Chakravartti, J.@mdashThe Appellant Ajoyendra Sen alias Khokan was tried by a recent Criminal Sessions of this Court by Guha Roy J. with the aid of a common jury on a charge u/s 376 of the Indian Penal Code and convicted on a majority verdict of 6 to 3. The learned Judge considered the accused to be between 15 and 16 years of age and accordingly, instead of sentencing him to imprisonment, directed him u/s 22 of the Bengal Children Act to be detained in a reformatory school for a period of two years. Against that conviction and sentence, the accused has appealed.
2. Before proceeding further, it is necessary to say a word about the form of the appeal. Two petitions of appeal were filed, one headed simply "Section 411A of the Code of Criminal Procedure" and the other headed "Section 411A(1)(c)". The second petition contained a prayer for leave to appeal against the (sic)tence passed, but no such leave was granted. The other Pe(sic)tained no prayer for any leave at all and, therefore, that petition could serve only as a petition of appeal on grounds which the accused was entitled to take as a matter of law. Under Clause (a) of Section 411A(1), such grounds are grounds of appeal which "involve a "matter of law only." Had the matter rested there, the Appellant would have been limited to grounds of law.
3. It appears, however, from the order admitting the appeal that although no prayer was ever made for leave to appeal under Clause (b) of the section, such leave was nevertheless given. The order admitting the appeal states that the appeal is admitted u/s 411A(1)(a) and that leave is given to the Appellant to appeal u/s 411A(1)(b) of the Code of Criminal Procedure. Clause (b) speaks of grounds of appeal which involve a matter of fact only, or a matter of mixed law and fact, or any other ground which appears to the appellate court to be a sufficient ground of appeal. The order admitting the appeal in the present case did not limit the leave given under Clause (b) to any particular kind of ground and consequently the Appellant is entitled to the widest construction that can possibly be put upon the terms of the order by which leave was given. The appeal, therefore, must be regarded as an appeal on grounds of law, grounds of fact and grounds of mixed fact and law.
4. There is. however, another difficulty which the Appellant has to contend against. The petition of appeal which is headed simply "Section 411A" contains four grounds, three of which relate to the sentence passed. They have no place at all in a petition in which no leave is asked for to appeal against the sentence and since in the present case leave was refused, those grounds must be put on one side. The only ground which remains is expressed in the following terms:
For that the charge to the jury is vitiated by misdirection and non-direction.
5. It is impossible to see how any appeal could possibly be entertained if the grounds of objections were expressed in terms like those which I have just read. Indeed we would be entitled to disallow the Appellant to urge any ground before us at all in view of the form in which he had formulated his grounds of appeal. But inasmuch as the appeal was opened in the afternoon of the 11th, and the 12th was going to be a holiday, we thought that the learned Counsel for the State would get at least a day''s notice of the grounds actually sought to be urged. In those circumstances, we allowed the learned Counsel for the Appellant to state before us more fully the grounds which he wished to urge.
6. The Appellant has been represented before us by Mr. S.C. Majumdar who has addressed to us an exhaustive argument. We have heard him at perhaps much greater length than the facts of the case required, because we thought that since the future of a young life was going to depend largely on the result of the appeal, it would be proper to give the Appellant the amplest latitude he wanted.
7. Mr. Majumdar opened the appeal as an ordinary appeal from a conviction had at a Sessions trial and the grounds which he formulated were three grounds of misdirection. They were the following:
(1) That the learned Judge did not warn the jury, as he should have done, that as a rule of prudence and practice the evidence of the girl ought not to be acted upon unless corroborated in material particulars by independent evidence, particularly in a case like the present one, where the prosecutrix was a child and likely to be under the influence of her parents;
(2) That the learned Judge failed to explain to the jury what amounted to corroboration in law; and
(3) That the learned Judge failed to discuss the evidence of corroboration adduced in the case.
