B.K. Chaturvedi, J.
1. The appellant Shaikh Gafoor, aged 19 years, resident of Hoshangabad, has been convitced by the Additional Sessions Judge, Hosh-angabad, of two offences (1) under Section 366 and (2) under Section 376 of the Indian Penal Code and has been sentenced to five years' rigorous imprisonment on each count. The two sentences have been ordered to run concurrently.
2. The offence under Section 366 has been tried by the Jury and the learned Judge agreed with the verdict of the Jury that the appellant is guilty for having abducted Smt. Narbadibai (P. W. 1) on 8-8-1957 at Hoshangabad to force or seduce her to illicit intercourse. The prosecution story is that the appellant and Ramkisan (P. W. 3) husband of Smt. Narbadibai (P. W. 1) were neighbours in Bala-ganj ward of Hoshangabad town.
There were intimate relations between the two families. The appellant was a friend of Puran, younger brother of Ramkisan (P. W. 3), and, therefore, Smt. Narbadibai treated him as her brother-in-law and used to call him 'Dewar'. There was no purdah observed and the appellant used to come to the family house of Ramkisan. Ramkisan was married in early childhood and was living with his father and brothers.
It transpires that Puran, the younger brother of Ramkisan, did not pull on well either with Ramkisau or with Smt. Narbadibai. He was quarrelsome and hot-tempered. He had turned both of them out of the house. Ramkisan was a conductor in a private Bus Service. On 8-8-1957 he had gone on duty, out of Hoshangabad to Khandwa. On that day, Puran abused Smt. Narbadibai, cast aspersions on her character and turned her out. She had a child, aged 11 or 12 months, whom she took with her and left the house.
She straightway went to the Police Station where she made a report (Ex. P-5), at about 4-30 p. m. regarding the circumstances in which she left the house and stated in this report that she was going to her sister, Rampyari, who resides in the Madarwada ward of the town. Now, this report is important, and I snail deal with it later. It may be mentioned here that in this report she had also stated that her husband was not treating her well.
That was the day of Tajiya celebrations in the town. Instead of going to her sister, she, however, went to Rudni and her story is that she was kidnapped or abducted by the appellant Shaikh Gafoor along with one Ismail who has not been prosecuted in this case. Both, according to her story, threatened her at Budni and committed rape on her.
Then they took her to Bhelsa and, thereafter, from Bhelsa she was brought to Burhanpur where she was kept in a house and both of them again committed rape on her. Ismail, it appears, left soon after, and, she remained, according to her statement, in a house which belonged to one Ramdayal (P.W. 6) and which was taken on rent by the appellant for her. Her story, then, is that every day the appellant committed rape on her.
3. The appellant denied these allegations and pleaded not guilty. His defence is that he did not abduct Smt. Narbadibai, but that three days befort the Tajiya celebrations he was already in Burhanpur and that it was only by chance that he met Smt. Narbadibai who wanted some shelter and a house for her and so he got it arranged through Ramdayal (P W. 6). Thereafter, the appellant says, he informed his father Gulab to inform Ramkisan and others of the whereabouts of Smt. Narbadibai.
Then, the party with Ramkisan came and took her away on 19th or 20th August 1957. Now, it is important here to note that though a report hadbeen made at Hoshangabad Police Station about her missing and though the party had come on 18th and left on 19th August 1957, no report was made in Burhanpur where, it is alleged, she was rescued from the clutches of the appellant.
It would thus be seen that Smt. Narbadibai left Hoshangabad on 8-8-1957 in the evening and, according to the prosecution, left Budhni on 9-8-1957 in the evening reaching Bhelsa late in the night and left Bhelsa on 10-8-1957, at about 9 or 10 a.m. and reached Burhanpur on the same date in the afternoon or in the evening. On 11-8-1957 a house was taken on rent for her and till 18-8-1957 she remained in that house till the party came from Hoshangabad and rescued her.
It is admitted by the prosecution that the party stayed at Burhanpur on 18th and 19th August 19571 and came back to Hoshangabad on the evening of 20th August 1957, It is significant that no report was made in Burhanpur either on 18th or on 19th August 1957 and even after reaching Hoshangabad in the evening of 20-8-1957 no report was lodged there. A report (Ex. P-1) was lodged at Hoshangabad Police Station in the evening on 21-8-1957, at about 7-30 p.m.
