Holding

The conviction is upheld as the victim's testimony was adequately corroborated by the husband and eyewitnesses, and the lack of medical or police evidence does not invalidate the conviction.

Summary

Sheikh Zakir was convicted under Section 376 of the IPC for raping Barki Devi, a married tribal woman. The prosecution's case rested on the victim's testimony, corroborated by her husband and two eyewitnesses who saw the appellant on the victim's body and fleeing the scene. The defence argued that the lack of a medical examination report, the non‑examination of the village Mukhiya and a police officer who refused to record the complaint, and the absence of independent corroboration rendered the conviction unsafe. The Supreme Court held that while a victim's testimony is treated like that of an accomplice and ordinarily requires corroboration, the evidence of the husband and eyewitnesses satisfied the requirement, and the missing medical report and police testimony were not fatal. Consequently, the appeal was dismissed and the conviction upheld.

Issues considered

Whether a conviction for rape can stand on the uncorroborated testimony of the victim under Sections 133 and 114 of the Evidence Act.
Whether the absence of a medical examination report and the non‑examination of the Mukhiya and police officer defeat the prosecution's case.
Whether the victim's testimony was sufficiently corroborated by other evidence.

Legislation cited

Indian Evidence Act, 1872s. 114, s. 133, s. 157
Indian Penal Code, 1860s. 376

Subjects

rapevictim testimonycorroborationEvidence ActSection 133Section 376 IPCtribal womenmedical evidencepolice negligence

Judgment

312

SHEIKH ZAKIR
A
• v.

STATE OF BIHAR

June 2, 1983
B
[E. S. VENKATARAMIAH AND V. BALAKRISHNA BRAD!, JJ.)

Evidence Act-s. 133 and illustration (b) lo s. I 14-Evidence of victim of
.rape-Whether an offender can be convicted on uncorroborated 1esli1nony of victim
c of rape-In what circun1stances and lo what extent does it need corroboration?

The appellant was convicted under· s. 37.6, I.P.C., for raping a tribal
woman n1ainly on the evidence of the victim who .was the complainant, her
husband and two other witnrsses, one of whom had deposed that· he had seen
the appellant on the body of the victim while the other had stated that he had
seen the appellant fleeing away fron1 the scene of occurrence. The High Cotirt
D dismissed the appeal and confirqied the conviction .•

The appellant spbn1itted that the local Mukhiya to whon1 the con1-
plainant and her husband were alleged to have gone to co1npiain about the
incident itnmediately after its occurrence, the police officer who was alleged
to have refused to record the complaint and also two other "Yitncsses mention-
E ed in the complaint had not been examined hy the prosecution and this, ~
together with the absence of a .n1cdicul examination report given by a doctor
after examining the person of the complainant im1nediately after the occurrenCe,
was fatal to the prosecution case.

The Mukhiya and one of the two other witnesses mentioned in the
complaint who had not been examined earlier were examined pursuant to
It' the orders made by the Court afid they did not support ·the prosecution
case.

Distnissing the appeal,

HELD : Even though a victim of rape cannot be treated as an accom·
plice, on account of a long line of judicial decisions the evidenc:e of thC victini
in a rape case· is treated al!!J.ost like the evidence of an accornplice requiring
cortoboration. !-'ection 133 of the Evidence Act Says that an a,:complice shall
be a co1npetent witness against an accused person and a conviction is not
illegal merely because it proceeds upon the uncorroborated testimony of an
accomplice. Bllt the rule of practice is that it is prudent to look for corro..
H boration of the evidence or an accomplice by other independent evidence.
This rtile is based on human experience and is incorporated in illustration (b)
tci s. 114 of the Act. There must be an indication in the course of the judg-
ment that the judge had this rule in his n1ind when he prepared the judgment
SltEIKH ZAKIR V, BIHAR 313

and if in a given case the judge finds that there is no need _for such corro·
_boration he should give reasons for dispensing with the necessity for such A
corroboration. But if a conviction is based on the evidence of a prosecutrix ·
without any corroboration it will not be illegal on that sole ground. Jn the
case of a grown-up and married woman it is always safe to insist on such
corroboration. Wherever corroboration is necessary it should be from un
indep~ndent source but is not necessary that every part of the evidence of the
victim should be confirmed in every detail by independent eviden..::e. Such B
corroboration can be sought from either direct evidence or circumstantial
evidence or from both. [318 E·H; 319 A-DJ

