1. The three appellants Motiram, Kisan and Budhram were tried Jointly before the 2nd Additional Sessions Judge, Amravati, appellants Motiram and Kisan of offences Under Sections 366, 376 & 342, IPC and the appellant Budhram of an offence Under Section 368, IPC Each of the former was convicted of the offences for which he was tried and sentenced to rigorous imprisonment for three years in respect of the offences Under Sections 366 and 376 each and to rigorous imprisonment for four months in respect of the offence Under Section 342, IPC The sentences were ordered to run concurrently. Budhram was convicted of the offence Under Section 368, IPC and sentenced to undergo rigorous imprisonment for six months.
2. The relevant facts are briefly these: One Smt. Ashabi, a married woman, left her husband's house at Bombay and. came voluntarily to Amravati along with her friend Ramcharan who was In service at Bombay and whose relatives lived in Wadali, a suburb of Amravati. After keeping Ashabi with his relatives Ramcharan returned to Bombay.
3. According to the prosecution, on 6-7-1952 Motiram and Kisan, who are police constables, went to Jagannath, the uncle of Ramcharan, where Ashabi was living. They pretended that they had a warrant for the arrest of Ashabi and that they had come to take her to the police station. Smt. Jagrani, wife of Jagannath, requested them to take no action for two or three days by which time she hoped that Ramcharan whom she had asked telegraphically to come would return to Amravati.
The two constables are said to have accepted a sum Of Rs. 15/- from Jagrani but despite that to have again visited the house of Jagannath in the evening and taken away Ashabi with them. It is said that on the pretext of taking her to the police station they first took her to the Amravati railway station in a tonga, from there in a rickshaw to Badnera, brought her back by train to Amravati and then took her in a tonga from the railway station to the circuit house. At the circuit house each of the appellants Motiram and Kisan had sexual intercourse with her in one of the room against her will and then kept her there the whole night and almost the whole day. It Is further said that sometime after midday on the 7th the room in which Ashabi was confined was locked up by Budhram who was at that time the care-taker of the circuit house. It may be mentioned that this man is related to the accused Kisan.
4. The case was tried with the aid of a jury in respect of the offences Under Sections 366, 368 and 376, I. P. 0., the verdict of the jury was accepted by the learned Additional Sessions Judge and therefore in the absence of any error of law or misdirection by the Judge the verdict of the jury will have to be accepted. The offence Under Section 342, IPC was tried with the aid of assessors.
5. I will say at the outset that the conviction of the appellants Motiram and Kisan Under Section 376, IPC is bad in law and cannot be sustained. It is in evidence and is accepted before me that Ashabi is over 18 years of age. No doubt she says that Motiram and Kisan had sexual intercourse with her against her will but the Jury when questioned by the learned Additional Sessions Judge stated that these two persons 'put her in fear of warrant from Bombay and so seduced and had sexual intercourse with her.' The answer given by the jury clearly indicates that Ashabi did ultimately give her consent to the intercourse as she was afraid that she would be arrested and sent away to Bombay. No doubt, the consent of a woman to a sexual intercourse obtained by putting her In fear of death or of hurt Is no defence to an accused person but in the present case the fear to which Ashabi was subjected was according to the jury neither of death nor of hurt. It Is true that consent was obtained by fraud but as observed by Wills J. in - 'The Queen v. Clarence' (1888) 22 QBD 23 (A)
That consent obtained by fraud Is no consent at all Is not true as a general proposition either in fact or in law. If a man meets a woman in the street and knowingly gives her bad money in order to procure her consent to intercourse with him, he obtains her consent by fraud, but it would be childish to say that she did not consent.
6. Ashabi knew well that what Motiram and Kisan wanted her to submit to was sexual intercourse. She thought that by permitting them to have sexual intercourse with her she would be able to escape her arrest and repatriation to Bombay. In other words, she was willing to allow the two appellants Motiram and Kisan to have sexual intercourse with her for a price. No doubt, the price which they offered was a fictitious one because there was no warrant of arrest against her. That fact, however, would not vitiate her consent, as has been held In the case just cited. Of this short ground I set aside the conviction and sentence passed on each of the appellants Motiram and Kisan for the offence Under Section 376, IPC
7. In regard to the offence under S, 36G, IPC with which Motiram and Kisan stand charged and that Under Section 368, IPC with which Budhram stands charged, it must be borne in mind that the verdict of the jury has to be accepted unless it is vitiated by any of the reasons mentioned in para 4 above. I have gone through the charge and the evidence adduced in the case. To my mind, the charge to the jury and the Judge's summing up are very fair and there has been no misdirection to the jury or non-direction with regard to vital matters. It cannot be said that the evidence adduced before the jury was so inadequate or on the face of it so worthless that the verdict can be regarded as perverse. It is however argued that for various reasons the verdict ought not to be accepted.
