T.N.R. Tirumalpad, J.C.
1. This is a revision petition against the conviction and sentence of the petitioners by the Assistant Sessions Judge in Sessions Case No. 17 of 1960, in which the first petitioner Anu Mia was convicted under Section 378, I.P.C. for committing rape on a girl Uria Khatun, (P.W. 3) aged 11 to 12 years, on 17.5.1959, at about noon in the village of Khupilong, and the second petitioner Abdul Rasid was convicted under the same section for committing the offence of rape on a girl called Lalmati, (P.W. 12) aged 14 years, the elder sister of Uria Khatun, at the same time and on the same date near the same place. Each of them was convicted and sentenced to 3 1/2 years' R.I. Both of them appealed to the Sessions Judge in Criminal Appeal No. 95 of 1960. But the appeal was dismissed and the Sessions Judge even remarked that the sentences passed on them were really inadequate, Now they have come up in revision.
2. I have perused the entire evidence in the case, as it was strenuously argued for the petitioners that there was no evidence to convict them and that the judgments of the lower Courts were perverse. It is not necessary for me in this revision to deal with all the facts as they have been, dealt with in very great detail by the Assistant Sessions Judge in a careful judgment in. which he has dealt with all the objections raised by the defence lawyer. The entire oral evidence has been fully discussed by the Assistant Sessions Judge, who saw the witnesses give evidence before him and who was therefore in a position to judge whether the witnesses could be relied upon. Again, the appellate Court has dealt with the entire evidence and has fully agreed with the Assistant Sessions Judge that the case has been brought home against the petitioners. In the case of such concurrent findings on questions of fact, it is not necessary in this revision to deal with the same matters over again, particularly, as I have satisfied myself after a full perusal of the entire evidence that the conclusion arrived at by the lower Courts, was quite correct. Hence, I do not propose to deal with the evidence.
3. It was pointed out for the petitioners by their learned Counsel that the two petitioners were charged with distinct and separate offences, namely, that the first petitioner Anu Mia raped Uria Khatun, (P.W. 3) while the second petitioner Abdul Rasid raped Lalmati, (P.W. 12) and that therefore they should never have been tried jointly under Section 239(d), Cr.P.C. and that such joint trial has vitiated the entire proceedings. This question was raised by the petitioners before the lower appellate Court and it was considered by the said Court in paragraph 8 of its judgment and it was held that the two different offences were committed by the two petitioners in. the course of the same transaction and that therefore there was no illegality or irregularity in a joint trial.
4. Section 239(d) provides that persons accused of different offences committed in the course of the same transaction may be charged or tried together. In this case, the prosecution alleged that at about mid-day on 17.5.59, Lalmati (P.W. 12) and Uria Khatun (P.W. 3), the victims in the two offences along with a small boy Rejak Mia (P.W. 2), went to collect snails to a place called Shymacharan's Khamar, about a mile away from their house, that at that time the two petitioners and one Samed and one Arab AH (P. W. 11) were grazing cattle in the Khamar, that seeing the girls, Anu Mia first petitioner proposed that they should catch hold of the girls and commit rape on them and that accordingly, Anu Mia caught hold of Uria Khatun, while Abdul Rashid and Samed caught hold of Lalmati and in spite of the cries of the two girls, Lalmati was dragged into a jungle nearby by Abdul Rasid and Samed and raped by Abdul Rasid, while at the same time Uria Khatun was dragged into a bamboo bush nearby and raped by Ami Mia. During this time Abdul Rejak, the young boy was standing in the field weeping. After the two girls were released, both of them were weeping and recounted to each other what transpired and the two girls and the boy went away weeping.
5. On the way, they met Achia Khatun (P.W. 8) and along with her went1 to P.W. 8's mother's house, which was on the way to their house. The two girls recounted the story to P.W. 4 Nekjan Bibi, mother of Achia Khatun. Nekjau Bihi was the wife of their father's maternal uncle Hachan Ali (P.W. 5). P.W. 4 accompanied the two girls to their house, as they did not dare to go home for fear of being beaten by their father and step-mother. On reaching home, the two girls again related the story to their father's sister P.W. 10 Amena Khatun, while P.W. 4 related it to the step-mother. The mother of the two girls had died during their infancy. The father was then not: at home. Later, P.W. 4 mentioned the incident to P.W. 5 her husband.