Ratneshwar v. St.ate of Rajasthan, [1952] S.C.R. 377; Gurueharan Singh v.
State of Haryana, [1973] 2 S.C.R. 197; Kishan Lal v. State of Haryona, [1980]
3 S.C.R. 305; King v. Baskervi/le [1916] 2 K.B. 658, referred to.
c
In the instant case a reading of the deposition of the complainant shows
that it has a ring of truth around it, Her evidence -has been corroborated in
material particulars by the evidence of her husband and the 'other two wit-
nesses. The slaten1cnl n1ade by the complainant to her husband immediately
after the incident is admissible under s. 157 of lhe Act and has u corroborative
value. [319 F-H]
D
The Mukhiya ·has not given any version about the incident but has merely
stated that the.complainant and her husband had not gone to hin1 to con1plain.
It is significant that his nan1e figured in the complaint as a witness. The
complainant could not have taken the risk of including his name if he had not
been actualy contacted by her. He was cited as a witness to show that imme-
diately after the occurrence the con1plainant had n1ade a statement regarding E
the crime before him which would be cOrroborating evidence. It has to be
borne in mind that he was examined nearly 12 years after the incident and it is
a sufficiently long period and particularly for persons of easy conscience to·
make half-hearted statements in courts. In the circun1stances it is difficult to
hold that the evidence of the other witnesses before the court is in any way
affected by the evidence of the Mukhiya. The same criticism applies to the
evidence of the other witness examined along with the Mukhiya. The non- F
examination of the police officer who declined to record the information said·
to have been given by the complainant is found to be not fatal to thC
prosecution. [317 C-H]

The complainant and her husband being persons belonging to backward
community Jike the Santhal tribe living in a remote area could not be expected G
to know that' they should rush to a doctor. The absence of any injuries on
the person of the complainant may not by itself discredit the statement of the
y complainant. Merely because the complainant was 3. helpless victim who was
by force prevented from offering serious physical resistence she cannot be
disbelieved. [318 B·D]
H
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 440
of 1974.
314 SUPREME
....... CotJRT REPORTS
.,, [1983] 3 s.c.i\.

Appeal by Special leave from the Judgment and Order dated
. "'-·
A the 17th September, 1974 of the Patna High Court in Crl. Appeal
~o. 579 of 1969.

Davendra. N. Goburdhan & D. Goburdhan for the Appellant.

ij S.N. Iha for the Respondent

The Judgment of the Court was delivered by

VENKATARAMIAH, J. This appeal by special leave is filed against
the judgment dated September 17, 1974 passed in Criminal Appeal
c No. 579 of 1969 on the file' of the High Court of Patna confirming
the conviction of the appellant of the offence punishable under
section 376 of the Indian Penal Code and the sentence of rigorous
Imprisonment for five years imposed on him ou December 20,1969
in Sessions Trial No. 107 of 1968 on the file 'of the Assistant
Sessions Judge at Purnea in the State of Bihar.
D
The appellant was committed to face the trial. for an offence
punishable under section 376 of the Indian Penal Code by the order
cifthe Munsiff-Magistrate, !st Class, Purnea on the basis of·a·comp-
laint filed by the complainant Barki Devi (P.W. 3) before the S.ub-
E Oivisional Officer, Sadar, Purnea on August 9,1968 who took cogni-
zance of the Offence and transferred the case to the file of the
aforesaid Magistrate.

