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PETITIONER:

RAMESHWAR

Vs.

RESPONDENT:

THE STATE OF RAJASTHAN.

DATE OF JUDGMENT:

20/12/1951

BENCH:

BOSE, VIVIAN

BENCH:

BOSE, VIVIAN

FAZAL ALI, SAIYID

CITATION:

1952 AIR 54 1952 SCR 377

CITATOR INFO :

RF 1952 SC 159 (11)

F 1953 SC 364 (25)

RF 1954 SC 359 (4)

F 1958 SC 143 (9)

R 1958 SC 500 (9)

R 1960 SC 961 (6)

D 1965 SC 328 (7)

F 1968 SC 832 (5,12)

F 1972 SC2661 (10,11)

R 1973 SC 469 (11)

R 1977 SC 472 (13)

R 1977 SC1579 (23)

R 1983 SC 753 (7)

F 1983 SC 911 (9)

RF 1988 SC 139 (11)

RF 1988 SC 672 (7)

RF 1991 SC1463 (5)

ACT:

Indian Penal Code (XLV of 1860), s. 376--Indian Evidence

Act (I of 1872), s. 114 (b) 118, 133, 157--Indian Oaths Act

(X of 1873), ss. 5, 6, 13--Rape on young girl--Necessity of

corroboration of girl's testimony--Statement made to moth-

er--Whether sufficient corroboration--Rule as to corrobora-

tion--Nature and extent of corroboration necessary--Admis-

sibility of statement made "at or about" the time of occur-

rence--Admissibility of evidence of child under 12 years.

HEADNOTE:

An omission to administer an oath, even to an adult,

goes only to the credibility of the witness and not his

competency; so also an omission of the Court or the authori-

ty examining a child witness formally to record that in its

opinion the witness understands the duty of speaking the

truth though he does not understand the nature of an oath or

affirmation, does not affect the admissibility of the evi-

dence given by that witness.

Though it is desirable that judges and magistrates

should always record their opinion when a child is to be

examined that the child understands the duty of speaking the

truth, and state why they think so, whether a magistrate or

judge was really of that opinion can be gathered from the

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circumstances when there is no formal certificate to that

effect on the record.

Mohamed Sugal Esa v. The King (A.I.R. 1946 P.C. 3), R,

v. Sewa Bhogta (14 Beng. L,R. 294 F.N.), Samujh v. Emperor

(1907) 10 O.C. 337) referred to.

Though a woman who has been raped is not an accomplice,

her evidence has been treated by the Courts on somewhat

similar lines, and the rule which requires corroboration of

such evidence save in exceptional circumstances has now

hardened into law.

The rule laid down in King v. Baskerville (L. R. 1916, 2

K.B. 658) with regard to the admissibility of the uneorrobo-

rated evidence of an accomplice is the law in India also so

far as accomplices are concerned and it is not any higher in

the case of sexual offences. The only clarification of the

rule that is necessary for the purposes of India is where

this class of offence is tried by a judge without the aid of

a jury. In such cases it is necessary that the judge should

give some indication in his judgment that he has had the

rule of caution in his mind and should proceed to give

reasons for considering it unnecessary to require corrobora-

tion on the facts of the particular case before him and show

why he considers it safe to convict without corroboration in

that particular case. There is, however, no rule of law or

378

practice that there must in every case be corroboration

before a conviction can be allowed to stand.

The view 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 is not correct. The

true position is that in every case of this type the rule

about the advisability of corroboration should be present to

the mind of the judge; whether corroboration is unnecessary

is a question of fact in every case.

Bishram v. Emperor (A.I.R. 1944 Nag. 363) not approved;

Mohamed Sugal Esa v. The King (A.I.R. 1946 P.C. 3) followed.

