- (1.) KANA and Amra appellants have been convicted by the learned Additional Sessions Judge, Jaipur District under sec. 376 of the Indian Penal 'code and sentenced to rigorous imprisonment for four years each.
(2.) THE prosecution story is that on the 9th of June, 1953 at about 8 or 9 A. M. one Mst. Kaiser, alleged about twenty two years was taking food for her father-in-law to some bagichi at a distance of about two miles from her house. When she was about to cross the nala known as Pangolawala she saw the two appellants armed with lathees sitting there. Seeing the woman, they both committed rape upon her. Kana was the first and Amra followed him. When Kana committed rape, Amra caught hold of Mst. Kaiser's hands and when Amra's turn came. Kana caught hold of her hands. THE woman raised a hue and cry which attracted Cheetar Mali towards the spot who took her to her house, thereafter the accused ran away. A report, Ex. P.-l, of this alleged incident was made on the 12th of June, 1953 at about 7 A. M. at the Police Station Chomu, that is, the village where the occurrence is said to have taken place. The police is said to have recovered broken bangles from the scene of occurrence at the instance of the prosecution witnesses. The prosecution examined Mst. Kaiser P. W. 1, Cheetar and Prabhu P. W. 2 and P. W. 3 respectively, Zamrud Khan P. W. 4 and Dr. Tara Bhargava P. W. 5. Dr. Tara Bhargava had medically examined Mst. Kaiser at the Zenana hospital, Jaipur, on the same day, the first information report was lodged and her report was that no marks of injury were found either on Mst. Kaiser's vagina or on any other part of her body- Of the remaining four prosecution witnesses Zamrud Khan has stated that he is a tonga driver and took Munshiji, meaning the Head Constable and a Constable from Chomu Police Station to Pangolawala Nala. He has further stated that some broken pieces of bangles, Ex. 2, were taken into possession by the police from the spot, Mst. Kaiser, Chitar and Prabhu are the eye witnesses of the alleged occurrence. The accused denied the charge and vaguely suggested that there was some quarrel between Bheru Jat on one side and Mst. Kaiser on the other with respect to the injuring of the leg of her camel. The accused, however, failed to establish when connection had Bheru Jat with the two accused. It was also suggested by the accused that there was some quarrel about certain fields between Mst. Kaiser and Sera Mina who had forcibly cultivated the fields belonging to her husband's family and that Amra and Kana had taken their ploughs to plough on behalf of Sera. The accused was unable to substantiate this suggestion also. The learned Additional Sessions Judge believed the evidence of Mst. Kaiser, Cheetar and Prabhu and convicted both the accused under sec. 376 and sentenced them as mentioned above. It is against this conviction and sentence that the two accused have come in appeal to this Court. It was argued by Mr. C. L. Agarwal on behalf of the appellant that in the first information report only Kana had been mentioned as the person who committed sexual intercourse with Mst. Kaiser. Amra was mentioned only as having held the hands of Mst. Kaiser at that time. It was also argued that in the first information report, Prabhu was not mentioned as a witness to the alleged occurrence. It was argued that the first information report, Ex. P.-l was made about 72 hours after the alleged occurrence, and therefore, it should be looked upon with great suspicion. Further, it was argued that there is no corroboration of the statement of Mst. Kaiser inasmuch as Prabhu does not say that he saw any of the two accused committing rape upon her. Cheetar says that he saw only Amra accused committing rape upon her. Cheetar's evidence, too, therefore, cannot be treated as a corroborative evidence so far as Kana accused is concerned. It was also argued that Mst. Kaiser is said to have informed her sister-in-law i. e. the wife of Shankar,immediately after the occurrence that she had been raped and although Shankar's wife is said to have gone to her father-in-law to supply him meals within a couple of hours of the alleged occurrence,yet she was not produced nor was Shankar produced who could show when he came back from Jaipur. It was also argued that Shanker is said to have brought milk to Jaipur on that very day and, therefore, if he had come to Jaipur, he must have returned to his village Chomu in the evening of that very day. Finally, it was argued that the medical report altogether blasts the prosecution case because no marks of injury either on the private part or any other part of Mst. Kaiser's body were found at the time of medical examination. It is improbable. if rape was committed upon her by two persons against her will that no marks of injury should be found on her body. Certain authorities were cited to show that some injuries should be caused if a woman is forcibly raped. I was referred to the decision in the cases of Jaldeep Singh vs. The State (l), Chhatiya vs. The