1. The accused in this case (Panchanan Gogai, Gopal Gohain, Mohari Ahom alias Mohari Dursa, Kan Bap Baruah, Laghona Koar, and Ratneswar Ahom) were found guilty by the jury in manner following i.e. Pachanan and Kan Bap were found guilty under Sections 328 and 366, I.P.C., Gopal and Mali Ali or Mohari under Section 366, I.P.C. and the remaining two under Section 366 read with Section 107, I.P.C. The learned Additional Sessions Judge of the Assam Valley Districts, agreeing with the verdict of the jury has sentenced the accused to undergo various terms of imprisonment.
2. The main point which has been argued in this appeal before us arises with reference to the evidence of one Sashi, Prabha, a girl aged about 17, who was alleged to have been abducted. The case for the prosecution, shortly stated, was as follows: It appears that the marriage of Sashi Probha with one Lokenath had been settled and the marriage was to have taken place on 6th May 1928. Her father Durga Prosad had been away from home for some time prior to the date of the occurrence hereinafter referred to. It is alleged that taking advantage of the absence of Durga Prosad, the accused Panchanan in conspiracy with the accused Kan Bap Gopal and Mohari, and with the approver, Sona Ram, abducted the girl after making her unconscious. They also administered dhatura poison to the adult members of the family. The abduction took place on the night of 27th April and the girl was removed from place to place until she was brought to the house of one Haranath who was the brother-in-law of the accused Panchanan. Haranath sent a wire on 26th May to Durga Prosad and ultimately the police recovered the girl on 29th May. Sashi Probha appeared before the Magistrate for the first time on 11th June 1928.
3. The passage in the learned Judge's charge to the jury, to which exception has been taken before us, runs as follows:
Of course in a case of abduction, the most important witness is the abducted girl but the abducted girl in this case has retracted all that she deposed in the lower Court. But before we discuss the evidence, you should remember some dates.
The occurrence took place on the night of 27th April, corresponding to 14th Baisakh. The marriage for Sashi Probha was to have been celeberated with Lokanath on 6th May i.e., 23rd Baisakh. Durga Babu left this house a few days before to purchase articles for marriage and for other important business, he was to return on 29th April. The negotiations of the marriage were going on for about six months or so. The girl was recovered on 29th May; Haranath sent a wire on 26th May. She was examined by the police at Sibsagar on 30th May. After her examination, she was sent to her father's house immediately. She remained at her father's house for four or five days, after which she again came to Sibsagar, She was again brought home two or three days before her father's death which took place on 14th June. Her sister, Ratna's marriage was celebrated with Lokenath on 6th May, the date on which her marriage with Lokenath was to have been celebrated. On 11th June she was produced before the Subordinate Divisional Officer to have her statement recorded under Section 164, Criminal P.C. An Honorary Magistrate was deputed to verify the statement so recorded. Sashi Probha was examined by the Committing Magistrate on 22nd August 1928. Durga Prasad died on 14th June 1928. Sashi Probha left her father's house in the night of 4th September. While her mother and her little sister Santi and the youngest brother was alone, living, Sashi Probha was again produced before the Magistrate on 5th September 1929, the date of commitment. On that date, Panchanan was sent to hajat. Sashi Probha was allowed to go of her own free will, to the house of Panchanan. The letter Ex. 7 which goaded her to take this fatal step is dated 29th August 1928. Sashi Probha was examined in this Court on 8th May 1929. Sashi Probha personally appeared before the Additional Judge, Mr. Mehta on 7th March 1929, to apply for bail describing herself as the wife of Pachanan Gogai.
The girl has spoken in four voices. The first three statements are substantially the same. In all the statemenes, she spoke of being drugged and then carried by force in an unconscious state. All these statements have been read before you and you have also heard her deposition here. The suggestion of the defence is that what she spoke on the previous occasions were tutored and it is only here that she has spoken the real truth. It is also suggested that what she spoke to Bheduri, Kameswari and others when she was being taken from place to place were false and intended to convey wrong impression. This suggestion is made in the cross-examination to anticipate the evidence to be given by these persons. You must bear in mind the adverse comments of the defence pleader about the delay in producing her before the Magistrate and also that she did not appear before the Magistrate voluntarily. It is for you to decide in what voice she spoke the truth. The determining test should be what version has been corroborated by the independent evidence. It has been the attempt of the prosecution to prove that her first three statements have been so corroborated.
4. On behalf of the accused it has been contended before us that the learned Judge had misdirected the jurv in not calling their attention to the fact that the girl had been declared hostile by the prosecution and that she was allowed to be cross-examined and further that in the circumstances which happened the learned Judge ought to have directed the jury that the evidence of the girl ought to be rejected altogether. In support of this contention reliance has been placed upon the case of Emperor v. Satyendra A.I.R. 1923 Cal. 463 at pp. 176 and 177 (of 37 C.L.J.). The learned Deputy Legal Remembrancer on behalf of the Crown has argued that it is not a hard and fast rule that when a witness is cross-examined by the party calling him his evidence must be rejected in toto and has drawn our attention to a number of cases in the Courts in this country, where a somewhat different view has been taken.
5. Before I proceed further, I desire to refer to the order of the learned Judge under Section 154, Evidence Act, allowing tha prosecution to cross-examine the girl. The order is as follows:
The Public Prosecutor after examining the witness for sometime and found out that the witness was making statements contrary to what she deposed in the lower Court - wants the permission of the Court to cross-examine her after she is declared hostile. The other side objects. I am of opinion that the permission should be granted.
6. The order of the learned Judge is not very happily expressed but I take it to mean that he having considered the submissions made by the prosecution exercised his discretion in the matter and gave leave for the cross-examination of the witness. This the learned Judge did, because the witness was clearly, in his opinion, one who was hostile. A hostile witness may be defined as one who, from the manner in which he gives his evidence, (within which is included the fact that he is willing to go back upon previous statements made by him) shows that he is not desirous of telling the truth to the Court. Where therefore one comes across a witness of this description, there is very high authority for the proposition that the evidence o such witness cannot in part be relied upon and the rest of it discarded or rejected : see Alexander v. Gibson 2 Camp. 556. This case has been followed ever since 1881 and only in one case, namely, in the case Bradley v. Ricardo 8 Bing. 57 it was not followed. Where the witness is declared hostile, so that leave to cross-examine is granted to the party calling him, it is in in our opinion necessary that the Judge should explain to the jury what the position is that then arises, namely, that by asking for leave to cross-examine the witness, the party calling him admits that he is not a witness of truth and one whose evidence is not entitled to credit, who is prepared to make one statement on oath at one time and another at another time and that the evidence of such a witness should be rejected and left out of account in the minds of the jury. On principle we can see nothing why this rule which is in accordance with justice and fair play should not be adhered to. At any rate it is a rule which leans in favour of the accused and as such ought not to be departed from lightly.
7. In our opinion the learned Judge should have told the jury to reject the evidence of the girl altogether and that his omission to do so amounts to misdirection. The verdict of the jury must therefore be set aside and with it the conviction and sentence. The question then arises as to what should be done. We have very carefully considered the position and have come to the conclusion in view of all the circumstances that; it would not be unduly stretching the law if we were to direct that there needs not be a retrial. The accused who are on bail will be discharged from their bail bonds.