Rameshwar Vs. The State of Rajasthan
 INSC 61 (20 December 1951)
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)
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 mother--Whether sufficient
corroboration--Rule as to corroboration--Nature and extent of corroboration
necessary--Admissibility of statement made "at or about" the time of
occurrence--Admissibility of evidence of child under 12 years.
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 authority 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 evidence given by that
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 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 uncorroborated
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 corroboration 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
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 independent
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 independent 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 testimony of one accomplice
would not be sufficient to corroborate 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 conditions laid down in see. 157 of the Evidence
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 statement was made
as early as can reasonably be expected in the circumstances of the case and
before there was an opportunity 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.
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, Jaipur,
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 follows. FAZL ALI J. agreed.
BOSE J. -The appellant Rameshwar was charged
with committing rape on a young girl Mst. Purni, eight years of age.
He was committed to Sessions and was
convicted by the Assistant 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 insufficient though morally enough.
He was satisfied however that the girl had been raped by somebody. Accordingly,
he acquitted 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 statement
made to her mother was legally admissible as corroboration and considering that
sufficient they set aside the acquittal and restored the conviction and
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 admissibility of the evidence of the girl herself. Her age was stated to be
seven or eight years at the time of the examination 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 to
her. He did not certify that the child understood the duty of speaking the
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 foregoing
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 inadmissible 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 prevented 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 invalidate any proceeding or render inadmissible any
evidence whatever.......... " Section 5 is the main provision regarding
the administration 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 competent.
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 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 applies
here because, as their Lordships observe, the section is unqualified in its
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 witness 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 evidence 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 Lordships 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 necessity 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 examined
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 corroboration it
will be unsafe to convict because the Privy Council and other cases advise
corroboration as a matter of prudence.
We were taken carefully through the evidence,
as elaborately as in a court of first appeal. I am of opinion that the learned
High Court Judges were fully justified in accepting 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
corroboration in these cases. Now the Evidence Act now here says 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 naturally 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
understand 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 consenting 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)  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 accomplice'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 clarification 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 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 corroboration 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 corroboration.
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 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 cases, must find place in the charge, before a
conviction without corroboration can be sustained. The tender years of the
child, coupled with other circumstances appearing in the case, such, for
example, as its demeanour, unlikelihood of tutoring and so forth, may render
corroboration unnecessary but that is a question of fact in every case. The
only rule of law is that this rule of prudence must 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
corroboration 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 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 (1)  2 K.B. 658, 387 accomplice, should in itself be
sufficient to sustain conviction. 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." 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
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 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 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 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 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 question 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 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 corroboration 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 believed 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
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 opportunity 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
The next question is whether the mother can
be regarded as an "independent" witness. So far as this case is concerned,
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 accused
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 statement 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 on the uncorroborated
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 corroboration
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.