dedol-hf/india-case-legal-rag huggingface dataset:
that  Mst. Purni was a competent witness and that  her  evi-
dence is admissible. In
(1) 14 Beng. L.R. 294 F.N.         (2) (1907) 10 O.C. 337
383
the Privy Council case which I have just cited, their  Lord-
ships said--
    "It is not to be supposed that any judge would accept as
a witness a person who he considered was incapable not  only
of understanding the nature of an oath but also the necessi-
ty of speaking the truth when examined as a witness."
That  is the very point here. One can presume  that  the
learned  Judge had that in mind from the fact that he  exam-
ined the child after referring to a fact which arises out of
the proviso.
    As regards her credibility, the learned trial Judge, who
recorded  her evidence and saw her in the box, has  believed
her, so has the High Court; and it is important to note that
the learned Sessions Judge who acquitted the accused has not
disbelieved  her.   On the contrary he says  he  is  morally
convinced.  All he says is that in the absence of corrobora-
tion it will be unsafe to convict because the Privy  Council
and  other  cases advise corroboration as a matter  of  pru-
dence.
   We  were taken carefully through the evidence, as  elabo-
rately  as in a court of first appeal. I am of opinion  that
the  learned High Court Judges were fully justified  in  ac-
cepting  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  corrobo-
ration  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
50
384
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 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  natural-
ly  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 differing reasons and  the
position  now reached is that the rule  about  corroboration
has hardened into one of law.  But it is important to under-
stand  exactly  what  the rule is and  what  the  expression
"hardened into a rule of law" means.
    In my judgment, this branch of the law is the same as in
England and I am of opinion that the lucid exposition of  it
given by Lord Reading, the Lord Chief Justice of England, in
The King v. Baskerville(1) cannot be bettered.
    In  that case, Baskerville had been convicted of  having
committed acts of gross indecency with the two boys.  (There
the boys were accomplices because they were freely  consent-
ing  parties  and there was no use of force).   The  learned
Chief Justice says at page 663 :-
    "There is no doubt that  the uncorroborated evidence  of
an  accomplice is admissible in law......  But it  has  long
been a rule of practice at common law for the judge to  warn
the  jury  of  the danger of convicting a  prisoner  on  the
uncorroborated  testimony of an accomplice  or  accomplices,
and,  in the discretion of the judge, to advise them not  to
convict  upon such evidence; but the judge should point  out
to the jury that it is
(1) [1916] 2 K.B, 658.
385
within their legal province to convict upon such unconfirmed
evidence......
    This rule of practice has become virtually equivalent to
a  rule of law, and since the Court of Criminal Appeal  came
into  operation this Court has held that, in the absence  of
such  a  warning  by  the  judge,  the  conviction  must  be
quashed......  If after the proper caution by the judge  the
jury nevertheless convict the prisoner, this Court will  not
quash the conviction merely upon the ground that the  accom-
plice's testimony was uncorroborated."
    That, in my opinion, is exactly the law in India so  far
as  accomplices  are concerned and it is certainly  not  any
higher in the case of sexual offences.  The only  clarifica-
tion  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 corrob-
oration  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  corrobora-
tion.
    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(1) is typical  of  that
point  of  view.  On the other hand, the Privy  Council  has
said in Mohamed Sugal Esa v. The King(2) that as a 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
(1) A.I.R. 1944 Nag. 363.   (2) A.I.R. 1946 P.C. 3 at 5.
386
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 cases has hardened into one of law, is  not
that  corroboration is essential before there can be a  con-
viction 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  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 corrobora-
tion  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.
    I  turn next to the nature and extent of the  corrobora-
tion  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(1) at pages 664 to  669.
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 circumstances of each case  and  also
according  to  the particular circumstances of  the  offence
charged.  But to this extent the rules are clear.
