Prosecutrix in a Rape Case – Evaluation of Evidence – Part I

The most important question in a prosecution for the offence of rape is how exactly to appreciate the testimony of the rape victim. One important aspect is whether the testimony invariably requires corroboration or not and in case corroboration is required or desired, what is the nature and extent of such corroboration and the source of such corroboration.

(2) In Rameshwar V/s. State of Rajasthan the accused, charged with the offence of raping a girl below 8 years of age was convicted by the Asst. Sessions Judge under section 376 IPC and sentenced to undergo RI for one year.  The Sessions Judge, in appeal, held that evidence of the victim was not corroborated by sufficient evidence and acquitted the accused.  The High Court in the appeal filed by the State held that guilt of the accused was proved by the evidence of the victim which was legally corroborated by the girl’s statement to her mother and such a statement was legally admissible as corroboration, and restored the conviction and sentence, setting aside the acquittal.

The Supreme Court speaking through Vivian Bose, J, held in para 16 as follows:-

“Now a woman who has been raped is not an accomplice. If she was ravished she is the victim of an outrage. ……… In the case of a girl who is below the age of consent, her consent will not matter so far as offence of rape is concerned, but if she consented, her testimony will naturally be as suspect as that of an accomplice.  So also in the case of an unnatural offence.  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 understand exactly what the rule is and what the expression “hardened into a rule of law” means.”

(Emphasis supplied)

(3)          The Bench referred to the leading case in England in King V/s. Baskar Ville (1916) 2 KB 658 which dealt with conviction of the accused for having committed acts of gross indecency with two boys.  The English decision held (Para 18 of Rameshwar):-

“There is no doubt that the uncorroborated evidence ofan 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 judge, to advise them not to convict upon such evidence, but the judge should point out to the jury that it is within their legal province to convict upon such unconfirmed evidence. ……  the rule of practice has become virtually 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 he prisoner, this court will not quash the conviction merely upon the ground that the accomplice’s testimony was uncorroborated”(Emphasis supplied)

The Rameshwar judgment  thereupon observed (Para 18):-

“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 clarification necessary for purpose of this country is where this class of offence is sometimes tried by a judge without the aid of 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 n thinking that they could not as a matter of law, convict without corroboration”

(Emphasis supplied)

(4)          After referring to two classes of cases, one which considered 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, and another class of cases, which considered that as a matter of prudence a conviction should not ordinarily be based on the uncorroborated evidence of a child witness, the Bench in Rameshwar’s case, observed (Para 19):-

“.......... 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 jury of it and in a non-jury case he must show that it is present to his mind by indicating 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 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 a 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 as, for example, it’s demeanor, unlikelihood of tutoring and so forth, may render corroboration unnecessary, but that is a question of fact in each case.  The only rule in India is that this rule of prudence must be present to the mind and be understood and appreciated by the court.  There is no rule of practice that there must, in every case, by corroboration before conviction can be allowed to stand”(Emphasis supplied)

(5)          The Bench then turned to the nature and extent of corroboration required when it is not considered safe to dispense with it.  Following the principles explained  in the case of King V/s. Basker Ville, the Bench observed (Para 20):-

“Its’ (of corroboration) nature and extent must necessarily vary with the 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 independent confirmation of every material circumstance in the sense that the independent evidence in the case, apart from the testimony of the complainant or the accomplice should in itself be sufficient to sustain conviction....... 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.

(Para 22) 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 the corroboration as to the 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.

(Emphasis supplied)

Thirdly, (Para 23) 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 the case was not an independent source.

                Fourthly (Para 24) 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.”

(Emphasis supplied)

(6)          In dealing with the victim’s statement to her mother as corroboration of her statement, the Bench observed as follows in para 26:-

“That the evidence is legally admissible as evidence of conduct is indisputable because of illustration (j) to section 8, Evidence Act in the following 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”

....... “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 found in section 157, Evidence Act.”  (Emphasis supplied)

(Para 27) Section 157 states that:-

“Former statements of witness may be proved to corroborate later testimony as to same fact -

In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact, at about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved.” (Emphasis supplied)

“The section makes no exceptions; therefore, provided the condition prescribed, that is to say, “at about the time” etc is 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, it’s legal admissibility as corroboration cannot be questioned.  To state this is, however, no more to emphasize that there is no rule of the thumb in these cases.  When corroboration 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, it’s 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”.

(Emphasis supplied)

In the case of Rameshwar, the girl told her mother about incident four hours after it occurred, the reason for the delay was that the mother was not at home when the girl returned home and went to sleep and when the mother returned home and asked her why she was sleeping and then the daughter told the mother about the occurrence.  Both of them gave evidence on this aspect.  In para 29, the Bench considered whether the statement by the girl to the mother was made “at or about the time when the fact took place” and observed:-

“...... There can be no hard and fast rule.  The main test is whether the statement was made as early as can reasonably expected in the circumstances of the case and before there was opportunity 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 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)”.  (Emphasis supplied)

(7)          On the question whether the mother can be regarded as an independent witness, the Bench held as follows in para 30:-

“So far as this case is concerned, 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 relationship. “Independent” merely means independent of source which are likely to be tainted.  In the absence of enmity against the accused there is no reason why she would implicate him falsely.

(Emphasis supplied)

(8)          On the question whether there is independent corroboration connecting the accused with the crime, the Bench observed in sub para 3 of para 10 as follows:-

“The only corroboration relied on for that is the previous statement of the child to the 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 uncorroborated testimony of the girl had they had not been 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 the start to the finish, no corroboration beyond the statement of the child to her mother was necessary.  I am satisfied   that the High Court was right in holding that was enough to make it safe to act upon her testimony”.

(Emphasis supplied)

(9)          The decision in Rameshwar case has been quoted with approval by a Constitution Bench of Supreme Court in State of Bihar vs. Basawan Singh , a three  judge bench decision in Madho Ram and another vs. The State of U.P. and two judge benches in Sidheswar Ganguly  vs. State of W.B, Gurucharan Singh Vs. State of Haryana , Bharwada Bhogin bhai Hirjibhai vs. State of Gujarat, Sheikh Zakir vs. State of Bihar  and WahidKhan vs. State of M.P. and other decisions.

(10)        Many a time, apart from the testimony of the rape victim, evidence of close relations (say for example, mother) or of a close friend or teacher to whom the rape victim narrated the incident is relied on by the prosecution as evidence of conduct or for corroboration.  In Brahma Swaroop and another vs. State of U.P. which was not a case of rape, the Supreme Court indicated that the relationship of the witnesses to the party or parties is not a factor which affects the credibility of the witness and a relation would not conceal the actual culprit and make an allegation against an innocent person.  The Supreme Court observed further as follows:-

“A party has to lay down a factual foundation and prove by leading impeccable evidence in respect of false implication. However, in such cases, the court has to adopt a careful approach and analyse the evidence to find out whether it is cogent and credible evidence”

                The Supreme Court, in paragraph 21 of Brahma Swaroop case relied on a number of earlier decisions of the court in support of the above proposition.  Such a comment on the evidence of a witness related to the victim or an injured must apply also to the evidence of a friend of the victim or injured.

This is part one of four part series.

Justice U.L.Bhat is the former Chief Justice of Gauhati High Court and High Court of Madhya Pradesh.