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Kerala High Court

State Of Kerala vs Kundumkara Govindan And Anr. on 5 April, 1968

Equivalent citations: 1969 CriLJ 818

Author: T Raghavan

Bench: T Raghavan

JUDGMENT T.C. Raghavan, J.

1. These appeals arise out of two Sessions cases disposed of by the Additional Assistant Sessions Judge, Kasargod. The Assistant Sessions Judge acquitted the respondents, each of whom was the accuaed person in each of the Sessions cases. The charge against them was that they committed rape on Pw. I (Narayani) aged fourteen on 25th June 1966 at about 5,80 p. m. one after the other at the house of the respondent in the second of these appeals (Kunhikannan alias Kannan Nair). The case was that Pw. 1, a dhobi girl, took washed clothes to the house of Kannan Nair, while the respondent in the first of these appeals (Govindan alias Govindan Hair) was also present; that they took the girl foroibly inside the house of Kannan Nair and laid her on a gunny spread on the ground; and that they committed rape on her one after the other. Pw. 1 returned home weeping; but did not disclose the incident to her mother, Pw. 2. She became unwell; and her mother Bulleting something wrong with the daughter, persistently questioned her. The girl ultimately disclosed the incident to her mother on 27th June; and the mother took the girl to the police station and the latter gave a com. plaint to the police (Ex. P-1) on 23th June.

2. The respondents denied the offence; and Govindan Nair said further that he gave Rs. 2/- to Pw. 1 for purchasing rice and she promised to give him sugar for the amount; that she failed to return the money or to give sugar; that he questioned her at the market place regarding the matter and a small crowd collected there: and the on this score Pw. 1 bore enmity towards him. Kannan Nair did not allege any enmity on the part of Pw. 1. I may also mention that neither of the respondents alleged any enmity towards them on the part of Pw. 2.

3. The Assistant Sessions Judge acquitted the respondents giving them the benefit of doubt. The main reasoning of the Assistant Sessions Judge is that the evidence of the prosecutrix in a rape case (P.W. 1 in these cases) cannot be believed unless it is corroborated in material particulars. The Assistant Sessions Judge also says that P. W. 1 had no case at the stage of the complaint that there was penetration and that the case of penetration was an afterthought. Again, he points out some discrepancies in the evidence of P.W. 1, which also have assisted him in reaching the aforesaid conclusion.

4. The State has filed these appeals against the acquittal of the respondents; and the Public Prosecutor contends that the conclusion of the Assistant Sessions Judge is wrong.

5. The judgments of the Assistant Sessions Judge are grievously erroneous. They appear to be merely an attempt to pick holes in the prosecution case good, bad, indifferent. The gravest error committed by him appears in the following sentence in his judgments:

Authorities are clear that the evidence of the proaecutrix requires strict corroboration in material particulars.

The authorities on the question do not lay down anything like this. I shall extract a little copiously from two decisions of the Supreme Court. The first is Rameshwar v. State of Rajasthan , wherein Bose J., who spoke for the Court, observes:

The rule, which according to the oases 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 in jury oases, 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 demean cur, unlikelihood of tutoring and as 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.

Bose J., then goes into the question of the nature and extent of the corroboration required, when it is not considered safe to dispense with corroboration, and observes:

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 the 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 independent confirmation of every material circumstance 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 sustain conviction. As Lord Beading says:

Indeed, if it were required that 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.

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 case to act upon it.

Secondly, the independent evidence must not only make it safe to believe that the crime was committed but must in come way reasonably connect or tend to connote the aroused with it by confirming in some material particular the testimony of the accomplice or complainant that the accused committed the crime. This does not mean that the corroboration as to identity must extend to all the circumstances necessary to identify the aroused 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' 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 accused 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 circumstance 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.

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'.