8. After Mr. Majumdar had commenced his argument and formulated his grounds, I took an early occasion of pointing out to him that in view of the form of his appeal, it was, for all practical purposes, unnecessary for him to urge grounds of misdirection. The appeal is an appeal u/s 411A of the Code of Criminal Procedure, in which leave has been granted under Clause (b) of the section. What the scope of an appeal of that kind is was explained by their Lordships of the Judicial Committee in the case of
The court hearing an appeal on the facts u/s 411 is in a similar position to a court hearing an appeal from the verdict of a jury u/s 449, or an appeal from the verdict of a jury which has resulted in the passing of a death sentence under Sections 374 and 418, Sub-section (2), in both of which cases an appeal lies on the facts.
9. It will be seen from the passage just quoted that their Lordships equated an appeal u/s 411A with an appeal u/s 449. What the scope of an appeal Tinder Section 449, or, for the matter of that, of an appeal from a conviction at a Sessions trial, held in the mofussil, is, was explained by the Privy Council in the case of Abdul Rahim v. King-Emperor ILR [1945] 26 Lah. 119 : L.R. 73 I.A. 77 which has now become a locus classicus on the subject. In that case, their Lordships pointed out that it is not enough to point out some misdirection, but after misdirection has been established, the requirements of two other sections have to be satisfied before the appellate court can be entitled to interfere with the verdict of the jury. One of the sections is Section 423, Sub-section (2) and the other section is Section 537. The former requires that the appellate court must be satisfied that the misdirection or non-direction has caused an erroneous verdict and the latter lays down that the appellate court will not be entitled to set aside any finding or sentence on account of any misdirection, unless such misdirection has, in fact, occasioned a failure of justice. In explaining how the appellate court was to ascertain whether the misdirection had, in fact, caused a failure of justice, their Lordships observed that the appellate court was
entitled to take the whole case into consideration and determine for itself whether there has been a failure of justice in the sense that a guilty man has been acquitted, or an innocent man has been convicted.
10. At another place, referring with approval to an old Full Bench decision of this Court in the case of The Queen v. Elahi Bax (1866) B.L.R. Sup. 459, their Lordships pointed out that the question to be considered by the appellate court in such cases is not whether, upon a proper summing up of the whole evidence, a jury might possibly give a different verdict, but whether the legitimate effect of the evidence would require a different verdict. It is thus clear that even in the case of an appeal u/s 449, or an appeal u/s 418, this Court, if it is to interfere with the verdict on the ground of misdirection, must, after misdirection has been established, examine the evidence for itself and will be entitled to set aside the verdict of the jury only if it is satisfied that the verdict was, on the evidence, wrong. In other words, this Court must decide for itself the issues of fact on the evidence in the case.
11. Thus explained, the scope of appeals u/s 411A, where leave to appeal on facts has been given, and of an appeal under the ordinary provisions of the Code of Criminal Procedure, where misdirection is complained of, appears to be the same. It is true that Section 411A provides that its provisions shall have effect "notwithstanding anything contained in Section 418, or Section 423, sub-"s. (2)" but it makes no reference to Section 537, which, it would seem, would apply to appeals u/s 411A as well. But it is not necessary for me to pursue this line of enquiry inasmuch as the scope of an appeal u/s 411A, where leave to appeal on facts has been given, has now been directly and finally explained by the Privy Council in the decision to which I have already referred.
12. That being so, I pointed out to Mr. Majumdar that it was really not necessary for him to establish, in the first instance, that there had been misdirection, because leave to appeal on the facts had already been given. Thereupon the learned Counsel made his submissions on the three grounds originally formulated by him and also addressed us on the facts.
13. The prosecution case may now be stated. There is a house at No. 7A, Mitra Lane, Calcutta, which is a two-storied structure. There are three shop rooms in the ground floor. In the first floor there are four rooms, one of which is occupied by the accused and the members of his family, and the three other rooms are occupied, broadly speaking, by one Kalipada Das Roy and members of his family. I say broadly, because there seems to be some internal distribution of the rooms as between different sections of the family. Kalipada has a brother, named Haripada, who occupies one of the rooms and lives in separate mess. Kalipada''s own family consists of himself, his wife, two infant sons and an infant daughter of about 7 years of age, named Kalpana, who is the prosecutrix in the present case. With him also lives a brother of his wife, whose name also is Haripada, but he has a nickname Bhola. Except the three shop rooms in the ground floor, the lease of the house stands in the name of Haripada, brother of Kalipada, to whom both Kalipada and the father of the accused pay rent as sub-tenants.
