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1969 Supreme(MP) 71
HIGH COURT OF MADHYA PRADESH
P. K. Tare & K. L. Pandey, JJ.
State of M. P.
Vs.
Surendra Prasad Dave
Cr. A. No. 34 of 1966 against judgment of Shri S. N Mishra, Session Judge, Bhopal
Decided On : 2-8-1969
M. V. Tamaskar, Dy. Government Advocate for State;
Rajender Singh for respondent.
Headnote:(1) Penal Code, 1860- S. 376-rape committed on a girl of tender age -rule of corroboration of the statement of the prosecutrix- corroboration when not necessary-statement of mother-relevancy of- Evidence Act, 1872 –S. 8, Illustration (1).
(2) Evidence Act, 1872-S. 8, Illustration (j)-rape case-statement made by the prosecutrix immediately after the rape-is relevant.
The rule 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, 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, unlikehood 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 be 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. AIR 1952 SC 54 relied on. [Para 24
The statement of the prosecutrix made to her mother could be treated as corroboration of her statement and the evidence is legally admissible as evidence of conduct because of Illustration (j) to section, 8, Evidence Act. A mother need not be discarded outright, but her testimony can be used in corroboration of the testimony of the prosecutrix because of the subsequent conduct of the prosecutrix in narrating the incident to her mother. AIR 1952 SC 54 relied on. [Para 25
(3) Penal Code. 1860-S. 376-adult committing rape on girl of tender age-deterrent punishment called for.
If an adult commits a rape on a child of tender years who does not understand the implication of the sexual act, such an action calls for no leniency but a deterrent sentence so as to prevent the recurrence of such an event. If this was not done, the very safety of children of tender years in the society would be in danger. [Para 28
(4) Penal Code, 1860-S. 376-rape-presence of gonococci on the private; part of the prosecutrix-is not the result of rape-girl of tender age may suffer from gonorrhoea without sexual intercourse on account of other reasons.
(5) Medical Jurispudence-children of tender age-may suffer from gonorrhoea-sexual inter course may not be the cause of the disease in them.
Where in rape case, gonococci were found on the private parts of the prosecutrix, a girl of tender age, and they were not found on the accused, it does not show that the man bas not raped her. In such a case it would not be warranted to assume that a person suffering from gonorrhea has com milled the rape. Gonorrhea in young children can be on account of causes other than sexual intercourse and the period of incubation can be between two to eight days, the minimum period in an exceptional case being 24 hours. [Paras 21 & 22
Tare, J.-
1. This is an appeal by the State again5t the acquittal of the respondent of an offence under Section 376, Indian Penal Code said to have been committed by the respondent on Pramila Kumari (P. W. 10) a girl aged about 10 or 11 years on the noon of 28-5-1965, passed by the Sessions Judge, Bhopal in Sessions Trial No. 73 of 1965 dated 14-10-1965.
2. The respondent, an artisan employed in the Heavy Electricals Factory at Bhopal, has his house adjoining the house of Manoharlal Bahel (P.W.15), the father of the prosecutrix. It was the prosecution case that at that time the respondent was alone and the other adult members including some guests were away. In the house, some children were playing. When the children finished their play and departed for their respective homes, the respondent asked Pramila Kumari to go by a particular door. He immediately closed the door, took her on his lap and satisfied his lust by committing rape on her. When she tried to cry, the respondent gagged her mouth. When the respondent saw the private parts of the prosecutrix bleeding, he proposed to take her to the house of one, Tiwari where he would apply medicines. The girl, however, refused and extricating herself from the clutches of the resp0ndent, ran to her own house. On reaching her own house, she called out to her mother to open the door and fainted in the door itself thereafter. On regaining consciousness, she narrated the entire incident to her mother Smt. Raj (P. W. 7) who sent for the father of the prosecutrix from the officer. In the meantime, people of the locality had collected and they had surrounded the house of the respondent. The crowd gave a beating to the respondent. Manoharlal Bahel (P. W. 15) lodged the first information report, Ex. P-1 after 'Which the investigating machinery started moving. The respondent was arrested, seizures were made and the parties concerned were sent for medical examination.
3. The respondent in his defence denied the prosecution case and asserted that he was not in his house at the relevant time. He also tried to establish a plea of alibi. In the alternative, it was suggested that there were adult members present in the house and the appellant could not have committed such a serious offence at that hour of the day. As such, it was also the defence suggestion that some one else might have committed a rape on the prosecutrix and the present respondent was sought to be implicated by tutoring the prosecutrix.
4. The learned Sessions Judge felt that the testimony of the prosecutrix was natural and cogent which could be relied upon. But he also felt that a corroboration of the version of the prosecutrix was necessary especially in view of the fact that she was the only witness of the 0ccurrrnce and moreover she happened to be a child witness. But in view of the state of medical evidence, the learned Judge thought that the necessary corroboration was not forthcoming. The learned Judge remarked that so far as the testimony of the prosecutrix and her demeanor were concerned, the same did not give any cause for suspicion, but in the light of other circumstances, her testimony would be un-acceptable without corroboration in material particulars. The learned Judge further found that the versions as given by the prosecutrix, by her mother, Smt. Raj (P. W. 7) and by her father, Manoharlal Bahel (P. W. 15) were by and large consistent with each other and the learned Judge would have had no hesitation in relying en the testimony of the prosecutrix but for the fact that he found that the testimony of the mother and the father of the prosecutrix could not be said to be independent so as to corroborate the version of the prosecutrix as the parents of the girl were interested witnesses. The main reason why the learned Judge gave the respondent benefit of doubt was that the medical evidence disclosed the presence of gonococci in the slides of the smears while no such gonococci were found in the slides relating to t
