1. The appellants here are five in number. They were tried by the Assistant Sessions Judge at Mymensingh for what may be called 'gang rape' and other semi cognate offences. As sometimes happens in these cases, the learned Judge did not rule out certain charges against the appellants which, I think, were highly redundant, for example, the charge of house-trespass by night-quite an unnecessary charge and one possibly calculated not to clarify the case when the jury came to consider the whole of the evidence finally. The verdict of the jury, it may be noted, was not a unanimous one; it was a 3 to 2 verdict, and the appellants were sentenced to in all five years' rigorous imprisonment apiece. But owing to the fact that the learned Judge let in these redundant charges, he was placed in the position of having to impose con. current sentences which, to my mind, was mere waste of time. Now, the prosecution case was broadly as follows: They said that a certain woman by name Mon Mohini was abducted from her husband's house in the middle of the night, her husband being in the house at the time and also her mother being there, by these five men. Having broken into the house and seized upon her, they carried her away to a deserted spot where they all in turn raped her, beat her and finally she got back to her house the next morning. Subsequently, a report was made to the police and an exhibit was shown consisting of a garment said to be stained with semen.
2. The defence case, to use a trans-Atlantic phrase which has now become a colloquialism in the English language, was that these charges were what is known as a 'frame-up.' It was denied that the incident ever took place at all. It was said that the woman, in addition to being a liar, was an immoral girl. It was said that she was a woman who was habitually unfaithful to her husband. She used to go out to other men, she dressed herself in male clothing and masqueraded as a boy and her general conduct was so bad that the people in the village prevented their young boys from meeting her if possible, because if she happened to go down to certain village tank which is a common evening gossip place nearby, she would get hold of the village boys, and seduce them. The defence also called attention to certain discrepancies in her evidence before the trying Magistrate compared with the evidence which she gave at the jury trial more specially with regard to the place where she said she was criminally assaulted. It was said to be the edge of a bed, but the defence contend that she misdescribed the place in the way she referred to the nature of the ground and so on. Thus it will be seen that here are two diametrically opposite stories supported on oath by two sets of witnesses, one set of whom must be perjuring themselves before the Court, by no means an easy case to try, and a case in which the presiding Judge ought to exercise the greatest possible vigilance and the greatest possible care in assisting the jury. Now, I have read his charge to the jury with as much care as I possibly can, I have read it more than once and I feel that the effect made upon me is that the learned Judge himself was labouring under a great difficulty of mind owing to the form in which he made his address. It cannot be said, and it very rarely can be said, of the Judges in the district that he was not careful in presenting the full materials to the members of the jury. It is a very exhaustive charge. But, again, I say that the impression it has made upon my mind is that although he accepted the verdict of the majority, he would have been pleased if a verdict had been brought in the other way. I may be wrong in the view I take, but it is possible, on having read hundreds of such charges to the jury and directed them.
3. Now what is the duty of a Judge in these difficult and hard swearing cases in which there is undoubtedly, and I believe it is, common ground here that there was strong enmity on either side on the part of the two factions in the village. I think the Judge's duty may be said to be this: If he feels very strongly that the prosecution's case is a true one, whilst maintaining his care and his vigilance in presenting all the facts before the jury, he ought to, as much as possible, conceal his feelings. It is no part of a Judge's duty to act as an Assistant Public Prosecutor. But if he feels that there is something extremely suspicious about the prosecution case, if he finds that the main witness for the prosecution is a person whose testimony should be regarded with the greatest caution, then he ought to show his hand to the jury. He is not a mere judicial automaton, that is worse than useless and waste of public time. And I do feel that Judges in the District should bear in mind that if they are of the opinion that the case for the defence is a worthy case and needs backing up by judicial authority, they ought to take that course and this Court will never blame them for so doing, so long at least as my learned brother and I sit here. Let the Judge not bother about what the local authorities think about it, let him not bother about any report of the police authorities. His duty is to act as a check and an effective check upon the wrongful conviction of persons who may be innocent or may be in that position which justifies the benefit of the doubt being exercised in their favour. It is questionable what the truth of this case really is. If the defence story is correct and the alleged victim Mon Mohini is an unreliable woman, then a wide door is open to her in the charge she made, she may turn an incident in which perhaps she was the original instigator into one which appears to be a criminal offence against her. Again, I say, as this charge reads to me, it is not by any means a bad charge, because it is careful, but it is what I call, with due respect to the learned Judge, a wishy-washy charge. In those circumstances I propose to exercise the right which all appellate Courts can exercise by passing an order in favour of the defence on the basis that the alleged crime is one of very doubtful proof, and the jury have not on the whole been properly directed. The appeals will, accordingly, be allowed and the convictions and sentences set aside. We direct that the appellants be released forthwith.