4. The learned Additional Sessions Judge himself has not taken the view that Smt. Narbadibai is below 18 years. Her mother, who is alive, could have said definitely about the age of Smt. Narbadibai, but she was not produced as a prosecution witness. Dr. Kumari Nilkar (P.W. 4), Women Assistant Surgeon, stated that her (Smt. Narbadibai's) age appeared between 17 to 19 years.
Dr. S. Agarwala, Medical Superintendent, Janseva Hospital, Itarsi, was also of the same view. He had taken X-ray photo and was of opinion that the age of Smt. Narbadibai could be between 17 to 19 years. The prosecution, in fact, could not prove that Smt. Narbadibai was below 18 years, and, therefore, it must be taken that she was above 18 years of age at the time of this incident.
5. The learned Government Advocate has strenuously argued, again and again, that the Jury's verdict cannot be set aside on a question of fact: and I agree with him on this point. There is no quarrel. An appeal against a Jury's verdict can lie only on a question of law. Shri Syed Abroad, learned counsel for the appellant, has pointed out certain inaccuracies in the charge to the Jury and several misdirections,
I have read the charge to the Jury which on certain points is quite elaborate; but it appears to me that the learned Judge has not taken into consideration the explanation of the appellant. It has been laid down again and again that a proper presentation of the defence in a summing-up is the very essence of a fair trial.
It was the Judge's duty to place before the Jury, in a coherent manner the explanation put forward by the appellant and which could be supported with the deficiencies in the prosecution evidence in the case. The learned Judge, however, has entirely ignored this aspect of the case. In para 15 of the Charge to the Jury the learned Additional Sessions Judge has observed as follows :
'The statement made by the accused is not evidence in the case and cannot be taken into the account for proving or disproving facts. As provided by law, the accused is given an opportunity to explain the evidence appearing against him. Therefore the statement should be regarded as an explanation offered by the accused. If he declines to offer any explanation or gives one which you consider to be untrue or definitely false, you can draw such inference as you think just and proper.'
In fact, this para means that the explanation given by the accused (appellant) has nothing to do with the case and that the Jury can lightly brush it aside. In my opinion, this is a clear misdirection vitiating the trial. It is now well-established that omission to put the defence case adequately before the Jury, or to call their attention to those points which are in favour of the accused is misdirection.
A Judge is not entitled to ridicule the defence or to say lightly about it that it may be considered or it may not be considered, because such observations may have a pernicious influence on the minds of the Jury and make them distrust the explanation offered by the accused in his statement without paying much attention to it.
In Hate Singh v. State of M. B. AIR 1953 SC 468 Bose J., delivering the judgment of the Supreme Court, observed that the statements of an accused person recorded under Sections 208, 209 and 342, Criminal Procedure Code, are among the most important matters to be considered at a trial. They have to be received in evidence and treated as evidence and be duly considered at the trial.
It was observed that the statements of accusedpersons must be treated like any other piece of evidence coming from the mouth of a witness and matters in favour of the accused must be viewed with as much deference and given as much weight as matters which tell against him. Nay more. Because of the presumption of innocence in his favour even when he is not in a position to prove the truth of his story, his version should be accepted if it is reasonable and accords with probabilities unless the prosecution can prove beyond reasonable doubt that it is false.
6. In this connection it may also be mentioned that in para 34 of the Charge to the Jury the learned Additional Sessions Judge stated :
'The presence of the accused in Hoshangabad on 8-8-1957 till the evening does not appear to be disputed by him and there is also no evidence regarding his absence till then.'
In my opinion, the previous part of this observation is clearly wrong. The appellant has been disputing his presence at Hoshangabad on 8-8-1957, from the beginning of the case, and in his statement betore the committing Magistrate he clearly said that he was not present at Hoshangabad on that date. In his examination before the Sessions Court, he admitted that his statement was recorded in the committing Court and did not say that it was wrong.
I do not understand how the learned Additional Sessions Judge can write and inform the Jury that the presence of the accused-appellant at Hoshangabad was not disputed by him. Then, no evidence has been adduced by the prosecution to show that the appellant was present at Hoshangabad on that date and that he remained there till the evening of 8-8-1957.