14. The prosecution case is that on February 11, 1951, which was the Saraswati Puja day, the young girl Kalpana wanted towards the evening to go out to see the images of the deity. She had had a fall about two months earlier when she had suffered a rather serious injury on her right arm which she still carried in a sling. In addition, she was suffering from whooping cough. In view of her physical condition, her mother was not very willing to let her go out, but ultimately she yielded to the child''s persistence and asked the accused to take her out. It appears that at the relevant time there was no adult male member of the family present in the house. The accused took out the girl Kalpana to see the images and with them went a younger brother of Kalpana, named Sadhan, a child of about five years of age. They returned between 7 and 7-30 p.m. and passed the staircase where they found two sisters of the accused frying loochies for the night meal. Kalpana wanted some water to drink and went up to her mother, who was lying in her room, to ask for the same. As the child was suffering from whooping cough the mother used to give her warm water which was not ready at the time and consequently, she asked the child to wait. At that time, the accused suggested to Kalpana that they should go up to the roof of the house to see fire-works. On hearing that, Sadhan, the younger brother of Kalpana, said that he too would like to go, but the accused suggested that he had better stay on with his mother and tell her of the images which they had seen. The mother attached no particular importance either to the suggestion that they should go up to the roof to see the fire-works, or to the suggestion, that Sadhan should stay behind. Ultimately, it was only the accused and the child Kalpana who went up to the roof, while Sadhan stayed behind with the mother and, as it appears from the evidence, soon fell asleep. The prosecution case is that on going up to the roof, the accused took off his shorts and asked Kalpana to take off her knickers, which she declined to do. Thereupon, the accused threw Kalpana down on the ground, gagged her mouth with one hand while, with the other, he disengaged the string of her knickers and pushed it down and then committed rape on the girl. As her right arm was in an injured state and it was hung by a sling, the child was unable to offer any resistance worth the name; and her mouth was gagged she was also unable to scream. As soon, however, as the act was finished and the girl was let free, she screamed out, crying "(sic), (sic)" which, as the evidence shows, was heard by the mother. By that time she was bleeding and the accused, it is alleged, took the knickers of the child and wiped the blood therewith. He then put on his own shorts and followed the girl down the stairs. The mother, who had heard the screams of the girl, was by that time in the corridor near the staircase leading up to the roof. She met Kalpana on the first step of the landing just where the staircase went up from the first floor to the roof and, according to the evidence in the Sessions case, saw the accused just behind her. She enquired of the girl what had happened and she narrated to her the story. The girl was weeping and the mother found her still bleeding. The prosecution case is that the relations between the members of the family of the accused and those of the family of Kalpana had always been extremely cordial and so much so that Saila, mother of Kalpana, used to call the mother of the accused by the term of endearment "(sic)" and correspondingly used to call the father of the accused "(sic)". On seeing the child in the condition which I have already described and on learning from her what had happened to her, and who was the author of the act, the mother took the child to the mother of the accused and told her what her son had done to her daughter. There is no evidence as to what the re-action of the mother of the accused was, for an attempt to state what she had said in reply was rightly checked, inasmuch as she was not going to give evidence. The girl, however, managed to say in course of her evidence that there was no response from the mother of the accused when her own mother had taken her to the former. However that may be, the prosecution case further is that thereafter Saila, the mother of Kalpana, gave her a wash with soap and water, which, according to her evidence, was a superficial wash. She then lay down in her room with her child beside her and waited till some male member of the family would return. The first person to visit the house was one Fatik, a son of a sister of Kalipada, to whose house the family of Kalipada had been invited at noon. It appears that only Kalipada and the young son Sadhan had gone to attend the function, but Saila had not. The name of the nephew is Pran Kumar Dhar and he has also a nickname, namely, Fatik. To him Saila said what had happened to Kalpana and who had done it and she was about to send him to fetch her husband when her own brother Haripada, nicknamed Bhola, came to the house. It was then about 9 or 9-30 p.m. Bhola was sent to fetch Kalipada from his shop at College Street and Kalipada arrived at about 10 p.m. When he arrived, he found the mother weeping and the child huddled up in a corner of the room. On being told what had happened he was first seized with a paroxysm of grief and started shouting incoherently and trying to pull out the hairs of his head. But subsequently he seems to have fallen into a kind of stupor and not being able to decide what was to be done, to have made up his mind to wait till his younger brother returned. That younger brother who also bears the name of Haripada and serves in the Home office of the Government of West Bengal, arrived at about 11 p.m. The two brothers held some discussion between themselves and later on, they proceeded to the Jorasanko thana where an information was lodged.
