1. These are three consolidated appeals arising out of a Sessions trial held by the learned Additional Sessions Tudee, U. A. D., at Dibnurarh. Appeal No. 48(J) of 1956 has been filed from Jail by the four accused persons (1) Kamakbya Prasad Agarwalla, (2) Khitish Chandra Das, (3) Badalananda Ganguli, and (4) Siddique Mohammad. Accused Kamakhya Prasad Agarwalla has filed an appeal independently, it being Cr. Ap. No. 44 of 1936, and Badalanarida Ganguli also has filed another appeal independently, it being Cr. Ap. No. 52 of 1956.
All these appeals were heard together, Kamakhya Prasad Agarwalla and Badalananda Ganguli being represented by learned advocates on their behalf; nobody, however, appeared on behalf of appellants Khitish Chandra Das and Siddique Mohammad. All the four appellants were found guilty of and convicted under Sections 366 and 376, I. P. C. and sentenced to five years' rigorous imprisonment each on each count, the sentences running concurrently.
2. The prosecution story is that on the night of 8-11-53, three persons Nirocle Kumar Hemram, aged about 22, Roben Christian, aged about 25, and Jibon Christian, brother of Nirode, a boy of about 18, along with two minor girls, Musst. Ellis Merry and Musst. Prami Christian, alleged to be aged between 14 and 15, proceeded from Dangri Tea Estate to Daisa Tea Estate, a distance of about ten miles, to attend certain cinema show, possibly an open performance, it being the night of the Kali Puja. P. Ws. Nirode and Jibon, along with the two girls, came from Dangri, and Roben Christian, who used to live in Talp Tea Estate and claims to be their relation, accompanied them, and the party readied Daisa T. E. by bus by about 8 P. M. in the evening.
After the show was over at about 2 A. M., the party wanted to board the lorry by which they had gone there, but finding it too congested because of other passengers having already occupied it, they were compelled to proceed On foot, and so they did for nearly two hours, when they reached near Tipuk Tea Estate and were at a short distance from the Talap Railway Station, they saw the lorry coming once again on the second trip from the side of Daisa Tea Estate and crossing them (the number of the lorry being given as ASJ. 2637).
The lorry stopped at a short distance after crossing Nirode and his companions, and then five persons, including the four accused, got down from the lorry and waited till Nirode and his party came up to them.
They started talking with Nirode just to ascertain who they were and where they were going, and so on, and thus spent a short interval. But suddenly, as soon as they reached near the first Signal at Talap Station, these five men dragged and carried away the two girls. Musst. Ellis Merry and Musst. Premi Christian, by show of force.
They showed daggers to the male companions who ran away in fright, and the girls were dragged away in spite of their protests, Khubang, Talap and Tipuk -these three tea gardens converge at this place, Nerode then came to the Talap Railway Station and there met a gangman, P. W. 8 Lakhi Majhi, to whom he complained about the occurrence and reported that both the girls had been dragged away from their company by some five persons. Lakhi Majhi did not offer him any help.
Nirode, his brother Jibon, and Robon had to wait for some time near about the Station till it was morning, when Mnsnt. Ellis Merry first muddier appearance and told them that two, out of the five, persons who dragged them, had ravished her and she had somehow escaped from the hands of a third man.
She, however, did not know what had happened to the other girl, Musst. Premi Christian, who was dragged away in a different direction, Nirode allowed the girl Ellis Merry to proceed home with his brother Jibon, and he and Roben proceeded by train to the Doomdoorno Railway Station to lodge the first information report at the thana, which he did at about 10.10 A. M. on the morning of the 9th of November, 1953. Soon after, at about 11 A. M., Jibon appeared at the thana with the two girls, and the Police, alter recording the first information report, started investigation and proceeded to the place where the occurrence was alleged to have taken place.
3. It was mentioned in the first information re-port that out of the five persons who dragged away tile girls and who had subsequently participated in ravishing them, three persons were recognised, who were named as Kaniakhya Marwari, Khitish Bengali and Badal Bengali, and the other two were also from Talap Balibazar, whom Nirode knew by face. Talap Balibazar is said to be a place near Talap and two miles away from Dangri Tea Estate, where Dangri people often used to go for marketing. Nirode, who was a Primary School teacher, lived at Dangri for a number of years.