The nature and the extent of the corroboration that is

required when it is not considered safe to dispense with it,

must necessarily vary with the circumstances of each case

and also according to the particular circumstances of the

offence charged. It is however clear (i) that it is not

necessary that there should be independent confirmation of

every material circumstance in the sense that the independ-

ent evidence in the case, apart from the testimony of the

complainant or accomplice, should itself be sufficient to

sustain conviction; all that is required is that there must

be "some additional evidence rendering it probable that the

story of the accomplice (or the complainant) is true and

that it is reasonably safe to act upon it," (ii) The inde-

pendent evidence must not only make it safe to believe that

the crime was committed but must in some way reasonably

connect the accused with it; (iii) the corroboration must

come from independent sources and thus ordinarily the testi-

mony of one accomplice would not be sufficient to corrobo-

rate that of another accomplice;(iv) the corroboration need

not be direct evidence that the accused committed the crime;

it is sufficient if it is merely circumstantial evidence of

his connection with the crime.

A previous statement of an accomplice or a complainant

is admissible as evidence of conduct; it is also admissible

as corroborg live evidence provided it fulfills the condi-

tions laid down in see. 157 of the Evidence Act.

The main test as to whether a previous statement was

made "at or about the time when the fact took place", within

the meaning of sec. 157, Evidence Act, is whether the state-

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ment was made as early as can reasonably be expected in the

circumstances of the case and before there was an opportuni-

ty for tutoring or concoction.

Where a person was charged with having committed rape

upon a girl eight years of age and the only evidence to

corroborate the testimony of the girl connecting the accused

with the crime was a statement made by her to her mother

some four hours after the incident, that she had been raped

by the accused: Held, that in the circumstances of the case

the testimony of the mother was admissible as independent

corroborative evidence and

379

the girl's previous statement was sufficient corroboration

of the girl's testimony for convicting the accused.

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.

2 of 1951. This Was an appeal under art. 134 (1) (c) of the

Constitution from the Judgment and Order of the High Court

of Rajasthan (Nawal Kishore C.J., and Mehta J.) dated 16th

October, 1950, in Criminal Appeal No. 63 of Samvat 2005,

revising an order of acquittal of the Sessions Judge, Jai-

pur, in Criminal Appeal Case No. 200 of Sam vat 2004, and

convicting the accused of an offence under sec. 376 of the

Indian Penal Code. The material facts are stated in the

judgment.

K.N. Aggarwala, for the accused.

G.S. Mathur, for the State of Rajasthan.

1951. December 20. BOSE J. delivered judgment as fol-

lows. FAZL ALI J. agreed.

BOSE J. -The appellant Rameshwar was charged with com-

mitting rape on a young girl Mst. Purni, eight years of age.

He was committed to Sessions and was convicted by the As-

sistant Sessions Judge, Sawai Jaipur, and sentenced to one

year's rigorous imprisonment and a fine of Rs. 250.

An appeal was made to the Sessions Judge at Jaipur, that

being the appropriate appellate tribunal in that area. The

learned Sessions Judge held that the evidence was sufficient

for moral conviction but fell short of legal proof because,

in his opinion, the law requires corroboration of the story

of the prosecution in such cases as a matter of precaution

and the corroborative evidence, in so far as it sought to

connect the appellant with the crime, was legally insuffi-

cient though morally enough. He was satisfied however that

the girl had been raped by somebody. Accordingly, he acquit-

ted the accused giving him the benefit of the doubt.

The State of Sawal Jaipur and Gangapur appealed against

the acquittal to the High Court at Jaipur.

380

The learned High Court Judges held that the law requires

corroboration in such cases but held that the girl's state-

ment made to her mother was legally admissible as corrobora-

tion and considering that sufficient they set aside the

acquittal and restored the conviction and sentence.

The High Court later granted leave to appeal under

article 134 (1)(c) of the Constitution as the case involved

questions of law of general importance.

The first point taken before us related to the admissi-

bility of the evidence of the girl herself. Her age was

stated to be seven or eight years at the time of the exami-

nation by the learned Assistant Sessions Judge who recorded

her testimony. He certified that she did not understand the

sanctity of an oath and accordingly did not administer one

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to her. He did not certify that the child understood the

duty of speaking the truth.