15. Two police officers, one a sub-inspector and another a sergeant, came shortly after midnight and first knocked at the door of the accused which was bolted from inside. When the door was opened, they asked for the accused and also asked for his clothes. The prosecution case is that a pair of shorts and a shirt were pointed out by the accused himself as his garments. They were lying on a tin suit case in a corner of the room and were seized by the police. Thereafter the police went to the room occupied by Kalpana and therefrom seized a salwar, or punjabi which the child had been wearing at the time of the occurrence and also her knickers. These four pieces of clothing were subsequently sent for chemical and serological examination.
16. I have omitted to state that besides that the mother Sailabala took Kalpana to the mother of the accused immediately after the occurrence, there was no contact between the two families at any time before the police arrived. According to the evidence of the witnesses to whom the question was put, the room, in which the family of the accused was living, was, when, they arrived at the house, bolted from inside.
17. The police placed the accused under arrest and that very night they sent both him and Kalpana for medical examination to the Emergency Ward of the Medical College Hospital. There Kalpana was examined by one Dr. Madhusudan Banik, but for some reason, which does not appear, the accused was not examined by that doctor. The examination of Kalpana by Dr. Banik took place at about 4 a.m. Both the accused and Kalpana were subsequently sent to the Professor of Forensic medicine, Dr. Kabir Hossain, who examined them at about 11 a.m. on February 12. According to the evidence of the investigating police officer, Sarkar, the people at the Emergency Ward of the Medical College "only examined the girl and returned the boy and the girl with "a letter to forward them to the Professor of Forensic and State "Medicine for examination and report, as he was the only man to "examine such cases."
18. In the case of Kalpana, Dr. Hossain found the inner surface of the labia markedly congested with haemorrhage inside the mucous membrane. He also found the hymen slightly form in the margin, and the margins were freshly torn and raw. He also found the vagina congested and serus discharge from the vagina. According to him, force had been applied to the private parts of the girl within the last 24 hours with some smooth solid substance like a male organ in a state of erection and, although no doctor could ever positively say that an injury on the private parts of a girl had been caused by forcible sexual intercourse only and by no other cause, Dr. Hossain was of opinion that the ninety per cent, possibility was that the injury in the present case had been caused by rape, as alleged.
19. In the case of the accused, Dr. Hossain found marks of bleeding on the glans penis and also lacerated wound l/6th of an inch by, 1/8th of an inch on the fraenum penis. The tissues including the skin had been split up and the glans penis was congested. According to the doctor, the male organ of the accused bore marks of recent interference and friction.
20. The chemical examination revealed the presence of blood as well as spermatozoa on the pair of shorts and on the knickers of Kalpana. It also revealed blood but no spermatozoa on the salwar or punjabi of Kalpana and on the shirt alleged to have been seized from the room of the accused. The report of the Imperial Serologist was that the stains on the pair of shorts and on the knickers were stains of human blood and spermatozoa and the stains on the other two pieces of clothing were stains of human blood.
21. On the above allegation and on the strength of the material evidence above referred to, the Appellant was committed to Sessions to take his trial on a charge u/s 376 of the Indian Penal Code.
22. The prosecution examined 16 witnesses. The defence examined none. The plea of the accused was that he was not guilty, but he added that his age was 11 years.