4. The Police, however, sent up the four persons - Kamakhya Prasad Agarwalla, Kitish Chandra Das, Badalauunda Ganguli, and Siddique Mohammad, alter completion of the investigation. They were committed to the Court of Session for trial under charges of kidnapping for immoral purpose (S. 366, I.P.C.) and rape (S. 376, I. P. C.). It was alleged in course of the evidence that Kumakhya Prasad and Badalananda had raped Musst. Premi Christian and Siddique and Khitish had raped Musst. Ellis Merry, in both cases against their will and consent and by show of force.
The mother of Musst. Ellis Merry was examined, she being P. W. 6 Musst. Karunu. These girls are garden labourers and used to live in the Dangri Tea Estate labour line. The doctor who examined the injuries on the persons of these girls, was examined in the committing Court and his statements were admitted, under Section 509, Cr. P. C. as evidence.
He was Dr. B. K. Pal Chanclhuri, Civil Surgeon at Dibrugarh. Nirode, Roben and Jibon were examined in the case, who stated how the girls were kidnapped from their company, and Musst. Ellis Merry and Musst. Premi Christian were examined to show how they were kidnapped, how and where they were violuted and by whom. Musst. Karma did not know anything about the occurrence herself except that the two girls Ellis Merry and Premi Chritian complained to her, on return on the morning of 9-11-1953, that each of them had been ravished by the miscreants, who had dragged them away.
P. W. Lakhi Majhi did not know, nor did he remember, whether Nirode had disclosed the names of the miscreants to him, but he supported the allegation that Nirode had complained to him that the two girls had been kidnapped from his company.
The investigating officer, who was examined, produced a report from the Serologist and the Chemical Analyst to show that human semen was found in the mekhelas (lower garments) alleged to have been used by the girls on the night of the occurrence. The clothes were seized from the possession of the two (sic)s on the evening of 9-11-1953, by the investigating officer, and were duly forwarded, through the Magistrate, to the Chemical Analyst.
5. The accused persons pleaded not guilty, and the three accused, Khitish, Badal and Kamakhya, further pleaded that they had quarrel with Nirode on previous occasions and they were implicated out of grudge. Siddique Mohammad pleaded not guilty, but he ascribed no motive to Nirode. The Jury unanimously found the accused persons guilty of both the charges, and the learned Additional Sessions Judge, in agreement with the opinion of the Jurors, found them guilty of both the charges and sentenced them each to undergo rigorous imprisonment for five years on each count, and the sentences were directed to run concurrently.
6. The main contentions that have been raised by the learned advocates on behalf of the accused appellants, may be stated to be three-fold.-(1) that the charges framed against the accused persons were defective, (2) that the charge delivered by the learned Additional Sessions Judge to the jury was detective in more than one respect; and (3) that the medical evidence as to the age of the girls had little or no value and, as Such, the convictions were improper.
7. There is no objection with regard to the charge framed under Section 366 I. P. C. against the four accused persons. The objection was directed towards the charge framed under Section 376, I. P. C, against all these four persons, which runs as follows:
That you, on or about the overnight of 9-11-1953, at or near Kubang Tea Estate committed rape on Musst. Ellis Meri and Musst. Premi Christian, and thereby committed an offence punishable under Section 376, Penal Code, and within the cognizance of the Court of Session.
The ground of attack is that the prosecution case is not that the four persons had indiscriminately committed rape on the two girls named in the charge, but that two of the young men, namely, Kumakliya and Badalananada, had raped one girl, namely, Musst. Premi Christian, and the other two, namely Siddique Mohammad and Khitish, had raped the other girl Ellis Merry, and the contention of the learned advocate for the appellants is that because of the charge being framed in this defective form, the accused persons were prejudiced in their defence.
It is a fact that the charge has not been very accurately drawn up, and even though the committing Court had framed it in this form, it was the duty of the Sessions Court to frame the charge in a proper manner since the evidence was already there, and moreover the order of commitment would itself make it clear that two of the accused had indulged in ravishing one girl, and the other two the other girl.
