1. This is a reference made under Section 397, Criminal P. C., by the Additional Sessions Judge, Cuttack, recommending that the unanimous verdict of 'guilty' returned by the Jury, in respect of a charge under Section 376, I. P. C., should be set aside.
2. The prosecution case, briefly, is this. On the night of 12-2-1951, P.W. 7 Bimali Dei, an unmarried girl was sleeping in her house in village Patkura in P. S. Tikhiri of Cuttack district, with her mother (P.W. 5), her sister (P.W. 6) and her younger brothers. At midnight she was carried away by some persons who made a forcible entry into the house, and was carried- to a field about, 600 yards away from her house and there she was raped by the four accused persons. After she had been raped twice by each of the accused persons, she was brought by them and left in the backyard (bari) of her house in a prostrate condition. Meanwhile her mother and sister had been aroused by the cries of a young baby and P.W. 5 called out P.W. 7 but found her missing. A little later P.W. 5 could hear the moans of P.W. 7 who had by then been left in the backyard of the house. The girl was helped into the house by her mother and sister and sometime later she disclosed what had happened to her mother.
The father of the girl was at that time absent from the village, and on receiving information about the occurrence returned to the village on the 14th evening. An attempt wasmade by the villagers to hush up the matter by persuading the accused to pay compensation but as no settlement could be arrived at, P.Ws. 3 and 7 went to the Police Station where the girl (P.W. 7) lodged First Information on 18-2-1951. On 19-2-1951, she was examined by P. W, 1, a doctor, who noticed some abrasions on her right and left scapula and buttocks. He also noticed a laceration of the fourchettes & it was gaping. The hymen was ruptured and was bleeding on touch. The mucus membrane of the vulva was inflamed, tender, and signs of recent tearing were found. The accused pleaded a complete denial of the occurrence and stated that the case had been foisted on them at the instigation of P.W. 4.
3. The learned Additional Sessions Judge clearly charged the Jury for an acquittal. He criticised the prosecution from all points of view. He indicated, in unmistakable terms, that the story given out by the complainant was hard, to believe. He pointed out what in his opinion were material contradictions and discrepancies between the version given by the girl in the F.I.R. (Ext. 5) and her evidence in Court, saying that they could not be brushed away as being of a minor character. The learned Judge then referred to the contradiction between the girl's evidence and her mother's evidence and her sister's evidence. Referring to the evidence of the doctor he said that the injuries pointed out by the doctor were as consistent with a case of adultery as with rape, though it was nobody's case that there had been an offence of adultery as admittedly the girl was unmarried.
The injuries noticed on the person of two ofthe accused persons were, in the opinion of thelearned Judge, sufficiently explained and notsuch as to cause any suspicion against them.He did not choose to place any reliance uponthe evidence of the doctor with regard to theage of the girl. On this part of the case thelearned Judge told the Jury that the evidenceof the doctor was 'no surest guide' in theabsence of the Ossification test. He also referred to the defence evidence and characterisedit unconvincing. The accused had been chargedUnder Sections 457 and 376, I. P. C. The jurorsreturned a verdict of 'guilty' in respect of thecharge under Section 376 and 'not guilty' on thecharge under Section 457. The learned SessionsJudge refused to accept the verdict in respectof Section 376 and has made the present referenceto this Court, as, in his opinion, the two different verdicts of the Jury are inconsistent and'not mutually tenable', and there was noevidence at all to sustain any of the chargesagainst any of the accused persons.
4. The powers of the High Court to interfere with the verdict of a Jury are definedin Section 307, Criminal P. C. It says that if theSessions Judge is clearly of opinion that it isnecessary in the ends of justice to submit acase in respect of such accused person to theHigh Court he shall submit the case accordingly, recording the grounds of his opinion.The Section also lays down what the HighCourt may do in such a case. Sub-section (3)of Section 307 says:
'In dealing with the case so submitted the High Court may exercise any of the powers which it may exercise on appeal and subject thereto it shall, after considering the entire evidence and after giving due weight to the opinions of the Sessions Judge and the Jury, acquit or convict such accused of any of the offences upon which the Jury could have convicted him on the charge placed upon it.'
