TMI Blog1951 (12) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... atisfied however that the girl had been raped by somebody. Accordingly, he acquit- ted the accused giving him the benefit of the doubt. The State of Sawal Jaipur and Gangapur appealed against the acquittal to the High Court at Jaipur. The learned High Court Judges held that the law requires corroboration in such cases but held that the girl's state- ment made to her mother was legally admissible as corroboration and considering that sufficient they set aside the acquittal and restored the conviction and sentence. The High Court later granted leave to appeal under article 134 (1)(c) of the Constitution as the case involved questions of law of general importance. The first point taken before us related to the admissibility of the evidence of the girl herself. Her age was stated to be seven or eight years at the time of the examination by the learned Assistant Sessions Judge who recorded her testimony. He certified that she did not understand the sanctity of an oath and accordingly did not administer one to her. He did not certify that the child understood the duty of speaking the truth. The proviso to section 5 of the Indian Oaths Act, 1873, prescribes that-- Provided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, an omission to take the oath does not affect the admissibility of the evidence, it follows that irregularity of the kind we are considering which arises out of the proviso cannot affect the admissibility either. Section 118 remains and unless the judge considers otherwise the witness is competent. I do not think it will be useful to consider English authorities on the point because we are governed here by the terms of the various sections I have referred to. But a decision of the Judicial Committee of the Privyi Council is in point. Their Lordships stated in Mohamed Sugal Esa v. The King(A.I.R. 1946 P.C. 3) :-- at 5 Section 13, Oaths Act, is quite unqualified in its terms and there is nothing to suggest that it is to apply only where the omission to administer the oath occurs per incuriam. If that had been the intention of the Legislature, it would have been simple to insert words in the section to that effect......... It may be observed that this question can no longer arise in India because in 1939 the Legislature passed the Oaths (Amendment) Act (Act XXXIX of 1939) which settles the law in accordance with the Bengal and Oudh decisions referred to above. The dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion as a matter of prudence. We were taken carefully through the evidence, as elaborately as in a court of first appeal. I am of opinion that the learned High Court Judges were fully justified in accepting the evidence of Purni and in believing her mother Mst. Ghisi. I consider it unnecessary to recapitulate their reasons. After the careful analysis given by three Courts it is sufficient to say that I agree with the learned High Court Judges. We are left therefore with the questions of law. The first question is whether the law requires corroboration in these cases. Now the Evidence Act now here says so. On the other hand, when dealing with the testimony of an accomplice, though it says in section 114 (b) that the Court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars, it makes it clear in section 133 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is certainly not any higher in the case of sexual offences. The only clarification necessary for purposes of this country is where this class of offence is sometimes tried by a judge without the aid of a jury. In these cases it is necessary that the judge should give some indication in his judgment that he has had this rule of caution in mind and should proceed to give reasons for considering it unnecessary to require corroboration on the facts of the particular case before him and show why he considers it safe to convict without corroboration in that particular case. I am of opinion that the learned High Court Judges were wrong in thinking that they could not, as a matter of law, convict without corroboration. 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(A.I.R. 1944 Nag. 363.) is typical of that point of view. On the other hand, the Privy Council has said in Mohamed Sugal Esa v. The King(A.I.R. 1946 P.C. 3 at 5) that as a matter of prudence a conviction should not ordinarily be based on the uncorroborated evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ``Indeed, if it were required that the accomplice should be confirmed in every detail of the crime, his evidence would not be essential to the case, it would be merely confirmatory of other and independent testimony. All that is required is that there must be some additional evidence rendering it probable that the story of the accomplice (or complainant) is true and that it is reasonably safe to act upon it. Secondly, the independent evidence must not 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. This does not mean that the corroboration as to identity must extend to all the circumstances necessary to identify the accused with the offence. Again, all that is necessary is that there should be independent evidence which will make it reasonably safe to believe the witness's story that the accused was the one, or among those, who committed the offence. The reason for this part of the rule is that-- a man who has been guilty of a crime himself will alw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, provided the condition prescribed, that is to say, at or about the time etc. , are fulfilled there can be no doubt that such a statement is legally admissible in India as corroboration. The weight to be attached to it is, of course, another matter and it may be that in some cases the evidentiary value of two statements emanating from the same tainted source may not be high, but in view of section 118 its legal admissibility as corroboration cannot be questioned. To state this is, however, no more than to emphasise that there is no rule of thumb in these cases. When corroborative evidence is produced it also has to be weighed and in a given case, as with other evidence, even though it is legally admissible for the purpose on hand its weight may be nil. On the other hand, seeing that corroboration is not essential to a conviction, conduct of this kind may be more than enough in itself to justify acceptance of the complainant's story. It all depends on the facts of the case. In the present case, Mst. Purni told 'her mother about the incident about four hours after it occurred. The reason for the delay was that her mother was not at home when she went there. Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
