P L D 1958 Dacca 403 (PLP)

8. The learned Advocate appearing on behalf of the accused-?petitioners has strenuously urged before us that in so far as the learned Assistant Sessions Judge and the assessors had dis?believed 13 out of the 16 witnesses examined by the prosecution, and had also entirely disbelieved the story of the girl being carried to the house of the maternal uncle of accused‑petitioner No. 1 and there confined, the evidence of the rest of the prosecu?tion witnesses should also have been disbelieved, and the accused persons acquitted. We are unable to accept this contention. There is no rule that if the majority of the prosecution witnesses are disbelieved or a portion of the prosecution case is dis?believed, the rest of the prosecution witnesses or the rest of the prosecution case must also be disbelieved. Here the girl Raushanara was sufficiently corroborated by at least two other witnesses so far as the abduction itself was concerned, and both of these witnesses have been found by the Courts below to be reliable witnesses, and, as such, there was, in our opinion, no error in the Court basing the conviction upon the evidence of these three witnesses.

9. The next point urged on behalf of the accused‑petitioners is that since the Trial Court did not come to any definite finding as to the age of the girl Raushanara, there could be no conviction of the accused‑petitioners. It is urged that it is one of the essential ingredients of the offence of abduction that the girl should be shown to be below the age of 16 years, and, unless she has been so found, there cannot be any conviction for abduction. It is true that the Trial Court does not mention in so many words in its judgment that it has come to a definite finding that the girl was of the age of 13 years, but that was the age which appears to have been accepted by the Trial Court, as the lower Appellate Court also thought that the learned Assistant Sessions Judge had found the age of the girl to be 13 years. It is clear from the evidence on record, not only of the girl, P. W. 1, herself, but also of her mother, P. W. 3 & P. W. 2, the cousin sister, that the girl was below the age of 16 years. Upon this evidence, we are satisfied that the girl was below the age of 16 years, and the accused‑petitioners were in no way misled by the absence of an express finding by the Trial Court as to the age of the girl. It appears from her cross?-examination that she was cross‑examined at length as to her age and, upon a consideration of this evidence, at any rate, the lower Appellate Court has come to a finding that the girl was of about the age of 13 years. In these circumstances, we do not think that we would be justified in interfering with the conviction merely on this technical ground.

10. It was then urged on behalf of the accused‑petitioners that there was no finding that the accused‑petitioners acted in furtherance of any common intention, and, as such, their con?viction under section 366 read with section 34 was not sustain?able. If the evidence of the prosecution witnesses is accepted as to the identification of the three accused‑petitioners, and that they actively participated in the forcible taking away of the girl, P. W. 1, we do not see why the inference of their acting in furtherance of a common intention cannot be made. We see no substance, therefore, in this contention either.

11. Lastly, the learned Advocate contended that for a conviction under section 366 it must be established by the prosecu?tion that the accused‑petitioners acted with one or other of the intents mentioned in section 366, namely, either to marry the abducted person against her will or in order that she may be forced or seduced to illicit intercourse. In the present case, it is argued that the only evidence of this intention is the evidence of P. W. 1 alone that at the house of accused‑petitioner No. 1 she was asked to give her consent to the marriage with the said accused‑petitioner No. 1, and that, on her refusal to do so, she was threatened, but she still persisted in refusing. The learned Advocate contends that on this evidence alone, even if believed, the conviction could not be based as, according to him, in offences of this nature it is now well established that there must be corroboration of the prosecutrix in all material particulars. Hence it is urged that since the evidence of P. W. 1 with regard to the intent has not been corroborated by any independent evidence at all, it should not have been acted upon, particularly in view of the fact that a considerable portion of the evidence of this witness herself was also disbelieved, namely, with regard to the carrying away to the house of the maternal uncle of accused‑petitioner No. 1 and the confinement there.

12. In support of this contention, the learned Advocate has relied on the cases of Kalu Mia and another v. Emperor (44 C W N 622) and Taser Pramanik and others v. Emperor (44 C W N 835). These were both cases under section 366 of the Penal Code, and in both these cases it was held that where the jury were not directed as to the risk of convicting the persons charged on the uncor?roborated testimony of the prosecutrix, the conviction should not be allowed to stand. As to the extent of the corroboration in such cases, the learned Advocate has placed great reliance on the decisions in the cases of Surendra Nath Das v. Emperor (38 C W N 52) and Nur Ahmed v. Emperor (38 C W N 108). In both these cases, the judgment of the Court was delivered by Lort‑William,, J. In the case reported at page 52 of 38 C W N, the charge was under section 376 only, and ‑in the case reported at page 108 of the said volume, the charge was under ‑ sections 366 and 376 of the Penal Code. In both these cases, the view taken by Lort-?Williams, J., was that the kind of corroboration required is the same as required for the evidence of an accomplice, that is to say, some independent evidence confirming in material particulars the allegation that the crime was committed and that the accused committed it. It is significant, however, that these cases do not go to the extent that the learned Advocate would have us go, namely, to hold that there must be corroboration in all material particulars. We are also constrained to observe that although Lort‑Williams, J., laid down the rule in fairly wide terms, it would appear from the quotations, upon which the learned Judge himself relied, that the rule is perhaps not quite so wide even in cases of rape. The passage quoted by his Lordship from the judgment of Lord Reading, the Lord Chief Justice, in R v. Baskerville ((1916) 2 K B 658) is as follows " The nature of the corroboration will necessarily vary accord?ing to the particular circumstances of the offence charged. It would be in a high degree dangerous to attempt to formulate the kind of evidence which would be regarded as corrobora?tion, except to say that corroborative evidence is evidence which shows or tends to show that the story of the accomplice that the accused committed the crime is true, not merely that the crime has been committed, but that it was committed by the accused." Again, the learned Lord Chief Justice observed " What is required is some additional evidence rendering it probable that the story of the accomplice is true, and that it is reasonably safe to act upon it."