The next decision is Sidheswar Ganguly v. State of West Bengal and Sinha J., who spoke for the Bench, observes:

A girl who is a victim of an outrageous act is, generally speaking, not an accomplice though the rule of prudence requires that the evidence of a prosecute fix should be corroborated 'before a conviction can be based upon it. Hence, the girl Barbarian was not exactly in the position of an accomplice though the Judge may, as a rule of prudence, warn the jury that such a rule of prudence required corroboration of the testimony of the proseoutrix, but that it was open to the jury to convict even on the uncorroborated testimony of the prosecutrix if the jury, in the particular circumstance of the case before it, came to the convolution that corroboration was not essential to conviction. Hence, the learned Sessions Judge was fully justified in telling the jury that 'there was no rule of law or practice that there must he corroboration in every case, before a conviction for rape.' If the jury had been apprised of the necessity, ordinarily speaking, of corroboration of the evidence of the proseoutrix, it is for the jury to decide whether or not it will convict on the uncorroborated testimony of a prosecutrix in the particular circumstances of the case before it. In other words, insistence on corroboration is advisable but is not compulsory in the eye of law. In the instant case, apart from the evidence of the two victims aforesaid, there was the evidence of the deaf and dumb girl, Kalyani, and the other circumstantial evidence in support of the prosecution case. It is well established that the nature and extent of corroboration necessary vary with the circum. stances of the case. The nature of the corroborative evidence should be such as to lend acutance that the evidence of the prosecutrix can be safely acted upon.

Then, Sinha J. quotes a portion the passage from the judgment of Base J. already extracted by me.

6. The position in English law does not appear to be different. Paragraph 850 of Halsbury's Laws of England, 3rd Edn., Vol. 10, says.

In cases of rape and other sexual offences against women, girls and boys the jury may convict on the uncorroborated evidence of the prosecutrix or prosecutor, but the Judge should warn them that it is dangerous to do be.

7. Thus, the legal position is this. There is no rule of law or of practice which makes it obligatory that the evidence of the prosecutrix should be corroborated before a conviction for rape could be entered. The only rule that demands corroboration in such a case is a rule of prudence; and even this rule of prudence hardened into a rule only because decided cause had a tendency to treat the victim of a rape (of any sexual or unnatural offence, for that matter) as an accomplice, which, in reveal case, the victim is not. And what this rule of prudence requires is that this should be present to the mind of the judge, if, in the circumstances of a particular case, the judge thinks that he can dispense with corroboration and the uncorroborated testimony of the victim can be safely believed, even this rule of prudence may) be dispensed with. And merely for the reason that there is no corroboration for the evidence of the victim of an outrageous act. such evidence should not be rejected, if it appears from the circumstances that the victim is speaking the truth. Otherwise, many a crime of such nature can never be brought to justice.

8. If the judge thinks that it may not be safe to dispense with this rule of prudence, then what is the nature of the corroboration that is requited? That question has also been answered by Bose J. in Rameshwar's case. The corroborative evidence need not, in itself, be sufficient to sustain a conviction, because, if that were the rule, the victim's evidence becomes unnecessary to the case there must be come additional evidence rendering the story of the victim probable. This additional evidence should not only indicate that the story spoken to by the victim is probable, but it must also tend to connect the accused with the crime in a reasonable manner. Then, such corroborate ion must be independent, in the sense that it does not come from an accomplice for example, the mother of the victim is an independent witness. And lastly, the corroboration need not be direct it may be merely circumstantial. I may also warn that the nature and extent of the corroboration depend upon the circumstances of each case.

9. In these cases, there is no case for the respondents that the mother of the girl had any ground for enmity towards them, so that, there was no possibility of her tutoring the girl. The respondent in the first of these cases (Govindan Nair) says in his statement under Section 342 of the Code of Criminal Procedure that P.W. 1 took a loan of Rs. 2/- from him to purchase rice on the understanding that she would supply sugar for the amount; that she failed to give august and he caught her at the market place and that some people who collected there compelled him to leave her. This is the only enmity alleged by Govindan Nair; and no enmity is alleged by the other respondent (Kannan Hair) even against P. W. 1. The Assistant Session Judge himself says that there is absolutely no enmity suggested or made out. Therefore, when P.W. 1 deposes that the respondents committed rape on her, one fails to understand why the absence of enmity and the absence of a possibility of tutoring should not be treated as strong circumstance to corroborate her evidence.

