1. In this case the two accused persons were put on their trial on a charge of having raped a girl called Tustumoni on 28th May last in the afternoon. The girl appeared to be of the age of 16 or 17. It is said that neither her father-in-law nor her mother-in-law was in the house.
2. The defence was that the girl was the kept woman of one of the witnesses, Hari Narayan and that the whole story was false, and it was alleged that it arose out of enmity with Hari Narayan.
3. There were many questions of fact for the jury upon which, it seems to me, that the jury might have come to conclusions one way or the other and would have had some reason in either case. We are now concerned with the question whether the case was put properly to the jury and it is of no avail at this stage for us to consider the questions of fact about which there was evidence both ways.
4. We have been taken through the charge of the learned Judge and I must say that it seems to me an admirable charge. It deals with the relevant facts. It omits hardly anything of the smallest importance, and in my opinion, it puts everything clearly and fairly. It is true that in one part of the charge, with reference to the question whether the girl was the kept woman of Hari Narayan, the learned Judge says:
You will also remember that that was a matter which was never put to Tustumoni.
5. It appears that that was put to Tustumoni and that, no doubt, is a mistake on the part of the learned Judge. I can see no other expression in this charge that is open to serious-criticizm. The learned Judge was endeavouring to describe the character of the country in which this hut or house was, pointing out to the jury that the incident did not take place in a village but in an abadi. It is true, that there is some evidence that there were certain houses not very far away, I do not think that that in any way shows that what the learned Judge said was in any way misleading to the jury.
6. It was pointed out that the mother-in-law was not called. An explanation was given that she was deranged in her mind and the learned Judge told the jury that if they thought fit they could draw the inference that the mother-in-law was being kept back by the prosecution. The learned Judge might have gone on to say that if the jury thought that she was being kept back by the prosecution they might draw the further inference that if she had been called she would have given evidence contrary to the prosecution case. It does seem to me that we may attribute sufficient intelligence to the jury in understanding what is meant by 'being kept back by the prosecution.'
7. Again, as regards the medical evidence I can see no serious criticizm to be made upon what the learned Judge has told the jury. He does not tell them that they are not to think about it all. What he does tell is that, although the doctor has said that there were injuries on the girl that might have been caused in the way she says, still the doctor very fairly says that if anybody was minded to set up a false case of rape it would be quite possible to produce similar injuries for that purpose; and, therefore, the learned Judge says that one cannot decide this case by the doctor's evidence, that the doctor's evidence is inconclusive and that before one convicts a prisoner one must do so on the strength of other evidence in the case. That I think is a very fair way of putting it to the jury and that particular passage again seems to me to be quite correct.
8. The result, in my judgment, is that with the exception of this slip where he says:
You will also remember that that was a matter which was never put to Tustumoni,
there is nothing that can be found fault with in this charge and I am of opinion that that is not a matter of any great importance. It only concerns with whether or not it was put to the girl. It was put to the girl and the girl denied it.
9. The only other matter is that it has been brought to our attention that one of the jurymen in this case had not an adequate knowledge of English and that apparently when the peshkar commenced to translate the Judge's charge in the vernacular it was found to be unsatisfactory because of his lack of sufficient 'knowledge of English. Thereupon it seems that it was arranged that the Public Prosecutor being the best man available as regards translating capacity would translate the charge to the jury, the mukhtear for the defence being told that if he wanted to object to any translation he was to be at liberty to object then and there. It strikes me that that is perhaps unfortunate but not an unfair way of getting the translation made as long as it was understood that the mukhtear was free to object whenever he thought fit to object. It is said that the mukhtear on one or two occasions, at all events, did object. That being so, the juror was given the benefit of the fact that one man put it one way and the other man put it the other way and I do not think that there was any possible prejudice to the prisoner in a matter of this sort. After all it appears that all the other members of the jury knew English sufficiently and that this particular member of the jury appears to have agreed with all the others. There was a finding of the jury that was unanimous. Of course there is a great temptation in criminal cases to use any loophole which suggests possibility of a prejudice that can be exaggerated afterwards. Speaking for myself I rather object to putting it upon mukhtears or other people that they should consent to do something which is not in itself proper without their consent. It is very much to be wished that peshkars or the Judges themselves should explain the charge to the jurymen who do not know English, but in this case I am quite satisfied that there are no reasons to think that this particular juryman was not given the benefit of the correct translation of the Judge's charge. In all these circumstances I think this appeal must fail. It is accordingly dismissed.
C.C. Ghose, J.
10. I agree.