judgement:
: Criminal Appeal No. 68 of 1977.
Appeal by Special Leave from the Judgment and order dated 15th November, 1976 of the Gujarat High Court in Criminal Appeal No. 832 of 1976.
R.H. Dhebar and B. V. Desai for the Appellant.
R.N. Poddar for the Respondent.
The Judgment of the Court was delivered by 284 THAKKAR, J.
To say at the beginning what we cannot help saying at the end: human goodness has limits human depravity has none.
The need of the hour however, is not exasperation.
The need of the hour is to mould and evolve the law so as to make it more sensitive and responsive to the demands of the time in order to resolve the basic problem: "Whether, when, and to what extent corroboration to the testimony of a victim of rape is essential to establish the charge.
" And the problem has special significance for the women in India, for, while they have often been idolized, adored, and even worshipped, for ages they have also been exploited and denied even handed justice Sixty crores anxious eyes of Indian a women are therefore focussed on this problem.
And to that problem we will presently address ourselves.
The learned Sessions Judge Mehsana found the appellant, a Government servant employed in the Sachivalaya at Gandhinagar, guilty of serious charges of sexual misbenaviour with two young girls (aged about 10 or 12) and convicted the appellant for the offence of rape, outraging the modesty of women, and wrongful confinement.
The appeal carried to the High Court substantially failed.
The High Court affirmed the order of conviction under Sec.
342 of the Indian Penal Code for wrongfully confining the girls.
The High Court also sustained the order of conviction under Sec. 354 of the Indian Penal Code for outraging the modesty of the two girls.
With regard to the more serious charge of rape on one of the girls, the High Court came to the conclusion that what was established by evidence was an offence of attempt to commit rape and not of rape.
Accordingly the conviction under Sec. 376 was altered into one under Sec.
376 read with Sec.
511 of the Indian Penal Code.
The appellant has preferred the present appeal with special leave.
The incident occurred on Sunday, September 7, 1975, at about 5.30 p.m. at the house of the appellant.
The evidence of P.W. 1 and P.W. 2 shows that they went to the house of the appellant in order to meet his daughter (belonging to their own age group of 10 or 12) who happened to be their friend.
The appellant induced them to enter his house by creating an impression that she was at home, though, in fact she was not.
Once they were inside, the appellant closed the door, undressed himself in the presence of both the girls, and exposed himself.
He asked P.W. 2 to indulge in an indecent act.
P.W. 2 started crying and fled from there.
P.W. 1 285 however could not escape.
She was pushed into a cot, and was made to undress.
The appellant sexually assaulted her.
P.W. 1 was in distress and was weeping as she went out.
She however could not apprise her parents about what had transpired because both of them were out of Gandhinagar (they returned after 4 or 5 days).
It appears that the parents of P.W. 1 as well as parents of P.W. 2 wanted to hush up the matter.
Some unexpected developments however forced the issue.
The residents of the locality somehow came to know about the incident.
And an alert Woman Social Worker, P.W. 5 Kundanben, President of the Mahila Mandal in Sector 17, Gandhinagar, took up the cause.
She felt indignant at the way in which the appellant had misbehaved with two girls of the age of his own daughter, who also happened to be friends of his daughter, taking advantage of their helplessness, when no one else was present.
Having ascertained from P.W. 1 and P.W. 2 as to what had transpired, she felt that the appellant should atone for his infamous conduct.
She therefore called on the appellant at his house.
It appears that about 500 women of the locality had also gathered near the house of the appellant.
Kundanben requested the appellant to apologize publicly in the presence of the woman who had assembled there.
If the appellant had acceded to .
this request possibly the matter might have rested there and might not have come to the court.
The appellant, however, made it a prestige issue and refused to apologize.
Thereupon the police was contacted and a complaint was lodged by P.W. 1 on 19 Sept. 1975.
P.W. 1 was then sent to the Medical officer for medical examination.
The medical examination disclosed that there was evidence to show that an attempt to commit rape on her had been made a few days back.
The Sessions Court as well as the High Court have accepted the evidence and concluded that the appellant was guilty of sexual misbehavior with P.W. 1 and P.W. 2 in the manner alleged by the prosecution and established by the evidence of P.W. 1 and P.W. 2.
Their evidence has been considered to be worthy of acceptance lt is a pure.
finding of fact recorded by the Sessions Court and affirmed by the High Court.
Such a concurrent finding of fact cannot be reopened in an appeal by special leave unless it is established: (1) that the finding is based on no evidence or (2) that the finding is perverse, it being such as no reasonable person could have arrived at even if the evidence was taken at its face value or (3) the finding is based and built on inadmissible evidence, which evidence, if excluded from vision, would negate the prosecution case or substantially discredit 286 or impair it or (43 some vital piece of evidence which would tilt the balance in favour of the convict has been overlooked, disregarded, or wrongly discarded.
The present is not a case of such a nature.
The finding of guilt recorded by the Sessions Court as affirmed by the High Court has been challenged mainly on the basis of minor discrepancies in the evidence.
We do not consider it appropriate or permissible to enter upon a reappraisal or reappreciation of the evidence in the context of the minor discrepancies painstakingly highlighted by learned counsel for the appellant.
Over much importance cannot be attached to minor discrepancies.
The reasons are obvious: (1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident.
It is not as if a video tape is replayed on the mental screen.
(2) ordinarily it so happens that a witness is overtaken by events.
The witness could not have anticipated the occurrence which so often has an element of surprise.
The mental faculties therefore cannot be expected to be attuned to absorb the details.
(3) The powers of observation differ from person to person.
What one may notice, another may not.
An object or movement might emboss its image on one person 's mind whereas it might go unnoticed on the part of another.
(4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them.
They can only recall the main purport of the conversation.
It is unrealistic to expect a witness to be a human tape recorder.
(5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment 1.1 at the time of interrogation.
And one cannot expect people to make very precise or reliable estimates in such matters.
Again, it depends on the time sense of individuals which varies from person to person.
287 (6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span.
A witness is liable to get confused, or mixed up when interrogated later on.
(7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment.
The sub conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him Perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment.
Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses therefore cannot be annexed with undue importance.
More so when the all important "probabilities factor" echoes in favour of the version narrated by the witnesses.
It is now time to tackle the pivotal issue as regards the need for insisting on corroboration to the testimony of the prosecutrix in sex offences.
This Court, in Rameshwar vs The State of Rajasthan,(1) has declared that corroboration is not the sine que non for a conviction in a rape case.
The utterance of the Court in Rameshwar may be replayed, across the time gap of three decades which have whistled past, in the inimitable voice of Vivian Bose, J. who spoke for the Court 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 . . 288 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.
" And whilst the sands were running out in the time glass, the crime graph of offences against women in India has been scaling new peaks from day to day.
That is why an elaborate rescanning of the jurisprudential sky through the lenses of 'logos ' and 'ethos ', has been necessitated.
In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury.
Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion ? To do so is to justify the charge of male chauvinism in a male dominated society.
We must analyze the argument in support of the need for corroboration and subject it to relentless and remorseless cross examination.
And we must do so with a logical, and not an opiniated, eye in the light of probabilities with our feet firmly planted on the soil of India and with our eyes focussed on the Indian horizon.
We must not be swept off the feet by the approach made in the Western World which has its own social mileu, its own social mores, its own permissive values, and its own code of life.
Corroboration may be considered essential to establish a sexual offence in the backdrop of the social ecology of the Western World.