8. Much of the argument was addressed towards 'prejudice' and what it is. Mr. Mukhcrji's contention is that the accused ought to have got a clear notice of what the charges were or what the allegations were that they had to meet, and that the charges in the form in which they stood, gave no clear notice to the accused.
The learned Senior Government Advocate appearing on behalf of the State, however, contends that the accused persons knew full well as to what charges they had to meet and what the allegations against them each were. He further pointed to the statements of the accused persons under Section 342, Criminal P. C., where it was pointedly suggested to them that Kamakhya and Badal raped Musst. Premi Christian, and Siddique and Khitish raped Ellis Merry. Mr. Mukherji for the appellants submitted that to clarify the position under Section 842, Criminal P. C., was not enough, since it came practically at the close of the trial.
9. With a view to understand whether there was prejudice, we should examine the circumstances of the case. It has been held in a recent decision of the Supreme Court that to say that there was prejudice, is not enough; it should further be pointed out as to how or in what manner the accused was prejudiced.
His Lordship Mr. Justice Jagannadhadas, in a recent decision of the Supreme Court, Moseb Kaka Chowdhmy v. State of West Bengal : 1956CriLJ940 , observed that the question of prejudice is ultimately one of inference from all the facts and circumstances of each case.
Here the accused persons knew what was stated in the first information report, namely, that Ellis Merry was raped by two persons, and the prosecution case from the very start has been that the two girls were raped by two sets of different persons.
Therefore, even though the charge was in a jumbled up form, there was no doubt that the accused persons knew what charges they had to meet or what the allegations against them each were. In an earlier decision of the Supreme Court reported in K. C. Ma-thew v. State of Travancore-Cochin : 1956CriLJ444 . where, of course, the main contention was about the legality or correctness of statements under Section 342, Criminal P. C., - their Lordships went on to observe that if the counsel is unable to say that his client had, in fact, been prejudiced, and if all that he could urge was that there was a possibility of prejudice, that is not enough.
In this case also, except that one could argue that there was a possibility of prejudice, no prejudice has been shown, and we, as a matter of fact, are not convinced that the accused had been prejudiced, because of this inaccuracy in framing the charge under Section 376, I. P. C. No complaint has been made as to the framing of the charge under Section 366, I. P. C. In this view, therefore, the first contention has no substance.
10. In regard to the defect in the Charge to the Jury, the learned Counsel for the accused appellants had raised several objections, the first one being directed towards the passage at p 35 of the Paper Book, where the learned Additional Sessions Judge dealt about the first information report. The passage to which objection was taken, runs as follows:
You cannot choose the F. I. R. statement and reject the statement in the deposition on the same point as in the case of lower Court deposition, which, when Put in evidence before you, are substantive evidence. You may rely on that one or the other made Here. If you consider there are material discrepancies in the F. I. R., the informant alone may be discredited.
11. It appears to us that the significance of the passage is a little obscure, and the learned Additional Sessions Judge had no business to bring in the analogy of statements recorded in the lower Court, which might have been put up or tendered in the Sessions Court. Here, no such statement was, as a matter of fact, tendered, and he was not right in saying either that the jury could not choose the statements In the first information report and reject the statements in the deposition on the same point.
As a matter of fact, he has observed in the same passage that the first information report can be used only for the purpose of corroboration and contradiction, and his statement that the informant alone may be discredited, also finds support from some of the judicial pronouncements, as in Emperor v. Rahenuddm Mondal (AIR 1944 Cal 323) (C).
Here, in this case, there was not much of discrepancy between the version given in the first information report and the statements made in Court, except that the names of the persons alleged to have raped the two girls separately were not given in the F. I. R. and it was not disclosed either how many persons had committed the rape on Musst. Premi Christian. It does not, therefore, appear that any prejudice was caused to the accused persons because of the direction, as pointed out above.
It would have been better for the learned Additional Sessions Judge to keep himself strictly confined to the facts as they appeared in the record, and to point out the contradictions, if any, between the story given in the first information report and the story given in Court by the prosecution witnesses.