10. At this stage, it is relevant to point out another circumstance. The respondents have suggested that on the day previous to the day of occurrence, they saw P.W. 1 being taken to "Delux Lodge" by a Mammoo, a taxi driver, and a Narayanan, a peon. They have further suggested that they went and told P.W. 2 about this. P.W. 2 has admitted that they came and told her so. This shows that the respondents, who are admittedly not neighbors of each other, had been watching the movements of the girl: both of them saw this If this suggestion means that Mammoo and Narayanan were the perpetrators of the crime, one wonders why they were left out and the offence is foisted on the respondents, against whom there was no enmity.

11. The next mistake committed by the Assistant Sessions Judge appears in his conclusion that the case of penetration of the male organs of the respondents into the vagina of P.W. 1 was the "result of an afterthought." Whether there was penetration or not, there cannot be any doubt, because the evidence of P.W.5, the doctor who examined P.W. 1, and the medical certificate (Ex. P-3) issued by her reveal a fairly dismal picture. The hymen was lacerated and its edge were red and swollen; the fourchette was also lacerated; the labia minora was red, edematous and tender to touch; the walls of the vagina showed abrasions which were infected; foul-smelling discharge came out from the ulcerated areas on the walls of the vagina; the cervix also was edematous; foul-smelling yellowish white diaphragm came out through the vulva, and the vagina was roomy any admitted two fingers easily. It is evident that there was penetration. What does the Assistant Sessions Judge mean when he says that the case of penetration was the result of an afterthought? Does he mean that at the time when the offence was committed (whoever the offender be) there was no penetration and penetration was made to appear afterwards so as to get a medical certificate like Ex. P-3? How else could the case of penetration be an afterthought? Tausig the conclusion of the Assistant Sessions Judge that the case of penetration was an afterthought is meaningless.

12. The reasoning of the Assistant Sessions Judge on this point is baaed on Es. P. 1, the complaint given by P.W. 1 to the polios, the information given by her to her mother and also the information said to have been given by her to the police in her statement under Section 162 of the Criminal P.C. In Ex. P.I the expression originally written was that the male organs did not fully penetrate into her organ (* * * * )* The word 'fully' (* * * *)* appears to have been scored out by P.W. 6, the Head constable who recorded the statement. P.W. 6 says that the word 'fully' (* * * )* was not stated by P.W. 1 and therefore, it was scored out. The question naturally arises : why then was the word written originally? If, on the other hand, she gave another word, what was that word? From the circumstances, what she meant must have at least been that though there was not full penetration, there was some (partial) penetration, From the expression given above, the removal of 'fully' (* * * )* changes the meaning of the expression completely. If the original expression meant something in the affirmative, the resulting expression meant something in the negative. In the circumstances, it could not have been as. Therefore, the scoring out of the word 'fully' (* * * * *)* given room to grave suspicion on the act of P.W. 8 and his evidence.

18. The Assistant Sessions Judge then says that P.W. 1 told her mother also that the respondents committed sexual intercourse by inserting their organs between her thebe and toughing her organ. If. during the course of the sexual act, the male organ touched the female organ, I do not think it is for the girl ravished to Bay whether there was penetration or not. It may even be that she might not have known whether there was penetration, excepting that the B3t pained her. In such a case, it is for the doctor to Bay whether there was penetration; and in this case, the doctor's evidence is dear beyond doubt that there was penetration. It might be noted that P.W. 5 says that the vagina was roomy and admitted two fingers easily. She also says that in the case of a girl who has not matured! the vagina admits only the little finger. (That menses started for Narayani only subsequently is the evidence in the case). Thus, the convolution of the Assistant Sessions Judge that the case of penetration was a later development and that for that reason the evidence of P. W. 1 cannot be believed has also no substance.