It is wholly unnecessary to import the said concept on a turn key basis and to transplate it on the Indian soil regardless of the altogether different atmosphere, attitudes, mores, responses of the Indian Society and its profile.
The identities of the two worlds are different.
The solution of problems cannot therefore be identical.
It is conceivable in the Western Society that a female may level false accusation as regards sexual molestation against a male for several reasons such as: (1) The female may be a 'gold digger ' and may well have an economic motive to extract money by holding out the gun of prosecution or public exposure.
289 (2) She may be suffering from psychological neurosis and may seek an escape from the neurotic prison by phantasizing or imagining a situation where she is desired, wanted, and chased by males.
(3) She may want to wreak vengence on the male for real or imaginary wrongs.
She may have a grudge against a particular male, or males in general, and may have the design to square the account.
(4) She may have been induced to do so in consideration of economic rewards, by a person interested in placing the accused in a compromising or embarassing position, on account of personal or political vendatta.
(5) She may do so to gain notoriety or publicity or to appease her own ego or to satisfy her feeling of self importance in the context of her inferiority complex.
(6) She may do so on account of jealousy.
(7) She may do so to win sympathy of others.
(8) She may do so upon being repulsed.
By and large these factors are not relevant to India, and the Indian conditions.
Without the fear of making too wide a statements or of overstating the case, it can be said that rarely will a girl or a woman in India make false allegations of sexual assault on account of any such factor as has been just enlisted.
The statement is generally true in the context of the urban as also rural Society.
It is also by and large true in the context of the sophisticated, not so sophisticated, and unsophisticated society.
Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites.
Because: (1) A girl or a woman in the tradition bound non permissive Society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred.
(2) She would be conscious of the danger of being ostracised by the Society or being looked down by the Society including by her own family members, relatives, friends and neighbours.
(3) She would have to brave the 290 whole world.
(4) She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered.
(S) If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family.
(6) It would almost inevitably and almost invariably result in mental torture and suffering to herself.
(7) The fear of being taunted by others will always haunt her.
(8) She would feel extremely embarrassed in relating the incident to others being over powered by a feeling of shame on account of the upbringing in a tradition bound society where by and large sex is taboo.
(9) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy.
(10) The parents of an unmarried girl as also the husband and members of the husband 's family of a married woman would also more often than not, want to avoid publicity on account of the fear of social stigma on the family name and family honour.
(11) The fear of the victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her innocence.
(12) The reluctance to face interrogation by the investigating agency, to face the court, to face the cross examination by Counsel for the culprit, and the risk of being disbelieved, acts as a deterrent.
In view of these factors the victims and their relatives are not too keen to bring the culprit to books.
And when in the face of these factors the crime is brought to light there is a built in assurance that the charge is genuine rather than fabricated.
On principle the evidence of a victim of sexual assault stands on par with evidence of an injured witness.
Just as a witness who has sustained an injury (which is not shown or believed to be self inflicted) is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a sex offence is entitled to great weight, absence of corroboration notwithstanding.
And while corroboration in the form of eye witness account of an independent witness may often be forthcoming in physical assault cases, such evidence cannot be expected in sex offences, having regard to the very nature of the offence.
It would therefore be adding insult to injury to insist on corroboration drawing inspiration from the rules devised by the courts in the Western World.
Obseisance to which has perhaps become a habit presumably on account of the colonial hangover.
We are therefore of the opinion that if the evidence of the victim does not suffer from any basic infirmity, and the probabilities factors does not render it unworthy of credence, as a general 291 rule, there is no reason to insist on corroboration except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming, subject to the following qualification: Corroboration may be insisted upon when a woman having attained majority is found in a compromising position and there is a likelihood of her having levelled such an accusation on account of the instinct of self preservation.
Or when the 'probabilities factor ' is found to be out of tune.
Now we return to the facts of the present case.
Testing the evidence from this perspective, the evidence of P.W. 1 and P.W. 2 inspires confidence.
The only motive suggested by defence was that there was some history of past trade union rivalry between the father of P.W. 2 and the appellant.
It must be realized that having regard to the prevailing mores of the Indian Society, it is inconceivable that a girl of 10 or 12 would invent on her own a false story of sexual molestation.
Even at the age of 10 or 12 a girl in India can be trusted to be aware of the fact that the reputation of the entire family would be jeopardised, upon such a story being spread.
She can be trusted to know that in the Indian Society her own future chances of getting married and settling down in a respectable or acceptable family would be greatly marred if any such story calling into question her chastity were to gain circulation in the Society.
It is also unthinkable that the parents would tutor their minor daughter to invent such a story in order to wreak vengence on someone.
They would not do so for the simple reason that it would bring down their own social status in the Society apart from ruining the future prospects of their own child.
They would also be expected to be conscious of The traumatic effect on the psychology of the child and the disastrous consequences likely to ensue when she grows up.
She herself would prefer to suffer the injury and the harassment, rather than to undergo the harrowing experience of lodging a complaint in regard to a charge reflecting on her own chastity.
We therefore refuse to countenance the suggestion made by the defence that the appellant has been falsely roped in at the instance of the father of P.W. 2 who was supposed to have some enmity against the appellant.
It is unthinkable that the parents of P.W. 2 would tutor her to invent a story of sexual misbehavior on the part of the appellant merely in order to implicate him on account of past trade union rivalry.
The parents would have also realized the danger of traumatic effect on the psychology of their daughter.
In fact it would have been considered to be extremely distasteful to 292 broach the subject.
It is unthinkable that the parents would go to the length of inventing a story of sexual assault on their own daughter and tutor her to narrate such a version which would bring down their own social status and spoil their reputation in Society.
Ordinarily no parents would do so in Indian society as at present.
Under the circumstances the defence version that the father of P.W. 2 had tutored her to concoct a false version in order to falsely implicate the appellant must be unceremoniously thrown overboard.
Besides, why should the parents of P.W. 1 mar the future prospects of their own daughter ? It is not alleged that P.W. 1 had any motive to falsely implicate the appellant.
So also it is not even suggested why P.W. 1 should falsely implicate the appellant.
From the stand point of probabilities it is not possible to countenance the suggestion that a false story has been concocted in order to falsely implicate the appellant.
The medical evidence provided by P.W 6, Dr. Hemangini Desai, fully supports the finding of the High Court that there was an attempt to commit rape on P.W. 1.
Under the circumstances the conclusion reached by the High Court cannot be successfully assailed.
The only question that now remains to be considered is as regards the sentence.
The appellant has behaved in a shockingly indecent manner.
The magnitude of his offence cannot be overemphasized m the context of the fact that he misused his position as a father of a girl friend of P.W. 1 and P.W. 2.
P.W. 1 and P.W. 2 were visiting his house unhesitatingly because of the fact that his daughter was their friend.
To have misused this position and to have tricked them into entering the house, and to have taken undue advantage of the situation by subjecting them to sexual harassment, is a crime of which a serious view must be taken.
But for the following facts and circumstances, we would not have countenanced the prayer for leniency addressed to us on behalf of the appellant.
The special circumstances are these.
The appellant has lost his job in view of the conviction recorded by the High Court.
The incident occurred some 7 years back.
The appeal preferred to the High Court was dismissed in November 15, 1976.
About 6 1/2 years have elapsed thereafter.
In the view that we are taking the appellant will have to be sent back to jail after an interval of about 6 1/2 years.