23. The prosecution, witnesses examined included the girl Kalpana herself, her mother Saihabala, her father Kalipada, her father''s brother Haripada Das, her mother''s brother Haripada Singh and her father''s sister''s son Pran Kumar Dhar. There were, besides, the two doctors, Dr. Banik and Dr. Kabir Hossain, the two police officers who had conducted the search, two search witnesses and certain formal witnesses, such as the head constable, who had carried certain messages, and the plan-maker who had made the plan of the building.
24. As I have already stated, the jury was not unanimous and they returned a verdict of guilty by a majority of 6 to 3. The learned Judge agreed with the majority verdict and accepted it.
25. Referring now to the grounds of misdirection first formulated by Mr. Majumdar, I have already pointed out that in view of the scope of the appeal, their practical importance is very little, if not nil. I may, however, deal briefly with the grounds as they are.
26. I have already set out the text of the ground which are obviously based on a class of decisions of this Court which have laid down certain principles to be followed in cases where a male is charged by a female with a sexual offence. The principles, broadly stated, are that there ought not to be, as a matter of prudence, any conviction on the evidence of the prosecutrix in a case of a sexual offence, unless that evidence is corroborated by independent evidence in material particulars, that is to say, as respects both the commission of the crime and the identity of the accused. It follows as a corollary that where the trial is held by a jury, the Judge must give a serious warning as to the danger of convicting the accused on the uncorroborated testimony of the prosecutrix and must also instruct them as to the nature of the corroboration required, although he may, and indeed ought to, add that if, with the danger present to their minds, they still elected to accept the evidence of the prosecutrix and convict on that alone, they would be legally entitled to do so. It has certainly been held in certain cases that where such a warning has not been given, there is a serious misdirection and the verdict of the jury cannot be allowed to stand.
27. As I have already explained, we are not much concerned in the present case with the verdict of the jury, but the points raised by Mr. Majumdar must still be considered, because we must decide whether in appraising the evidence ourselves, we, on our own part, must follow the principles contended for by him Speaking for myself, I have never been able to assent to the doctrine which has been laid down in the cases on which the propositions of Mr. Majumdar are based. The Indian Evidence Act contains no special rules regarding the evidence of the prosecutrix in a case of sexual offence. What the Act deals with is the evidence of an accomplice and with regard to such evidence it lays down in ill. (b) of Section 114 that the court may presume that an accomplice is unworthy of credit, unless corroborated in material particulars. To that there is a kind of alternative, or proviso contained in Section 133 of the Act, which says that an accomplice is a competent witness and that no conviction shall be unlawful merely because it proceeds upon the uncorroborated testimony of an accomplice. These principles are applied and can be applied to the evidence of a prosecutrix in a case of sexual offence, only if she is regarded as an accomplice. I am entirely unable to understand why a girl or a woman, laying a charge of rape, or indecent behaviour, or some other form of criminal assault against a male person, must always and as a matter of law be, even from the very beginning, treated as an accomplice and why doubt should be thrown upon her testimony even if nothing whatever may appear on the record either against her past character, or against the truth of her present testimony. It may well be that if the prosecutrix is found to be a person who has been rather free in the past as regards sexual indulgences, or whose evidence in the instant case betrays infirmities, her evidence may properly require corroboration. That I find is the rule laid down in the English text-books which have not dealt with the prosecutrix as an accomplice per se and as a matter of law, but have left it to be decided in each case whether the prosecutrix in that case is of such a character that her evidence should not be accepted, unless it is corroborated in material particulars. English decisions which are often referred to, do not deem to be studied very carefully by those who cite them, for, R. v. Baskerville [1916] 2 K.B. 658, the case most cited, was a case of unnatural offence where the boy prosecutors were self-confessed accomplices and R. v. Whitehead [1929] 1 (sic) 99, also often cited, was a case where the prosecutrix came out with her allegation after several months. After all, even if the prosecutrix be treated as an accomplice, there must be some case where Section 133 of the Evidence Act can properly be applied; that is to say, where the conviction can be based on her evidence alone. It seems to me that even if the prosecutrix is to be treated as an accomplice, still, since a conviction can be based on the uncorroborated testimony of an accomplice alone, and I think it is properly so based when the accomplice is proved to be worthy of credit, a prosecutrix also can serve as the sole witness where the evidence discloses nothing against her, either as respects her past character, or as respects the truth of the accusation made by her in the present case, or as respects her being a consenting party to the act charged. Particularly, that seems to me to be the position in a case where the prosecutrix is a mere child, as the fact is in the case before us. I need not, however, for the purpose of the present case, pursue this point further and shall proceed on the basis that we too, in adjudging the value of the evidence, should bear in mind the danger of convicting on the uncorroborated testimony of a prosecutrix.