The only evidence adduced is of Smt. Narbadibai (P.W. 1) who is the prosecutrix in the case. In my opinion, it was the duty of the prosecution to have adduced evidence of the neighbours who could have said that the appellant was present there on that date. The absence of this sort of evidence ought to have been brought to the notice of the Jury in the summing up of the case.
7. In her statement before the police and also before the learned trial Court Smt. Narbadibai accused one Ismail both of the offences of abduction and of rape. According to her, Ismail played a prominent part, while the appellant Shaikh Gafoor a minor part. But, unfortunately, in this case, Ismail has not been prosecuted. No explanation is forthcoming for not prosecuting Ismail.
A question was put to the Investigating Officer,Durga Prasad Verma, who appeared as a CourtWitness No. 1: 'Whether you had proof againstIsmail ?' This question was disallowed by the Court.No reasons were recorded for disallowing it. In myopinion, this was an important point in the case.The presumption is that the police did not believeSmt. Narbadibai's story so far as Ismail was concerned.
The matter ought to have put to the Jury whether the deposition of Smt. Narbadibai can be severed in part (1) as against Ismail, and (2) as against the appellant Shaikh Gafoor, so as to be unbelievable against the first and believable against the second-But the learned Additional Sessions Judge curiously lays down the following in para 47 of his Charge to the Jury:
'Lastly, though urged by the learned defence counsel, you are not to consider the contention regarding the discretion of the investigating officer Verma (C W 1) in letting off Ismail, because we are not at all to consider whether he was right or wrong. His , indiscretion might be wrong.'
In my opinion, this was not sufficient. As I observed above, it was a question about the credibility of the statement of Smt. Narbadibai herself. It she has not been believed against Ismail, how can she be believed against the present appellant?
8. Then, Sanah No. 392, dated 8-8-1957. in the Roznamcha of the Police Station Hoshangabad is also important. Before going to Budni, the prosecutrix had lodged this report in the police station. It mentions as stating that both the husband and her Dewar (husband's brother) had cast aspersions against her character and that on this basis they had turned her out of the house and did not give maintenance.
In her statement before the trial Court an improvement was made saying that it was only the husband's brother Puran who had cast aspersions against her character, but the husband had no grievance against her character. This sanah was desired to be put to the prosecutrix for contradicting her on this point, but this also was disallowed by the learned Court. No reasons have again been recorded for disallowing this question.
9. In her statement to the police (Ex. D-1) she does not say that anybody had abduoted her from Hoshangabad. On the other hand, she says that she herself went to Budni, for she wanted to catch the train from Budni which is just on the other side of the river Narbada. This portion of the statement was afterwards contradicted. But such improvements in the story and contradictions do not appear in the Charge to the Jury.
In my opinion, it is one of the duties of the Judge to bring out such contradictions and improvements made in the statements of the prosecution witnesses to the notice of the Jury, and a question ought to be put to the Jury: Whether in view of these contradictions and improvements they could rely on the prosecution evidence and return a verdict of guilty?
In fact, it is in the light of these contradictions between the statement to the police and that at the trial that the Jury can consider whether they could rely on the statement of the prosecution witness at the trial. If the Judge fails to do this, and the error or omission is such that but for it there was possibility that the Jury might have given a different verdict, then it would be said that the accused did not get a fair trial, and the verdict and the conviction will have to be set aside. In this view, I am fortified by a decision reported in Hira Barua v. State, AIR 1956 Assam 175.
10. My attention, then, has been drawn by Shri Syed Ahmad, learned counsel for the appellant, to a contradiction in the Charge to the Jury. A para 23 of the Charge to the Jury, the learned Additional Sessions Judge says:
'Lastly, I must tell you, before laying the evidence before you, that the evidence of the woman abducted is to be accepted with caution and the corroboration must be by independent .evidence. It is extremely dangerous, and permissible only in exceptional cases, to convict a man of sexual offence on the uncorroborated testimony of the complainant.'