The appellant must have suffered great humiliation in the Society.
The prospects of getting a suitable match for his own daughter have perhaps been marred in view of the stigma in the wake of the finding of guilt recorded against him in the context of such an offence.
293 Taking into account the cumulative effect of these circumstances, and an overall view of the matter, we are of the opinion that the ends of Justice will be satisfied if the substantive sentence imposed by the High Court for the offence under Sec. 376 read with Sec.
511 is reduced from one of 2 1/2 years ' R. I., to one of 15 months ' R.I.
The sentence of fine, and in default of fine, will be course remain undisturbed.
So also the sentence imposed in the context of the offence under Sec.
342 and Sec 354 of the Indian Penal Code will remain intact.
Subject to the modification in the sentence to the aforesaid extent the appeal fails and is dismissed The appellant shall surrender in order to undergo the sentence.
The bail bonds will stand cancelled.
S.R. Appeal dismissed.

summary/full:
The appellant, a government servant employed in the Sachivalaya at Gandhinagar was found guilty, by the Sessions Judge, Mehsna, of serious charges of sexual misbehaviour with two young girls (aged about 10 or 12 and was convicted for the offence of rape, outraging the modesty of women, and wrongful confinement The appeal carried to the High Court substantially failed.
The High Court affirmed the orders of conviction under section 342 I.P.C. for wrongfully confining the girls and conviction under Section 354 I.P.C. for outraging the modesty of the two girls.
With regard to the more serious charge of rape on one of the girls, the High Court came to the conclusion that what was established by evidence was an offence or attempt to commit rape and not of rape.
Accordingly, the conviction under Section 376 was altered into one under Section 376 read with Section Sl I I.P.C. Dismissing the appeal and maintaining the conviction on all counts, Court ^ HELD: 1:1 A concurrent finding of fact as recorded by the Sessions Court and affirmed by the High Court, cannot be reopened in an appeal by Special Leave unless it is established (1) that the finding is based on no evidence or (2) that the finding is perverse, it being such as no reasonable person could have arrived at even if the evidence was taken at its face value or (3) the finding is based and built on inadmissible evidence, which evidence if excluded from vision, would negate the prosecution case or substantially discredit or impair it or (4) some vital piece of evidence which would tilt the balance in favour of the convict has been overlooked, disregarded, or wrongly discarded.
The present is not a case of such a nature.
[285 G H, 286 A] 1:2.
Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses therefore cannot be annexed with undue 281 importance.
More so when the all important "probabilities factor" echoes in favour of the version narrated by the witnesses.
The reasons are: (1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident.
It is not as if a video tape is replayed on the mental screen; (2) ordinarily it so happens that a witness is overtaken by events.
The witness could not have anticipated the occurrence which so often has an element of surprise.
The mental faculties therefore cannot be expected to be attuned to absorb the details; (3) The powers of observation differ from person to person.
What one may notice, another may not.
An object or movement might emboss its image on one person 's mind whereas it might go unnoticed on the part of another; (4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them.
They can only recall the main purport of the conversation.
It is unrealistic to expect a witness to be a human tape recorder; (5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation.
And one cannot expect people to make very precise or reliable estimates in such matters.
Again, it depends.
On the 'timesense ' of individuals which varies from person to person.
(6) ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span.
A witness is liable to get confused, or mixed up, when interrogated later on; (7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination made by counsel and out of nervousness mix up facts; get confused regarding sequence of events, or fill up details from imagination on the spur of moment.
The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish, or being disbelieved, though the witness is giving a truthful and honest account of the occurrence witnessed by him Perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment.
[286 B H, 287 A E] 2:1.
Corroboration is not the sine quo non for a conviction in a rape case.
In the Indian setting, refusal to act on the testimony of a victum of sexual assault in the absence of corroboration as a rule, is adding insult to injury.
Viewing the evidence of the girl or the women who complains of rape or sexual molestation with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion, is to justify the charge of male chauvinism in a male dominated society.
C D] Rameshwar vs The State of Rajasthan, ; @ 386 followed.
Corroboration may be considered essential to establish a sexual offence in the backdrop of the social ecology of the Western World.
It is wholly unnecessary to import the said concept on a turn key basis and to transplant it on the Indian soil regardless of the altogether different atmosphere, attitudes, mores, responses of the Indian Society, and its profile.
The identities of the two worlds are different.
The solution of problems cannot therefore be idential.
It is conceivable in the Western Society that a female may level false accusation as regards sexual molestation against a male for several reasons such as: (1) The female may be a 'gold 282 digger ' and may well have an economic motive to extract money by holding out the gun of prosecution or public exposure; (2) She may be suffering from psychological neurosis and may seek an escape from the neurotic prison by phantasizing or imagining a situation where she is desired, wanted and chased, by males.
(3) She may want to wreak vengence on the male for real or imaginary wrongs.
She may have a grudge against a particular male, or males in general, and may have the design to square the account; (4) She may have been induced to do so in consideration of economic rewards, by a person interested in placing the accused in a compromising or embarassing position, on account of personal or political vendetta; (5) She may do so to gain notoriety or publicity or to appease her own ego, or to satisfy her feeling of self importance in the context of her inferiority complex; (6) She may do so on account of jealousy; (7) She may do so to win sympathy of others; (8) She may do so upon being repulsed.
By and large these factors are not relevant to India, and the Indian Conditions.
[288 F H, 289 A E] 2:3.
Rarely will a girl or a woman in India make such false allegations of sexual assault, whether she belongs to the urban or rural society, or, sophisticated, or, not so sophisticated, or, unsophisticated society.
Only very rerely can one conceivably come accross an exception or two and that too possibily from amongst the urban elites.
Because: (1) A girl or a woman in the tradition bound non permissive Society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred; (2) She would be conscious of the danger of being ostracised by the Society or being looked down by the society including by her own family members, relatives, friends, and neighbours; (3) She would have to brave the whole world; (4) She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered; (5) If she is unmarried, she would apprehend that it would be, difficult to secure an alliance with a suitable match from a respectable or an acceptable family; (6) lt would almost inevitably and almost invariably result in mental torture and suffering to herself; (7) The tear of being taunted by others will always haunt her; (8) She would feel extremely embarrassed in relating the incident to others being over powered by feeling of shame on account of the upbringing in a tradition bound society where by and large sex is taboo; (9) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy; (10) The parents of an unmarried girl as also the husband and members of the husband 's family of a married woman, would also more often than not, want to avoid publicity on account of the fear of social stigma on the family name and family honour; (11) The fear of the victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her innocence; (12) The reluctance to face interrogation by the investigating agency, to face the court, to face the cross examination by Counsel for the culprit, and the risk of being disbelieved, acts as a deterrent.
In view of these factors the victims and their relatives are not too keen to bring the culprit to books.
And when in the face of these factors the crime is brought to light there is a built in assurance that the charge is genuine rather than fabricated.
[289 F H, 290 A E] 283 2:4.
On principle the evidence of a victim of sexual assault stands on par with evidence of an injured witness.
Just as a witness who has sustained an injury (which is not shown or believed to be self inflicted) is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a sex offence is entitled to great weight, absence of corroboration notwithstanding.
And while corroboration in the form of eye witness account of an independent witness may often be forthcoming in physical assault cases, such evidence cannot be expected in sex offences, having regard to the very nature of the offence.
It would therefore be adding insult to injury to insist on corroboration drawing inspiration from the rules devised by the courts in the Western World.