6. When the father Sekhandar Mia (P.W. 1) returned home at night, his brother Mamtaz Mia and P.W. 5 told him about the occurrence. He questioned his daughters and they also told him. Then he went to some of the Sardars of the village the same night and reported the matter to them He also went to P.W. 6 Gol Mohammed the father of Arab Ali (P.W. 11) who was present at the occurrence. But P. W. 1 could not get any relief from the Sardars as the accused persons refused to go for a Panchayat. The next morning P.W. 1 went to P.W. 9 Samsul Haque and told him about it. But P.W. 9 advised him to report the matter to the Police. P.W. 1 was told by P.W. 9 that the Police were arriving in the village in connection with another case that day. Accordingly, as soon as P.W. 14, the O/C. of R.K. Pur Police Station arrived at the village at 1-30 P.M. on 18.5.59, P.W. 1 gave the F.I.R. to him. The petitioners were arrested on the same day by P.W. 14 and taken to the Police Station 6 miles away along with P.Ws. 1 and the two girls. The next morning the two girls were examined by the Doctor P.W. 13 and he found the clearest possible proof from the conditions of their genitals that the two girls had been raped.
7. I have mentioned these, facts for the Purpose of showing that though the actual offences were committed by the two petitioners on the two girls separately, the offences were committed in such a way that they could be said to be part of the same transaction. The two offenders along with two others were together when they sighted the girls coming together. The suggestion was made by Ami Mia that they should rape the girls and as a result of this suggestion Arm Mia caught hold of one girl and Abdul Rasid caught hold of the other girl. Thus, the actual offences alone took place separately. What transpired subsequent to the occurrence was also common. The evidence of what took place before the occurrence and after the occurrence was also common. Only regarding the actual rape, Lalmati spoke of what happened to her and Uria Khatun us to what happened to her. Arab Ali was witnessing what was happening to both of them though he did not see the actual rape as that was committed in the jungle and bamboo bush.
8. Thus this is a case where Section 239(d) will apply completely. In fact, I should say that the evidence being completely common against both the petitioners, a joint trial was not only correct in law, but very necessary and desirable. I see no point at all in the objection raised by the petitioners' counsel.
9. It was pointed Out to me from the evidence of P.W. 13 the Doctor that the injuries he noticed in the private parts of the two girls could have been caused by finger or some other substance and it was argued that it was possible from this that the injuries could have been-caused in. another manner and so the petitioners should have been given the benefit of doubt. But the Doctor has stated that, in his opinion, rape was committed on the two girls. In fact, he saw marks of semen in the neighbourhood of the external genitals of Uria Khatun. He, also saw semen, stains on the Lungi of Abdul Rasid when he was produced before the Doctor on 19.5.59. It is impossible to believe the defence suggestion that such injuries would have, been caused by other interested persons on the two girls with the idea of foisting false charges of rape on the petitioners. The evidence in the case was too overwhelming against the petitioners to accept any such suggestion.
10. The petitioners' defence was that there was faction in the village and that P.W. 1 belonging to one faction brought the false charge against the petitioners, because they belonged to the other faction. But no evidence was let in for the defence on this matter.
11. It was next pointed out that in the F.I.R., and in the first statement made by Lalmati to P.W. 4 and to the Police, it was alleged that not only Abdul Rasid, but Samed also committed rape on her, but that in the course of the trial, Samed was completely exonerated by Lalmati and that I therefore her evidence ought to have been rejected by the lower Courts. But there was evidence in the trial that Samed was also present at the time and he also joined in dragging Lalmati along with Abdul Rasid to the jungle. Samed was also arrested by the Police and charge-sheeted, but he was discharged in the committing Court. Samed is the brother of Anu Mia. It is quite possible, that an attempt has been made subsequently by the prosecution witnesses to suppress the lull part played by Samed. In my opinion, that will not make the rest of the story spoken to by the P.Ws. any the less believable.
12. The evidence of the girls and of Arab Ali supported by the subsequent conduct of the girls in immediately reporting the matter to P.W. 4 and the injuries in the genitals of the girls seen by the Doctor clearly proved the case beyond any possible doubt against the petitioners.
13. I see no reason at all to interfere with their conviction and sentence in this revision.