- (1.) THIS is an appeal by one Mohmad Hussain against the judgment of the Additional Sessions Judge, Paratapgarh-dated the 18th of December, 1954 whereby he has been convicted under sec. 376 of the Indian Penal Gods and sentenced to one year's rigorous imprisonment and a fine of Rs. 11/ -. In default of payment of fine, he has been sentenced to undergo simple imprisonment for 15 days.
(2.) THE incident relating to this case is said to have taken place at the appellant's house in the town of Chittor on the 13th of October, 1952 at about 8 p. m P. W. 10 Mathuralal, who conducted the investigation of this case, has stated that on the date of occurrence he got an information from a reliable source at about 8 p. m. that a Hindu girl was closed in the appellant's house. THEreupon he wrote out the first information report Ex, P. 1 and left the Police Station for going to the appellant's house. THE appellant met him in the way coming towards the Police Station and so he asked him to accompany him. THEn they went to the appellant's house and found that a number of persons had collected outside that house. He went inside and found a girl named Kamla in the appellant's room on the first floor. He brought the girl and the appellant back to the Police Station. After investigation, he challenged three persons namely, Chhogalal, Abdulla and the present appellant Mohmad Hussain. The story put up the prosecution was that Mt. Kamla was aged about 13 or 14 years and although she was married, she had not been seat to her husband's house by that time and she was still residing with her parents in Chittorgarh town and used to work as a labourer. On the day of occurrence, Mohamad, Chhogalal and Abdulla conspired together to commit a rape on this girl and Ghhogalal was entrusted with the task of bringing her to the appellant's house by some device. Accordingly, Chhogalal went to the girl a about 4 or 5 p. m. and told her that he wanted two corrugated iron-sheets to be removed from the appellant's house to another place and she would be paid 2 annas per tin for her labourer charges. Mt. Kamla agreed to do this job and she accompanied Chhogalal to the appellant's house at about 6 or 6. 30 p. m. It is said that when this girl was just lifting up the corrugated sheets, Chhogalal and the appellant caught of her. They lifted her up on their arms and took her to a room on the first floor. Thereafter all the three persons, namely Chhogalal, Abdulla and Mohmad Hussain committed rape on her one after the other. The appellant's version in the committing Magistrate's court as also in the trial court was that he had gone out in the evening for his prayers and when he returned, he found that the door of his house was open and five or seven persons were collected outside. He was told by these people that there was a girl inside his house. He apprehended trouble and so he went to report about this matter to the Police Station. When he returned to his house with the Sub-Inspector, he saw a large crowd outside it. According to him, the girl was sent in house by some persons who were interested in getting that house vacated him. He said that Kishanlal Sindhi, Chhogalal Teli. Shiv Shanker and other wished that the house that he was occupying should be given to some Sindhis and, therefore, they wanted him to vacate the same. When be refused to comply with their wishes, they became inimical towards him and they played this trick to oust profession of this property. Abdulla's defence was that he was present at his own house and did not go to the appellant's house on that day. According to him, there was a criminal case between him and Mt. Kamla's father and so he was implicated by her just to wreak her father's vengeance. Chhogalal's version was that Chhoga Teli, Kishanlal Sindhi and others were inimical towards him because he had sided with Abdulla in a criminal case between him and Chhogalal Teli. The trial court did not believe the prosecution evidence against Chhogalal and Abdulla and acquitted them both of the charge under sec. 376 of the Indian Penal Code. 8 As regards the appellant Mohmad Hussain it was found by the court that the girl was recovered from a room in his house on the first floor and that he had committed rape on her. The learned Judge did not believe Mt. Kamla's story to the effect that three persons had ravished her on the evening of occurrence. His finding, which is based on medical evidence, is that only one man had sexual intercourse with her and that was also done with her consent. The appellant was however convicted under sec. 376 of the Indian Penal Code on the ground that although Mt. Kamla was a consenting party to sexual intercourse, she was only fourteen years of age and, therefore, her consent was no consent in law. The defence version was disbelieved by the trial court and the appellant was convicted and sentenced as mentioned above. Learned counsel for the appellant had urged that in the first place, the prosecution evidence was not sufficient to prove that the appellant had committed rape on Mt. Kamla. It is contended that the Police had taken in its profession the appellant's underwear soon after the alleged occurrence and although it was sent for chemical examination since it was sent suspected that it had spots of seminal fluid the Chemical Examiner's report was in the negative and that clearly showed that the appellant could not have committed any sexual intercourse on that evening. It is further urged that the statement of Mt. Kamla is