5 It is well settled that the Jury are the sole judges of fact and however much a Judge may differ from their opinion, if the evidence is properly placed before them and the evidence is such that a reasonable body of men might reach the conclusion which the Jury has reached, the Judge has no power to make a reference. Nor would the High Court have the, power to interfere. There was a conflict of opinion between the different High Courts as to whether the High Court would interfere only if the verdict of the Jury was perverse in the-sense of being unreasonable or whether it could interfere if, upon 'its own' view of the facts,, the verdict is unsustainable. But this conflict of opinion has been resolved by the Judicial Committee in -- 'Ramanugraha Singh v. Emperor, AIR 1946 PC 151 (A). Their Lordships of the Judicial Committee held that the reasoning, in the cases reported in -- 'Queen Empress v. Dada Ana', 15 Bom 452 (B); -- 'Emperor v. Har Mohan Das', AIR 1927 Cal 848 (C) and -- 'Veerappa Goundan v. Emperor', AIR 1928 Mad 1186 (FB) (D) and in other cases which laid down that the Court could interfere only if the verdict of the Jury was perverse or against the weight of evidence, was correct. The paramount consideration must be whether the ends of justice require that the verdict of the Jury should be set aside. Their Lordships observed:
'In general, if the evidence is such that it can properly support a verdict of either guilty or not guilty, according to the view taken of it by the Trial Court and if the Jury take one view of the evidence and the Judge thinks that they should have taken the other, the view of the Jury must prevail since they are the judges of fact. In such a case a reference is not justified and it is only by accepting their view that the High Court can give due weight to the opinion of the Jury.'
6. We have been taken through the evidence fully and after giving due weight to the opinion, of the learned Judge we are unable to say that the verdict of the jury is not justified by the evidence. We are further of opinion that the apparent discrepancies and contradictions pointed out by the learned Judge are not so serious as to be regarded as fatal to the prosecution case; and in any event more than one view of the evidence is possible. It was certainly within the province of the Jury to take one view rather than the other; and it is not a case in which it can be said that there was a complete lack of evidence to support the prosecution case and that the verdict of the Jury should, therefore, be pronounced as 'perverse'.
7. The learned Addl. Sessions Judge appears to have made an unfortunate confusion between 'adultery' and 'rape'. Adultery is an offence committed against a married woman whereas rape may or may not be so. Rape may be committed against a married woman if sexual intercourse is had without her consent, and it becomes adultery only if she consents to such Intercourse and thus offends against her marital ties. The complainant P.W. 7 is an unmarried girl and no question of adultery could at allarise in this case. I am, therefore, unable to understand what the learned Judge had in mind when he observed:
'A third possibility might be there, which is adultery with the consent of the girl.'
Again he says:
'But the Jury had been clearly told in theaddress that the learned Public Prosecutorhad openly sought to abandon that alternatetheory of rape in the course of his argumentand that since it was no side's case thatsexual intercourse was with consent, thoughthey could reject the prosecution story onthe theory of probability, that consent wasthere, there was no material for them tomake out a positive third case that sexualintercourse with the girl was with herconsent.'
It is difficult to follow the reasoning underlying this observation. In another part of his reference the learned Judge says: 'But the medical evidence was clear that such intercourse might have been as much with her consent as without her consent.' The learned Judge failed to see that no medical man could give any opinion as to whether sexual intercourse was made with or without consent. It was for the Jury to see, having regard to the circumstances and the evidence of the girl, whether she consented to the intercourse. This confusion appears to have been mainly responsible for the difference of opinion between the Judge and the Jury.
8. But apart from what has been said above the reasons given by the learned Judge for his difference with the Jury may now be examined.
(After discussing the evidence His Lordship proceeded): These were the points made out against the girl's story by the learned Judge in his reference, and I have no hesitation in saying that none of them appeals to me as being convincing enough to justify disagreement with the view taken by the Jury. These are all matters of inference to be drawn from facts and should be left to the Jury to form their opinion about.
9. The learned Additional Sessions Judge next refers to what he calls inconsistencies between the version given by P.W. 7 in the F. I. R. (Ext. 5) and that given in her evidence in Court. (After discussion of these inconsistencies and some more evidence His Lordship proceeded).
10-11. Referring to the delay in lodging the F. I. R. the Judge is of opinion that the delay was not 'sufficiently explained at least for the period for which P.W. 3 waited in the village I at the instance of some of the villagers.' In a case like this the delay is not unnatural. Whether the explanation for the delay given by P. Ws. 3 and 6 was sufficient or not, the Jury appear to have satisfied themselves that there was good cause for the delay that had occurred. Here, again, it is a matter for the jury on which they could come to their own opinion.
12. The learned Judge then makes much ofhe absence of any reference to the cuttingf the rope in the F. I. R. The suggestion isthat the accused effected entry into the houseby cutting the rope tied to the door-leaf. Therope had been seized by the Police ten dayslater. I am unable to see anything material inthe omission to mention this detail in the F.I.R. What the learned Judge seems to have thought is that the Jury should be taken to have disbelieved the girl's story alleging that the accused persons entered forcibly into the house as false, inasmuch as they acquitted the accused persons of the charge of Section 457, I. P. C. But such an inference, in my opinion, does not necessarily follow from the facts elicited in evidence. The girl merely stated that she did not know the persons who had forcibly entered into the house and carried her away and that she could identify them only, later, when she was being raped. Apart from the suggestion, conveyed in this statement there is no other evidence to show as to who the persons who entered into the house were or as to who carried her away. In such circumstances the Jury were right in not holding the accused guilty of the offence of house-breaking.