State (2) and Lekhram vs. The State (3), in which view has been taken that some injuries ought to be established in the case of sexual intercourse against the will of the woman concerned. In other to show that some corroboration is necessary as a matter of prudence of the evidence of the prosecution in rape cases, learned counsel cited the case of Rameshwar vs. The State of Rajasthan (4 ). On behalf of the State, it was argued by Mr. C. B. Bhargava that the evidence of Mst. Kaiser was corroborated by the evidence of Cheetar so far as the mishandling of Mst. Kaiser by Amra was concerned. Her statement received corroboration from the evidence of Cheetar also at least in this respect that Kana and Amra were both seen running away from the place where the rape is said to have been committed. He argued that the absence of mark of injury on Mst. Kaiser was due to the fact that she was a grown up woman and habituated to sexual intercourse. Moreover she was raped by one man while the other man held her hands. There could not, therefore, be any effective resistance, and so it is not improbable that no marks of injuries might have been received or if at all received they were so slight that in three days time, by the time Mst. Kaiser was medically examined, they disappeared. As regards delay in making the report, it was argued that Mst. Kaiser has given an explanation that no male member of her family was present at her house on the date of the occurrence and so the report could not be made before her brother-in-law Shankar arrived from Jaipur sometime in the evening of the 11th of June, 1953. It was conceded that so far as Amra is concerned, the first information report creates a reasonable doubt about his having actually committed rape upon Mst. Kaiser. As regards the omission of examination of Shankar and his wife, it was argued that when there were two eye witnesses in corroboration of Mst. Kaiser's evidence, it was not necessary to examine Shankar and his wife. I have considered the arguments of both the learned counsel. The case certainly presents some difficulty because it is difficult to hold that no incident whatsoever had happened and the story of the prosecution was out and out a contortion. On the other hand, the prosecution, whose duty it is to establish the guilt of the accused beyond a reasonable shadow of doubt, has been unable to produce such evidence as would enable the Court to hold without a reasonable shadow of doubt that both the accused or any one of them committed the offence of rape or for the matter of that some other offence. In a criminal case, it is the duty of the prosecution to prove its case without a reasonable doubt and simply because the defence is vague or has not been established, conviction cannot be made. In this case to start with, the first information report was made about 72 hours after the alleged incident although the police station is situated in the same village in which the offence is said to have been committed. An explanation has been no doubt given, but to my mind it appears to be lame. It has been said that because none of the male members of Mst. Kaiser's family was present in the village on the date of occurrence, the first information report could not be made immediately after the occurrence. In the first instance, it is not altogether true because Mst. Kaiser's father-in-law at least was present in the Village and he could have been informed of the incident and could have made report at the police station. It is said that Mst. Kaiser was too shy to relate the story of rape to her father-in-law and that is why he was not informed about the incident. If Mst. Kaiser were the only person who had met her father-in-law on the date of the alleged occurrence, there might have been some force in this argument, but we find from the evidence of Mst. Kaiser herself that she related the whole story to her sister-in-law immediately after returning to the house after the commission of rape and that the food that she was taking to her father-in law was taken to him by his sister-in-law within a couple of hours. There is no reason why her sister-in-law at least should not have informed her father-in-law when she went to him with the food. Even if she had any hesitation in telling her father-in-law, what had happened to Mst. Kaiser, she could have asked somebody else to inform him about it. Then Cheetar and Prabhu who have been produced as eye witnesses belonged to the same community of Malis to which Mst. Kaiser belongs. It is improbable that they would keep silence if they had actually seen the occurrence. It is also quite probable as has been argued by the learned counsel for the accused that Shanker might have returned to his village in the evening of the very day the incident is said to have taken place. I fail to understand if the incident took place in the way in which it is said to have taken place, why the police report was not lodged sometime in the day on which the incident is said to have taken place. Then coming