The proviso to section 5 of the Indian Oaths Act, 1873,

prescribes that--"Provided that where the witness is a child

under twelve years of age, and the Court or person having

authority to examine such witness is of opinion that, though

he understands the duty of speaking the truth, he does not

understand the nature of an oath or affirmation, the forego-

ing provisions of this section and the provisions of section

6 shall not apply to such witness, but in any such case the

absence of an oath or affirmation shall not render inadmis-

sible any evidence given by such witness nor affect the

obligation of the witness to state the truth."

The question is whether the opinion referred to must be

formally recorded or whether it can be inferred from the

circumstances in which the deposition was taken.

The proviso quoted above must be read along with section

118 of the Evidence Act and section 13 of the Oaths Act. In

my opinion, an omission to administer an oath, even to an

adult, goes only to the credibility of the witness and not

his competency. The question of competency is dealt with in

section 118. Every

381

witness is competent unless the Court considers he is pre-

vented from understanding the questions put to him, or from

giving rational answers by reason of tender years, extreme

old age, disease whether of body or mind, or any other cause

of the same kind. It will be observed that there is always

competency in fact unless the court considers otherwise. No

other ground of incompetency is given, therefore, unless the

Oaths Act adds additional grounds of incompetency it is

evident that section 118 must prevail.

Now the Oaths Act does not deal with competency. Its

main object is to render persons who give false evidence

liable to prosecution. It is true a subsidiary object is to

bring home to the witness the solemnity of the occasion and

to impress upon him the duty of speaking the truth, but in

view of section 118 these matters only touch credibility and

not admissibility. In my opinion, section 13 of the Oaths

Act places this beyond doubt. It states--

"No omission to take any oath or make any

affirmation......... and no irregularity whatever, in the

form in which any one of them is administered, shall invali-

date any proceeding or render inadmissible any evidence

whatever.......... "

Section 5 is the main provision regarding the adminis-

tration of oaths. The proviso only sets out the cases in

which the oath is not to be administered. If, therefore, an

omission to take the oath does not affect the admissibility

of the evidence, it follows that irregularity of the kind we

are considering which arises out of the proviso cannot

affect the admissibility either. Section 118 remains and

unless the judge considers otherwise the witness is compe-

tent.

I do not think it will be useful to consider English

authorities on the point because we are governed here by the

terms of the various sections I have referred to. But a

decision of the Judicial Committee of the Privyi Council is

in point. Their Lordships stated in Mohamed Sugal Esa v.

The King(1) :--

(1) A.I.R. 1946 P.C. 3 at 5

382

"Section 13, Oaths Act, is quite unqualified in its

terms and there is nothing to suggest that it is to apply

only where the omission to administer the oath occurs per

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incuriam. If that had been the intention of the Legislature,

it would have been simple to insert words in the section to

that effect......... It may be observed that this question

can no longer arise in India because in 1939 the Legislature

passed the Oaths (Amendment) Act (Act XXXIX of 1939) which

settles the law in accordance with the Bengal and Oudh

decisions referred to above."

The decisions to which their Lordships refer are and Ram

Samujh v. Emperor(2). The decisions there were that the

section being unqualified in terms did apply to a case where

the Court accepted the evidence of a child to whom the oath

was not administered on the ground that the witness did not

understand its nature. The principle of the decisions ap-

plies here because, as their Lordships observe, the section

is unqualified in its terms.

I would add however that it is desirable that judges and

magistrates should always record their opinion that the

child understands the duty of speaking the truth and state

why they think that, otherwise the credibility of the wit-

ness may be seriously affected, so much so, that in some

cases it may be necessary to reject the evidence altogether.

But whether the magistrate or judge really was of that

opinion can, I think, be gathered from the circumstances

when there is no formal certificate. In the present case,

it is plain that the learned Judge had the proviso in mind

because he certified that the witness does not understand

the nature of an oath and so did not administer one but

despite that went on to take her evidence. It is also an

important fact that the accused, who was represented by

counsel, did not object. Had he raised the point the Judge

would doubtless have made good the omission. I am of opinion

that Mst. Purni was a competent witness and that her evi-

dence is admissible. In

(1) 14 Beng. L.R. 294 F.N. (2) (1907) 10 O.C. 337

383

the Privy Council case which I have just cited, their Lord-

ships said--

"It is not to be supposed that any judge would accept as

a witness a person who he considered was incapable not only

of understanding the nature of an oath but also the necessi-

ty of speaking the truth when examined as a witness."