full of discrepancies and contradictions, that the trial court had observed in clear words that her evidence against Chhogalal and Abdulla was perjured and still it commuted an error in believing the same evidence against the appellant. According to learned counsel, the trial court was led away simply by the fact that the girl was found in the appellant's house, but it was sent thereby some persons who were interested in ousting the appellant from that property Secondly, it is urged that even if it be assumed for the sake of argument that the appellant had sexual intercourse with Mt. Kamla with her consent, as found by the trial court, an offence was made out against him because the girl was above 16 years of age and the trial court had committed an error in holding her to be only 14 years old on flimsy evidence. I have gone into the record of the trial court and find that there is no doubt about the fact that when to the Sub-Inspector Muthralal came to the appellant's house. Mt. Kamla was found in his room on the firstfloor. Mt. Kamla was got examined by the Medical Officer Chittorgarh the same night and after examination he found that somebody had sexual intercourse with her on that evening. The statement of the Medical Officer Shri I. B. Bhatt was that on an examination of the private parts of Mt. Kamla, his finger was stained with blood and discharge and this showed that she had sexual intercourse on that evening. Her petticoat was also seized and sent to the Chemical Examiner to the Government of Rajasthan. His report Ex. P. 15 shows that it was p)sitive for spermatozoa. It is not disputed by the appellant's learned counsel in this Court that Mt. Kamla was found in the appellant's room. Learned counsel has not also disputed the correctness of the statement of Dr. I. B. Bhatt to the effect that on P. V. examination, his finger was stained with blood and discharge and, therefore, the girl had sexual intercourse with somebody on the night of occurrence. What is contested is that it was not the appellant who had sexual intercourse with Mt. Kamla and that even if it be assumed that he had cohabited with her, he did not commit any offence because the girl was above 16 years of age and was a consenting party. Learned Deputy Government Advocate has, on the other hand, urged that the trial court's finding about the age of the girl is correct. He has also supported its finding to the effect that it was the appellant who had sexual intercourse with her. He has, however, contended that the trial court's finding about the consent of the girl is incorrect. He has thus tried to support the appellant's conviction both on the ground of the age of the girl and lack of her consent. Thus the points for determination by this Court are : (1) Whether the girl (Mt. Kamla) was fourteen years old. (2) Whether sexual intercourse was done with Kamla without her consent. (3) Whether it was the appellant who had sexual intercourse with Mt. Kamla at his house on the evening of 13th October, 1952. It would be proper first to deal with the question about the age of the girl. On this point, the trial court has relied upon the evidence of the girl's mother Mt. Parwati, the evidence of Dr. Bhatt, who examined the girl, and lastly on her outward appearance. I have gone into the statement of the girl's mother. She has stated that Mt. Kamla was born in the Samvat year 1936. The learned Judge has believed this statement, but it appears that he has completely ignored her cross-examination. The witness has admitted in her cross-examination that she could not say what was the Samvat year current at the time when she was giving her statement. She was further asked what she understood by the word 'samvat' and again she replied that she did not know what was Samvat. It is therefore clear that Samvat 1996 was put in her mouth by somebody else and she had no idea about the Samvat year. Learned Deputy Government, Avdvocate has stated that she might be remembering Samvat 1936 because it was a famine year, but the witness has not given that explanation. If she could not know what was the Samvat year current or what was meant by the world 'samvat' then it is difficult to believe that she could remember only one Samvat i. e. 1936. When the witness was further asked about the year of her son's birth, she was unable to point it out. This leaves no doubt that she was tutored about this Samvat and she could not give the year of Mt. Kamla's birth. The evidence of this witness about the age of the girl was thus completely useless and, in my opinion, on reliance should have been placed upon it by the trial court. Now coming to the medical evidence, I find from Ex. S-17 and the statement of Dr. I. B. Bhatt, who prepared it that the examination of the girl was conducted in a cursory manner. It appears from his statement that he gave the age of the girl as 13 to 14 years on the basis that she had 14 teeth in the lower jaw and 14 teeth in the upper jaw and hair on her pubic region were soft and hair in the arm-pits were growing. He has also noted down that the breasts of this girl were enlarged to the size of an orange. It may be remarked that from the mere fact that she had only 28 teeth, it cannot be said that she was definitely under 16 years of age. Modi in his text-book on Medical Juris-prudence (Eleventh Edition, at page 28 says that 'the time of eruption of the third molar teeth or wisdom teeth is more uncertain. After the eruption of the second molar teeth the body of the jaw grows