13. Of course, this is not a rule of law, but as a rule of prudence this has now been universally accepted as applicable to cases of sexual offences, but how far an offence of abduction simpliciter is a sexual offence to which this rule must also be applied with equal rigidity is a question on which there is yet considerable doubt. There is authority, which is entitled to the highest respect, that this rule of practice requiring corroboration of the evidence of the prosecutrix is not applicable to cases of abduction, but is confined only to cases of rape so far as the lay/ in India and Pakistan is concerned. We refer to a Full Bench decision of the Bombay High Court in the case of Emperor v. Kasamali Mirzalli (I L R 1942 Bom. 384), where in a case in which the accused was charged only under section 366, Chief Justice Beaumont observed thus "Then the next objection taken is that the learned Judge did not warn the jury that in cases involving sexual intercourse, it is a rule of practice, amounting almost to a rule of law, that corroboration of the woman's story must be obtained. But that point seems to be founded in error. This was not a case of rape. The evidence suggested rape, but rape outside the jurisdiction of .the Curt of Session. The only charge was of abduction; and the offence was complete, if the accused took the complainant away on 7th July, by deceitful means intending to seduce her to sexual intercourse." In this connection, reference may also be made to a more recent decision of the Calcutta High Court in the case of Bechu v. The King (A I R 1949 Cal. 613), where Harries, C. J., and Das Gupta, J., doubted the applicability of the rule in India and Chief Justice Harries observed as follows "The so‑called English rule of caution requiring corrobora?tion of the statements of a complainant in sexual cases has been imported into Indian law and practice. Whether this rule is really necessary or not in India is a debatable question. Personally, I think there is very little danger of a false charge of rape being made by parents of any little girl. The conse?quence of such a charge are disastrous. In many cases the little girl becomes outcast, and her chances of ultimate marri?age are either completely ruined or very seriously affected. 1 must confess that after sitting on the Bench for nearly fifteen years in five Provinces, I have yet to come across a case where a false charge of this nature was made and the falsity thereof clearly established." These observations were no doubt obiter, but the force thereof cannot be minimised, and we are inclined to agree that even if such a rule has been imported into practice in this country, it should not be applied with the same rigidity as in England. In the said case, their Lordships of the Calcutta High Court did not also agree with the observation of Lort‑Williams, J., in the cases referred to earlier that there could not be corroboration save by independent evidence. Their Lordships in fact held in this case that there could be corroboration even from previous statements of the prosecutrix herself. Similarly, we find that in other High Courts also this rule, so far as abduction is con?cerned, has not been followed with such rigidity.

14. In the case of Jawaya and others v. Emperor (A I R 1930 Lah. 163), Tapp, J., in a case under section 366 only, observed as follows : "Obviously it is practically impossible for the prosecution in cases of this nature to establish affirmatively tote intention with which a woman is kidnapped or abducted, but, in my opinion, it is a fair and justifiable presumption that when any woman is kidnapped or abducted, it is undoubtedly with one or other of the intents specified in section

366. I really cannot see what other intention the abductor or abductors of a woman can have in a case of this nature, except that she should be forced to marry some person against her will or forced or seduced to illicit intercourse." Again, in the case of Muhammad Sadiq v. Emperor (A I R 1938 Lah. 474), Blacker, J., observed that "in a case of this sort, there can seldom be direct evidence as to the actual intention of the abductor and that intention must be inferred from the circumstances. Section 114, Evidence Act, provides that the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Human nature being what it is, whenever one finds a young man abducting a girl of marriageable age, the first and natural presumption must be that he has abducted her with the intention of having sexual intercourse with her, either forcibly or with her consent after seduction or after marrying her." On a review of these decisions whilst we do not wish to depart from the accepted practice that in cases involving sexual offence the rule of prudence that the evidence of the prosecutrix alone: should not be acted upon unless substantially corroborated by other evidence, we are not prepared to hold that the rule applies with equal rigidity in cases which are not strictly cases of sexual offences. A case of abduction or kidnapping only is not, in our view, a case of a sexual offence, and we respectfully agree with Chief Justice Beaumont that the rule does not apply to an offence under section 366.

15. Apart altogether, however, from this technical rule, it must always be a question of prudence and caution, in any and every case where the question is whether the evidence of a particular witness, who has been partially disbelieved, should be acted upon without corroboration. In this latter view of the matter, we feel that in the present case the evidence of the girl, P. W. 1, should not have been relied upon without corroboration, particularly since a considerable portion of her evidence had, in fact, been disbelieved by both the Courts below. It is in these circumstances that, we think, it would be unsafe to hold, in the present case, upon the uncorroborated evidence of P. W. 1, that the necessary intent had also been established.

16. We, therefore, set aside the conviction of the accused?-petitioners under sections 366/34 of the Pakistan Penal Code ; but since we find that the evidence of P. W. 1, so far as the forcible taking away itself is concerned, has been satisfactorily established by other reliable independent evidence also, namely, the evidence of P. Ws. 2 and 3, we think that that evidence does sufficiently establish a case of kidnapping. We, therefore, convict the accused‑petitioners tender section 363 read with section

34. We are furthermore of the view that, in the circum?stances of this case, the ends of justice will be sufficiently met if accused‑petitioner No. 1 is sentenced to suffer rigorous imprisonment for two years only for the said offence. We, however, maintain the sentence of the other two accused?petitioners, namely, the sentence of one year's rigorous imprison?ment each already passed upon them.

17. This Rule is accordingly discharged subject to the modifications mentioned above. Sentence altered: ?Rule discharged.