1. The four appellants were tried by the Assistant Sessions Judge of Pabna and a jury upon charges under Sections 366 and 498, I.P.C. The jury found them all guilty of an offence under Section 366 but no verdict was given with regard to the charge under Section 498 and the learned Judge agreeing with the verdict of the jury sentenced each of the appellants to rigorous imprisonment for four years and six months. The actual charge under Section 366 was as follows:
That you, on or about 20th February 1939 at Dayarampur, Police Station Chatmohar, forcibly abducted Sairan, a woman, with intent that she may be forced or seduced to illicit intercourse with you, and thereby committed an offence....
2. The evidence of the girl was that she was the wife of Jabbar Pramanik; that she had been first married to another man Jabbar of Rajapur; and that he had divorced her. After this the appellant Taser Pramanik wanted to (nika) marry her but she would not agree to it and subsequently she was married to her present husband four months and 13 days after her divorce from her first husband. She lived in her house with her mother-in-law and some minor relatives. She had been married to her present husband a little over a year when the occurrence alleged by her took place. The husband went away for the night selling wood and her mother-in-law went to the house of Sairan's husband's sister. Sairan was sleeping in one of the huts of the bari after fastening the wooden door of the hut. She was alone in the ghur. She woke to find that her mouth was tied and she was carried aloft out of the ghur and taken to a jungle. There she began to cry when a dagger was pointed at her and she was threatened with death. She was then ravished and she was kept in jungly places and taken from the jungle to various houses during the course of the next 10 days or so. She could not fly away because she was always guarded by the men who she alleged had abducted her. Towards the end of this period when she was with Taser and Kader moving from the jungle to the house of Alamdi they passed Asraf Sardar and he subsequently gave information to the husband of what he had seen. But that same night the girl returned to her house, her story being that she had got away while Kader was sleeping. She alleged that all the four men ravished her from time to time. She told her husband about what had happened to her and a number of other people who came up and proceedings eventually were taken.
3. In this case there is no corroborative evidence of the girl's story so far as the offence charged is concerned, that is to say, of the offence of abducting her from her husband's house on or about 20th February. There is some evidence, namely that of Asraf Sardar, that she was with Kader and Taser some ten or twelve days after 20th February, moving from the jungle to the house of Alamdi. This witness's evidence is not very satisfactory because it appears in his deposition before the Magistrate under cross-examination that Sairan was being dragged along by the two men, which of course might be good corroborative evidence of an abduction alleged on or about 2nd March but is no corroboration of the offence alleged on 20th February. But when this witness gave his evidence before the Assistant Sessions Judge he omitted all reference to the dragging merely saying that he had seen the girl going along with Kader and Taser. The deposition before the Magistrate curiously enough was put in by the defence and was the only corroborative evidence of any part of the girl's story except of the fact that she was moving from place to place with these two men. Neither the Judge nor anybody else seems to have referred to this curious discrepancy and the only conclusion that I can come to is that the prosecution had realized that the witness was no longer willing to support the statement which he had made before the Magistrate.
4. In his charge to the jury the learned Judge merely stated the law, described the offence and repeated most of the evidence in detail. He does not seem to have given them very much guidance, which is especially necessary in trials of charges of this kind where allegations of sexual offences are made by women against men, very often unsupported by any corroborative evidence. The learned Judge in fact suggested to the jury that there were some other eye-witnesses than the woman herself because he said 'the woman Sairanessa is practically the only eye-witness of the occurrence.' He did not explain who the other witness or witnesses were and he went on to say that:
The most important witness in an abduction case is generally the abducted woman herself. The evidence of Sairanessa should no doubt be received with caution though not necessarily with distrust.
5. That is all the direction he gave to the jury upon the important question whether the girl's evidence ought to be accepted without corroboration, whether there was corroboration, what kind of corroboration it was and whether it was, as is necessary, corroboration with regard to the offence itself and which implicates the accused. Time after time this Court has drawn the attention of Judges to the necessity of a careful direction with regard to this point. I need only refer to the cases in Surendra Nath Das v. Emperor : AIR1933Cal833 and Nur Ahmed Gazi v. Emperor : AIR1934Cal7 . Both these decisions were founded upon the decision in R. v. Baskerville (1916) 2 K.B. 658 which was a judgment by Lord Reading and other Judges. There are other cases referred to in the reports in the Calcutta Weekly Notes. No such direction as has been required by this Court time after time was given by this Judge and it is quite obvious therefore that the convictions cannot be allowed to stand. The only question that remains is whether there ought to be a new trial. It is clear from what I have said that there is no corroboration whatever with regard to the appellants other than Taser and Kader. With regard to Taser and Kader there is the evidence of Asraf Sardar to which I have referred given before the Magistrate and not repeated before the Sessions Judge. In such circumstances it would, in our opinion, be a waste of time and labour to send this case back for a retrial owing to the paucity of the evidence available against the appellants. The result is that the convictions must be set aside and the appellants released and if on bail the bail bonds cancelled.
6. I agree.