posteriorly and the ramus is elongated to make room for the appearance of the third molar teeth. Hence, during the examination of a minor for determining his age, a note should always be made as to whether there was a space in the jaw behind the second molar teeth, the third molars are absent. These teeth are usually cut between 17 and 25 years of age. ' It is clear from the above observation that a girl may be above 16 and still she may not have third molar teeth because third molars are usually cut between 17 and 25 years of age. The girl had all the second molars and the witness ought to have seen how much ground was ready for the eruption of the third molars. It is not mentioned in Ex. sec. 17 as to whether the ramus was elongated to make room for the appearance of the third molar teeth and whether there was a space in the law behind the second molar teeth. Similarly, about the heir on the public region all that was noted was that they were soft, but it was not mentioned whether they were sparse or thick and of what colour
(3.) IT also appears that there was no skiagram and, therefore, the evidence about the ossification of bone is not present. The evidence of the Medical Officer is helpful as an opinion of an expert, but it is necessary that such experts should bring their technical and scientific knowledge to bear upon the matter which is referred to them while giving their opinion. It is not sufficient to give some indications which can be observed even by a layman. In the case of Emperor vs. Qudrat (1) it was observed as follows "it is true that a doctor is in a better position to form an opinion about the age of a person than a laymen, but the statement of a doctor is no more than an opinion. This question has been considered in several cases. We need only cite the observations of their Lordships of the Judicial Committee in 43. I. A. 256 (Mohammad Syedol Ariffin vs. Yeoh ). While considering the doctor's certificate on the question of age, their Lordships observed as follows: Dr. Bright, on examination, says that he formed the opinion that the appellant was 21, judging by his teeth, his appearance and his voice. In their Lordships" view such a certificate is worthless. It is in truth not a certificate, but only an assertion of opinion. . . . . . . . . proof on the subject is not advanced by such documents. " In the present case also, it appears that the Medical Officer only gave outward indications which could be seen even by a layman and he has not brought his scientific knowledge to bear upon the examination of the girl. The presence of '28 teeth and hair in armpits and on the pubic region could as well be present in a girl above the age of sixteen. The development of her breast to the size of an orange, on the other hand, point out that she might be older than the age given by this witness. It further appears from the statement of this witness that this was not the first time when Mt. Kamla had a sexual intercourse. If it were so, be would have found her hymen freshly ruptured. The witness has clearly stated that from the examination of the girl, he found that she was not a virgin. He also found that she was having menses before he examined her. In a case like the present where it is found that the girl was a consenting party to the sexual intercourse and where the conviction of the accused for rape is sought on the mere ground of the age of the girl, it becomes all the more necessary for the prosecution to prove beyond doubt that the girl was below 16 years of age. It is urged by learned Dy. Govt. Advocate that the learned Sessions Judge has also relied on his own observation. But it may be remarked that outward appearances are deceptive and a Judge cannot proceed to determine the age of the girl in cases of this type simply on his own estimate, without any conviction evidence. It appears from the statement of the girl that she was a student of a school at Chittorgarh at one time, but the prosecution has not cared to prove her age which might have been recorded in the register of the school. It would have been helpful for the determination of her age to some extent. On the other hand, there is evidence of P. W. 1 Shiv-shanker that he knew this girl from childhood and that she was 16 or 17 years of age. The trial Court has not at all referred to the statements of this witness on this point. It it was true that this witness was seeing her for the last 17 years, then it could not be said that she was under 16 years of age. The burden of proving the age of the girl lay heavily on the prosecution in view of the fact that the girl was already used to sexual intercourse and, in my opinion, it has not been able to discharge that burden satisfactorily. Now coming to the second point, learned Deputy Government Advocate has urged that the finding of the trial court about the consent of the girl is not correct. I have given due consideration this argument, but, in my opinion, it is not tenable. It is true that the girl herself has stated that she was lifted up bodily, taken to the upper room and there she was raped by the appellant and his two companions turn by turn, but the trial court has found that so for as her allegation against Chhogalal and Abdulla is concerned, it is incorrect. The Government has not filed any appeal against the acquittal of Chhogalal and Abdulla. The evidence of the Doctor, who examined the girl, is that she could not have been raped by three persons, otherwise she would not be in the condition in