P (PLP)

Muhammad Shafi, for Petitioners. C. M. Sharif, Assistant to Advocate‑General, for Respondent. MUHAMMAD JAN, J.‑‑Muhammad Afzal and Muhammad Sharif, Tickets Collectors of Jhelum, were convicted under section 366 Indian Penal Code and sentenced to two years' rigorous impri sonment each. Muhammad Afzal was also convicted under section 376 Indian Penal Code and sentenced to four years rigorous im prisonment. Muhammad Sharif was convicted for abetting this offence and sentenced to two year' rigorous imprisonment. The sentences were ordered to run concurrently. The convicts' appeal to the Sessions judge was dismissed. They applied for revision to this Court and their petition was admitted by the Honourable Chief Justice. The prosecution case is that on 10th August 1949, Mst. Resham Bibi (P. W. 1), a young married woman, came from Lahore to Jhelum by the train which reached there at 8 p. m. Muhammad Afzal was on duty as Ticket Collector at the gate. Muhammad Sharif was standing near him, though he was off duty. Resham Bibi was the last passenger to hand over her ticket and, on being questioned, said that she had to go to her father in the Refugee Camp at Chak Jamal, situated at a distance of about six miles from Jhelum. Muhammad Afzal told Sharif to conduct Resham Bibi to the Ladies Waiting Room and he would take her to Chak Jamal. About half an hour later the petitioners went to the waiting room and asked Resham Bibi to accompany them to their house where they had their families and where she would be provided with food and put up for the night. Next morning, they said, they would send her to Chak Jamal. She agreed and was taken to the house of Sharif petitioner in the city. There was no woman in the room where she was taken and Resham Bibi did not ask to be taken where the women lived. Muhammad Sharif then went away and Muhammad Afzal had sexual intercourse with her against her wishes. He asked her to sleep there and promised to take her to Chak Jamal next morning. She wished to be taken there immediately. The petitioners did not do this. Instead, they took her back to the railway station and left her there. When they had gone she was questioned by some Military policemen and told them that she had been raped by one of the Ticket Collectors. They took her to the Railway Police Post where she repeated this story and showed them the waiting room and the house of Sharif where she was taken. As the house was situated in the city the A. S I. Railway Police took her to the City Police Station where she told the Sub‑Inspector that she had sexual intercourse with Muhammad Afzal petitioner of her own will. No case was, there fore, registered and Resham Bibi was entrusted to Allah Dad, a Member of the Mahajir Conference, with the request that she should be sent to her father at Chak Jamal. The A. S. I. Railway Police submitted a report of the incident to the Headquarters, Railway Police, at Rawalpindi and a case was registered against the accused on 11th August 1949. He was arrested and identified by Resham Bibi in a parade in District Jail, Jhelum, on 13th August, 1949. In her evidence Resham Bibi stated that she and her husband Abdul Aziz had come from Jammu as refugees and lived at Lahore where Abdul Aziz was employed in the Electric Power Company. Her father Muhammad Din lived at Chak Jamal, near Jhelum, and she was going to him when the occurrence took place. She said that her husband had not written to her father to receive her at the railway station nor had he told her where to stay at Jhelum if she could not proceed to Chak Jamal immediately after arrival at 8 p. m. She added that her father had informed her husband about this occurrence, but he had not come to see her up to the time of her giving evidence on 1st September 1949. It was suggested to her that she was coming to her father on account of a quarrel with her husband but she denied this. She admitted that the room in which Muhammad Afzal had intercourse with her opened into the street. She said that she resisted Muhammad Afzal and struggled with him. She gave him fist blows on the face and kicks on the rest of his body. She bit him on the hand but he kept it on her mouth until he had finished. She had her burqa under her head during the intercourse and after that Muhammad Afzal cleaned himself with it. She washed it on the next day and removed the stains of semen from it. She said that she received no injuries in the struggle nor were her clothes torn. Muhammad Afzal, who was arrested soon after the occurrence, was not medically examined presumably because he had no injuries. Resham Bibi, according to her evidence, was taken from Sharif's house in the city to the railway station. She did not complain to anyone in the city or on the way to the railway station and even at the station she said nothing until she was questioned after the accused had gone. She says that she did not tell even her father what had happened to her. The Military policemen to whom she spoke in the first instance are Ata Muhammad (P. W. 9) and Ahmad Ali (P. W. 10). They deposed that they saw Resham Bibi getting out of the train at 8 p. m:, and then being taken by Muhammad Sharif to the waiting room. After the train had left they saw her going with Muhammad Sharif and Muhammad Afzal from the waiting room towards the city. At about 11 p. m. they saw the petitioners and Resham Bibi coming back to the platform and, after the petitioners had gone, they approached her and she started weeping. She said that one of the ticket collectors had raped her. Subedar Saeed Ahmad arrived at this juncture and they took her to the Railway Police Post. The Military policemen said that they suspected nothing when they saw Resham Bibi being taken to the waiting room and from there towards the city. They denied making the statement to the police, with which they were confronted, that they knew the accused to