The allegations niade in the complaint are briefly these: That
on A11gust I, 1968 at about 5.00 P.M, the complainant, who wa.s a
F married woman of ab?ut 25 .Years, was engaged in the work. of
uprooting of the paddy seedlings on her field situated on the southern
side of her house in Dhmnra Badh situated in Mouza Dhamdaha,
Police Station Dhamdaha:, District Ptirnea. There was a canal to
the east of the field and there were no houses nearby. When she was
G working on her field the appellant came near her and started cutting
' jokes and suggested that she should have sexual intercourse with him. >-.
On the complainant protesing at his suggestion, the appellant
suddenly caught hold of her, threl\' her down on the ground, rem~ved
her clothes and commitied rape on her. On hearing her cry for help,
H some persons arrived at the place. The appellant immediately ran
away. Thereafter the complainant went to her house and' narrated
the incident to her husband, Jitrai (P.W. 4). The. complainant and
her husband then went to the lo6al Mukhiya who asked them to fie!
SHEIKH ZAKIR v. BIHAR (Venkataramlah, J.) 3i5
a complaint in the Court. Then they went to the police thana to
give information about the crime but the police officer declined to A
record the information as the appellant was an influential person.
Then the complainant went to the court on August 8, 1968 to lodge
a complaint but as the time for lodging complaint was over by the
time the complaint was drafted, she filed it on August 9;.1968 in
the court. The complaint contain.ed the names of some witnesses.
B
At the trial the complainant was examined 'as P.W. 3. She
belongs to the Santhal tribe. Jn her evidence she decribed the
incident as disclosed in her complaint. · She stated that the appellant
forcibly had sexual intercourse with her against her will. She stated
that on hearing her cry, Sheikh Lafid (P.W. 1) came there and on c
seeing him, the appellant ran away. She also stated that she
narrated the incident t<) Juman Nadaf (P.W. 2), Chanda Kisku and
Makbool who also came there and that she showed the stains of
semen on her clothes and also the trampling marks on the grouhd
to them. She also stated that she narrated the incident before her
husband and the Mukhiya of the village. She further stated that D
when she and her husband went to the police station, they" were
threatened and driven away by the police officer there. She also
told about her going to Purnea and' lodging the complaint. Sheikh
Lafid (P.W. I) corroborated the evidence of the complainant by
deposing that when he reached the scene of occurrence he saw E
the appellant lying on top of the body of the complainant. Juman
Nadaf (P.W. 2) stated that when he went nerur the scene of
occurrence he saw the appellant fleeing away from there. He stated
that the complainant had narrated before· him the details of the crtme
committed by the appellant.' Jitrai (P.W. 4) the husband of 'the
complainant stated that in the evening of the day of occurrence the· F
complainant told him about the manner in which she had been
ravished by the appellant and also gave evidence about his going to
the Mukhiya and to the police station and what happened there
as narrated by the complainant. Rama Kant Thakur \P.W. 5) was
the lawyer who ·drafted the complaint. He , has state.d that the G
complaint had been prepared under the instructions of the
complainant. ~

The trial court on a consideration of the material before· it
found that the appellant was guilty of rape and accordingly
convicted the appellant of the offence punishable under section 376
H
of the Indian Penal Code and imposed on him a sentence of
rigorous)mprisonment for five years. The High Court dismissed
316 SUPREME COURT REPORTS (1983J 3 S.C.R,

the appeal filed by the appellant. This appeal by special leave is
. "'
1
A filed against the judgment ofthe High Court. When the appeal was
heard by this Court on March 6, 1980, it was ordered that the trial.
court should reco.rd the evidence of the Mukhiya, Makbool and ·
Chanda Kisku and to submit the record to this Court. The evidence
of the Mukhiya and of Makbool was accordingly recorded and has ·-{..
been submitted to this Court. Chanda Kisku is reported to be dead.
B The other two witnesses have not supported the prosecution case.
It is apparent that these two witnesses who had been mentioned as
witnesses in the complaint itself were not willing to support the
prosecution even at the time of the trial as otherwise they would
have been examined. It is not quite ·strange that some witnesses do
c turn hostile but that by itself would not prevent a court from fiinding
).-
. ?:
an accused guilty if there is otherwise acceptable evidence in support
of the prosecution. In the instant case, both the trial court and "
the High Court have believed evidence of the prosecutrix and the
evidence of the other prosecution witnesses who had been examined
at the trial.
D
The point for consideration in this case is whether the approach
adopted by the High Court and the tri~l court to the case is correct
and whether the material is sufficient to warrant the conviction
recorded by them.
E
In the case before us the complainant has given her version of
the incident in her deposition and the High Court and the trial court.
have not found it to be unreliable. The case of the appellant,
however, was that on account of a land dispute between one
Moliamed Halim and Mohamed Naiyeem on the one hand and himself
F on the other which ultimately had ended in his .favour this false case
had been got filed by them through the complainant and her husband
Jitrai who were working as servauts under them. The non examination
of the Mukhiya and the police officer who had declined to record
the information alleged to have been given by the complainant and
her.husband is stated to be fatai to the prosecution. It is further
G stated that in the absence of a medical examination report given by
a doctor after examining the person of the complainant immediately
after the occurrence it was not possible to conclude whether the
complainant had been raped.
H
The trial court has negatived the contention~ of the appellant.
The trial court held that it had not been established that the complain-
ant and her husband were under the thumb of Mohamed Halim and
SHEIKH ZAKIR v, BIIiAR (Venkataramiah, J.). 317