So far as this is concerned, there could have been no grievance against this portion in the Charge to the Jury. But the whole effect of this para is marred by para 46 where the learned Additional Sessions Judge lays down:
'It is necessary at this stage to point out to you that in Motiram v. State of Madhya Pradesh, 1955 Nag LJ 61: ((S) AIR 1955 Nag 121) it was observed that corroboration is not necessary for any offence under Section 366 I. P. C. In Rameshwar v. The State of Rajasthan, AIR 1952 SC 54 in which the offence of rape was in question, their Lordships observed thus: on page 57: '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 judges and in the jury cases must find place in the charge, before a conviction without corroboration can be sustained .....First, it is notnecessary that there should be independent confirmation of every material circumstances in the sense that the independent evidence in the case apart from the testimony of the complainant, should in itself be some sufficient to sustain the conviction ..... All that is required is thatthere must He additional evidence rendering it probable that the story of the complainant is true and that it is reasonably safe to act upon it.
In State Govt. M. P. v. Sheodayal Gurudayal, (S) AIR 1956 Nag 8 their Lordships further explained that the test as to whether corroboration is necessary lies in the naturalness of the story deposed to by the prosecutrix. If there is any doubt as regards its genuineness, there is the need of caution and therefore of corroboration. For this purpose it is not necessary that the entire story should appear doubtful. It is sufficient if any part of the narration has the semblance of exaggeration or artificiality. Gentlemen, it is for you to decide now if there is necessity of corroboration.'
11. It would thus appear that whatever had been recorded in para 23 of the Charge to the Jury goes against the contents of the above extract. In my opinion, such contradictory paras in a Charge to the Jury are bound to confuse the Jury. The Jury must have been left in the lurch guessing as to what is meant by the Judge by making this contradiction. In Queen v. Nobokisto Ghose, 8 Suth WR Cr. 87 their Lordships had pointed out that a Judge should not discuss points of law in summing up to the Jury and that he should avoid all extraneous and unnecessary argument merely summing up the evidence, and showing how the law applies to it.
In another case reported in Shyama CharanChakravarti v. Emperar, 2 Cri LJ 157 it waslaid down by a Division Bench of the Calcutta High Court that the duty of a Judge incharging a Jury in a criminal case is to makeup his mind as to what the law is, and to tell the Jury what it is, as succinctly and clearly as he can; but to cite to the Jury a large number of cases which the Jury cannot possibly understand is calculated to confuse them and to lead to a miscarriage of justice.
12. In the instant case, the Judge did not state whether, in his opinion, Smt. Narbadibai's statement needed corroboration or not. He ought to have stated that as she had been changing her story and making improvements in it, contradicting the various statements made by her to the police and in view of the absence of any First Information Report or any protest anywhere made by her, the story of the prosecutrix should be taken with a grain of salt in it and should not be believed to be true, unless it is corroborated, in material particulars.
If the Jury had been apprised of the necessity of corroboration of the evidence of the prosecutrix, then it would have been for the Jury to decide whether or not it would convict on the uncorroborated evidence of the prosecutrix. But the Jury had not been so apprised of it in the instant case. The Judge, in my opinion, has clearly railed in his duty in this respect, and I have no doubt that all this omission amounts to misdirection which occasioned failure of justice in the instant case.
13. Shri H. L. Khaskalam, learned Government Advocate, places reliance on a Privy Council decision, Ramanugrah Singh v. Emperor, 73 Ind App 174: (AIR 1946 PC 151) for the proposition that the Jurors should not be deprived of the right conferred on them by the Criminal Procedure Code to determine facts and that once they have done it there should be no interference by a Court of appeal, I need only add that their Lordships in that very case further laid down that where the verdict of the Jury is justified on the evidence before it, but is shown to be wrong in the light of further evidence placed before the High Court, the ends of justice would require the verdict to be set aside though the Jury had not acted unreasonably.
These observations were, however, in a case referred to the High Court under Section 307 of the Code of Criminal Procedure, The apt ruling on the point remains, Abdul Rahim v. King-Emperor, 73 Ind App 77: (AIR 1946 PC 82), where it has been laid down that misdirection is not of itself a sufficient ground to justify interference with the verdict. The High Court must, under the provisions of Section 423, Sub-section 2, and Section 537 of the Code of Criminal Procedure proceed respectively to consider whether the verdict is erroneous owing to misdirection or whether the misdirection has in fact occasioned a failure of justice.