That is the very point here. One can presume that the

learned Judge had that in mind from the fact that he exam-

ined the child after referring to a fact which arises out of

the proviso.

As regards her credibility, the learned trial Judge, who

recorded her evidence and saw her in the box, has believed

her, so has the High Court; and it is important to note that

the learned Sessions Judge who acquitted the accused has not

disbelieved her. On the contrary he says he is morally

convinced. All he says is that in the absence of corrobora-

tion it will be unsafe to convict because the Privy Council

and other cases advise corroboration as a matter of pru-

dence.

We were taken carefully through the evidence, as elabo-

rately as in a court of first appeal. I am of opinion that

the learned High Court Judges were fully justified in ac-

cepting the evidence of Purni and in believing her mother

Mst. Ghisi. I consider it unnecessary to recapitulate their

reasons. After the careful analysis given by three Courts

it is sufficient to say that I agree with the learned High

Court Judges. We are left therefore with the questions of

law.

The first question is whether the law requires corrobo-

ration in these cases. Now the Evidence Act now here says

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so. On the other hand, when dealing with the testimony of

an accomplice, though it says in section 114 (b) that the

Court may presume that an accomplice is unworthy of credit

unless he is corroborated in material particulars, it makes

it clear in section 133 that-

"An accomplice shall be a competent witness against an

accused person; and a conviction is not

50

384

illegal merely because it proceeds upon the uncorroborated

testimony of an accomplice."

Now a woman who has been raped is not an accomplice.

If she was ravished she is the victim of an outrage. If she

consented there is no offence unless she is a married woman,

in which case questions of adultery may arise. But adultery

presupposes consent and so is not on the same footing as

rape. In the case of a girl who is below the age of consent,

her consent will not matter so far as the offence of rape is

concerned, but if she consented her testimony will natural-

ly be as suspect as that of an accomplice. So also in the

case of unnatural offences. But in all these cases a large

volume of case law has grown up which treats the evidence of

the complainant somewhat along the same lines as accomplice

evidence though often for widely differing reasons and the

position now reached is that the rule about corroboration

has hardened into one of law. But it is important to under-

stand exactly what the rule is and what the expression

"hardened into a rule of law" means.

In my judgment, this branch of the law is the same as in

England and I am of opinion that the lucid exposition of it

given by Lord Reading, the Lord Chief Justice of England, in

The King v. Baskerville(1) cannot be bettered.

In that case, Baskerville had been convicted of having

committed acts of gross indecency with the two boys. (There

the boys were accomplices because they were freely consent-

ing parties and there was no use of force). The learned

Chief Justice says at page 663 :-

"There is no doubt that the uncorroborated evidence of

an accomplice is admissible in law...... But it has long

been a rule of practice at common law for the judge to warn

the jury of the danger of convicting a prisoner on the

uncorroborated testimony of an accomplice or accomplices,

and, in the discretion of the judge, to advise them not to

convict upon such evidence; but the judge should point out

to the jury that it is

(1) [1916] 2 K.B, 658.

385

within their legal province to convict upon such unconfirmed

evidence......

This rule of practice has become virtually equivalent to

a rule of law, and since the Court of Criminal Appeal came

into operation this Court has held that, in the absence of

such a warning by the judge, the conviction must be

quashed...... If after the proper caution by the judge the

jury nevertheless convict the prisoner, this Court will not

quash the conviction merely upon the ground that the accom-

plice's testimony was uncorroborated."