be notorious devils and thought that they had found a new prey; but quietly watched and did not interfere. It was put to them in cross‑examination that when Resham Bibi came back to the railway platform with the ticket collectors they accused her, after the ticket collectors had gone, of having had something to do with them and on being pressed on the point, she admitted that she had. The suggestion was, of course, denied; but it does not appear to be completely devoid of force. It is difficult to believe that two Military policemen, on duty at the platform, should have seen a lonely woman being entrapped by two "notorious devils", and should have kept quiet and done nothing to prevent the crime. The evidence of these witnesses consists of two parts, i.e., what they saw and what they were told by Resham Bibi. They saw her going to the Waiting Room and then towards the city with the petitioners. They were told by Resham Bibi that she was abducted and raped. What they saw is perfectly compatible with her consent. What they were told they have no personal knowledge of. It is the statement of Resham Bibi and the question is whether that statement is true. She told the city police that she was neither abducted nor raped and the reason given by her in Court for making that statement is that when she went to the City Police Station she saw a man being beaten and Sharif petitioner told her that if she made a complaint she would also be beaten by the police. The learned Sessions judge has remarked in his judgment that the petitioners did not dare ask any of the witnesses for the prosecution whether it was not .a fact that a man was being beaten in the police station when they went there. It was for the prosecution to prove that the reason given by Resham Bibi was correct. The normal presumption is that a police station, situated in the midst of a city, is not a chamber of horrors where people are tortured and scared away from making complaints. Moreover, it is very unlikely that any of the Military or Railway policemen, who had gone with Resham Bibi to the City Police Station, would have said that the City Police were torturing someone when they went there. In any case, there is no evidence that the reason advanced by Resham Bibi for saying that she had a willing intercourse with Muhammad Afzal was due to any pressure or fright Subedar Saeed Ahmad, a witness for the prosecution, has definitely stated that this statement was made by Resham Bibi without pressure or violence and of her own free will and accord. He further stated that Resham Bibi did pressure or fright. Subedar Saeed Ahmad, a witness for the prosecution, has definitely stated that this statement was made lay Resham Bibi without pressure or violence and of her own free will and accord. He further stated that Resham Bibi did not even complain of any force or violence. The statement of Resham Bibi to the City Police cannot, therefore, be said to have been the result of any coercion. There remain then the statements alleged to have been made by her to the Military Police and to Hashmat Ali, A. S. I., Railway Police. The statement to the Military policemen was not made until after the petitioners had gone and she was questioned by these men. This statement is not covered by section 6, Evidence Act, according to which only facts so connected with a fact in issue as to form part of the same transaction are relevant. The statement was made some time after the crime and it was observed in Raman and others v. Emperor (A. I. R. 1921 Lah. 258), that whenever there is opportunity for reflection the statement ceases to be part of the res gastae. In that case the woman alleged to have been raped made some statements after her return to the village. The statements and the crime were held not to form part of the same transaction. Whether the statement is covered by section 8 of the Evidence Act is doubtful. Illustration (j) of this sections says that if a woman, without making a complaint, i.e., without wishing some action to be taken, merely states that she hall been ravished, that statement is not relevant under section 8 though it may be relevant under section 157, Evidence Act. The next question is whether the statement to the 'Military lice and its repetition to the Railway police contradicted as it by the statement to the City Police, can or cannot be considered sufficient corroboration of Mst. Resham Bibi's evidence to warrant the petitioner's conviction. In Emperor v. Mahadeo Tatva (A. I. 1Z. 1942 Bom. 121, it was observed by a Full Bench that where rape is denied the sort of corroboration one looks for is medical evidence showing injuries to the complainant and seminal stains. The subsequent conduct of a woman is not enough because a witness cannot corroborate himself. In Sikandar Mian v. Emperor (A. I. R. 1937 Cal. 321), it was said that in cases of sexual offences the uncorroborated evidence of the complainant should be scrutinized with the greatest possible care because it has been found by experience, extending over many years, that it is often dangerous that a man should be convicted on such uncorroborated testimony. The question whether statements admitted under section 157, Evidence Act, constitute the kind of corroboration that is necessary in such cases was considered by Henderson, J. and it was observed by him that the rule regarding corroboration was based on prudence and a previous statement made by the prosecutrix herself cannot be considered corroboration within the meaning of the rule. To quote the words of the learned Judge: " if it were, instead of regarding it as a rule of prudence, I should regard it as a rule of folly." In Maung Ba Tin v. Emperor (98 I. C. 180) the conviction for rape was set aside, although the prosecutrix had reported the matter to a number of people and in spite of medical evidence that she had recent sexual intercourse. The question