28. In my opinion, the facts of the case are such that the conviction might well be based on the evidence of the girl alone. But if corroboration is to be required, and I have already said that I propose to proceed on the basis that corroboration is required, there is ample corroboration. In view of the basis on which I propose to proceed, it is unnecessary to discuss the three grounds of misdirection urged by Mr. Majumdar. I may only point out that while the learned Judge did discuss what corroborative evidence there was in the case, he certainly did not give a warning to the jury about the danger of convicting a person charged with a sexual offence on the uncorroborated testimony of the prosecutrix. But as we are dealing with the whole case on the facts, it is, for the reasons I have already stated, unnecessary to pursue the effect of the learned Judge''s misdirection, if misdirection it was, further.
29. On the questions of fact, the principal witness is, of course, Kalpana, who is the only eye-witness. As I have already stated, she is a child of about 7 years of age. But it appears from the order sheet that the learned Judge took the precaution of testing her intelligence before the oath was administered to her and he directed solemn affirmation to be administered only after he had been satisfied that the girl was fully capable of giving intelligent and rational answers. No one who goes through the evidence of the girl can have any doubt that the decision of the learned Judge was entirely right. The small girl was subjected to a long and gruelling cross-examination from all possible points of view, but she met and parried all trusts with surprising agility and gave answers which had the obvious ring of truth. I shall discuss the truth or falsity of her evidence more fully afterwards and may at their present moment dwell only on the point of her intelligence. In my opinion, the learned Judge was perfectly right when he said that no presumption was to be made against Kalpana on account of her age, or any supposed lack of intelligence on that ground, but she might be judged by the same standard as might properly be applied to adults.
30. [His Lordship then discussed the evidence and conclude as follows: ]
31. But, as I have also said already, if corroboration is required, there is an abundance of it. u/s 8, ill. (g) of the Indian Evidence Act, when the question is whether a person 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. Leaving aside in the present case what the girl said,-it may be that one cannot corroborate oneself,-there were first her screams which attracted the attention of the mother. They certainly furnish corroboration of the story of rape. She was seen immediately after the screams had been heard at the foot of the staircase leading to the roof, weeping and bleeding. The weeping and the bleeding again furnish corroboration of the act. The mother saw the accused closely following the girl down the staircase from the roof. There is a slight discrepancy on this point between the evidence of the mother before the committing Magistrate and before the Sessions court in that before the Magistrate she said that she had seen the accused going before the girl. Whereas in the Sessions court she said that he was following her. I do not think the discrepancy is of much moment. What actually happened must have been that the (sic) used followed the girl, slipped past her and went to the ground floor and the evidence before the committing Magistrate related to one stage of his descent and the evidence in the Sessions court to the other. The fact that the accused was seen following the girl down the stairs immediately after the screams had been heard, the fact that the girl was taken to the mother of the accused immediately thereafter are facts which also corroborate the story that the accused was the author of the crime. Added thereto, is the evidence relating to the presence of blood and semen on the articles of clothing proved, to my mind, to have belonged to the accused. If an incident before the event may be referred to, there is the mother''s evidence as to the anxiety exhibited by the accused to leave the girl''s brother behind, when he took her to the roof. I have mentioned only some of the prominent pieces of evidence which combine to point to the accused as the author of the outrage committed upon the girl and having gone through the evidence with the greatest care and listened to the careful and exhaustive argument of Mr. Majumdar, I have no doubt left in my mind that the verdict arrived at by the majority of the jury and concurred in by the learned Judge was the only possible and the correct verdict on the evidence in the case.