That, in my opinion, is exactly the law in India so far

as accomplices are concerned and it is certainly not any

higher in the case of sexual offences. The only clarifica-

tion necessary for purposes of this country is where this

class of offence is sometimes tried by a judge without the

aid of a jury. In these cases it is necessary that the

judge should give some indication in his judgment that he

has had this rule of caution in mind and should proceed to

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give reasons for considering it unnecessary to require

corroboration on the facts of the particular case before him

and show why he considers it safe to convict without corrob-

oration in that particular case. I am of opinion that the

learned High Court Judges were wrong in thinking that they

could not, as a matter of law, convict without corrobora-

tion.

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. v. Emperor(1) is typical of that

point of view. On the other hand, the Privy Council has

said in Mohamed Sugal Esa v. The King(2) 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. In a jury case he must tell the

(1) A.I.R. 1944 Nag. 363. (2) A.I.R. 1946 P.C. 3 at 5.

386

jury of it and in a non-jury case he must show that it is

present to his mind by indicating that in his judgment. But

he should also point out that corroboration can be dispensed

with if, in the particular circumstances of the case before

him, either the jury, or, when there is no jury, he himself,

is satisfied that it is safe to do so. The rule, which

according to the cases has hardened into one of law, is not

that corroboration is essential before there can be a con-

viction 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 in jury 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 corrobora-

tion 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.

I turn next to the nature and extent of the corrobora-

tion required when it is not considered safe to dispense

with it. Here, again, the rules are lucidly expounded by

Lord Reading in Baskerville's case(1) at pages 664 to 669.

It would be impossible. indeed it would be dangerous, to

formulate the kind of evidence which should, or would, be

regarded as corroboration. Its nature and extent must

necessarily vary with circumstances of each case and also

according to the particular circumstances of the offence

charged. But to this extent the rules are clear.

First, it is not necessary that there should be inde-

pendent confirmation of every material circumstance in the

sense that the independent evidence in the case, apart from

the testimony of the complainant or the

(1) [1916] 2 K.B. 658,

387

accomplice, should in itself be sufficient to sustain con-

viction. As Lord Reading says--

``Indeed, if it were required that the accomplice should

be confirmed in every detail of the crime, his evidence

would not be essential to the case, it would be merely

confirmatory of other and independent testimony."

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All that is required is that there must be "some addi-

tional evidence rendering it probable that the story of the

accomplice (or complainant) is true and that it is reasona-

bly safe to act upon it."

Secondly, 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 testi-

mony of the accomplice or complainant that the accused

committed the crime. This does not mean that the corrobora-

tion as to identity must extend to all the circumstances

necessary to identify the accused with the offence. Again,

all that is necessary is that there should be independent

evidence which will make it reasonably safe to believe the

witness's story that the accused was the one, or among

those, who committed the offence. The reason for this part

of the rule is that--

"a man who has been guilty of a crime himself will

always be able to relate the facts of the case, and if the

confirmation be only on the truth of that history, without

identifying the persons, that is really no corroboration at

all...It would not at all tend to show that the party ac-

cused participated in it."

Thirdly, the corroboration must come from independent

sources and thus ordinarily the testimony of one accomplice

would not be sufficient to corroborate that of another. But

of course the circumstances may be such as to make it safe

to dispense with the necessity of corroboration and in those

special circumstances a conviction so based would not be

illegal. I say this because it was contended that the

mother in this case was not an independent source.

388

Fourthly, the corroboration need not be direct evidence

that the accused committed the crime. It is sufficient if

it is merely circumstantial evidence of his connection with

the crime. Were it otherwise, "many crimes which are usually

committed between accomplices in secret, such as incest,

offences with females" (or unnatural offences) "could never

be brought to justice."

Next, I turn to another aspect of the case. The

learned High Court Judges have used Mst. Purni's statement

to her mother as corroboration of her statement. The ques-

tion arises, can the previous statement of an accomplice, or

a complainant, be accepted as corroboration ?

That the evidence is legally admissible as evidence of

conduct is indisputable because of Illustration (j) to

section 8 of the Evidence Act which is in these terms:

"The question is whether A was ravished. The facts

that, shortly after the alleged rape, she made a complaint

relating to the crime, the circumstances under which, and

the terms in which, the complaint was made are relevant."