Mohamed Naiyeem. The husband of the complainant owned some
lands and the complainant and her husband were also working as A
labourers. The trial court was of opinion that the complainant
had not given a false complaint in O(der to oblige Mohamed Halim
and Mohamed Naiyeem. It further held that the proceeding relating
to land filed by Mohamed Halim and Mohamed Naiyeem was one
instituted in the year 1964 nearly four years before the i.ncident and
B
that there was no immediate provocation for 'them to engineer the
filing of a false case against the appellant. The High Court has
concurred with the conclusions of the trial court. As regards the
non-examination at the trial of the Mukhiya who is no\v examined
pursuant to the order of this Court it is to be observed that it has
turned out to be inconsequential. The Mukhiya has now ·stated c
that the complainant and her husband had not gone to him to
complain about the incident. He does not give any version. about
the incident. It has to be borne in mind that he was examined
nearly twelve years after the incident. It is significant that his name
figured in the complaint as a witness. The complainant could not
have taken the risk of including his name if he had not been actually . D
contacted by her. · The complainant and her husband have stated in
their depositions that they had gone to him on the date of
occurrence. He was cited as a witness to show that immediately
after the occurrence the complainant had made a statement regarding
the crime before him which would be corroborating evidence. An E
interval of twelve years is a sufficiently long period and particularly
for persons of easy conscience to make half-hearted statements in
courts. In the circumstances it is difficult to hold that the evidence
of the other witnesses before .the court is in any way affected by the
evidence of the Mukhiya. The same criticism applies to the evidence
of Makbool who is the other witness examined in the year 1980 F
along with the Mukhiya. Makbool's evidence is that he did not go
near the scene of occurrence on the date on which it is alleged to
have taken place. As regards the non-examination of the policeman
who declined to record the information said to have been given by
t)le complainant, it has to be stated that it would be asking the G
complainant to do something which would be almost impossible to
perform. How many police officers who have in fact not performed
their duty would come before court as witµesses· and admit that they
had failed to discharge their duty ? The court may safely presume
that notwithstanding the allegation of the complainant being true she H
would not have even able to secure the evidence of such a negligent
police official. The fact remains the the complainant has referred to
318 SUPREME COURT REPORTS (1983! 3 s.c.ii.,
this in her complaint on the very next day and she and her husband
A ran a grave risk in making such an allegation of dereliction of duty
against the police in the complaint. Nothing however turns on the
non-examination of the said police official in this case. In so far as
non-production of a medical examination report and the clothes
\'Vhich contained semen, the trial courts has observed that the
complainant being a woman who had given birth to four childern it
B was likely that there would not have been any injuries on her private
parts. The complainant and her husband being persons belonging
to a backward community like the Santhal tribe living in a remote
area could not be expected Jo know· that they should rush to a
doctor. In fact the .complainant has deposed that she had taken bath
c and washed her clothes after the incident. The:absence of any injuries
on the person of the complainant may not by itself discredit the
statement of the complainant. Merely because the complainant was
a helpless victim who was by force prevented from offering serious
physical resistance she cannot be disbelieved. In this situation the
non-production of a medical report would not be of much conse-
D quence if the other evidence on record is believable. It is, however,
nobody's case that there was sucl1 a report and it bad been
withheld.