32. In my opinion, there is no merit whatever in the appeal and it must accordingly be dismissed.
33. I desire to add one word about the leave granted in this case to appeal on facts. In the case, to which I have already made reference, namely,
34. The interim order directing the Appellant to be kept in a house of detention will automatically lapse and the accused must now be sent to the reformatory school as directed by the learned Judge.
35. P.B. Mukharji J. I agree that this appeal should be dismissed.
36. The rule that in sexual offences the evidence of the complainant victim should be regarded with caution is not a rule of law. It is a rule of prudence and common sense, its origin is in the recognition of a common infirmity of the human mind. A victim''s mind is liable to suffer from psychological obsessions which may lead consciously or even unconsciously to bias or prejudice or exaggeration and so obscure truth. That is the reason why caution is necessary. But this rule of prudence should not be converted into a rule of law. The tendency to impose a kind of legal fetter in such cases must be condemned and if from surrounding circumstances and from the other facts of the case the complainant victim is found to be a person who is neither in the nature of an accomplice nor by character and conduct untrustworthy, the evidence of such person is creditable evidence and should be given due weight and effect in a court of law. To do otherwise and to exclude such evidence in such circumstances will be to create a legal disability unjustified on principle and unwarranted by the Indian Evidence Act or the Criminal Procedure Code.
37. Numerous authorities have debated this problem. My reading of them has led to certain conclusions. I consider it necessary to restate the law and such conclusions in clear terms on this point. In cases of rape the jury may convict on the uncorroborated evidence of the prosecutrix but the Judge should warn the jury that it is dangerous to do so. In his charge to the jury the Judge must first state that it is dangerous to convict on the uncorroborated evidence of the prosecutrix and, secondly, state also that nevertheless if after proper scrutiny and considering the caution delivered by him, the jury are satisfied with the uncorroborated evidence of the prosecutrix, they can accept it. There is no warrant in law for the proposition that the complainant victim in a rape case must ipso facto be regarded as an accomplice. That view is erroneous and wholly unjustified in law. Whether such a complainant is an accomplice or not must be determined independently by reference to the actual facts in each individual case. That problem is never an inference or presumption of law but is always one of fact. In support of the above propositions reference may be made to 9 Halsbury, p. 224 (Article 314), Sikandar Miyan v. Emperor ILR [1937] Cal. 345 and Harendra Prasad Bagchi v. Emperor [I.L.R. 19 (sic)].
38. In this case a further question arises because the victim was a child of seven. A child witness is a competent witness under the law unless the Court considers that by reason of tender years such witness is prevented from understanding the questions or from giving rational answers to such questions. In this case, the learned Judge satisfied himself that the child witness was capable of understanding the questions and was able to give rational answers to them. Having read her deposition I have no doubt left in my mind that she was a competent witness to give evidence within the meaning of Section 118 of the Evidence Act. Here again there is a rule of caution. That caution relates again to the weight and not to the admissibility of the evidence. In England it is customary for judges to warn juries not to convict on the uncorroborated evidence of a child except after weighing it with extreme care. See the observations of Avory J. in R. v. Dossi (1918) 87 L.J. (K.B.) 1024, R. v. Charles Cratchley (1913) 9 C(sic) 2. This caution or warning is justified and proper because young children may be misleading witnesses in the sense that the mistakes and discrepancies in their statements are on the one hand liable to be ascribed to innocence or failure to understand and on the other hand undue weight is apt to be given to what is merely a well-taught lesson. The power of the children to dissociate fact from imagination is weak when compared with adults. The child''s mind is prone to live in a world of imagination and fancy and often mistakes such imagination to be facts. While, therefore, deliberate falsehood may not be the child''s motive of making the wrong statement yet wrong statements are in fact liable to be made by reason of their imaginative mind and because to the mind of the child the borderland between fact and fancy is vague and indeterminate and the child cannot discern when the one ends and the other begins. That is the reason why there should be a caution that it is unsafe to act entirely on the uncorroborated evidence of a child witness. But this again is not a rule of law and it is proper and competent in a court of law for the judge or the jury to be so satisfied even after bearing the caution in mind, that the child witness is a witness of truth and of facts and in that case to accept such testimony.