There may further be circumstances when not only the informant but even the whole prosecution story may be discredited, if one version is given in the first information report and another version is introduced in Court. It would always depend on the circumstances of each case. It would have been better for the learned Sessions Judge not to put a general proposition in a cryptic form.
12. The learned advocate for the appellants has further drawn our attention to another passage at p. 36 of the Paper Book, where the learned Additional Sessions Judge told the Jury about the impressions created by the witnesses. He said -'These impressions are of great value and you would do wrong by deciding the case merely on a consideration of inconsistencies.'
It is not correct to say that the case should be decided merely on impressions, and that the inconsistencies should not be taken into consideration, but the learned Judge goes on to explain later where he adds - 'Your conclusion must be based solely on the evidence placed at the trial and circumstances and probabilities to be reasonably inferred therefrom. You are the judges of the character and credibility of witnesses' and so on,
We are not in favour of the learned Judges' using sentences which really do not arise from the context; he might have borrowed those observations from some books, but they should apply them only when called for, and not otherwise.
Here, in the present context, we do not think that any mischief has been done by the sentence to which the learned Counsel objected. The learned Counsel further objected to a passage at p. 38 of the Paper-Book, where the learned Judge pointed out - 'All the accused persons now stand charged in this Court under Sections 366 and 376, I. P. C., as having kidnapped and raped the two girls in question,'
This Sentence is not complete in itself, because the sense is made clear by the lines that follow, where it is pointed out that though the kidnapping of the girls was alleged to have been done by all the four accused persons, the raping was alleged to have been committed on Musst. Ellis Merry by Khitish are Siddique, and on Musst. Premi Christian by accused Kamakhya and Badal. Therefore, there could be no prejudice, nor was there any misdirection.
13. The next passage to which the learned advocate for the appellants objected, was at p. 40 of the Paper Book, which runs as follows;
In a case of forcible taking away, there can seldom be direct evidence as to the actual intention of the kidnapper. Human nature being what it is, whenever one finds such a young girl being thus taken away by a young man, the first and natural presumption must be that she had been taken away with the intention of having Sexual intercourse with her forcibly or with her consent after seduction.' What Mr. Mukherji objected to was that what was meant by the word 'seduction' was not explained by the learned Additional Sessions Judge, and the learned Counsel drew our attention to the case of Taki Mia v. The Emperor 38 Cal WN 71 : AIR 1933 Cal 718 (D). There, it was pointed out that seduction to illicit intercourse means 'induced to surrender or abandon a condition of purity from unlawful sexual intercourse.
There, of course, that point arose because the girl had earlier intimacy with the so-called kidnapper, but here, the circumstances are quite different, the accused persons being strangers to the girls, and there being no allegation that they had any love intrigue amongst themselves. We, for ourselves, find nothing wrong in the direction. We need not go into the facts of that particular case since they are widely different.
It has further been held in several cases that where a minor girl is kidnapped, and later on it is found that the accused had illicit intercourse with her, the accused is liable to be punished under Section 366 I. P. C. There is adequate warning in the Charge that particularly in sexual offences, the statements of the girl should not be treated as enough unless there be sufficient corroboration on material details from other circumstances.
Though the learned advocate for the appellants picked out few lines from here and there in the Charge, for criticism, the Charge, read as a whole, is quite exhaustive and fair.
14. The learned Counsel further objected to the non-examination of certain witnesses, more particularly, the Driver of the lorry from which the accused persons were alleged to have got down just after crossing past the two girls and their companions.
The learned Judge had pointed out that fact, and even though the explanation given by the learned Additional Sessions Judge may not be quite acceptable, the matter was placed before the Jury. What those persons did after getting down from the lorry, could not, as a matter of course, be within the knowledge of the driver of the vehicle, and, as such, he could not be a material witness to the occurrence of the night.
The two other persons whom Nirode claimed to have met alter the occurrence were Guhia and Surjya, two of the garden labourers. It does not appear that they had rendered any assistance to the party either in recovering the girls or in searching for them. We do not think that they were material witnesses in any sense, and the Charge is not defective because of not mentioning about them or about their non-examination.