to the contents of this document Ex. P-l, Mst. Kaiser did not say in clear words that she had been raped. All that she said was that she had been dishonoured. This might mean that her modesty had been outraged not necessarily that she had been raped. It does not present a true picture as to what was that dishonour which Mst. Kaiser had met at the hands of the accused Again he does not mention in the first information report that Amra committed rape upon her. He has been mentioned only as having held the hands and feet of Mst. Kaiser and only Kana is said to have raped her. Out of the two alleged eye witnesses only Cheetar has been mentioned to have come to the spot after the commission of the rape and when the two accused were leaving the spot. Thus this document creates good deal of doubt as to whether even Cheetar was present at the time when the alleged rape, be it by Kana or by Amra, had taken place. Cheetar's evidence cannot be said to be a corroborative evidence so far as the actual rape on Mst. Kaiser is concerned. It was argued by the learned counsel for the State that at least the evidence of Cheetar is corroborative of the evidence of Mst. Kaiser, in so far as he says that he saw the two accused running away from the place of occurrence immediately after the occurrence. If the statement of Cheetar had been straight forward, I would have certainly given due weight to it, but while the first information report shows that he came on the sence only after the commission of the crime, this witness has dared to state that he actually saw Amra raping Mst. Kaiser. Even the first information report does not say that Amra committed rape upon Mst. Kaiser. It is difficult to believe the statement of Cheetar under the circumstances of the case Ordinarily I would not have laid much stress upon the community of this witness, but in this case looking to the merits of his evidence itself, the fact that he belongs to the same community as Mst. Kaiser, too, cannot be altogether ignored. Mr. Bhargava argued that it was not necessary to examine Shanker or his wife as their statements would not have furnished any corroboration of the evidence of Mst. , Kaiser and that while the two eye witnesses of the actual occurrence were forthcoming, their production would have been a waste of time. I do not agree to this argument too of the learned counsel for the State. If Shankar's wife had been produced and had sworn that Mst. Kaiser told her immediately after her return that she had been raped she would have furnished a very good corroboration of the evidence of Mst. Kaiser. It might also have been possible to know from her why she did not tell her father-in-law when she went to him with his meals or at least did not inform him about the incident through some other person. Shankar's sister is also said to have been at her father's house on that day and she could atleast have informed her father as to what had happened to Mst. Kaiser. Shankar, if, produced, could have been in a position to show when he returned from Jaipur. If he had also corroborated the statement of Mst. Kaiser that he came back after two or three days, the evidence of Mst. Kaiser in this respect would have been more worthy of belief, but this too has not been done. Lastly the medical evidence goes a long way against the prosecution. Dr. Tara Bhargava who examined Mst. Kaiser on the 12th of June, 1953 has deposed that she did not see any marks of injury whatsoever on the private parts of Mst. Kaiser or any other part of her body. She has stated that she expected some such injury in case rape had been committed. She is a witness for the prosecution itself. The prosecution did not make any attempt to elicit from her as whether it is possible in some cases that even if a woman has been forcibly raped by two young persons, she would not receive any injury whatsoever. It may be that a grown up woman might not receive any injuries on her private part if raped only by one man specially if he is stronger than her ownself. But in this case Mst Kaiser is said to have been raped by two persons and there is evidence of some sort of resistance also on her part. She is said to have been raped on a rough ground which was scattered with pebbles. Under these circumstances, it seems highly improbable that she would not have received any sort of bruises or scratches on her back, hips or back parts of thighs Mst. Kaiser's evidence also shows that she was wearing the same ghagra at the time of her medical examination as she was wearing at the time of the alleged occurrence but no spots of semen were found on that ghagra. There are, therefore, circumstances which strongly create a good deal of doubt about the prosecution story of the woman having been raped. It was held in the case of Lekhram vs. The State (3), that unless the woman is a willing party there is bound to be resistance and such a resistance would normally lead to the tearing of the clothes or injury to the private and other parts of the body of the prosecutrix which