[290 E G] 2:5.
Therefore, if the evidence of the victim does not suffer from any basic infirmity, and the 'probabilities factor ' does not render it unworth of credence, as a general rule, there is no reason to insist on corroboration except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming, subject to the following qualification: Corroboration may be insisted upon when a woman having attained majority is surprised in a compromising position and there is a likelihood of her having levelled such an accusation on account of the instinct of self preservation.
Or when the 'probabilities factor ' is found to be out of tune.
[290 G H, 291 A B] 2:6.
To countenance the suggestion, in the instant case, that the appellant has been falsely roped in at the instance of the father of P.W. 2 who was supposed to have some enmity against the appellant would be wrong.
Ordinarily no parents would do so in Indian Society as at present and thereby bring down their own social status and spoil their reputation in Society, not to speak of the danger of traumatic effect on the psychology of their daughter.
Having regard to the prevailing mores of the Indian Society, it is inconceivable that a girl of 10 or 12 would invent on her own a false story of sexual molestation.
Moreover, the medical evidence fully supports the finding of the High Court that there was an attempt to commit rape on P.W. 1 by the appellant.
[291 G H, 292 A D]


judgement:
N: Criminal Appeal No. 440 of 1976.
Appeal by Special leave from the Judgment and Order dated the 3rd September, 1975 of the Allahabad High Court in Criminal Misc.
Case No. 3291 of 1972.
Shankar Ghose, R.P. Bhatt, section R. Aggarwala, Praveen Kumar, and Anil Kumar Sharma for the Appellants.
B.D. Sharma, Dalveer Bhandari, H. M. Singh, and R. section Yadav for the Respondent (State).
324 Yogeshwar Prasad and Mrs. Rani Chhabra for Municipal Board.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
This appeal by special leave arises out of a complaint instituted under section 155 of the U.P. Municipalities Act, 1916 (Act.
No. II of 1916) (hereinafter referred to as 'the Act ') by the Municipal Board of Pilibhit in the court of the Sub Divisional Magistrate, Puranpur, District Pilibhit against the Managing Director, the General Manager and the Cane Manager of L. H. Sugar Factory Pilibhit and one Bishan Swaroop, an employee of the said Sugar Factory, the appellants herein, alleging that they had brought by railway on November 30, 1967 into their godown at the railway siding situated within their Sugar Factory which was within the limits of the Pilibhit Municipal Board for purposes of consumption or use three wagon loads of sugarcane weighing in all 804 maunds for which octroi of Rs. 8.48 P. was payable under the bye laws of the Municipal Board published under notification dated May 18, 1960 without paying the said octroi.
The said complaint was filed on September 12, 1968.
During the proceedings before the Magistrate the appellants pleaded that since the payment of octroi by the factory of the appellants on sugarcane brought by railway had been exempted by an order of the Government of the United Provinces bearing G. O. No. 3613(1)/XI 395 dated November 20, 1936, the prosecution should fail.
The relevant part of the Government order which is contained in a letter addressed by the Municipal Department of the Government of the United Provinces to the Commissioner of Rohilkhand Division reads thus: "I am directed to say that Government have, after full examination of the question of local taxation of sugarcane imported for the manufacture of sugar in factories situated within the limits of certain municipalities, decided that there is no justification for the continuance of taxes on rail borne cane which is delivered at the railway sidings situated inside the sugar factories because the municipalities concerned render no service with regard to it.
The Governor acting with his ministers is accordingly pleased to exempt, under section 157(3) of the United Provinces Municipalities Act, 1916, with immediate effect, all such sugarcane from the octroi duty levied in the municipality of Pilibhit.
The Municipal 325 Board of Pilibhit may be informed accordingly and also directed to take formal action to amend its octroi schedule to that effect.
" After the above plea was raised, the complainant Municipal Board went on seeking adjournments in the criminal case and the case remained undisposed of for nearly four years.
So the appellants filed a petition under section 561 A of the Code of Criminal Procedure, 1898 (Act No. V of 1 98) before the High Court of Allahabad in Criminal Misc.
Case No. 3291 of 1972 in September, 1972 requesting the High Court to quash the proceedings on the ground that they were vexatious.
In the High Court the appellants admitted that they had brought into the municipal area of Pilibhit sugarcane by railway as pleaded by the Municipal Board without paying octroi but submitted that octroi was not payable in view of the exemption granted by the State Government under section 157(3) of the Act.
The High Court rejected the plea of the appellants and dismissed the petition filed by them on the ground that the case was governed by certain earlier judgments of the High Court and that the exemption was no longer available as the octroi claimed was a new levy not covered by it.
Although there was some dispute about the existence of the Government order granting the exemption, the High Court held that such an order had been passed by the Provincial Government but it was of no avail to the appellants.
Accordingly the High Court dismissed the petition filed by the appellants.
Against the judgment of the High Court, this appeal has been filed.
At the outset it should be stated that until the complaint was filed in the year 1968 the Municipal Board had not collected any octroi from the factory in question on sugarcane brought by railway.
We are also informed that by an order communicated to all the Divisional Commissioners and the District Magistrates of the State of Uttar Pradesh on June 3, 1982, the levy of octroi on sugarcane brought by sugar factories into the municipalities in the State of Uttar Pradesh for crushing purposes is generally exempted irrespective of the mode of transport used to bring such sugarcane.
The relevant part of that communication reads thus: "Sub:Exemption from octroi on sugarcane brought for crushing in sugar mills within municipal limits.
326 Sir, On the above subject, in continuation of the radiogram of the Government No. 2065 B/11 9 82 dated 27.5.1982, I have been directed to state that in exercise of the powers conferred under sec.
157(3) of the U.P. Municipalities Act, 1916, the Governor exempts sugarcane brought within municipal limits for crushing in sugar mills from octroi duty with immediate effect.
You are requested to ensure that the order is carried out and acknowledge receipt of the Government order.
Yours faithfully, Sd/ Shashi Kant Jain Under Secretary" This communication may, however, have no bearing on the period in question but only shows how the State Government has understood the scope of its power under section 157(3) of the Act.
Since all the facts are admitted the only question which requires to be considered is whether on the relevant date the appellants were liable in law to pay octroi on sugarcane brought by them by railway into the sugar factory which was situated within the municipal limits of Pilibhit.
Chapter V of the Act contains the provisions relating to municipal taxation.
Section 128(1) (viii) and section 157 of the Act are in that Chapter.
The relevant part of section 128 (as it stood in the year 1936) and section 157 are as follows: "128.
Taxes which may be imposed (1) Subject to any general rules or special orders of the Local Government in this behalf, the taxes which a board may impose in the whole or any part of a municipality are (i) a tax on the annual value of buildings or lands or of both; (ii) a tax on trades and callings carried on within the municipal limits and deriving special advantages from, or imposing special burdens on, municipal services; 327 (iii)a tax on trades, callings and vocations including all employments remunerated by salary or fees; (iv) tax on vehicles and other conveyances plying for hire or kept within the municipality or on boats moored therein; (v) a tax on dogs kept within the municipality; (vi) a tax on animals used for riding, driving, draught or burden, when kept within the municipality; (vii)a toll on vehicles and other conveyances, animals and laden coolies entering the municipality; (viii)an octroi on goods or animals brought within the municipality for consumption or use therein;" (There are seven other clauses in section 128(1) which relate to other taxes).