14. The Assistant Sessions Judge observes rather sarcastically that the girl's failure to tell her mother about the incident till the third day could not have been attributed to "the so called modesty of the girl." The girl has stated in the witness box that the respondents threatened her that if she disclosed the fact of her having been ravished to anybody, she would be killed. There is nothing surprising in a girl of fourteen who was raped so abominably by two people and warned of dire consequences not disclosing the matter to anybody. There is no meaning in the Assistant Sessions Judge saying that the girl had no reason to fear on her reaching home! In this case, even if the girl was not "modest" and was a willing party or been if she invited the respondent to have sexual intercourse with her, the position would not have changed: the act would still have been an offence, because the girl was only fourteen.

15. Now I shall catalogue the several other grounds characterized by the Assistant Sessions Judge as infirmities in the prosecution case. The girl has stated in the box that the respondents poured perfumed oil into her vagina before they committed sexual inter. course. This does not appear in Es. P.I, though she says in the box that she bold Pw. 6 about this as well. It may be an omission: but it cannot indicate that the version she is giving in the box is face. The next ground is the delay. The incident took place on the evening of Saturday. 25th June 1966; and the girl told her mother about it only on Monday. 27th June, when the mother persistently questioned her about her illness. The girl was lying throughout as if she were ill. Even after the mother got the information) she went to the police station and gave the complaint only the next day. There is some evidence in these oases that she made an attempt to settle the matter by getting some money from the respondents. Having failed in that attempt, she went to the police station and lodged the complaint. I am of opinion that these circumstances explain the delay quite satisfactorily. Another curious reasoning of the Assistant Sessions Judge is that there were previous scallions when the respondents used to be alone in their houses and on those occasions Pw. 1 had also gone there. The Assistant Sessions Judge observes that on those previous occasions nothing like this happened, so that Pw. 1 must explain why the respondents molested her on this particular day in broad day light. This shows to what limit the Assistant Sessions Judge is prepared to go to find oat flaws in the prosecution case. Then, the Assistant Sessions Judge says that Kannan Nair was working in the Pepper Research Station, a little away from Taliparamba where the incident took place; and therefore, the prosecution should have produced evidence that he left the Research Station earlier than 5 p.m. on the day in question. The Assistant Sessions Judge has failed to note that if Kannan Nair had a defence that he was working at the Research Station at the time of the occurrence and thus claimed alibi, he had to prove it. Again, the Assistant Sessions Judge says that no witnesses have been examined to prove that Pw. 1 went to the house of Govindan Nair on that lay and at that time. He also says that no witnesses have Been that Pw. 1 returned from the house of Govindan Nair weeping. Evidently, the Assistant Sessions Judge has tried to snatoh at everything (good, bad, indifferent) In his attempt to pick holes in the prosecution case.

16. The evidence of Pw. 1 supported by the evidence of Pw. 5 the doctor, and the aircum9tanoe that there was no enmity between the respondents and Pw. 2, the mother of the girl, proves beyond doubt that the res. pendants were the perpetrators of the offence.

17. It is then urged that the penetration might have been the result of the sexual act 'by one of the respondents may be Govindan Nair or Kannan Nair. The counsel argues that since it is not dearly established as to who had the sexual act with penetration, neither of the respondents can be convicted under Section 376. I do not see any force in this argument. The evidence is fairly clear that Govindan Nair had sexual intercourse and that his organ touched the vagina of the girl. The girl says that the act was committed touching her organ and then between her thighs. There ?as no reason to think that the male organ did not penetrate into the vagina of the girl.

The evidence regarding the act of Kannan Nair is Rimilar. He also committed sexual intercourse touching the organ of the girl; and there must have been penetration in this case as well. If at all, the maximum that may be said is that in neither case was there full penetration. Therefore, I have no hesitation in holding that both of them are liable for the offence under Section 876 of the Penal Code.