    First,  it is not necessary that there should  be  inde-
pendent  confirmation of every material circumstance in  the
sense that the independent evidence in the case, apart  from
the testimony of the complainant or the
(1) [1916] 2 K.B. 658,
387
accomplice,  should in itself be sufficient to sustain  con-
viction.   As Lord Reading says--
  ``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  addi-
tional evidence rendering it probable that the story of  the
accomplice (or complainant) is true and that it is  reasona-
bly 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 testi-
mony  of  the  accomplice or complainant  that  the  accused
committed the crime. This does not mean that the  corrobora-
tion  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
always  be able to relate the facts of the case, and if  the
confirmation  be only on the truth of that history,  without
identifying the persons, that is really no corroboration  at
all...It  would not at all tend to show that the  party  ac-
cused participated in it."
   Thirdly,  the  corroboration must come  from  independent
sources and thus ordinarily the testimony of one  accomplice
would not be sufficient to corroborate that of another.  But
of  course the circumstances may be such as to make it  safe
to dispense with the necessity of corroboration and in those
special  circumstances  a conviction so based would  not  be
illegal.   I  say  this because it was  contended  that  the
mother in this case was not an independent source.
388
     Fourthly, the corroboration need not be direct evidence
that  the accused committed the crime.  It is sufficient  if
it is merely circumstantial evidence of his connection  with
the crime. Were it otherwise, "many crimes which are usually
committed  between  accomplices in secret, such  as  incest,
offences with females" (or unnatural offences) "could  never
be brought to justice."
     Next,  I  turn  to another aspect  of  the  case.   The
learned  High Court Judges have used Mst. Purni's  statement
to  her mother as corroboration of her statement. The  ques-
tion arises, can the previous statement of an accomplice, or
a complainant, be accepted as corroboration ?
    That  the evidence is legally admissible as evidence  of
conduct  is  indisputable  because of  Illustration  (j)  to
section 8 of the Evidence Act which is in these terms:
    "The  question  is whether A was  ravished.   The  facts
that,  shortly after the alleged rape, she made a  complaint
relating  to the crime, the circumstances under  which,  and
the terms in which, the complaint was made are relevant."
But that is not the whole problem. for we are  concerned
here not only with its legal admissibility and relevancy  as
to  conduct  but as to its admissibility  for  a  particular
purpose, namely corroboration.  The answer to that is to  be
found in section 157 of the Evidence Act which lays down the
law for India.
   Section 157 states that---
    "In order to corroborate the testimony of a witness, any
former  statement made by such witness relating to the  same
fact  at  or  about the time when the fact  took  place,  or
before  any authority legally competent to  investigate  the
fact, may be proved."
       The section makes no exceptions, 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
389
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  corrobo-
ration  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. She says that when she went  home  she
lay down and went to sleep and that when her mother returned
she  asked  her why she was sleeping and then she  told  her
mother  what  had happened. Her mother tells much  the  same
story. She says she had gone out to her field in the morning
and did not return till about 4 p.m. When she reach home she
found  her  daughter lying there weeping. She has  been  be-
lieved by the learned trial Judge as also by the High  Court
and has not been disbelieved by the learned Sessions  Judge.
All he says is that she is not an "independent" witness  and
is therefore not sufficient for corroboration.
   The  first  question is whether this delay  fulfills  the
"at or about" condition.  In my opinion, here also there can
be  no  hard  and fast rule. The main test  is  whether  the
statement was made as early as can reasonably be expected in
the circumstances of the case and before there was  opportu-
nity  for tutoring or concoction. It was suggested that  the
child  could have complained to some women who were  working
in  the  neighbourhood, but that would not be natural  in  a
child.  She would be frightened and her first instinct would
be to run home to her mother. The High Court
390
was  satisfied on these points and so am  I.   Consequently,
the  matter does fall within the ambit of section  157  read
with section 8, Illustration (j).
      The next question is whether the mother can be regard-
ed as an "independent" witness. So far as this case is  con-
cerned,  I have no doubt on that score.  It may be that  all
mothers  may not be sufficiently independent to fulfill  the
requirements of the corroboration rule but there is no legal
bar to exclude them from its operation merely on the  ground
of    their   relationship.    Independent   merely    means
independent  of sources which are likely to be tainted.   In
the absence of enmity against the accused there is no reason
why  she should implicate him falsely.  It is true  the  ac-
cused suggested that they were on bad terms but that has not
been believed by anyone.