Exemption (1) A board may exempt, for a period not exceeding one year, from the payment of a tax, or any portion of a tax, imposed under this Act by any person who is in its opinion, by reason of poverty, unable to pay the same and may renew such exemption as often as it deems necessary.
(2)A board may, by a special resolution confirmed by the Local Government in the case of cities and by the Commissioner in other cases, exempt from the payment of a tax, or any portion of a tax, imposed under this Act any person or class of persons or any property or description of property.
(3)The Local Government may, by order, exempt from the payment of a tax, or any portion of a tax, imposed under this Act any person or class of persons or any property or description of property.
" 328 It may be noted that while the power of exemption under sub sections (1) and (2) of section 157 of the Act is vested in the Municipal Board, the power of exemption under sub section (3) of section 157 is exercisable by the Local Government.
Under sub section (2) of section 157 the resolution of the Municipal Board granting exemption should, however, be confirmed by the Local Government or the Commissioner, as the case may be.
The first submission made before us is somewhat subtle and needs to be considered in some detail.
It is argued that since the exemption had been given under the order dated November 20, 1936 on the ground that there was no justification for the continuance of the levy of taxes on rail borne sugarcane as the municipalities were not rendering any service in regard to it, the levy from which exemption had been given by that order was either a terminal tax or a fee and not a tax.
Since what is being levied as octroi from the year 1960 was a tax, the order of exemption would be inapplicable to it.
In support of the first part of this argument that the tax referred to in the order of exemption could only be a terminal tax reliance was placed on a decision of the Federal Court in The Punjab Flour and General Mills Co., Ltd. Lahore vs The Chief Officer, Corporation of the City of Lahore and the Province of the Punjab.(1) In that case the Federal Court had to construe the meaning of entry 58 of List I of the Seventh Schedule to the Government of India Act, 1935 which read as '58.
Terminal taxes on goods or passengers carried by railway or air; taxes on railway fares and freights ' and of entry 49 of List II of the Seventh Schedule to the Government of India Act, 1935 which read as '49.
Cesses on the entry of goods into a local area for consumption, use or sale therein '.
The facts in that case were these: The Lahore Municipality had in the year 1926 imposed under its then existing power of taxation a tax called terminal tax calculated on the gross weight of consignments or per tail as the case might be at the rates and on the specified articles or animals, specified in the Schedule to the notification imposing the levy, imported into its municipal limits by rail or by road.
This was superseded by a notification issued in the year 1938 by which the municipality gave notice of the imposition of a new tax called 'octroi (without refunds) ' which was to be calculated on the gross weight of consignments and on animals per tail at the rates and on the articles specified in the Schedule to the relevant notification 329 imported into its limits.
This notification was superseded by a further notification of the year 1940 by which a tax called 'octroi (without refunds) ' was to be charged at the new rates with effect from May 11, 1940 on consignments including grain, imported into its limits.
The Punjab Flour and General Mills Co. Ltd., Lahore which was importing for use or consumption grain into its factory which was situated within the Lahore municipal limits contended that the tax in question was a terminal tax, by whatever name it might have been called, falling under entry 58 of List I of the Seventh Schedule to the Government of India Act, 1935 and was not imposable in 1938 or in 1940 after the relevant provisions of the Government of India Act, 1935 had come into force.
It was contended by the company that the tax in question did not fall under entry 49 of List II of the Seventh Schedule to the Government of India Act, 1935.
The Federal Court after explaining the difference between the terminal taxes and cesses which can be levied on goods imported into a local area for purposes of use, consumption or sale therein rejected the contention of the company with these observations: "There appears to us a definite distinction between the type of taxes referred to as terminal taxes in entry No. 58 of List 1 of the Seventh Schedule and the type of taxes referred to as cesses on the entry of goods into a local area in entry No. 49 of List II.
The former taxes must be (a) terminal (and) (b) confined to goods and passengers carried by railway or air.
They must be chargeable at a rail or air terminus and be referable to services (Whether of carriage or otherwise) rendered or to be rendered by some rail or air transport organisation.
The essential features of the cesses referred to in entry No. 49 of List II are on the other hand simply (a) the entry of goods into a definite local area and (b) the requirement that the goods should enter for the purpose of consumption, use sale therein.
It is to be noted that there is no limitation on the manner by which the goods to be subjected to such cesses may enter.
There is no ground for suggesting that entry of goods by rail or air is any less contemplated than entry by waterway or road.
It was argued by the appellant 's counsel that because by entry No. 20 of List I Federal railways and the regulation of railways and so forth is included in the Central Government Legislative List and by List II the Provincial 330 Government is mainly given powers of legislation over roads and internal waterways and transport thereon (entry No. 18), it should therefore be deduced that all taxation on rail and air borne goods must be imposed, if at all, under the powers conferred by entry No. 58 of List 1 and that powers of taxation conferred by entry No. 49 of List II must be confined to goods that enter by road or internal waterway only.
We cannot accept this argument.
It is not in our judgment justified by the wording of the various entries in the two Lists and would impose a limitation on local taxation under entry No. 49, in List II, which would often work most inequitably in practice between those importing goods by road or waterway and those who could import by rail or air.
In our judgment there is no limitation to be implied in entry No. 49 List II, in regard to the manner in which goods may be transported into a local area.
It follows that so far as rail borne goods are concerned the same goods may well be subjected to taxation under entry No. 58 of List I as well as to local taxation under entry No. 49 of List II.
The grounds of taxation under the two entries are as indicated above, radically different, and there is no case for suggesting that taxation under the one entry limits or interferes in any way with taxation under the other.
" It is true that in the course of the above decision it is observed that the element of service to be rendered is treated as an ingredient of a terminal tax but that does not mean that when tax is clearly laid on goods when they are brought into a local area for purposes of use, sale or consumption, it ceased to be a tax levied under section 128 (1) (viii) read with entry 49 of List II of the Seventh Schedule to the Government of India Act, 1935 merely because of the reason given for granting exemption under the order the Provincial Government dated November 20, 1936 issued under section 157 (3) of the Act.
There is no doubt that the octroi which was being levied in 1936 when the exemption was granted and the subsequent levy imposed in the year 1960 are both taxes levied under the Act and fall within the State List both under the Government of India Act, 1935 and under the Constitution.
It was not a terminal tax falling under entry 58 of List I of the Seventh Schedule to the Government of India Act, 1935.
It does not 331 also fall under entry 89 of List I of the Seventh Schedule to the Constitution now.
The said levy came within entry 49 of List II of the Seventh Schedule to the Government of India Act, 1935 and now falls under entry 52 of List II of the Seventh Schedule to the Constitution.
The exemption granted in the year 1936 should be construed as an exemption from all taxation by way of octroi leviable and levied under the Act on rail borne sugarcane and that exemption would continue until it is either rescinded or modified or becomes inapplicable for any other reason.
The second part of the above submission was that the levy was in the nature of a fee and not a tax as it had been described as a cess in entry 49 of List II of the Seventh Schedule to the Government of India Act, 1935.
There is no merit in this submission also.
A cess may either be a tax or a fee.
Whether a cess in a given context is a tax or a fee depends upon the purpose for which it is levied.
The very decision relied on by the respondents in this connection, namely The Hingir Rampur Coal Co., Ltd. & Ors.
vs The State of Orissa & Ors.(1) substantiates the above view.