Mr. Mukherji has further complained about the non-examination of the mother of Musst. Premi Christian. Premi Christian herself says that she did not tell her mother as to what bud happened, but, on the other hand, she says that she had disclosed to Musst. Eliis's mother that she was raped by the miscreants after she and Ellis Merry had been kidnapped. Ellis'S mother was examined in Court, and she supported that story.
The other discrepancies in the charge are not of material importance, except on the point of the age of the girls, which I shall discuss presently.
15. Much importance has been given on the point of the age of the two girls. Section 366, I. P. C., requires that tile girl should be eighteen years of age or below eighteen at the time of the occurrence, and Section 376, I. P. C., requires that the girl should be sixteen years of age or below if the cohabitation is done with her consent.
If there be no consent, or if it be against the will of the girl, the age of the girl is immaterial for the! offence of rape. In this case, Nirode (P. W. 1) has de-posed that the girls were in between the ages of fourteen and fifteen at the time of the occurrence, and he claimed to have seen these girls for a period of about ten to twelve years, he having lived in their village as a school teacher.
The mother of the girl Ellis Merry, however, seems to have no particular knowledge of the age of the girls, and it is not uncommon in a woman of her status. Except the opinion of the doctor, there is no other evidence on the question of age of the girls, the girls having spoken only about the attainment of puberty.
They were examined by the Civil Surgeon at Dibrugarh on the 11th November, 1953, and in case of Musst. Bjllis Merry, the doctor found that the girl weighed 82 lbs., she had 28 permanent teeth, breast not developed; hairs in the pubic and axillary region had no growth at all; hymen ruptured; tear very recent, - not more than three to four clays old. In his opinion, the girl was aged about thirteen.
The condition of hymen suggested recent sexual intercourse. The doctor had based his opinion as to age on the data as he had described and on general appearance of the girl. The doctor similarly stated about Musst. Premi Christian that she was 4' and 11' in height and weighed 84 lbs; she bad 28 permanent teeth, breasts slightly developed, hymen ruptured, tear very recent, etc From the above data and from her general appearance, the doctor was of opinion that she might be aged about fourteen.
The condition of the hymen suggested recent sexual intercourse. There was no ossification or bone test in either case.
16. Mr. Mukherji submitted before us that the statements of the doctor could not be admitted in evidence under Section 509, Cr. P. C., since the doctor himself was not examined in the Court of Session. We find no substance in this contention. The wording of the section itself makes it clear what class of statements are contemplated under it.
It was surely up to the accused persons to move the Sessions Court to recall the doctor if they So wanted, and that is always done if steps are taken in proper time. In this case, it does not appear that any such steps were taken or any application was made to the Sessions Judge to have the doctor summoned, and an objection to that effect is of no avail here.
Modi's Medical Jurisprudence and Toxicology on which Mr. Mukherji placed much reliance, does not support him very much. Mr. Mukherji argued before us that the girls having twenty-eight permanent teeth, inclusive of the third molars, it would only indicate, according to Modi's book, that the girls might have been in between the ages of seventeen and twenty-five years, the third molar usually making appearance during that period.
I am sure, he did not by to understand the pas-sage properly. The appearance of the third molar or wisdom teeth would make the total number of teeth thirty-two, and not twenty-eight.
It is stated in that book that second molars appear in between the ages of twelve and fourteen years, and the girls, in either case, had no more than twenty-eight permanent teeth, which means that they had their second molars only.
In the chapter dealing with 'Ago'' in the book, the author says that the principal means which enable one to form a fairly accurate opinion about the age of an individual, specially in earlier years, are teeth, height and weight, ossification of bones and other minor signs.
Here, there was no ossification test, but the rest of the Symptoms were there. While dealing with 'Minor Signs', the author expresses his opinion at p. 35 of the book (tenth edition) wherein he says
The growth of hair appears first on the pubes and then in die axillae (armpits). In the case of girls, it commences with the appearance of down on the pubos at the age of about 13 years, and a few sparse dark hairs appear at about 14 years. The growth becomes thicker in the course of a year or two, when hair commences to grow in the axillae... The development of the breasts in girls commences from thirteen to fourteen years, but it is liable to be affected by loose habits and social environments.
