessary that a Judge should draw the attention of
the jury to the above rule of practice regarding
corroboration wherever such corroboration is needed. But
where a case is tried by a judge alone, as it is now being
done in India, there must be an indication in the course of
the judgment that the judge had this rule in his mind when
he prepared the judgment and if in a given case the judge
finds that there is no need for such corroboration he should
give reasons for dispensing with the necessity for such
corroboration. But if a conviction is based on the evidence
of a prosecutrix without any corroboration it will not be
illegal on that sole ground. In the case of a grown up and
married woman it is always safe to insist on such
corroboration. Wherever corroboration is necessary it should
be from an independent source but it is not necessary that
every part of the evidence of the victim should be confirmed
in very detail by independent evidence. Such corroboration
can be sought from either direct evidence or circumstantial
evidence or from both. The trial court has in the case
before us found that the evidence of the complainant had
been corroborated in material particulars by the evidence of
Sheikh Lafid (P.W. 1), Juman Nadaf (P.W. 2) and Jitrai (P.W.
4) the husband of the complainant. The High Court also has
acted on the evidence of these witnesses. Sheikh Lafid (P.W.
1) has stated that he saw the appellant on the body of the
complainant and that the complainant had also told him about
the crime. Juman Nadaf (P.W. 2) has stated that when he
heard the cry of the complainant at the time of occurrence,
he saw the appellant fleeing away from that place. The trial
court and the High Court have not found any good ground to
discard their testimony. Jitrai (P.W. 4) has told the court
that the complainant had mentioned to him all the details of
the incident within a short while after it took place. Rama
Kant Thakur (P.W 5.), the lawyer who drafted the complaint
has stated that he had prepared the complaint which contains
all the particulars of the offence under the instructions of
the complainant. Apart from the evidence of Sheikh Lafid
(P.W. 1) and Juman Nadaf (P.W. 2) about what they saw, the
statement made by the complainant to her husband immediately
after the incident is admissible under section 157 of the
Indian Evidence Act and has a corroborative value. After
considering carefully the entire material
320
before us including the evidence of the witnesses examined
pursuant to the order made by this Court earlier in the
light of the submissions made at the Bar we are of the view
that the judgment of the High Court does not call for any
interference under Article 136 of the Constitution.
The appeal therefore, fails and it is dismissed. The
appellant who is on bail is directed to surrender and to
undergo the remaining part of the sentence imposed on him.
H.L.C. Appeal dismissed.
321