In that case this Court held that the cess imposed by the Orissa Mining Areas Development Fund Act, 1952 was a fee relatable to entries 23 and 66 of List II of the Seventh Schedule to the Constitution having regard to the object and the scheme of that Act and the purpose for which the cess collected under it was to be used.
There is no doubt that in entry 49 of List II of the Seventh Schedule to the Government of India Act, 1935 the expression 'cesses ' is used in the sense of 'taxes '.
In entry 52 of List II of the Seventh Schedule to the Constitution, the expression 'taxes ' is substituted in the place of the expression 'cesses ' which was in the former entry 49 in the Government of India Act, 1935 but the nature and content of the legislative power under both are the same.
The decision of the Federal Court in the case of the Punjab Flour and General Mills Co. Ltd. (supra) itself shows that a cess levied in exercise of the power under entry 49 of List II of the Seventh Schedule to the Government of India Act, 1935 was a tax irrespective of any refund allowed or not allowed by the Government as can be seen from the following observation made by the Federal Court at page 26 of the Report: "We can see no cause whatsoever for holding that if cesses are imposed in pursuance of the powers conferred 332 by entry No. 49 in List II, any provision need be made for refunds.
Whether or not there should be any refunds in respect of such cesses appears to us to be a matter open for determination by Provincial or local taxing authority, and the existence or non existence of a provision of system of refunds cannot affect the tax being or not being a cess within entry No. 49.
" It is also significant that the word 'octroi in section 128 (1) (viii) of the Act is found in the group of taxes referred to in section 128.
All sums received by a Municipal Board on account of the various levies made under section 128 have to be credited to the municipal fund under section 114 of the Act which can be utilised for the purposes of the Municipal Board as stated in section 120 of the Act.
The sum received as octroi is also dealt with like any other tax.
There is no element of quid pro quo between the person who pays the octroi and the Municipal Board.
Hence octroi being a tax it was competent to the Provincial Government to make an order under section 157 (3) of the Act exempting railborne sugarcane from payment of octroi.
The next submission urged before us is that the appellants having failed in an earlier writ petition in which they had questioned the validity of the levy of octroi cannot now be permitted to challenge the levy again in these proceedings.
The facts bearing on the above contention are these: In the year 1960, by a notification published in the Official Gazette dated April 23, 1960 the Municipal Board of Pilibhit promulgated new rules relating to the levy of octroi and also published a fresh schedule of rates of octroi in the Official Gazette dated May 18, 1960.
This was done with the previous sanction of the State Government under section 133 of the Act.
The octroi imposed by these notifications related to number of articles including sugar, sugarcane etc.
The appellants who were liable to pay octroi on many of those articles challenged in a petition filed under Article 226 of the Constitution in Civil Misc.
Writ No. 2310 of 1960 on the file of the High Court of Allahabad the validity of the levy on the ground that the procedure followed in imposing octroi at the fresh rates was not valid It was also pleaded that sugar industry being a controlled industry levy of octroi on sugar was invalid.
By that notification octroi had been imposed also on the import of sugarcane into the municipal limits of Pilibhit for purposes of sale, use or consumption.
That petition was 333 dismissed by the High Court.
It is urged that because that petition had been dismissed, it is not open to the appellants now to contend that the exemption granted under the order of 1936 was still available.
The High Court has accepted this contention urged on behalf of the respondents.
With due respect, we should say that the conclusion of the High Court on the above point is erroneous.
In the earlier writ petition, the appellants had challenged the validity of the new octroi bye laws and the imposition of octroi on many articles brought by them into the municipal limits.
By reason of the dismissal of the writ petition, they would no doubt be not entitled to reagitate the same question.
In this case the question involved is a different one and that is whether even if the octroi bye laws and the imposition of octroi on sugarcane was good, the Municipal Board of Pilibhit is competent to recover octroi on sugarcane brought by rail by reason of the exemption accorded under section 157 (3).
There is however, no dispute that octroi would be payable under the octroi bye laws when sugarcane is brought by the appellants by any other means of transport.
In the circumstances, the High Court was in error in holding that the order of exemption granted under section 157 (3) was the same as any general rule or special order of the State Government referred to in sub section (1) of section 128 subject to which the Municipal Board may impose any tax referred to therein and the effect of the exemption granted in 1936 was also in issue in the earlier writ petition.
In that writ petition the said question was neither directly nor constructively in issue in that case.
An exemption becomes operative only when the tax is validly imposed under section 128.
The restriction that may be imposed by any general rule or special order of the State Government under section 128 (1) affects the initial power of the Municipal Board to levy a tax.
An order under section 157 (3) operates only after a tax is validly imposed with the sanction of the State Government or of the Commissioner as the case may be, as stated in section 133 of the Act.
It is, therefore, open to the appellants to contend even after the dismissal of their earlier petition that they are entitled to the limited exemption granted by the order of 1936, generally in favour of a number of sugar factories in several municipal areas.
The decision of the High Court of Allahabad in Vir Singh & Ors.
vs Municipal Board & Anr.(1) also has no bearing on this question.
334 The next question is whether the nature of the tax levied under clause (viii) of section 128(1) of the Act has undergone any change after the commencement of the Constitution.
The said clause has not been materially amended after the commencement of the Constitution.
While it formerly read as 'an octroi on goods or animals brought within the municipality for consumption or use therein ' now it reads as 'an octroi on goods or animals brought within the municipality for consumption, use or sale therein ' by reason of the addition of the word 'sale ' by an amending Act passed subsequent to the commencement of the Constitution.
The High Court has observed that after the commencement of the Constitution there has been a material change in the nature of octroi levied under the Act and on account of the framing of the new bye laws the exemption granted under section 157(3) would no longer be available for the following reasons: "It is significant that under Government of India Act, 1935, 7th Schedule, List II, item No. 49 provides cess on the entry of goods into the local area for consumption or use or sale therein.
For the purposes of cess, it was necessary that the local body should render some service as principle of quid pro quo applies.
Under the Constitution of India 7th Schedule, List II, item No. 52 provides for levying taxes on the entry of goods into the area for consumption or use or sale therein.
The tax certainly is different from cess and as such different considerations arise for levying taxes.
Learned counsel for the opposite party has also pointed out that by Act VII of 1953, section 128(1) (viii) has been substituted and as such more powers were conferred on the Municipal Board.
The only difference is that octroi can now be imposed on goods meant for sale also.
The fact remains that the Government order of 1936 was under section 157(3) of the Act and as such had the effect of allowing exemption with regard to levy of octroi duty on sugarcane according to the rules then in force.
When the rules themselves were changed and new bye laws had been enforced, which had the sanction of State Government or the delegated authority that exemption could no longer apply unless fresh order was passed under section 157(3) of the Act.
" 335 With respect, we should express our disagreement with the above view.
As already observed by us, under the Government of India Act, 1935, octroi leviable under entry 49 of List II of the Seventh Schedule thereto was not a fee but was a tax.
The new set of bye laws with the modified rates of octroi brought into force in 1960 by the Municipal Board though with the sanction of the State Government does not have the effect of rescinding or annulling the exemption granted under section 157(3) by the former Provincial Government.
An order under section 157(3) can be withdrawn or modified by the State Government only.
Even if the said provision is capable of a construction that when the new bye law or rates of tax imposed by the Municipal Board with the sanction of the Government under section 133 which are totally inconsistent with the exemption granted earlier under section 157(3) the exemption would cease, in the instant case we do not find any such irreconcilable inconsistency between the notification published in 1960 and the order of exemption made in the year 1936 which is in respect of a number of municipalities.