18. Even if I am to hold that there was no penetration into the vagina and the sexual acts were committed only between the thighs, I do not think that the respondents can escape conviction under Section 377 of the Penal Code. The counsel of the respondents contends (in this argument the Public Prosecutor also sup. ports him) that sexual act between the thighs is not intercourse. The argument is that for intercourse there must be encirclement of the male organ by the organ visited; and that in the case of sexual act between the thighs, there is no possibility of penetration.

19. The word 'intercourse' means 'sexual connection' (Concise Oxford Dictionary). In Khanu v. Emperor AIR 1925 Sind 286 the meaning of the word 'intercourse' has been considered:

Intercourse may be defined as mutual frequent action by members of independent organization.

Then commercial intercourse, social intercourse, etc. have been considered; and then appears:

By a metaphor the word intercourse, like the word commerce, is applied to the relations of the sexes. Here also there is the temporary visitation of one organism by a member of the other organization, for certain clearly defined and limited objects. The primary object of the visiting organization is to obtain euphoria by means of a detent of the nerves consequent on the sexual crisis. Bat there is no intercourse unless the visiting member is enveloped at least partially by the visited organism, for intercourse connotes reciprocity.

Therefore, to decide whether there is inter, course or not. what is to be considered is whether the visiting organ is enveloped at least partially by the visited organism. In intercourse between the thighs, the visiting male organ is enveloped at least partially by the organism visited, the thighs: the thighs are kept together and tight.

20. Then about penetration. The word 'penetrate' means in the concise Oxford Dictionary 'find access into or through, pass through.' When the male organ is inserted between the thighs kept together and tight, is there no penetration? The word 'insert' means place, fit, thrust.' Therefore, if the male organ is 'inserted' or 'thrust' between the thighs, there is 'penetration' to constitute unnatural offence.

21. Unnatural offence is defined in Section 377 of the Penal Code; whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal commits unnatural offence. The act of committing intercourse between the thighs is carnal intercourse against the order of nature. Therefore committing intercourse by inserting the male organ between the thighs of another is an unnatural offence. In this connection, it may be noted that the act in Section 376 is "sexual inter, course" and the act in Section 377 is carnal intercourse against the order of nature."

22. The position in English law on this question has been brought to my notice. The old decision of Rex v. Samuel Jacobs (1817) Russ & Ry 381 CCE lays down that penetration through the mouth does not amount to the offence of sodomy under English law. The counsel therefore argues that sexual intercourse between the thighs cannot also be an offence under Section 377 of the Penal Code. In Sirkar v. Gula Mythien Pillai Chaithu Maho. mathu, 1908 TLR Vol XIV Appendix 43 a Full Bench of the Travancore High Court held that having connection with a person in the mouth was an offence under Section 377 of the Penal Code. In a short judgment, the learned Judges held that it was unnecessary to refer to English Statute Law and English text books which proceeded upon an interpretation of the words sodomy, buggery and bestiality; and that the words used in the Penal Code were very aim pie and died enough to include all acts against the order of nature. My view on the question is also that the words of Section 377 are simple and wide enough to include any carnal intercourse again tithe order of nature within its ambit. Committing intercourse between the thighs of another is carnal inter, course against the order of nature.

23. Now, I come to the question of punishment. In either view of the matter, whether the offence committed falls under Section 376 or under Section 377, there is no difference in the punishment. The offence must at least fall under Section 377. The medical evidence shows that the act must have been quite abominable and dismal. Moreover, two persons committed this atrocious act on a girl of fourteen one after the other. Still, since the lower Court, though wrongly, acquitted the respondents, I would rather be lenient in these cases.

24. In the result, I set aside the orders of acquittal passed by the Assistant Sessions Judge and convict the respondents. I sentence them to undergo rigorous imprisonment for three years each and also sentence them to pay a fine of Rs. 500/- each, in default to undergo rigorous imprisonment for an additional six months each. If the fines are realized, the entire amount will be paid as compensation to P.W. 1 (Narayani) under Section 545(1) of the Criminal P.C.