P (PLP)

CONSTANTINE, J.‑

I agree that there should be a retrial. My ground for this is that the circumstances of the case indicated that the main issue if not the only issue was whether intercourse had taken place with the consent of the woman. The learned Judge was perfectly correct in stating that in cases of sexual offences corroboration of the woman's story is necessary both as to the factum and as to her lack of consent. He has stated this in clear language. It‑is objected that he should have instructed the jury that the evidence of the woman having been recorded under section 33 of the Indian Evidence Act, the lack of cross‑examination meant that this test of the witness's veracity was absent and that the jury bad not had the woman before them so as to be able to judge from her demeanour whether she was or was not speaking the truth but as he did inform the jury that corroboration was needed as a matter of prudence, I think this objection is academic. The chief point to my mind why the charge to the jury is defective is that the learned judge has instructed the jury, so far as I can see, that, if they found that the witnesses were true in stating that the woman had raised cries, this was an important fact negativing consent on the part of the woman. The learned Judge then continued that the conduct of the woman in complain ing of the incident of rape to these witnesses was also an important point for the jury's consideration in fact the learned judge appears to have told the jury that if the woman 'did com plain of having been raped, this necessarily was a corroboration of her story. He has not explained to the jury that such conduct may be explainable by 'the fact that to save herself or her reputation or to win sympathy she has turned round falsely to accuse the man of having raped her without her consent. The learned judge appears to have considered the evidence of Bahadur Shah and Asghar Shah, chowkidars compatible only with the woman's having raised cries purely because the accused was raping her without her consent. This may be a very probable reading of the evidence, but the alternative case should have been‑ put to the Jury whether the cries were uttered because the woman had heard people passing and apprehended that they might enter tire carriage. Therefore the learned judge should have put the case to the jury not merely that they must find whether the witnesses were to be relied upon when they stated that the woman raised cries and wept, but he should also have instructed them that they must find that the cries were due to her resisting rape and not to any cause consistent with her consent. K.M.A. Retrial ordered.