While under the notification of 1960 octroi is payable on the import of sugarcane into the municipal limits for purposes of sale, use or consumption, by virtue of the order made in 1936 under section 157(3) sugarcane brought by rail and delivered at the railway siding inside the factory premises alone is exempted from the levy of octroi.
Sugarcane brought by other means of transport would be governed by the notification issued in 1960.
It is worthy of note that there is no provision in the notification of 1960 to the effect that the said exemption is either withdrawn or that sugarcane brought by rail would be taxable.
The order of exemption does not say that it relates to a particular tax levied under a specific notification issued by a particular Municipal Board.
It is in general terms and therefore the exemption would continue to operate even after the notification was issued in 1960 in supersession of the former notification in so for as rail borne sugarcane is concerned.
If the contention urged by the Municipal Board is accepted, then it would indirectly arm a Municipal Board to get over any order of exemption passed by the State Government by merely amending its taxation bye laws.
It may be noted here that in the case of municipalities other than city municipalities, the sanctioning authority is the Commissioner and not the State Government while under section 157(3) the State Government alone can grant exemption.
Hence such a construction should be avoided.
It is significant that for nearly eight years after the promulgation of the new bye laws no claim was made by the Municipal Board in respect of octroi payable on rail borne sugarcane 336 and subsequently the State Government by the letter dated June 3, 1982 referred to above has enlarged the scope of exemption by exempting from payment of octroi on sugarcane brought into the municipal limits of all municipalities for crushing in the sugar mills irrespective of the mode of transport employed for bringing it.
On a consideration of all the contentions urged by the parties before us we hold that the Municipal Board of Pilibhit was not entitled to collect octroi on sugarcane brought into its municipal limits by the appellants by rail on the relevant date.
The prosecution, therefore, is not sustainable.
In the result, this appeal is allowed, the judgment of the High Court is set aside and the proceedings in the Magistrate 's court out of which this appeal has arisen are quashed.
There will be no order as to costs.
H.S.K. Appeal allowed.

dataset_name: IN-Abs

summary/full:
The respondent Municipal Board filed a complaint in the trial court against the appellants under section 155 of the U.P. Municipalities Act, 1916 alleging that the appellants had brought by railway on November 30, 1967 at the railway siding in their sugar factory within the limits of the respondent for purposes of consumption or use certain quantity of sugarcane without paying octroi payable under the new bye laws of the respondent published on May 18, 1960.
The appellants pleaded that since the payment of octroi on sugarcane brought by railway at the railway siding situated inside their factory had been exempted by U.P. Government 's order dated November 20, 1936 passed under section 157 (3) of the Act the prosecution should fail.
As the respondent went on seeking adjournments and the case remained undisposed of for nearly four years, the appellants filed a petition under section 561 A of the Code of Criminal Procedure, 1898 in the High Court for quashing the proceedings on the ground that they were vexatious.
The High Court dismissed the petition observing that after the commencement of the Constitution there has been a material change in the nature of octroi levied under the Act and on account of the framing of the new bye laws the exemption granted under section 157(3) of the Act would no longer be available.
The High Court held that since a petition filed by the appellants challenging the notification containing the new bye laws was earlier dismissed by the High Court it was not open to the appellants now to contend that the exemption granted under the Order of 1936 was still available.
In this appeal the respondent contended that the levy from which exemption had been given by the Order of 1936 was either a terminal tax or a fee and not a tax and since what was being levied as octroi from the year 1960 322 under the new bye laws was a tax, the order of exemption would not be applicable to it.
Allowing the appeal, ^ HELD: The respondent was not entitled to collect octroi on sugarcane brought into its municipal limits by the appellants by rail on the relevant date.
[336 B] The word 'octroi ' in section 128(1) (viii) of the Act is found in the group of taxes referred to in section 128.
The sum received by a Municipal Board on account of octroi is also dealt with like any other tax.
There is no element of quid pro quo between the person who pays the octroi and the Municipal Board.
The octroi leviable under entry 49 of List II of the Seventh Schedule to the Government of India Act, 1935 was not a fee but was a tax.
[332 B C, 335 A] A cess may either be a tax or a fee.
Whether a cess in a given context is a tax or a fee depends upon the purpose for which it is levied.
In entry 49 of List II of the Seventh Schedule of the Government of India Act, 1935 the expression 'cesses ' is used in the sense of 'taxes '.
In entry 52 of List II of the Seventh Schedule of the Constitution the expression 'taxes ' is substituted in the place of the expression 'cesses ' which was in the former entry 49 in the Government of India Act, 1935, but the nature and content of the legislative power under both are the same.
[331 C, E F] When tax is clearly levied on goods when they are brought into a local area for purposes of use, sale or consumption, it does not cease to be a tax levied under section 128(1) read with entry 49 of List II of the Seventh Schedule to the Government of India Act, 1935 merely because the municipalities concerned render no service with regard to it.
G] The Punjab Flour and General Mills Co., Ltd., Lahore vs The Chief Officer, Corporation of the City of Lahore and the Province of the Punjab, ; and The Hingir Rampur Coal Co., Ltd., & Ors.
vs The State of Orissa & Ors., ; referred to.
The octroi which was being levied in 1936 when the exemption was granted and the subsequent levy imposed in the year 1960 are both taxes levied under the Act and fall within the State List both under the Government of India Act, 1935 and under the Constitution.
It was not a terminal tax falling under entry 58 of List I of the Seventh Schedule to the Government of India, Act, 1935.
It does not also fall under entry 89 of List I of the Seventh Schedule to the Constitution now.
The said levy came within entry 49 of List II of the Seventh Schedule to the Government of India Act, 1935 and now falls under entry 52 of List II of the Seventh Schedule of the Constitution.
The exemption granted in the year 1936 should be construed as an exemption from all taxation by way of octroi leviable and levied under the Act on rail borne sugarcane and that exemption would continue until it is either rescinded or modified by the State Government or becomes inapplicable for any other reason.
The new set of bye laws brought into force in 1960 by the Municipal Board though with 323 the sanction of the State Government does not have the effect of rescinding or annulling the exemption granted under section 157(3) by the former Provincial Government.
[330 G, 331, A B, 336 A D] There is no irreconcilable in consistency between notification published in 1960 and the order of exemption made in the year 1936.
While under the Notification of 1960 octroi is payable on the import of sugarcane into municipal limits for purposes of sale, use or consumption, by virtue of the order made in 1936 under section 157(3) sugarcane brought by rail and delivered at the railway siding inside the factory premises alone is exempted from the levy of octroi.
Sugarcane brought by other means of transport would be governed by the notification issued in 1960.
There is no provision in the notification of 1960 to the effect that the said exemption is either withdrawn or that sugarcane brought by rail would be taxable.
[335 C E] The High Court was in error in holding that the order of exemption granted under section 157(3) was the same as any general rule or special order of the State Government referred to in sub section (1) of section 128 subject to which the Municipal Board may impose any tax referred to therein and the effect of the exemption granted in 1936 was also in issue in earlier writ petition.
In that writ petition the said question was neither directly nor constructively in issue.
An exemption becomes operative only when the tax is validly imposed under section 128.
The restriction that may be imposed by any general rule or special order of the State Government under section 128(1) affects the initial power of the Municipal Board to levy a tax.