A reading of the deposition of the complainant shows that it
E has a ring of truth around it. Section 133 of the Indian Evidence Act
says that an accomplice shall be a competent witness against an accu-
sed person and a conviction is not illegal merely beecause it proceeds
upon the uncorroborated testimony of an accomplice. But the rule.
of practice is that it is purudent to look for corroboration of the »·-

F evidence of an accomplice by other independent evidence. This rule
of practice is based on human experience and is incorporated in illus-
tration (bl to section ll4 of the Indian Evidence Act which says that
an accomplice is unworthy of credit unless he is corroborated in
material particulars. Even though a victim of.rape cannot be treated
as an accomplice, on account of a long line of judicial decision
G rendered in our country over a number of years, the evidence of the
victim in a rape case is tr.eated almost like the evidence of an accom-
plice requiring corroboration. (Vide Rameshwar v. The State of
Rajasthan,(1) Guruchara11 Singh v. State of Haryana(') and Kishan Lal
v. State of Haryana).(') It is accepted by the Indian courts
H
(I) [1952] S.C.R. 377.
(2) [1973] 2 S.C.R. 197.
(3) [1980] 3 S.C.R. 305.
•
sl!s1kH ZAKIR v. BIHAR (Venhtaramiah, J.) 3!9
·.J .
that the .rule of corroboration in such cases ought to · be as
enunciated by Lord Reading C.J. in King v. Baskerville.(') Where A
the case is tried with the aid of a jury as in England it is necessary
that a Judge should draw the attention of the jury to the above rule
of practice regarding corroboration wherever such corroboration is
._J needed. But where a case is tried by a judge alone, as it is now being"
done in India, there must be an indication in the course of the
judgment that the judge had this rule in his miud wheu he prepared
B
the judgment and if in a given case the judge finds that there
is no need for ·such corroboration he should give reasons for
dispensing with the necessity for . such corroboration. But if a

...
.conviction is based on the evidence of a prosecutrix without any
corroboration it will not be illegal on that sole ground. In the case c
of a grown up and married woman: it is always safe to insist on
such corroboration. Wherever corroboration is necessary it should
be from an independent source but it is not necessary that every
part of the evidence of the victim should be confirmed in very detail
by independent evid.ence. Such corroboration can be sought from
either direct evidence or circumstantial evidence or from both. The
trial court has in the case before us found that the evidence of the
complainant had been corroborated in material particulars by the
evidence of Sheikh Lafid (P.W. I) . .Tuman Nadaf (P.W. 2) and Jitrai
(P.W. 4) the husband of the complainant. The High Court also has
acted on the evidence of these witnesses. Sheikh Lafid (P.W. I) has E
stated that he saw the appellant on the body of the complainant and
that the complainant had also told him about the crime. Juman
Nadaf (P.W. 2) has stated that when he heard the cry of the
- . complainant at the time of occurrence, he saw the appellant fleeing
away from that place. The trial court and the High Court have
not found any good ground to discard their testimony. Jitrai F
(P, W. 4) has told the court that the complainant had mentioned to
him all the details of the incident within a short while after it took
place. Rama Kant Thakur (P.W 5.), the lawyer who drafted the
complaint has stated that he had prepared the complaint which
contains all the particulars of the offence under the instructions of the G
complainant. Apart from the evidence of Sheikh I.afid (P. W. I)
and Juman Nadaf (P.W. 2) about what they saw, the statement made
by the complainant to her husband immediately after the incident is
admissible under section 157 of the Indian Evidence Act and has a
corroborative value. After considering 'carefully the entire material ·H

(1) [19161 2 K.B, 658.
•
SUPRBMB COuRT REPORTS (1983) 3 S.C.R.

before u·s including the evidence of the witnesses el\_amined pursuant
A to the order made by this Court earlier in the light of the submissions
made at the Bar we are of the view that the judgment of the
High Court does not call for any interference under Article 136 of
.
the Constitution .

B The appeal therefore, fails and it .is dismissed. The appellant
who is on bail is directed to surrender and to undergo the remaning
part of the sentence imposed on him.

H.L.C. App(!al dismissed. .