13. As I have already stated above the learned Judge does not appear to have properly understood the prosecution case with regard to the age and consent of the victim of the rape. The prosecution case is that the girl had attained puberty about four months before the date of occurrence and that, at the time of the occurrence, she was fifteen years of age. This is corroborated by P.W. 3 & P.W. 5 the father & mother of the girl respectively, as well as by P.W. 1 the doctor. The doctor's evidence shows that she had 28 permanent teeth and no wisdom tooth. He estimated her age from the development of her breasts, height and weight and the appearance of pubic hair.
The ossification test to which the learned Judge refers is no doubt a surer test for determining age. But I am not aware of any such tests having been conducted anywhere in India particularly in Orissa. Nonetheless Courts have acted on the opinion of doctors, arrived at without conducting any ossification tests and based on other factors as indicated above. The learned Judge seems to have ignored the conditions obtaining in this country, and has brushed aside the opinion of the doctor on the ground that he did not conduct the ossification test on the girl. The fact that the girl had attained puberty just four months prior to the occurrence must have impressed the Jury who saw the girl, considerably in returning their verdict and it is unfortunate that the learned Sessions Judge should have wholly overlooked this important piece of evidence.
Having regard to the evidence on the point the learned Public Prosecutor obviously told the Jury that the question of consent did not arise. But curiously enough the learned Sessions Judge has interpreted the position taken up by the Public Prosecutor as amounting to an 'abandonment' of the 'alternative theory of rape with consent'. The prosecution did not at any time suggest that the girl consented and the question of 'abandoning that theory' as suggested by the learned Sessions Judge is the result of a misunderstanding of the prosecution case. I see no ground for supporting the learned Judge in thinking that the Jury had tried to make out a 'third case' as they were under no misconception that the girl was below 16 years of age and was raped.
14. After going through the evidence I am satisfied that there can be no doubt about the truth of the prosecution version and the Jurywere right in their appreciation of the prosecution evidence. In his charge the learned Judge appears to have obtrusively imposed his own opinion of the facts and freely expressed himself against the credibility of the witnesses. It should be borne in mind that appreciation of facts is exclusively within the competence of the Jury and the Judge is expected to help the Jury only in the appraisal of the evidence. He may, of course, suggest the probability or otherwise of the effect of a certain fact elicited in evidence, but he would be going beyond his jurisdiction if he were to say that he does not believe a certain fact, as has been done in this case. I have also noticed that the learned Sessions Judge has referred in his charge to many reported cases and their effect. This would result in confusing the Jury as they are not expected to be learned in law. The Judge should confine himself only to laying down the law on his own responsibility without referring to decided cases. The question whether two facts contradict each other should invariably be left to the Jury and they should be left free to consider whether the conviction is so serious as to make the witnesses unworthy of credit. The duty of the Judge ends when he points out the two versions and any apparent contradictions implied in those versions. He should not proceed beyond that and say that the contradictions justify rejection of the evidence. This is a matter for the Jury to form an opinion about.
15. I have also noticed that the learned Judge has mainly relied on the so-called contradictions and discrepancies in the prosecution evidence, both in his charge to the Jury and in his reference to this Court to discredit the prosecution case. The proof of a fact depends not upon the accuracy of statements made at different stages of a case but upon the probability of its having existed. A fact is said to be proved when, after considering the matter before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of that particular case, to act upon the supposition that it exists. Evidence of a fact and proof of a fact are not synonymous. While, therefore, there may be inaccuracies in the evidence, the fact sought to be proved may be so probable that a prudent man may act upon the supposition that it exists.
It is the broad facts of the case, and not the little details that go to make up those facts, that will make the existence of those facts probable or not. Discrepancies are bound to occur in human testimony and mathematical precision in the statements of witnesses cannot be expected. These inaccuracies or discrepancies may arise out of the incompetency of a witness to state a fact precisely or completely, or out of the failure of the person who records his statement to appreciate the importance of the fact at the time of recording it and the accuracy of the record. They may also arise out of lapse of memory or the strangeness of the surroundings. We therefore come across discrepancies in very many cases between the F. I. R. recorded by a Police Officer and the statement recorded by a Magistrate or a Judge. If the decision of cases were to depend upon an exact correspondence between the language used by different officers at different stages, no case can possibly be proved.