8. In the first place it is pointed out by Shri N. T. Pande, who argued the appeal on behalf of the appellants with great thoroughness that when the Judge put the following question to the jury:
Q. Do you hold that the girl was taken by both or either of the accused from Wadali hut to railway station, from railway station to Badnera, from Badnera back to Amravati by train and from Amravati railway station to the circuit house?
They gave the answer:
A. (The foreman answered after some hesitation, and time). The girl was in her hut at Wadali. She was last found at the circuit house. We are doubtful whether she was taken by the two accused from the hut to the railway station, from there to Badnera and back and from railway station to circuit house, she was not directly taken from her hut to circuit house.
It is therefore said that in view of this answer the whole basis for the subsequent finding of kidnapping disappears.
9. To my mind that is not the correct way to Interpret the answer. The story of the prosecution witnesses as narrated was that the girl was taken from Jagannath's place at Wadali to the circuit house, not directly but by a round about route. That is to say, that she was first taken to the Amravati railway station, then by a rickshaw to Badnera, brought back from Badnera to Amra- vati by train and then in a tonga from the Amravati railway station to the circuit house. The jury were in doubt about the truth of the story.
The jury were however positive that the girl was not taken straight from her hut to the circuit house. At the same time the jury found that she was taken to the circuit house. Therefore, according to them, she must have been taken there in a round about way though not in precisely the way which was deposed to by the prosecution witnesses. To my mind, the jury was entitled to come to this conclusion and the mere fact that they did not fully accept the prosecution evidence on the point would not warrant a conclusion that there was no foundation for the subsequent find-Ing.
10. The second point urged on behalf of the appellants was that whereas the learned Additional Sessions Judge had warned the jury that they should not accept without corroboration the evidence of the prosecutrix in regard to the offence of rape the provision of Section 366 was an exception to the rule requiring corroboration of the evidence of the prosecutrix in a case involving sexual intercourse.
In support of the contention the learned Counsel referred to - 'Sachinder Rai v. Emperor' : AIR1939Pat536 (B). In that case it was held, follow-ing two decisions of the Calcutta High Court, that it was extremely dangerous and premissible only in exceptional cases to convict a man of a sexual offence on the uncorroborated testimony of the complainant. In both the Calcutta cases the accused were charged with race and convicted of the offence though it is true that the; were also charged Under Section 366, I.P.C. in respect. of which also they were convicted. I would also refer to the decision in - 'Mohammad Sadiq v. Emperor' AIR 1938 Lah 474 (C), where it was held that in cases of offences Under Section 366, the evidence of the girl alleged to have been abducted must be taken with a great amount of caution.
11. Apart from the fact that there is in fact independent corroboration in this case consisting of the evidence of Jagannath, Jugrani, the tonga driver and the rickshaw driver who had taken the girl from one place to another and-the evidence of Bhayyalal (P.W. 11) who saw the girl In the company of Motiram and Kisan at Badnera and Amravati, I would with respect express my dissent from the view taken in those two cases. No doubt, In cases of rape it has almost become an accepted proposition that a person shall not be convicted of the offence of rape solely on the evidence of the prosecutrix, yet Courts have held again and again that even in such cases it is to open to them to base the conviction solely on the evidence of the prosecutrix if they are satisfied that the evidence is worthy of credence. Further, I would like to observe that the rule requiring corroboration of the evidence of the prosecutrix is generally accepted only in cases of rane and not in other cases Involving a sexual offence.
In this connection I may refer to the decision Jn - 'Emperor v. Banubai Ardeshir' : AIR1943Bom150 (D), where the rule that when a woman goes into the witness-box and alleges that a certain individual in the dock has committed a sexual offence against her, the Courts require that her evidence shall be corroborated, is restricted' to cases of rape only and should not be extended co other cases of sexual nature. I respectfully agree with the view taken in this case and hold that the failure of the learned Additional Sessions Judge to caution the Jury with regard Uy the evidence of the prosecutrix in so far as the offence of abduction is concerned does not vitiate the Charge.
12. Then it is said that the Judge in his summing up did not bring it to the notice of the jury while dealing with the charge Under Section 366, I.P.C. that Ashabi was living in adultery with Ramcharan. As a matter of fact while dealing with the charge Under Section 376, I.P.C. the learned Judge has observed as follows;
But her statement in the first Court at portions A, B, C, E and X should go to show beyond doubt that she was in illegal intimacy with Ramcharan and both of them treated themselves as a couple. You have to accept that she did go wrong with Ramcharan and this should display that she is a girl without strong morals. But you have also to consider whether the girl who went wrong with one man would be ever willing to go wrong with anybody at any place and at any hour. You have to consider the entire evidence Under Section 366 in order to enable you to say whether the intercourse should be with or without her consent.