which she was found. She had no injury on any part of her body or on her private parts. The girl's story that she was brought by Chhogalal to the appellant's house has been disbelieved by the trial Court. This means that the girl had come to the appellant's house either of her own accord or at the instance of someone else. At any rate, she has not stated that the appellant had asked her ever to come to his house. Nor has the prosecution produced any other evidence to show that the appellant had called her or that he had conspired with others in calling her. Further, if any violence were used against her, some sort of injury should have been present on her person. The Doctor has not found even a scratch on her hands or feet or face or bosom or private parts. Her clothes were intact and so were her bangles. A girl of her age could not be lifted up by one man and taken to the upper storey without a struggle. If she had struggled, some injury would have been caused to her somewhere. The place where she is said to have been raped was a bare ground paved with stones. If violence were used, she would have got some marks on her back. Her examination thus does not show any sign of violence. It has been pointed out by learned Deputy Government Advocate that the doctor's fingers were stained with blood on P. V. examination. That is true but he has not stated that the blood was due to any internal injury. The girl used to have menses and he had admitted that menstruation may be induced by sexual intercourse. Modi in his Jurisprudence while dealing with rape cases says that it should not be forgotten that the bleeding may be due to menstruation which is possible to be induced by sexual intercourse. The indication of blood is, therefore, no corroboration of the story of violence when it was found that the girl was having menses, that she was used to sexual intercourse and there were no other signs of violence on any part of her body. There is no satisfactory evidence either anybody heard her cry. The people had collected outside the appellant's house simply because somebody had seen a Hindu girl going into a Mohammedan's house and they felt sore about it on communal grounds and not because of sympathy for the girl. Although the Sub-Inspector has stated that the girl had complained to him at the appellant's house that she was raped, the girl herself does not say that she had said so. P. W. 1 also says that she said nothing to him or Sub-Inspector with whom he had gone to the room. It further appears that the girl was quite alone in the roam when the Sub-Inspector went to the appellant's house. The doors of the rooms were open and so was the main gate. There was nothing to prevent the girl from coming out of the house after the appellant went to the Police Station but she chose to stay in the room because there was a crowd outside and she had no courage to face it. P. W. 1 has also stated that she was not having good reputation of her character. She was a poor girl. Her father according to her own mother's statement was living on alms. It may be that she had lost her virginity in the past for the sake of money and she might have allowed herself to be used for satisfaction of somebody's lust for the sake of money. This Court cannot use its imagination to find out the cause. It would suffice to say that I cannot believe her story about the lack of her consent, in the absence of any corrobora-tice evidence, specially when she has perjured herself on several details as will be pointed out shortly when coming to the third point. All these circumstances show that she was a consenting party to the sexual intercourse and the complained of rape later on just to save her face. It remains now to determine whether it was the appellant who had sexual intercourse with Mt. Kamla. On this point again, the main evidence is that of the prosecutrix alone Learned Deputy Government Advocate has urged that in a case of rape, the conviction of the accused can be based on the statement of the prosecutrix alone and that is corroboration is not essential, All that is necessary, according to him, is that the necessity of corroboration should be present to the mind of the Judge. In support of this contention, he has referred to the case of Rameshwar vs. The State of Rajasthan (2 ). That was a ease in which the accused was charged with committing rape on a young girl of 8 years of age. In that case, their Lordships observed as follows There is a class of cases which considers 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. Bishram vs. Emperor, AIR (31) 1944 Nag. 363, is typical of that point of view on the other hand, the Privy Council has said in Mohamed Sugal Esa vs. The King, AIR. (33) 1946 P. C. 3 at p. 5, that as a matter of prudence a conviction should not ordinarily be based on the uncorroborated evidence of a child witness. In my opinion, 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. Proceeding further it was observed by their Lordships that "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 injury cases must find 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, for example, as its demeanour, unlikelihood of tutoring and so forth, may render corroboration unnecessary but that is a question of fact in every case. The only rule of law is that this rule of prudence must he present to the mind of the judge or the jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must in every case be corroboration before a conviction can be allowed to stand. ;