39. I have no doubt left in my mind that the evidence of the child witness in this case is corroborated in material particulars on the fact of the incident, on the nature of the injury and on the identity of the accused not only by the other witnesses called by the prosecution but from the surrounding circumstances of this case, such as the medical evidence, and the discovery of semen in the clothes.
40. I wish finally to say that I entirely associate myself with My Lord''s observations regarding appeal on facts from the Original Criminal Sessions of this High Court. An appeal on facts u/s 411A of the Code of Criminal Procedure is only permissible with the leave of the Appellate Court or on the Certificate of the Judge who tried the case under Clause (b) of Sub-section (1) thereof. Such leave or certificate must be to show that it is a fit case for appeal against conviction. It is a matter of great concern that this right of appeal on facts has of late been regarded almost as a matter of course. Indiscriminate leave or certificate to appeal on facts from a conviction after a trial by jury on the original criminal side of the High Court has of late tended to discredit such trial in a manner which, I think, was never the intention of this section. Time has come to emphasise the observations of the Privy Council in Thiagaraja Bhagvathar v. King-Emperor (supra) that if Judges make a practice of giving leave to appeal on facts from the verdict of a jury which is not perverse or unreasonable on the ground that the Judge himself does not agree with the verdict or even that he thinks that the court of appeal might take a different view of the evidence from that which appealed to the jury then such trials at the High Court does become a mockery and no doubt will deprive people tried in the High Court of the effective enjoyment of their right to trial by jury. The Privy Council makes it quite clear that the remedy lies in the hands of the Judges. It is time that this remedy is remembered and applied. Having charged the jury on the Criminal Sessions and being at pains to remind them that they are the sole Judges of facts, I have with considerable surprise listened to arguments on appeal as though the jury had never existed at all. This appeal is a typical case where such indiscriminate leave having been granted "the matter was at large" to use the expression used by the Privy Council and yet there is literally not a single point of merit on the facts of this case.
41. Such right of appeal on facts is not an unrestricted right but can only be availed of with the leave of the Appellate Court or the certificate of the trying judge that it is a fit case for appeal. Great responsibility, therefore, rests on the court granting such leave c(sic)te. That responsibility is not discharged, in my Opin(sic)g it purely a matter of form and not of substance. While it is true that under the Code of Criminal Procedure even after the amendment made by Section 411A nothing is indicated in the statute as so the principles on which the Court of Criminal Appeal will determine such appeals as laid down in Section 4 of the English Criminal Appeal Act, 1907, and while it is true that the Privy Council does say in the case referred to above that u/s 411A of the Code of Criminal Procedure when once leave is given the whole matter is at large and the court has no right to uphold the verdict merely on the ground that it is not perverse or unreasonable because so to do would be to deprive the Appellant of the right of appeal which the statute gives him, it nevertheless remains true that some cogent justification must be found either in the Judge''s charge or in the fact which can be said to induce the Court of Appeal to grant leave or the trying judge to grant the certificate. It is true as the Privy Council points out that the Indian Legislature was not minded to impose on the powers of the Court of Criminal Appeal in India any fetter similar to that imposed on the English. Court of Criminal Appeal in dealing with the verdict of the jury but nevertheless it must be realised that the wider the freedom the greater the responsibility. The question is not so much of right of appeal which should under no circumstances be f(sic) more than what the law provides as of administr(sic) courts of that right of appeal. The check to prevent f(sic) unmeritorious appeal lies in the fact that the statute (sic) the leave or the certificate. Such leave or the certif(sic) opinion, should never be granted first without some(sic) four principles laid down in Seo Sirarup v. King-Em(sic) ILR (1934) All. 615 : L.R. 61 IndAp 398 approved in Thiagamja Bhagvathar y. King-Emperor(supra) which would be ultimately applicable if leave is g(sic)d secondly that the facts and the Judge''s charge to the jury disclose some substantial ground for granting such or certificate.