To my mind, these observations of the learned Judge are quite adequate and it cannot be said that there was any non-direction by him.
13. Then it is said that there were certain contradictions of an important nature in the evidence of Ashabi and that therefore the Judge should have directed the jury not to accept her evidence. The particular contradictions to which the learned Counsel refers are dealt with in paras 23, 26 and 32 of the charge and I find that the learned Judge has very carefully brought out those contradictions and cautioned the jury regarding them. He has further stated that he could not find any explanation for those contradictions. Having done that it seems to me that there was nothing more that the learned Judge was expected to do.
14. Then it is said that though Ashabi was taken away by the two constables no intercourse took place during the day nor during the night & that this fact should have been stressed by the Judge before the jury. The learned Judge has brought out these facts quite clearly in his charge and has indeed subjected the evidence of Ashabi to a critical analysis. Further he has brought out the probabilities and improbabilities in as clear a manner as is possible. It would therefore not be right to say that the Judge omitted to give directions to the jury on any important point.
15. Then it is said that the following observations in para 39 of the charge amount to an invitation to the jury to convict the appellants of the offence Under Section 366, I.P.C:
You have to consider the entire evidence Under Section 366 in order to enable you to say whether the intercourse should be with or without her consent. But please remember what I told you before that it is possible for you to hold abduc- tion proved and rape not proved. But, normally, the two charges would go hand in hand.
It was the duty of the Judge to bring to the notice of the jury the fundamental difference between the Ingredients of the offence Under Section 366 and one Under Section 376, I.P.C. Seduction may take the act out of Section 366, I.P.C, where the girl Is above the age of consent but seduction would not necessarily take it out of Section 366, IPC where the seduction is, for instance, the result of the abuse of authority, or of force or other form of compulsion. This is the difference which the Judge wanted to bring to the notice of the jury and what he did was the right thing to do.
16. Then it is said that in view of the jejune character of the medical evidence and the opinion of the Judge that the conduct of Ashabi was not that of 'a normal woman against whose wishes so many things had happened and others were happening', the jury was not justified In convicting the appellants Motiram and Kisan of the offences with which uhey were charged. As I have already pointed out the conviction of the appellants Under Section 376 cannot stand but in so far as the offences Under Sections 366 and 368, I.P.C, were concerned there was ample material before the jury on the basis of which they could reasonably come to the conclusion they have arrived at. The conduct of the girl in not raising a hue and cry is understandable in view of the fact that she was afraid that her non-compliance would result in her being repatriated to Bombay. Therefore, the verdict of the jury that the two offences Under Sections 366 and 368, I.P.C. were established cannot be characterised as perverse.
17. Then it is said that there is no proper first information report in this case and that Ex. P-4 which is treated as the first information report cannot be so treated because it was recorded during investigation. Actually no prejudice has been caused thereby. The learned Judge had explained the legal position fully to the jury and after they had given the verdict he asked them certain questions regarding the use they made of the report.
I would, in order to indicate how careful the learned Judge was in this case, reproduce the questions and answers on the point:
Q, Do you believe that the girl gave oral statement at the circuit house and you have treated it as F.I.R.
Q. Did you treat Ex. P-4 as statement during investigation?
Q. Did you use that statement only for contradiction at the instance of defence or for any other use?
A. We used it only for the sake of contradiction and not for any other purpose.
Q. Did you consider other evidence about it?
A. No. We used it only for contradiction and did not consider other evidence about it.
Q. Did you take into account that it is thumb-marked by Ashabi and hence her version should be received with caution?
In view of the answers given by the jury it cannot be said that the document has been put to any improper use by the jury or that any prejudice has resulted to the appellants because the document had been let in evidence.
18. Then it is said that the evidence of the Sub-Inspectors, Tiwari and Khan and Pundalik should not be admitted because their statements were not recorded during investigation. In support of this contention reliance was placed on the decision in - 'Shyama Rajaram v. Emperor' , and -- 'Pandita Gangaram v. The Crown' AIR 1950 Nag 1 (F).
In the former case, it was held that where the statements of' the prosecution witnesses to the police are not produced or if produced are of no value, the trial is not vitiated but the evidence of such witnesses should be disregarded. In the other case, it was held that where the defence is not supplied with copies of statements made by the witnesses to the police but report of police which is filed setting out everything that was said by them before the police, the evidence of the witnesses cannot be regarded as inadmissible and cannot be said to have caused any prejudice to the accused. The second case does not seem to be in point. As regards the first, it is sufficient to say that as observed by their Lordships in - 'Zahiruddin v. Emperor' (G):
A contravention of Section 172, namely the failure of the Police Officer to keep a diary, lays the evidence of the police officer open to adverse criticism and may diminish its value but it does not have the effect of making that evidence inadmissible.
