1. ' CHAUDHURY RAHIM DAD KHAN, C. I.-Mohammad Ilyas appellant, after trial, was convicted by the Sub-Judge/Magistrate 1st Class, Haveli, for offences under sections 376, 307 and 324, P. C.. He was sentenced to 7 years' R. I. And a fine of Rs. 500 for offence under section 376, to 5 years' R. I. And a fine of Rs. 300 for an offence under section 307 and 2 years' R. I. And a fine of Rs. 200 for an offence under section 324, Penal Code ; in default of payment of fine he was to further undergo 3 months, 2 months and one month simple imprisonment respectively. All the sentences of imprisonment were to run concurrently.
2. ' On appeal before the High Court the conviction for offences under sections 376 and 307, P. C. Was maintained. The sentence of imprisonment was also maintained but sentence of fine was reduced to Rs. 30 under each count. The conviction and sentence recorded by the Sub-Judge/Magistrate 1st Class for offence under section 324, P. C. Was held to be uncalled for in view of the provisions of section 71, P. C.
3. ' Leave to appeal was granted to consider whether appreciation of the evidence has been carried on by the Courts in accordance with the well-recognized principle necessary for the safe administration of justice. The facts necessary for the disposal of this appeal are that Mst. Fareeqa Begum, alongwith her brother Tarif Hussain P. W., on 18th August, 1971, was staying in the house of her parents in village Dhara Palen, Tehsil Haveli. While her parents and other members of the family had gone to the meadows on the high hills for grazing their cattle, Mohammad Ilyas accused came there and duped Tarif Hussain to accompany him on the pretext of inspecting rafters that had been purchased by him from one Akbar Din. On their way to the house of Akbar Din when they proceeded some distance and were going to the house of Karam Sher the accused returned saying that it was not convenient for further journey on that day because of sweltering heat of noon. Tarif Hussain however went into the house of Karam Sher. The accused then coming back to the place, where Mst. Fareeqa Begum was, tricked her into believing that her brother Tarif Hussain had been bitten by a snake near the house of Khan Bahadar Khan and lured her to accompany him. She started for the place at once to see her brother but was assaulted by the accused when she was passing through a maize field. She resisted the assault and raised hue and cry. The accused knocked her down, gave her beating and raped her. She received 17 injuries on various parts of her body while resisting the assault. Maize plants on the spot were crushed down leaving marks of struggle on the ground as well. The beans of the broken necklace were found scattered.
4. ' The alarm raised by the prosecutrix attracted Zabardast Khan followed by Ghulam Hussain Khan who saw Mohammad Ilyas running away and the prosecutrix in a half-naked state without trouser and `dupatta" on her person. She was bleeding on account o; the incised wounds on her person.
5. Mohammad Rashid and Jalal Khan P, W., who were returnin fromg Palangi Bazar, on hearing alarm, also arrived at the spot. They too saw the accused running away from near the place of occurrence with shoes in his hand. The victim complained to them all that she had been ravished.
6. Then she became unconscious and was carried to the house of her father. On regaining consciousness once again she complained to the people assembled there. The report was lodged at the Police Station same day by Mohammad Rashid. The Police, however, reached on the spot, the next day. The prosecutrix was then removed to Trarkhel hospital where she remained under treatment of Doctor Mohammad Bashir, C. M. C., for 16 days who found 17 injuries on various parts of her body. Three out of these injuries were incised wounds. One of the injuries was grievous ; others were contusions.
7. ' It has been submitted by the learned Advocate for the appellant that there are discrepancies in the statements of the prosecution witnesses ; particularly he referred to the statement of Zabardast Khan P. W. Who turned hostile. Admittedly Zabardast Khan has closer relations with the accused as compared to the prosecutrix. The daughter-in-law of the,witpess is the real sister of the wife of the accused. When subjected to cross-examination by the prosecution he admits that the prosecutrix was bleeding. He also admits the presence of all the other three witnesses. He also admits that the prosecutrix complained that the injuries on her person were inflicted by the accused and that she was half naked without trousers on her person. However, he denies the fact that the prosecutrix complained of being ravished by the accused. After careful examination of the statement of Zabardast Khan we are of the opinion that his evidence is not entitled to any weight because the manner in which he made his statement shows that his mind is biased against the party calling him and that he is not willing to tell the truth in the Court.
8. ' A prosecutrix in a rape case being victim of outrageous attack generally does not stand in the position of an accomplice. Consequently, corroboration is not absolutely essential. However, the rule of prudence demands that there must be some corroboration of the evidence of the prosecution before her evidence may be acted upon. The test necessary for evaluation and assessm ent of the evidence is to see whether the circumstances of a case point out that story told by woman is true. In order to adjudge the matter in this context we have examined the record. The statement of the girl is very convincing in the instant case and is fully supported by ,the medical evidence of dotctor Mohammad Bashir who found 17 injuries on various parts of her body which show that she offered a strong resistance to the accused. Resistance by itself is the best corroborative of the evidence of the prosecutrix.
9. ' Besides, the girl's statement is further supported by the statements of Ghulam Hussain Khan.
10. Mohammad Rashid and Jalal Khan P. Ws who ,reached at the site of occurrence on hearing the cries raised by her and saw the accused running away from near the site, while the prosecutrix was in standing in a half-naked state without trouser on her person complaining of being ravished. The incised wounds on her person were bleeding. These facts are relevant as evidence, of conduct under section 8 of the Evidence Act is a strong corroboration.
11. ' The statement 9f the prosecutrix also finds 'support from the circumstantial evidence. The maize, plants were found crushed at the site of occurrence, where there were also signs of struggle as noticed by the pro-section witnesses. On alarni' being raised by " the victim of the rape the accused whipped out a knife and caused 3 incised wounds on her person in addition to the contusions sustained by her in resisting the assault. The accused, during the struggle, scared her saying that she would be finished if she continues to create alarm and did cause 3 wounds with knife on her person. Arrival of the witnesses perhaps prevented him to deliver the fatal blow. It was then submitted by the learned Advocate for the appellant that inference adverse to the prosecution should be drawn from the fact that the Investigating Officer did not send the trouser of the prosecutrix to chemical examiner for ascertaining the semen on it. It is expedient that the technical assistance of the chemical examiner in suitable cases may be secured by investigating officer but the omission on the part of the Investigating Officer to send the trouser of the prosecutrix for chemical examination for finding out presence of semenial stains to support the charge of rape may amount to negligence calling for departmental action against the officer guilty of such omission but in spite of our grave disapproval of the conduct of the investigation in this respect it would not justify rejection of the evidence on record which apart from such omission carries with it conviction of truth as in the instant case.
12. For the foregoing reasons we are of the view that. The prosecution has fully established its case against the accused who has-been rightly convicted. As for the sentence we are of the opinion that sexual immorality in Muslim society must be eradicated by deterrent sentences. In the A circumstances of the case we do not find any justification for reducing the sentence. Hence the appeal is dismissed. The bail bond of the accused is cancelled. He is remanded back to the jail to undergo the remaining part of sentence.