It is common experience that proper attention is not paid to accuracy or precision in the record prepared during investigation or even in the Committing Court. Similarly, with regard to the so-called contradictions. Unless the contradictions are of such nature as to affect the existence of the fact in issue, they cannot be regarded as material. The omission of a detail in an earlier stage of the proceedings is not to be treated as a contradiction of the facts spoken to later unless it is a material fact. In a Jury case, it should be remembered that the Gentlemen of the Jury being laymen, are likely to overlook or even forget little details of the case, and concentrate their attention only on the broad facts.
The broad facts in this case are: (1) that the girl had attained puberty four months before the offence; (2) that she had been removed at dead of night and forcibly raped; (3) that her hymen had been ruptured and the four-chette had been lacerated; (4) that her scapula and buttocks bore marks of injury; (5) that a patch of blood was found on her wearing cloth near the buttocks; (6) that there were marks of injury on the inner side of the thighs of two of the accused persons, caused by finger nails and that no explanation was given for the existence of those injuries or that the explanation given was so improbable as to be rejected; (6a) that the girl had no previous sexual experience; (7) the unlikelihood of a story being concocted which would ruin the future of the girl; (8) the absence of any motive for a false story being foisted on the accused; and (9) that she was affected with gonorrhea.
With regard to the last point it is unfortunate that the accused persons were not examined by P.W. 2 the doctor to ascertain whether any of them had infection of gonorrhea. The other outstanding facts have been proved by un-impeachable evidence. Mr. Pasayat pointed out that the charge to the Jury was vitiated owing to the failure of the Judge to put certain facts before the Jury which would have weighed in favour of the accused. He cites, as instances, the following facts; (1) that the delay in lodging the F. I. R. had not been satisfactorily explained; (2) that the non-examination of the Punchayet witnesses who attempted to effect a settlement of the matter on the day after the occurrence has not been satisfactorily explained; (3) that the defence evidence was discussed first before the prosecution evidence was placed before the Jury, & (4) that P.W. 5 the mother of the girl did not send word to her husband immediately after the occurrence.
I do not think that any of these circumstances was overlooked by the Jury in spite of the fact that the learned Judge did not specifically mention them in his charge. The prosecution witnesses were cross-examined at great length on all these points and the accused were defended by Mr. Pasayat himself who argued these points in his address to the Jury. Nor do I consider these points to be of such great importance as to incline me to hold that the non-direction of the Jury on these points amounted to a miscarriage of justice.
16. After having gone through the evidence with great care, I am satisfied that the verdict returned by the Jury in this case was the only verdict possible and any other view would, inmy opinion, have been perverse. I would accordingly reject this reference, accept the verdict of the Jury and convict the accused persons under Section 376, I.P.C., and sentence each of them to undergo four years rigorous imprisonment and to pay each a fine of Rs. 100/-. In default of payment of fine each of the accused shall undergo rigorous imprisonment for a further period of 6 months. Out of the fines, if realised, Rs. 300/- will be paid to the complainant as compensation under Section 545, Cr. P. C.
17. I agree with the order proposed by my learned brother.
18. I am, however, constrained to make some observations regarding the unsatisfactory manner in which the accused persons were medically examined by Dr. Harekrushna Parija (P.W. 2). It is a well-known rule (see Modi's Medical Jurisprudence, Tenth Edition, p. 303 and p. 305) that in cases of rape the alleged victim and the accused persons should be specially examined with a view to ascertain if they are infected with venereal diseases. Dr. Jadunath Kar (P.W. 1) who medically examined the girl Bimali Dei took special care to collect some smear from the vagina of the girl and sent it to the Chemical Examiner from whose report it appears that the girl was infected with gonorrhea. Dr. Harekrushna Parija (P.W. 2), however, has not stated that he examined the accused persons with a view to ascertain if any of them was infected with venereal diseases. His evidence is entirely silent on this subject. Any medical officer with some knowledge of medical jurisprudence is expected to know that in cases of rape the accused ought to be specially examined for signs of venereal disease, if any.
Even if this medical officer overlooked this point the investigating police officer or the superior police officers who supervised the case ought to have sent a special request to the Medical Officer to further examine the accused persons to find out if there were signs of venereal disease. Unfortunately, this was not done with the result that an important piece of evidence was lost. If any of the accused persons was found to sutler from gonorrhea that would be the strongest piece of corroborative evidence of the girl's statement incriminating that accused. On the other hand, if none of the accused was found to suffer from gonorrhea that circumstance itself would completely disprove the girl's allegation of rape by the accused persons because according to her evidence that was the first time when any person had sexual intercourse with her. I trust the authorities concerned will make careful enquiries and find out who was responsible for this important omission.