KRISHAN LAL

STATE OF HARYANA

April 1, 1980

[V. R. KRISHNA !YER AND E. S. VENKATARAM.IAH, JJ.]

Indian Penal Cade 1860 (XLV of 1860) Section 376-Rape on young girl -Necessity of corroboration of girl's testimony-Nature and extent of corrcr boration necessary.

The prosecution alleged that a girl below 16 years of age was sleeping outside her hou•e with her family and that the petitioner in the comJ1"11Y of an C other (acquitted accused) carried her away under intimidation to a neigh.- bowing godown belonging to another acquitted accused and in that secluded

venue committed rape on the young woman and afteN\lirds put her back on her cot.

The trial court convicted the petitioner but on grounds of benefit of doubt acquitted the other accused. The High Court affirmed this order.

In thespecial leave petition to this Court, it was contended on behalf of the petitioner that the evidence of the prosecutrix without substantial corroboration, was inadequate to rest a conviction under section 376 IPC.

Dismissing the special leave petition,

HEID 1. To forsake vital consideration and go by obsolete demands for E substantial corroboration is to sacrifice commonsense in favour of an artificial <:oncoction called 'judicial' probability. [308A]

2. Human psychology and behavioural probability must be borne in mind when assessing the testimonial potency of the victim's version. What girl would foster rape charges on a stranger uriless a remarkable set of facts or clearest motives are made out? The inherent bashfullness, the innocent naivete and the feminine tendency to conceal the outrage of masculine sexual aggres F tion are factors which are relevant to improbabilise the hypothesis of false implication. The injury on the person of the victim has corroboratb•e value. [3070] '1

3. The court loses its credibility if it rebels against realism. The Jaw court io not an unnatural world. [308 BJ

4. Merely because the trial court has ultra-cautiously acquitted someone, the higher court must, for that reason, cannot acquit everyone. [308CJ

5. A socially sensitized judge is a better statutory armour against gender <'41trag'e than Jong clauses of a complex section with oU the protections wri(

into it. [308C]

6. Observation on probative force of circumstances are not universal laws H of nature but guidelines and good counsel. [307 Fl

Gurcharan Singh v. State of Haryana AIR 1972 SC 2661 referred lo.

SUPREME COURT REPORTS

(1980) 3 S.C.R.

CRIMINAL

APPELLATE JURISDICTION: Special Leave Petition (Cr!.) 2599 of 1979.j

From the Judgment and OH'e(C:<~<d 9·7·1~~9 <f tre F1rj<b:rrd i Haryana High Court in Crl.A. 1228/1976.

S. K. Sabharwa/ and R. C. Kohli for the petitioner. i.

The Order of the Court was delivered by,

KRISHNA IYER, J, A rapist-if the concurrent findings of the courts below were correct has chosen to seek special leave to challenge his crime and punishment, and his counsel has attacked the ver diet of culpability as wholly unfounded. Indeed, it is redundant, and absent exceptional circumstances, out of bounds, for this Court, exercising its jurisdiction under Art. 136, to launch upon an explora tion and re-appreciation of the evidence, its strengths and weaknesses with a view to sit in judgment over the holdings of the High Court in affirmance of those of the trial Court.

Briefly, we will touch upon one or two circumstances without claiming to be exhaustive in any manner. One Shashi Bala of Ambala was sl.eeping, with her mother and other children, outside her house in hot July (1975). The petitioner, in the company of another (acquitted accused), carried her away under intimidation to a neighbouring godown belonging to one Tilak Raj (another acquitted accused) and in that secluded venue committed rape on the young women. After subjecting her to these beasteal acts of lust, Shashi Bala, who by then was nearly unconscious, was put back in her cot from where she had been' removed .. In the morning, the mother of the victim found blood on the daughter's salwar and thereupon she complainingly narrated the criminal assault of the previous night. On the return of the father, P.W. 7, who had been away, the victim went, in his company, to the police station, lodged a report which was followed by investigation and chargesheet. The Court, after a trial, convicted the present petitioner but, on grounds of benefit of doubt, acquitted the rest. Medical evidence showed that the raped girl was below 16 years of age. We are not too happy about the acquittal but since the State has not chosen to come up in appeal against the acquittal, we do not probe the matter further.i

Counsel for the petitioner persistently urged that the evidence of the prosecutrix, without substantial corroboration, was inadequato to rest a conviction under s. 376 I.P.C. He relied on observations of this Court in Gurucharan Singh v. State of Haryana (1) for the pro-

(!) A. I.~R.1972_S.C.2. 2661.

KRISHAN LAL v. HARYANA (Krishna Iyer, J) 307

position that although a prosecutrix is not an accomplice, her evidence, as a rule of prudence, is viewed by courts unfavourably unless reinforced by corroboration "so as to satisfy its conscience that she is telling the truth and that the present accused of rape on her has not been falsely implicated". It is true that old English cases, followed in British Indian courts, had led to a tendency on the part of judge- , made law that the advisability of corroboration should be present to the mind of the Judge "except where the circumstance make it safe to dispense with it". Case-law, even in those days, had clearly spelt out the following propositions ;

"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 mnst, in every case, be corroboration before a conviction can be allowed, to stand."

"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."

Observations on probative force of circumstances are not universal laws of nature but guidelines and good counsel.

We must bear in mind human psychology and behavioural probability when assessing the testimonial potency of the victim's version.

What girl would foist a rape charge on a stranger unless a remarkable set of facts or clearest motives were made out? The inherent bashfulness, the innocent naivete and the feminine tendency to conceal the outrage of mesculine sexual aggression are factors which are relevant to improbabilise the hypothesis of false implication. The injury on the person of the victim, especially her private parts, has correborative value. Her complaint to her parents and the presence of blood on her clothes are also testimony which warrents credence.

More than all, it ba!Hes belief in human nature that a girl sleeping with her mother and other children in the open will come by blood on her garments and injury in her private parts unless she has been subjected to the torture of rape. And if rape has been committed,

SUPREME COURT REP<YRTS

[1980] 3 S.C.R.

as counsel more or less conceded, why, of all persons in the world, should the victim hunt up the petitioner and point at him the accusing finger? To forsake these vital considerations and go by obsolescent demands for substantial corroboration is to sacrifice commonsence in favour of an artificial concoction called 'Judicial' probability.

Indeed, the court loses its credibility if it rebels against realism. The law court is not an unnatural world.

We are not satisfied that merely because the trial court has ultracautiously acquitted someone, the higher court must, for that reason, acquit everyone, Reflecting on this case we feel convinced that a socially sensitised judge is a better statutory armour against gender outrage than long clauses of a complex section with all the protections writ into it.

N.V.K.

Petition dismissed.