     The  third  question is whether  there  is  independent
corroboration  connecting  the accused with the  crime.  The
only corroboration relied on for that is the previous state-
ment  of the child to her mother. That might not  always  be
enough  but this rule can be waived in a given case just  as
much as the necessity for any corroboration at all.  In  the
present case, the learned High Court Judges would have acted
on  the uncorroborrated testimony of the girl had  they  not
felt  pressed  by the corroboration rule.  Viewing  all  the
circumstances I am satisfied that the High Court was  right.
I am satisfied that in this case, considering the conduct of
the girl and her mother from start to finish, no  corrobora-
tion  beyond  the statement of the child to her  mother  was
necessary.  I am satisfied that the High Court was right  in
holding  that that was enough to make it safe to act on  her
testimony.
    I  would dismiss the appeal and direct the appellant  to
surrender  to his bail in accordance with the terms  of  his
bond, serve out his sentence and pay the fine.
FAZL ALI J.--I agree.       Appeal dismissed.
  Agent for the appellant: P.C. Agarwal.
  Agent for the respondent: P.A.  Mehta.
391
PETITIONER:
BIJJOY CHAND POTRA
        Vs.
RESPONDENT:
THE STATE
DATE OF JUDGMENT:
14/12/1951
BENCH:
FAZAL ALI, SAIYID
BENCH:
FAZAL ALI, SAIYID
BOSE, VIVIAN
CITATION:
 1952 AIR  105            1952 SCR  202
ACT:
    Criminal   Procedure   Code  (Act  V   of   1898),   ss.
237,342--Indian   Penal  Code  (XLV  of  1860),   ss.   307,
326--Charge   under   s.   307-Conviction   under   s.   326
--Legality--Failure to examine accused fully --When vitiates
trial--Necessity of prejudice to accused.
HEADNOTE:
    The appellant who inflicted serious injuries on  another
was  charged under s. 307 of the Indian Penal Code  but  the
jury  returned a verdict of guilty against him under s.  326
of  the  Penal Code, and the Sessions Judge,  accepting  the
verdict, convicted him under s. 326.  It was contended  that
the conviction was illegal inasmuch as the offence under  s.
326  was not a minor offence with reference to  the  offence
under  s.  307.  Held, that as it was open to  the  Sessions
Judge,  on  the facts of the case, to charge  the  appellant
alternatively under ss. 307 and 326 of the Code the case was
covered  by s. 237 of the Criminal Procedure Code,  and  the
conviction  under s. 328 of the Penal Code was proper,  even
though  there was no charge under the section. Begu v.  King
Emperor (52 I.A. 191) applied.
    In  order  that a conviction may be set aside  for  non-
compliance  with  the provisions of s. 342 of  the  Criminal
Procedure Code, it is not sufficient for the accused  merely
to  show that he was not fully examined as required  by  the
section,  but  he must also show that such  examination  has
materially prejudiced him.
203
JUDGMENT:
    CRIMINAL  APPELLATE  JURISDICTION:  Criminal Appeal  No.
30  of 1951. Appeal from the Judgment and Order of the  High
Court  of Calcutta (HARRIES C.J. and LAHIRI J.)  dated  15th
June,  1950, in Criminal Appeal No. 71 of 1950 and  Revision
No. 295 of 1950.
 S.N. Mukherjee, for the appellant.
 B. Sen, for the respondent.
    1951. December 14.  The Judgment of the Court was deliv-
ered by
FAZL  ALI J.--This is an appeal against the judgment  of
the  High Court at Calcutta upholding the order of the  Ses-
sions  Judge  of Midnapore convicting  the  appellant  under
section 326 of the Indian Penal Code and  sentencing him  to
3  years'  rigorous imprisonment.