An order under section 157(3) operates only after a tax is validly imposed with the sanction of the State Government or of the Commissioner as the case may be, as stated in section 133 of the Act.
It is therefore, open to the appellants to contend even after the dismissal of their earlier petition that they are entitled to the limited exemption granted by the Order of 1936.
[333 D G] Vir Singh & Ors.
vs Municipal Board & Anr., Civil Misc.
Writ No. 3181 of 1960 decided on May 4, 1960, not relevant to the point raised.


judgement:
N: Criminal Appeal No. 440 of 1974.
314 Appeal by Special leave from the Judgment and Order dated the 17th September, 1974 of the Patna High Court in Crl.
Appeal No. 579 of 1969.
Davendra N. Goburdhan & D. Goburdhan for the Appellant.
S.N. Jha 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 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 on 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.
The appellant was committed to face the trial for an offence punishable under section 376 of the Indian Penal Code by the order of the Munsiff Magistrate, 1st Class, Purnea on the basis of a complaint filed by the complainant Barki Devi (P.W. 3) before the Sub Divisional Officer, Sadar, Purnea on August 9,1968 who took cognizance of the Offence and transferred the case to the file of the aforesaid Magistrate.
The allegations made in the complaint are briefly these: That on August 1, 1968 at about 5.00 P.M, the complainant, who was a married woman of about 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 Dhumra Badh situated in Mouza Dhamdaha, Police Station Dhamdaha, District Purnea.
There was a canal to the east of the field and there were no houses nearby.
When she was 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 protesting at his suggestion, the appellant suddenly caught hold of her, threw her down on the ground, removed her clothes and committed rape on her.
On hearing her cry for help, 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 local Mukhiya who asked them to file 315 a complaint in the Court.
Then they went to the police thana to give information about the crime but the police officer declined to 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 contained the names of some witnesses.
At the trial the complainant was examined as P.W. 3.
She belongs to the Santhal tribe.
In her evidence she described 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. I) came there and on seeing him, the appellant ran away.
She also stated that she narrated the incident to 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 ground to them.
She also stated that she narrated the incident before her husband and the Mukhiya of the village.
She further stated that 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. 1) corroborated the evidence of the complainant by deposing that when he reached the scene of occurrence he saw the appellant lying on top of the body of the complainant.
Juman Nadaf (P.W. 2) stated that when he went near 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 crime committed by the appellant.
Jitrai (P.W. 4) the husband of the complainant stated that in the evening of the day of occurrence the 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 stated that the 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 of the Indian Penal Code and imposed on him a sentence of rigorous imprisonment for five years.
The High Court dismissed 316 the appeal filed by the appellant.
This appeal by special leave is filed against the judgment of the High Court.
When the appeal was heard by this Court on March 6, 1980, it was ordered that the trial court should record 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.
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 turn hostile but that by itself would not prevent a court from finding 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.
The point for consideration in this case is whether the approach adopted by the High Court and the trial court to the case is correct and whether the material is sufficient to warrant the conviction recorded by them.
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 Mohamed Halim and Mohamed Naiyeem on the one hand and himself 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 servants 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 fatal to the prosecution.
It is further 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.
The trial court has negatived the contentions of the appellant.
The trial court held that it had not been established that the complainant and her husband were under the thumb of Mohamed Halim and 317 Mohamed Naiyeem.
The husband of the complainant owned some lands and the complainant and her husband were also working as labourers.
The trial court was of opinion that the complainant had not given a false complaint in order 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 incident and 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 now 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 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 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 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 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 the complainant, it has to be stated that it would be asking the 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 witnesses 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 would not have even able to secure the evidence of such a negligent police official.
The fact remains the complainant has referred to 318 this in her complaint on the very next day and she and her husband 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 which contained semen, the trial courts has observed that the complainant being a woman who had given birth to four children it 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 to know that they should rush to a doctor.
In fact the complainant has deposed that she had taken bath 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 consequence if the other evidence on record is believable.
It is, however, nobody 's case that there was such a report and it had been withheld.
A reading of the deposition of the complainant shows that it 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 accused person and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.
But the rule of practice is that it is prudent to look for corroboration of the evidence of an accomplice by other independent evidence.
This rule of practice is based on human experience and is incorporated in illustration (b) to section 114 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 rendered in our country over a number of years, the evidence of the victim in a rape case is treated almost like the evidence of an accomplice requiring corroboration.
(Vide Rameshwar vs The State of Rajasthan,(1) Gurucharan Singh vs State of Haryana(2) and Kishan Lal vs State of Haryana).(3) It is accepted by the Indian courts 319 that the rule of corroboration in such cases ought to be as enunciated by Lord Reading C.J. in King vs Baskerville.(4) Where 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 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 mind when he prepared 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 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 evidence.
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. 1), Juman 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. 1) has 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 (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 complainant.
Apart from the evidence of Sheikh Lafid (P.W. 1) 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 320 before us including the evidence of the witnesses examined pursuant 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.
The appeal therefore, fails and it is dismissed.
The appellant who is on bail is directed to surrender and to undergo the remaining part of the sentence imposed on him.
H.L.C. Appeal dismissed.

summary/full:
The appellant was convicted under section 376, I.P.C., for raping a tribal woman mainly on the evidence of the victim who was the complainant, her husband and two other witnesses, 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 from the scene of occurrence.
The High Court dismissed the appeal and confirmed the conviction.
The appellant submitted that the local Mukhiya to whom the complainant and her husband were alleged to have gone to complain about the incident immediately after its occurrence, the police officer who was alleged to have refused to record the complaint and also two other witnesses mentioned in the complaint had not been examined by the prosecution and this, together with the absence of a medical examination report given by a doctor after examining the person of the complainant immediately 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 the orders made by the Court and they did not support the prosecution case.
Dismissing the appeal, ^ HELD: Even though a victim of rape cannot be treated as an accomplice, on account of a long line of judicial decisions the evidence of the victim in a rape case is treated almost like the evidence of an accomplice requiring corroboration.
Section 133 of the Evidence Act says that an accomplice shall be a competent witness against an accused person and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.
But the rule of practice is that it is prudent to look for corroboration of the evidence of an accomplice by other independent evidence.
This rule is based on human experience and is incorporated in illustration (b) to section 114 of the Act.
There must be an indication in the course of the judgment that the judge had this rule in his mind when he prepared the judgment 313 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 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 is not necessary that every part of the evidence of the victim should be confirmed in every detail by independent evidence.
Such corroboration can be sought from either direct evidence or circumstantial evidence or from both.
[318 E H; 319 A D] Rameshwar vs State of Rajasthan, ; ; Gurucharan Singh vs State of Haryana, ; Kishan Lal vs State of Haryana, ; ; King vs Baskerville , referred to.
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 witnesses.
The statement made by the complainant to her husband immediately after the incident is admissible under section 157 of the Act and has a corroborative value.
[319 F H] The Mukhiya has not given any version about the incident but has merely stated that the complainant and her husband had not gone to him to complain.
It is significant that his name figured in the complainant as a witness.
The complainant could not have taken the risk of including his name if he had not been actually contacted by her.
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.
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 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 the other witness examined along with the Mukhiya.
The non 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 the prosecution.
[317 C H] The complainant and her husband being persons belonging to backward community like the Santhal tribe living in a remote area could not be expected 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 complainant.
Merely because the complainant was a helpless victim who was by force prevented from offering serious physical resistance she cannot be disbelieved.
[318 B D]