In view of the decision of their Lordships of the Privy Council the argument of the learned Counsel cannot be accepted.
19. Then it is said that there being an omission on the part of the police to record the first information report before starting investigation the whole trial is vitiated. In support of the contention reliance was placed on - 'Hafiz Mohammad v. Emperor' : AIR1931Pat150 (H).
In that case what was said was that an omission to enter the First Information in the Station Diary as. required by Section 154, Criminal P. C, would have an important bearing if the date of the report was in question but is not an illegality which vitiates the trial. It is argued that in this case it is material whether the offence took place on the 6th or the 7th. In my opinion, the date is not material at all and therefore the decision on which reliance is placed is of little assistance.
In any case, I would like to point out that the learned Judges did not in that case lay down the law that the omission of the kind vitiated the trial. The very first statement made by Ashabi Is on the record. No doubt, it cannot be used as the first information report but it is there by reference to which the story which she has told in the Court, could be checked by or on behalf of the accused persons.
20. Finally it is said that the jury should not have been left to resolve the problem which arose in this case by resort to speculation, that the charge in effect asked the jury to solve the problem by resort to their imagination and that there is thus a misdirection to the jury. The learned Counsel points out that in similar circumstances their Lordships of the Supreme Court set aside the verdict of the Jury and ordered a retrial.
In the case before their Lordships in - 'Mushtak Hussein v. State of Bombay : 4SCR809 , after putting the six different versions of the prosecution case before the Jury, the Judge directed the jury:
Now, gentlemen, this is a Jigsaw puzzle Kept before you. In Jigsaw puzzles all the pieces are kept before us and we have to use our ingenuity and piece them together. Some links are missing in this case. However as rightly submitted by the learned Assistant Public Prosecutor, in such cases you have to weigh the probabilities of the case and therefore you have to find out from the material before us whether you can solve this Jigsaw puzzle. After weighing the probabilities of the case, evidence on record, as prudent men if you come to the conclusion that the story given by the prosecution does not appear to be probable and that the accused must not have committed the offence then in that case you have to return a verdict of not guilty.
I am at a loss to understand how this decision can be brought in aid in this case. There are no different versions in this case. There is one and only one case of the prosecution and that is that the two appellants Motiram and Kisan induced Ashabi to leave Jagrani's house, induced her to accompany them and then made to submit herself to sexual intercourse by them. There is no other version. No doubt, the evidence led by the prosecution regarding the route taken by Motiram and Kisan was not consistent but that does not mean that there was any different version as regards the essential part of the story. The decision relied on is thus of little avail. In this view I hold that the convictions of each of the appellants Motiram and Kisan Under Section 366 and of Budhram Under Section 368, IPC are correct in law.
21. As regards the offence Under Section 342, IPC there is ample evidence in support of this charge that the girl did not accompany the two constables voluntarily but was induced to accompany them by show of authority. Prom the moment the constables asked the girl to accompany them till she was released, she must be deemed to have been wrongfully restrained by them even though as a matter of fact they may not have used physical force or any other restraint or may not have kept her under lock and key all the time. The show of authority resulting in her compliance is sufficient to constitute the offence of wrongful restraint.
22. As regards the other accused Budhram, there is evidence to the effect that it was he who locked the room in which Ashabi was confined by the two constables. His act clearly constitutes an offence Under Section 368, IPC
23. Accordingly I uphold the convictions of each of the appellants Motiram and Kisan Under Sections 366 and 342, IPC and of Budhram Under Section 368, IPC
24. As to sentence, I have set aside the conviction and sentence Under Section 376, IPC but at the same time I do not think that there is any reason to reduce the sentence in respect of the offence Under Section 366, IPC It must be borne in mind that the two constables have abused their official position and have taken undue advantage of a helpless woman. There can, there-tore, be no sympathy whatsoever for them. The sentence of imprisonment Under Section 342, IPC Is Do run concurrently with that Under Section 360, IPC Therefore, there is no occasion to interfere with it.
25. As regards Budhram I would observe that the sentence awarded to him has erred on the side of leniency. But for his ready assistance it is possible that the two constables Motiram and Kisan may not have been able to carry out their design. It is clear that by allowing the circuit house to be used by the two constables, Budhram has abused his position. As however there is no application on behalf of the State for enhancement of the sentence I must leave his sentence unaltered.
26. Thus, subject to the modification that the conviction and sentence of each of the appellants Motiram and Kisan Under Section 376, IPC are set aside, the appeal stands dismissed.