Taking these two symptoms together, we cannot say that the Civil Surgeon was far horn right in giving his own impression as to the age on the symptoms as found by him on examination of the bodies of the girls.
The opinion of the doctor was placed before the Jury, as also the evidence, as to the age of the girls, The learned Judge further told the jury that the doctor's opinion was no doubt not final. But he opined that a doctor was always in a better position to form an opinion about the age of a person than a lay-man.
We cannot say, therefore, that there was no due warning as to the opinion of an expert. Further, it is in fitness of things that the jury should also exercise their own discretion in the matter because whatever the other evidence may be, they cannot keep themselves away from exercising their judgment. Mr. Mukherji, in support of his contention, has relied on the case of Bhola Sardar v. Emperor 35 Cal WN 316 : AIR 1932 Cal 417 (E).
The observations made therein are quite apt. There, the learned Judges Say
The age of the girl being a material factor in a charge under Section 373, when there is no satisfactory evidence of the age and the Judge tells the jury that they might appeal to their own experience and apply that experience to the impression they had formed on seeing the girl in Court, if such direction be coupled with no caution that such impression would never be a sure guide, it is a material misdirection vitiating the trial.
17. Here, the facts are not identical, and the evidence available on the record was duly placed before the jury with a view to help them to come to their own decision as to the age of the girls, coupled with some words of caution. So far the offence; of rape was concerned, it could not be said that the girls were willing or consenting parties.
We, for ourselves, have examined the evidence as to the age of the girls, and we could not say that the girls were in any sense older than fifteen or sixteen in either case. Mr. Mukherji further argued that there was something to show that some other doctor had examined the girls.
We do not know whether it was before or after the Civil Surgeon had examined. He further prayed that we should resummon that doctor, but I think that prayer was too much belated. In case there was any such examination, it was for the accused persons to take proper steps before the Sessions Court to summon the doctor. This objection, therefore, has no substance,
18. Mr. Mukherji further argued that adverse inference should be drawn against the prosecution case because the two girls were presented before a certain Magistrate in his Court at Dibrugarh on the 11th November, 1953, and their statements were recorded under Section 164, Cr. P. C.
We do not think we will be justified in holding that any such inference was possible. There may be circumstances which might have led the Police to believe that the girls might prevaricate due to extraneous pressure or other elements, of which we need not give any indication.
It was not further challenged or even suggested in the Court of the Sessions Judge that the girls had given a different story in their statements recorded under Section 164, Cr. P. C. In these circumstances, it is really immaterial for the purpose of this case whether the girls were examined under Section 164, Cr. P. C, or not.
19. Another fact that the learned Counsel for the appellants commented upon was that the girls were kept in the thana for a night, more possibly on the 10th of November, 1953, even though they appeared in the thana on the 9th November, 1953. We really do not know what the circumstances were and what led the Police to keep the two girls in the thana precincts for that night.
It may be for the convenience of sending them down on the morning of the 11th November or on the night of the 10th November to Dibrugarh for the purpose of having their statements recorded. Nothing was suggested in the cross-examination that the girls had made any other statements at any other time or that they had given different or contradictory versions.
Therefore, their passing a night at the thana does not speak much against the prosecution, and the learned Judge need not have commented on that part of the story.
20. The facts so far unchallenged are that the girls had been to the Daisa Tea Estate on the night of 8-11-1953, with P. Ws. 1, 2 and 3 and had returned home on 9-11-1953 and that Nirode had complained in the early morning of the 9th November that the girls had been kidnapped by some miscreants from his company, and he disclosed at the thana at least three names as early as at 10.10 A.M. in the morning of 9-11-1953, together with the version that two persons had ravished Ellis Merry.
The medical evidence also as to the girls having been ravished or having their first sexual intercourse as indicated by the rupture of the hymens is not challenged. The only thing, therefore, that remains is whether there was sufficient opportunity for the miscreants being recognised at the time of the occurrence.
Nirode has stated that all these accused persons were known to him from before, they being inhabitants of Talap Balthazar, a place near Dangri Tea Estate where he used to live. He is further supported by his brother Jibon, and the other witness Roben, who was their companion. The girls had further deposed that they had been ravished by the persons as deposed to by them in Court. There was further comment by the learned advocate for the accused that it was physically impossible for the girls to go home straight or walk a distance of about two to three miles after they had been brutally ravished by the miscreants more than once.