If the court so finds, then, their Lordships stated, it has a duty to interfere, and further laid down some rule for the guidance of the High Courts in India. Their Lordships observed that in deciding whether there has been in fact a failure of justice in consequence of misdirection the High Court is entitled to take the whole case into consideration and determine for itself whether there has been a failure of justice in the sense that a guilty man has been acquitted or an innocent one convicted.
14. As I have stated above, the charge to the Jury, in the instant case, cannot be said to be fair. Many things which should have found place in the charge were not stated therein and there was such a misdirection that it must have occasioned failure of justice. I, therefore, set aside the verdict and the conviction of the appellant, inthis case. In the circumstances of the case, I do not propose to send the case for re-trial.
15. I would now take up the case of the appellant under Section 376; Indian Penal Code. The relations between the prosecutrix and the appellant cannot be said to be but very intimate and cordial. She was harassed by her husband's brother against whom her husband could not take any courage to do anything and save his wife. It may or may not be true that her husband also disliked her; but the fact remains that she was turned out of the house.
She must have felt disgusted with the home-life and possibly wanted to go somewhere else. One Ismail and the appellant, Shaikh Gafoor, were neighbours, and had good relations with the family of her husband. She probably found that they would arrange something for her, away from Hoshangabad, and, therefore, she might have gone to Budni for taking shelter there.
The story that on the bridge Ismail caught hold of her child and wanted to throw it in the river for getting her consent for allowing him to commit sexual intercourse with her may or may not be true; for, unless Ismail is prosecuted, we cannot ascertain the truth in this case, and the statement of the prosecutrix against Ismail and against the present appellant is so mixed up that the case against the two cannot be severed and it is difficult from the evidence of the prosecutrix to say how far of it could have been true.
The house in which she remained in Budni is in a crowded locality. She, then, travelled from Budni to Bhelsa in a separate compartment. She could have lodged protests anywhere, if she had liked to do so. She could have told about it to her fellow-passengers in the train or could have got down at Bhopal and told the police there. But she did not take recourse to either of these things and did not lodge protests anywhere.
What all this conduct on her part shows, except consent? And when the appellant says that he was already at Burhanpur, when the prosecutrix by chance met her and asked him to arrange for a house there and he accordingly arranged a house for her, the explanation given by the accused-appellant, in this case, seems to fit in with the probabilities of the case. Under these circumstances, for sustaining the conviction of the appellant there ought to have been corroboration, in material particulars, of the evidence of the prosecutrix.
I do not think I can place any reliance on it, unless circumstances are shown which may prove that rape had been committed on her. Even at Burhanpur, it was a crowded locality in which the house was situated where the prosecutrix resided for about 11 days. She could have gone to any neighbour there and told him that the appellant had abducted her and had been committing rape on her.
This was not done. When, in the end, the rescue-party came there and the husband Ramkisan met her, it is strange that Ramkisan admits that he had no conversation with his wife, Smt. Narbadibai till they were at Hoshangabad. It is only Narayandas Mochi (P. W. 2) who states that when with Ramkisan he went to the house where Smt. Narbadibai was, she had wept and had said that the appellant, Shaikh Gafoor, had committed rape on her. In this way, the evidence of the prosecutrix on the point of rape is sought to be corroborated by the statement of this Narayandas Mochi.
In my opinion, it could not be held to be corroboration, because the rule is well established that a statement made by a girl about her abduction and rape ten days after the occurrence cannot beadmissible under Section 157 Evidence Act, not having been made at or about the time of the occurrence. The Supreme Court had recently pointed out in Sideshwar Ganguly v. State of West Bengal, AIR 1958 SC 143, that the rule of prudence requires that, ordinarily, the evidence of the prosecutrix should be corroborated before a conviction can be based upon it.
16. In the instant case, I do not find any corroboration and the whole prosecution case bristles with many deficiencies both on points of law and on points of fact. In my opinion, the charge of rape could not be proved in this case.
17. For reasons stated above, I allow the appeal and set aside the conviction under Section 370 and the sentence passed on the appellant. I acquit him of offences under Section 376 as well as under Section 366, Indian Penal Code. He is on bail. He need not surrender to his bail. His bail bonds are discharged.