    The prosecution case against the appellant may be short-
ly stated as follows:--The appellant and the injured person,
Kurnad Patra, are first cousins, and they live in a  village
called Andaria, their houses being only 3 or 4 cubits  apart
from each other.  They had a dispute about a pathway adjoin-
ing  their houses, which led to a tank, and they  quarrelled
about  it  on the 11th July, 1949.  Two days later,  on  the
lath  July,  when Kumad Patra was washing his hands  at  the
brink  of the village tank, the appellant came  from  behind
and  inflicted on him 17 injuries. with the result that  two
of  his fingers had to be amputated and a piece of bone  had
to  be  extracted  from his left thumb.   The  police  being
informed, started investigation and submitted a charge-sheet
against the appellant who was finally committed to the Court
of Sessions and tried by the Sessions Judge and a jury.   He
was charged under section 307 of the Indian Penal Code,  but
the  jury  returned a verdict of guilty  against  him  under
section  326  of the Penal Code, and  the  learned  Sessions
Judge accepting the verdict convicted him under that section
as aforesaid.  When the matter came up in appeal to the High
Court,  a rule was issued on the appellant calling upon  him
to show cause why his sentence
204
should not be enhanced, but, at the final hearing, the  rule
was discharged, his appeal was dismissed, and his conviction
and the original sentence were upheld.
    The first point urged on behalf of the appellant  before
us  is that, inasmuch as there was no charge  under  section
326 of the Penal Code and the offence under that section was
not  a  minor  offence with reference to  an  offence  under
section  307 of the Code, he could not have  been  convicted
under  the former section.  This argument however  overlooks
the  provisions  of section 237 of  the  Criminal  Procedure
Code.   That section, after referring to section  236  which
provides that alternative charges may be drawn up against an
accused  person  where it is doubtful which of  several  of-
fences the facts which can be proved will constitute, states
as follows :--
    "If  .........  the accused is charged with one offence,
and  it  appears in evidence that he committed  a  different
offence  for  which  he might have been  charged  under  the
provisions  of  that  section, he may be  convicted  of  the
offence which he is shown to have committed, although he was
not charged with it."
    There can be no doubt that on the facts of this case, it
was  open  to  the Sessions Judge to  charge  the  appellant
alternatively under sections 307 and 326 of the Penal  Code.
The  case therefore clearly falls under section 237  of  the
Criminal Procedure Code and the appellant's conviction under
section 326 of the Penal Code was proper even in the absence
of a charge.
    In Begu v. The King Emperor (1) the Privy Council had to
deal  with a case where certain persons were  charged  under
section  302  of the Penal Code, but  were  convicted  under
section  201  for  causing the  disappearance  of  evidence.
Their  Lordships upheld the conviction, and while  referring
to  section  237 of the Criminal Procedure  Code,  they  ob-
served:--
    "A  man may be convicted of an offence,  although  there
has been no charge in respect of it, if the evidence is such
as to establish a charge that might have
(1) (1925) 52 I.A. 191,
205
been  made  ......  Their Lordships entertain no doubt  that
the  procedure was a proper procedure and one  warranted  by
the Code of Criminal Procedure."
    The  second  point urged on behalf of the  appellant  is
that the High Court having issued a rule for the enhancement
of  the sentence, he should have been allowed to  argue  the
merits  of  the  case which he was not allowed  to  do.  The
learned counsel for the appellant was not, however, able  to
show that even if it was open to him to argue on the  merits
of  the case the decision would have  been otherwise.   Only
three contentions were put forward by him, these being :--
    (1) that several material  witnesses  were not examined;
    (2.) that the appellant's case was not placed before the
jury in a fair manner; and
(3)  that there was no proper examination of the  appel-
lant under  section 342 of the Criminal Procedure Code.
    We  have examined these contentions and find  that  they
are entirely without merit.  In urging his first contention,
the learned counsel stated that though it was admitted  that
several  persons  have  got houses to the  east,  north  and
north-west  of the tank where the occurrence is  alleged  to
have taken place, they have not been examined by the  prose-