It would be difficult for us to guess the strain that was produced or the frequency at which the girls were ravished. The girls deposed that they felt pain at the time of the sexual intercourse against their will, and that they had been ravished more than once.
They further said that they were detained for some time by the persons who molested them, and they were released near the dawn. The whole thing was placed before the jury and they believed, as it appears, the story of the prosecution that the girls had actually been kidnapped at the hitter part of the night or before the break of the day when it was dark, and that they had sufficient opportunity of knowing the persons who had dragged them away and ravished them against their will.
That the fact of cohabitation was against their will, is amply corroborated by the circumstances and the strain produced on the girls, is not denied. The chemical analysis of the stains on the wearing apparels supports the story of rape as alleged. Even if the girls yielded through fright, that would also amount to rape.
Therefore, on the facts, if believed, there were kidnapping as well as rape. It is not seriously challenged that there was enough evidence on record as to the identity of the accused persons involved in the case. Nothing has been suggested nor proved that any of the prosecution witnesses had any grudge with any of the accused persons or had any sort of malice.
Three of the accused persons Kamakhya Prasad Agarwalla, Khitish Chandra Das and Badulananda Gauguli had been named in the first information report, and accused Siddique Mohammad was not so named. He was, however, arrested by the Police on the early morning of the day following the occurrence, that is, on 10-11-1953, and subsequent depositions in Court go to show that the witnesses spoke of Siddique being in the party of the accused persons who dragged the two girls against their will.
The Judge told the jury more than once that Siddique was not named in the first information report. The girl Ellis Merry alone spoke about Siddique as one of the persons who violated her, and she further said that she had time enough to recognise him since she was made to pass some time in their company and was taken from place to place for the purpose of ravishment.
The learned Additional Judge has fairly commented that much reliance cannot be placed on the test identification parade itself since the prosecution witnesses had ample opportunity of seeing the accused persons in the custody of the Police soon after their arrest and they had also accompanied the accused to the Magistrate's Court on 11-11-1953.
It was open to the jury either to believe or not to believe the testimony of the girl Ellis Merry alone for the purpose of identifying Siddique Mohammad, since he was not named in the ejahar, even though, Nirode said that Siddique was known to him from before and he knew him to be one of the employees in a cycle shop at Talap Balibazar,
In view of these circumstances, we do not think that there was any material misdirection in the Charge or that the obscurity in the framing of the charge under Section 376, I. P. C., itself caused any prejudice to the accused persons in their defence.
21. I might also add that even though much comment was made by the learned Counsel for the appellants on the lack of ossification test as to the aye of the girls, we cannot lay it down as a rule of law that in all cases this test must be performed, though we consider it desirable, where possible, because the medical opinion is that this is a surer test as to the age of the persons concerned, particularly in the formative period.
In one of the Calcutta cases, however, on which Mr. Mukherji relied Debaprasad Bose v. The King : AIR1950Cal406 , the learned Judges held that even ossification test leaves much room for speculation and does not give a sure indication as to the age of an Indian girl, particularly when it is in the border region.
In this view, we cannot say that the medical evidence should be rejected simply because there was no ossification test. In these circumstances, we do not see much substance in the contention raised by the learned advocate on behalf of the accused. Nor do we find any material for interference in the case of Siddique Mohammad and Khitish who went unrepresented before us. We find neither any misdirection in the charge, nor any illegality in the trial,
22. The only point that remains for consideration is the question of sentence. From the circumstances, it appears that it was a case of cruel and in human outrage on two unsuspecting minor girls who had been out to see a cinema show in the company of some of their own men during the Puja time.
Though Mr. Mukherji tried to suggest that there must have been some illicit relation between Nirode and the girls, we really find no materials for such speculation, and in the circumstances of the case, we think a sentence of five years' rigorous imprisonment was called for under each count. The sentences should run concurrently, as directed by the learned Additional Sessions Judge. All the appeals fail. This judgment covers all the three appeals.
Sarjoo Prosad, C.J.
23. I agree.