may have been, occasioned in the struggle. In the case of Chhatiya vs. The State (2), it was held that the absence of all marks of struggle like scratches on the body of the woman leads to the inference that the intercourse must have been with the consent of the prosecutrix. In the case of Jaldeep Singh vs. The State (1), it was held that it is difficult to believe that after prolonged forcible sexual intercourse no injuries might be caused to the private parts or other parts of the prosecutrix. Taylor- in the Principles and Practice of Medical Jurisprudence, tenth edition, Volume II page 89, says that the girls who have passed the age of sixteen, and adult women, are considered to be capable of offering some resistance to the perpetration of the crime. Therefore, in a true charge we should expect to find not only marks of violence about the pudendum, but also injuries of greater or less extent upon the body and limbs. According to Modi also some marks of violence on face. chest, limbs or back are likely to be found on the bodies of grown up women who are able to resist. As has been said above, the evidence of the medical examiner Dr. Tara Bhargava also shows that under the circumstances, some such marks of injury were to be expected. The absence of any such marks of injury also is a circumstance, which creates a good deal of doubt about the prosecution story of the woman having been raped. Looking to all the circumstances of the case the bare evidence of Mst. Kaisar cannot be believed. It has been held in rape cases as a matter of prudence that some corroboration should be sought for the evidence of the prosecutrix. In the case of Lekhram vs. The State (3), stated above, it was held that where the rape is denied by the accused, the sort of corroboration which should be forthcoming is medical evidence showing injury to the private parts of the complainant, injury to other parts of the body which may have been occasioned in struggle, seminal stains on her clothes or the clothes of the accused or on the place where the offence is alleged to have been committed. In the case of Rameshwar vs. The State of Rajas-than (4i, it was held by their Lordships of the Supreme Court that - "it is not necessary that there should be independent confirmation of every material circumstances 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 substrain 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. " Their Lordships further observed that - "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. " As has been said above in this case, there is no satisfactory evidence, direct or circumstantial which might be said to be corroborative of the evidence of Mst. Kaiser in material particulars. Thus we are left with the sole testimony of Mst. Kaiser's. Apart from the fact that it has not been satisfactorily corroborated in material particulars by any other independent evidence, her evidence" cannot be classed as the evidence of a true witness. When she made the first information report she did not mention that Amra also committed rape. When she was confronted with the first information report, she said at the trial that she had asked the writer of the report to state therein that Amra had also committed rape. She was confronted with her statement in the Committing Magistrate's court where she stated that she forgot to name Amra in first information report as one of those who committed rape upon her. Again in the first information report she did not mention Prabhu as one of the witnesses, but when she was examined in the trial court she said that she had asked the writer to name him also in the report. In the Committing Magistrate's court she said that she did not think it necessary to mention Prabhu as one of the witnesses because he was the real brother of Cheetar. This is a very strange reason for the omission of the name of Prabhu in the first information report. Her statement does not inspire any confidence in its truth. As regards recovery of broken glass bangles even the learned Government Advocate did not place reliance upon it. In two or three days time there was sufficient opportunity to throw some broken bangles at the scene of the alleged occurrence if the prosecution intended to concoct a case of rape. It may be said that if the prosecution would have come with clean hands before this Court, the accused or any one of them might have been found guilty of some offence under the law, or it may be that if the accused would have taken up the defence of sexual intercourse with consent, this Court might been able to give a definite finding whether it was a case of sexual intercourse with consent. As neither of the two parties have obliged this Court by a true version of the incident, all that is left to this Court is to give the benefit of doubt to the person who is entitled to it. The appeal is allowed, the convictions are set aside and both the accused are acquitted. They are in jail, and they shall be released atonce if not required in connection with any other case. . ;