KOLI TAPU DHARAMSHI Vs. STATE

JUDGEMENT

(1.) THE appellant Tapu Dharamshi has been convicted by the Sessions Judge, Jhalawad Division, of rape Under Section 376, IPC and sentenced to two years rigorous imprisonment. The prosecutrix Shanta is aged about 17 or 18 years and is a married girl, but she does not live with her husband and is living with her father and brother at Gujarwadi. Her father who was then ill has since died. Hari's wife is the sister of Shanta's husband, and it appears that on account of family quarrels Shanta was not sent to her husband, and similarly Hari's wife was not sent by her parents. The accused is also from the same village and at the material time he was living in his field with his wife and children. The prosecution case is that in the noon of 29-1-1954 Shanta had gone out to collect cowdung and met a Ghanchi woman Halu and her daughter on the way and the three of them went together on the road to Mota Ankewalia village. Halu and her daughter stopped at their field which was on the way. Shanta had collected some cowdung which she kept near Halu's field and she proceeded alone. After collecting some more cowdung she was returning to the village when, it is alleged the accused who was working on his field, which is on the main road, suddenly came out, stood in her way and catching her by the hand dragged her and committed sexual intercourse without her consent. After the act was over she took the basket containing cowdung and also took the cowdung left near Halu's field, and started to return to the village. She was crying and she informed certain women whom she met on the way that the accused had raped her. On returning to her house she also told one Samn Luharan. Her brother Hart, who is a postman at Gujarwadi, was out on duty and returned in the afternoon and Samu informed him of the incident in the evening, and thereafter he and Shanta went to the Police station at Rajsitapur which is about 6 miles from Gujarwadi. Shanta's first information was recorded at 1 A. M. by the police station officer and the offence was investigated and the accused prosecuted. His defence was a total denial of having anything to do with the occurrence.

(2.) THE questions arising for consideration are first whether Shanta was subjected to sexual intercourse at the time of the alleged occurrence in the noon of 29-1-1954, and if so whether the intercourse was committed by the accused and he did it without her consent. The only evidence regarding the incident is the prosecutrix's own and as to the sufficiency of such evidence a division Bench of this Court has held in 'gadhvi Ayadan v. The State', 4 Sau LR 179 (A), that ordinarily it may not be safe to rely upon the uncorroborated evidence of the prosecutrix, and there should be other evidence to corroborate her, but that cannot be a hard and fast rule in all cases, and on the facts of a particular case an accused person can be convicted on the testimony of the prosecutrix alone provided the circumstances of the case show that the woman's story is true. Dealing with the question of the necessity of corroboration of the evidence of the prosecutrix, the Supreme Court has observed in 'rameshwar Kalyan Singh v. State of Rajasthan' The rule, which according to the cases has hardened into one of lay is not that coroboration is essential before there can be 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 jury cases must find place in the charge, before a conviction with out corroboration can be sustained. The tender years of the child which is the victim of a sexual offence, coupled with other circumstances appearing in the case, such, for example, a 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 a 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. His Lordship Bose J. who delivered the judgment of the Court further said:

(3.) NOW it is admitted that the prosecutrix Shanta had never had any sexual intercourse with her husband and according to her she was a virgin right till the time of the present occurrence. Her evidence is that the accused forcibly dragged her and then took her in his arms was a result of which a bangle on her left hand broke, that the accused threw her on the ground near a babul tree and then had forcible sexual intercourse with her. (His Lordship then commented upon the absence of any injury on her body and also absence of bleeding. He referred to the examination made by the doctor thus):