4. I agree that this appeal must be allowed. In my opinion the first point taken by Mr. Gupta on behalf of the appellants raised an important question. When recording the heads of his charge, the learned Judge in dealing with the actual evidence has entered into a wealth of detail and repetition, which were wholly unnecessary. On the other hand in dealing with the law he has not said enough. My learned brother has already pointed out the unnecessary complication which was introduced by framing four charges when one would have been quite sufficient. The learned Judge merely sets out that he read and explained to the jury no fewer than 29 sections of the Penal Code but he has not told us what his exposition of this mass of law actually was. It has been pointed out over and over again by this Court that it is absolutely necessary that the heads of charge should show clearly and distinctly what the exposition of the law actually was. In the present case the learned Deputy Legal Remembrancer was forced into the position that he had to search about the rest of the charge to find out anything which would enable us to say that the law had been properly explained, I am afraid, that he has not been able to satisfy me upon this point.
5. As an example I would take the exposition of the law with regard to abduction. The learned Judge did go into this matter in some detail; but he has not told us anywhere what explanation he gave of the term 'abduction.' There is however a passage in the charge which, with great respect to the learned Judge, I can only describe as remarkable. It is in these terms:
If you are satisfied on the evidence before you that the girl was a woman of loose character, you should next very carefully consider whether she was leading a life pure from unlawful sexual intercourse at the time when the abduction took place even if you believe on the evidence before you that she was really abducted by the accused persons. This does not mean that it is necessary to prove that the girl has never at any time surrendered her condition of purity from unlawful sexual intercourse. She may have surrendered it in the past and thereafter have resumed a life of purity. On the other hand if she is already leading a life of indulgence in unlawful sexual intercourse at the time of the abduction it cannot be said with any reason or sense that she was abducted in order that she might be seduced to illicit intercourse within the meaning of Section 366, I.P.C. In such a case the accused have not abducted her in order that she might be led astray in conduct or drawn away from the right course of action into a wrong one because she was already astray and was pursuing a wrong course at the time of the abduction.
6. It seems to me impossible for any jury who listened to this to have any idea of what 'abduction' actually means. The learned Judge should have pointed out the alleged bad character of the girl was only relevant in so far as it affected her credit or supported the defence suggestion that the case was not a true one. Then again there was a serious misdirection in these terms:
The most important matter for your consideration and determination in this connexion is whether Nanda and his mother were assaulted in their own house as alleged by the prosecution or on kater bhilta as alleged by the prosecution. After carefully considering all the suggestions and evidence on the record you shall have to choose between the evidence of P. Ws. 8 and 11 and the evidence of P. Ws. 5, 6, 9 and 12 and to hold whether the prosecution has succeeded in establishing the prosecution case on the point.
7. The defence put forward a specific case to explain how injuries were inflicted on the father of the girl. The suggestion of the learned Judge is that if the jury did not believe the defence version, they must automatically accept the prosecution story as true. He should have explained that both versions might be false, and if the jury, were not satisfied that the defence version was true, they were by no means to regard this as helping the prosecution to establish the truth of their version. Finally the charge was, in my opinion, of too colourless a character. A great deal of time was taken in saying who the witnesses were and what they said, matters which the jury were perfectly well aware of. The striking features of the case were not brought forward at all. The prosecution case is that, Nanda was actually beaten and that he knew everything about the abduction from the very start and yet no attempt was made to follow up the abduction or to organize a pursuit. In this connexion the P.W. 18 made a curious admission in cross-examination that a search was made for the girl in the huts. If this admission was true, the main prosecution story must undoubtedly be false. Then again there was the extraordinary evidence given by the girl with regard to the time taken over this outrage. There is another story that the abductors took the trouble to bring her back and deposit her outside her husband's door. This is an important matter, with regard to another suggestion of the defence that, she was out to meet some lover and was caught returning with the result that she had to invent a story to account for her absence. As my learned brother pointed out, the verdict was a narrow one. In my opinion the case is highly suspicious one and I would not order a retrial.