being whether the intercourse was with the accused and without her consent, her own previous statements were not considered sufficient for conviction, though no motive for a false charge was dis closed. Coming to our own High Court it was observed by Chevis, J. in Kanshi Ram v. Emperor (47 I. C. 827) that in cases of rape, where the prosecution evidence is not otherwise sufficiently strong to, warrant conviction, it is unsafe to convict on tire evidence of the woman who has been raped. In Mahla Ram v. Emperor (A. I. R. 1924 Lah. 669), it was held that when there is no independent evidence to support the statement of the complainant it would be most dangerous to base a conviction .on her uncorroborated testimony. The first and foremost circumstance to be looked for in eases of rape is the evi dence of resistance which one would naturally expect from a woman unwilling to yield to sexual intercourse forced upon her. Such resis tance would ordinarily lead to the tearing of clothes and infliction of personal injuries. When there is no evidence of any struggle having taken place, nor marks of any injuries on the person of the complainant or the accused, rape cannot be said to have been proved. With all respect to the learned judge who decided the last mentioned case, I am unable to hold that in the absence of injuries or signs of struggle rape cannot be proved. There can be many cases in which it would be impossible to find any such evidence. For instance, a woman is caught at a lonely place, when no one is around, by two or more men well known to her and is subjected to sexual intercourse at the point of dagger or with a pistol placed against her head. In such a case she may not struggle at all, knowing it to be utterly useless, and there would be no injuries nor any tearing of clothes. The offence would, nevertheless be rape. So far as the statements of a ravished woman axe concerned they can certainly be used to corroborate her under section 157 even if they are not admissible, under any other provisions of the Evidence Act. But statements admitted under section 157 are not substantive evidence and cannot be made the basis of a finding as to the existence of the facts mentioned in the statements. They are repetitions of her statement and can be either true or false. The next question is whether it is necessary that the aggrieved witness in a case of rape should be corroborated before a conviction can be based on her evidence. The rule of a corroboration is meant to be applied to accomplices and a ravished woman is not an accomplice but a victim of the crime. I am, therefore, of the opinion that corroboration of the prosecutrix in a case of rape is not always indispensable. The thing to be remembered in such cases is whether it is safe to convict on the solitary statement of the complainant. That depends upon the circumstances of each individual case. In the case before me Mst. Resham Bibi, a grown unmarried woman and a refugee with some hard experience of life, went with the petitioners to their house at night though she could have stayed on the platform or in the waiting room where she was lodged. She should have known that all men are not saints and the Ticket Collectors, Who were utter strangers to her, were not likely to put themselves out so much for a mere passenger, without some ulterior motive. When she reached the house of the petitioners she found no women or children there and she did not even ask where the families that the petitioners had spoken of lived or had their being. The room into which she was conducted had two windows and a door opening into the street. She never tried to open any one of them to call for help. She was taken from this house back to the railway station, well before 11 p.m., in the month of August when many shops must have been open and many people moving about. She never complained to any one. Even on reaching the railway station she said or did nothing until after the petitioners had left her, and then too, the statement which she made to the Military Policemen was more in the nature of a con fession of adultery than a complaint of rape. The confession of adultery was repeated at the City Police Station but there was no complaint of rape. Finally, there were no sings of struggle nor marks of violence on her person or on the person of Muhammad Afzal, petitioner, though Mst Resham Bibi said that she had beaten, bitten and kicked him. There was no medical examination of Mst. Resham Bibi to determine whether she had a sexual intercourse and there is nothing to show whether she was even asked if she was willing to submit herself to medical examination and whether she agreed or refused to do so. But even if it be assumed that there had been a sexual intercourse the circumstances mentioned above tend to show that it was not without Resham Bibi's consent. The fact, that her husband was informed about the alleged rape and he did not bother to come and see her lends some support to the petitioner's contention that Resham Bibi was not a woman of good character and was probably turned out by her husband. She considered herself free to give herself to whomso ever she liked and gave herself to Muhammad Afzal because he was attentive and promised to take her to Chak Jamal. When he failed to do so and left her at the railway station she was disap pointed and may have become spiteful. She, however, told the City Police that no offence had been committed and, therefore, no case was registered. The fact, that she did not tell even her father that she had been violated or deceived also shows that no decep tion was practised nor any force used on Resham Bibi. The offences under sections 366 and 376 Indian Penal Code have not been proved beyond reasonable doubt: I, therefore, accept the petition for revision set aside the conviction of the petitioners and order their acquittal. A. H. Petition accepted.