But that is not the whole problem. for we are concerned

here not only with its legal admissibility and relevancy as

to conduct but as to its admissibility for a particular

purpose, namely corroboration. The answer to that is to be

found in section 157 of the Evidence Act which lays down the

law for India.

Section 157 states that---

"In order to corroborate the testimony of a witness, any

former statement made by such witness relating to the same

fact at or about the time when the fact took place, or

before any authority legally competent to investigate the

fact, may be proved."

The section makes no exceptions, therefore, provided

the condition prescribed, that is to say, "at or about the

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time etc. ," are fulfilled there can be no doubt that such a

statement is legally admissible in India as corroboration.

The weight to be attached to it is, of course, another

matter and it may be that in some

389

cases the evidentiary value of two statements emanating from

the same tainted source may not be high, but in view of

section 118 its legal admissibility as corroboration cannot

be questioned. To state this is, however, no more than to

emphasise that there is no rule of thumb in these cases.

When corroborative evidence is produced it also has to be

weighed and in a given case, as with other evidence, even

though it is legally admissible for the purpose on hand its

weight may be nil. On the other hand, seeing that corrobo-

ration is not essential to a conviction, conduct of this

kind may be more than enough in itself to justify acceptance

of the complainant's story. It all depends on the facts of

the case.

In the present case, Mst. Purni told 'her mother

about the incident about four hours after it occurred. The

reason for the delay was that her mother was not at home

when she went there. She says that when she went home she

lay down and went to sleep and that when her mother returned

she asked her why she was sleeping and then she told her

mother what had happened. Her mother tells much the same

story. She says she had gone out to her field in the morning

and did not return till about 4 p.m. When she reach home she

found her daughter lying there weeping. She has been be-

lieved by the learned trial Judge as also by the High Court

and has not been disbelieved by the learned Sessions Judge.

All he says is that she is not an "independent" witness and

is therefore not sufficient for corroboration.

The first question is whether this delay fulfills the

"at or about" condition. In my opinion, here also there can

be no hard and fast rule. The main test is whether the

statement was made as early as can reasonably be expected in

the circumstances of the case and before there was opportu-

nity for tutoring or concoction. It was suggested that the

child could have complained to some women who were working

in the neighbourhood, but that would not be natural in a

child. She would be frightened and her first instinct would

be to run home to her mother. The High Court

390

was satisfied on these points and so am I. Consequently,

the matter does fall within the ambit of section 157 read

with section 8, Illustration (j).

The next question is whether the mother can be regard-

ed as an "independent" witness. So far as this case is con-

cerned, I have no doubt on that score. It may be that all

mothers may not be sufficiently independent to fulfill the

requirements of the corroboration rule but there is no legal

bar to exclude them from its operation merely on the ground

of their relationship. Independent merely means

independent of sources which are likely to be tainted. In

the absence of enmity against the accused there is no reason

why she should implicate him falsely. It is true the ac-

cused suggested that they were on bad terms but that has not

been believed by anyone.

The third question is whether there is independent

corroboration connecting the accused with the crime. The

only corroboration relied on for that is the previous state-

ment of the child to her mother. That might not always be

enough but this rule can be waived in a given case just as

much as the necessity for any corroboration at all. In the

present case, the learned High Court Judges would have acted

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on the uncorroborrated testimony of the girl had they not

felt pressed by the corroboration rule. Viewing all the

circumstances I am satisfied that the High Court was right.

I am satisfied that in this case, considering the conduct of

the girl and her mother from start to finish, no corrobora-

tion beyond the statement of the child to her mother was

necessary. I am satisfied that the High Court was right in

holding that that was enough to make it safe to act on her

testimony.

I would dismiss the appeal and direct the appellant to

surrender to his bail in accordance with the terms of his

bond, serve out his sentence and pay the fine.

FAZL ALI J.--I agree. Appeal dismissed.

Agent for the appellant: P.C. Agarwal.

Agent for the respondent: P.A. Mehta.

391