1. These three appeals are preferred from convictions and sentences passed on the three appellants by a Court consisting of the Sessions Judge of Bakarganj and a jury. All three appellants were convicted of abduction under Section 366, I.P.C., and appellant 1, in addition to being convicted of abduction, was also convicted of rape. The sentence passed upon appellant 1, who is a Sub-Inspector of Police, was rigorous imprisonment for seven years, that being passed on the conviction under Section 376, and the learned Judge in his case passed no separate sentence under his 366 abduction conviction. The two other appellants were sentenced to five years' rigorous imprisonment apiece under the abduction conviction. It may be noted that the convictions were brought in on majority verdicts, the majority being 3 to 2 in favour of all the convictions I have mentioned. Appellant 1 whose name is Sarat Chandra Chakravarty is a Brahmin Sub-Inspector of Police known locally as the Chhota Daroga and as such he is referred to almost universally in the evidence. The two other appellants are employed at the kutchery at a place called Rajpasha. They are known as the Mridha and the Haldar of the kutchery in question. The victim of this abduction and rape, as the jury found it, was a Sudra Hindu widow girl and perhaps it may be convenient if I quite briefly mention the facts relied on by the prosecution and accepted by the jury.
2. At the end of the month of January last it became the duty of appellant 1 in his capacity as Sub-Inspector of Police to make a visit to Rajpasha for the purpose of investigating the complaint of a theft which had been made to his head quarters. One of the persons who, it was alleged, concerned in this theft was the father of the widow girl whose name is Madhumala, and it is said that the Sub-Inspector shortly after dusk visited the Bari where this girl, her mother and her old mother-in-law lived together, and after some conversation the girl was carried away from the hut, screaming, to the Sub-Inspector's boat which had arrived at the place which they ferried across the river and tied up there by the two kutohery people. Appellants 2 and 3 were then dismissed and it is said that throughout the night the Sub-Inspector occupied his time by alternately drinking liquor, trying to force liquor upon the girl and criminally assaulting her. Then it is said that when daybreak came, the girl was put ashore and conducted to a deserted house being dragged across the field to this house; afterwards she made her way back to her own hut where she told two older women in the household about what had occurred. The prosecution case was that there were a number of people who watched all this happening, as far as the getting to the boat two groups of people, the villagers who saw the girl being carried off, and there were other witnesses who saw her being landed again the next morning. It is common ground that there was considerable delay in making the complaint concerning the abduction and the rape. It is also common ground that the girl was permanently on bad terms with appellant 2 whose name I should have stated is Jadu Nath Sinha over a petty land dispute and, as I have already pointed out, the visit to the hut where the girl lived was made because of the complaint of theft which led to the Sub. Inspector's visit. That roughly is the prosecution case.
3. The defence case is not a denial that the Sub-Inspector ever went there because it is admitted that he did. But it is said that he never spent the night in the boat at all either by himself or with the girl at all but that he spent the night in the kutchery. It is also said that when the Sub-Inspector came to the girl's house to make inquiries (this is the defence case) that there was some kind of a souffle and that she took up a dao that was lying in the hut and menaced the Sub-Inspector with this dao. The two employees at the kutchery denied that they were involved in this abduction leading to the rape at all. Now, I may say at once that although such a view would not be sufficient or proper to enable an appellate Court to set aside a conviction and a sentence of a lower Court in which findings of fact have been brought in by a jury, I consider that this is a false case. I do not believe that Brahmin Sub-Inspector of Police would openly carry off a Sudra girl widow in the presence of the whole village for the purpose of criminally assaulting her. I am not prepared to say that persons in this profession (I am referring to members of the police) do not surreptitiously at times indulge in connexion with village girls. I believe if such people wish to do that, it is not very difficult but it is not a course that they would ever pursue openly for very good reasons into which I need not enter.
4. Now, there is no doubt whatever in my mind that the charge of the learned Judge to the jury here is a very able one indeed. He entered into a most careful analysis of the evidence, the form of the charge as it appears before us is excellent and the clarity of the language which he employed is exceptional. But the impression made on my mind on reading the charge, at least four times in the interval during which we heard arguments on both sides at the Bar is that this was a charge directed towards a conviction. I have no doubt about it and it is a charge directed towards a conviction delivered by a learned Judge of strong personality and with a power of expressing his views in an extremely forceful manner. The feature of the summing up, to my mind, and it is a feature of omission, is that the learned Judge did not bring before the jury with the insistence I think he ought to have done from a judicial standpoint the necessity for constantly keeping in mind that this was a case of what I may call an enmity background. It may also be criticised and I think was rightly criticised at the bar by counsel for the appellants that the learned Judge omitted to take the precaution which it is always necessary for Judges addressing juries to take in cases of this character, that is, to warn the jury very gravely that when charges of a sexual criminal character are brought against an accused person in a criminal Court without corroborating evidence, then the jury must be told that whereas after due and careful consideration they are entitled to accept that uncorroborated evidence, it is rarely safe to do so and for the good reason which exists in all charges of this character made by women against men and more especially when the person accused is the subject of dislike or enmity on the part of those connected with the woman or on the part of the woman herself. In this particular case although it may be said that there was ample corroboration of the offences alleged up to the time that the boat was reached there was no corroboration whatever of the circumstantial and almost specious story which the girl herself put forward as to what occurred during the night in the boat.
5. On the question also whether there was outside evidence which could corroborate the woman in any way, although this is evidence not of the actual happenings but of the possible effect of what had been done, I refer to the evidence of the medical man who examined the girl. That to my mind is colourless and unconvincing to a degree. It has always been the practice and the procedure in the Courts sitting in London, and it has gradually become the practice and procedure here, and rightly I think that this want of caution on the part of a learned Judge in cases of a sexual nature vitiates in law to a considerable degree a charge to a jury however good in other respects. But that, in my opinion, is not the only criticism which can be fairly levelled against a learned Judge's summing up. To my mind, there is one part of this charge which is open to the gravest possible objection, not only because of the way he put it but because of the time that he thought fit to place it before the jury almost at the end of the address he made to them. In the course of his speech he said this: when dealing with the defence evidence, he used these words:
Nevertheless if you find that the defence case is a false one it is certainly an element in favour of the prosecution and against the accused. The falsity of the defence case may have the effect of confirming you in your belief that the prosecution story is true.
6. I am not prepared to say that those words or sentiments of that kind ought ever to be used to a jury. But it is to my mind of paramount necessity that if such language is employed, it should always be accompanied by the legal caution that the onus of proving explicit guilt is upon the prosecution and the prosecution alone. It has been said that the onus in criminal cases never shifts and I have said that myself in this Court and I shall probably say it again. It seems to me to be just the same today as it was 50 years ago. It cannot take away the independence of the jury in considering the defence evidence; otherwise there would be little use in calling such evidence at all. But it is a cardinal basis of our criminal law as opposed to the criminal law in many other countries that the true guide to the proving of guilt or innocence is whether the story of the prosecution is believed or not. The observations that I have made in this case which will be supplemented by other remarks from my learned brother might seem only to apply to the case of the Daroga. But in all the circumstances and because of the close connexion between all the appellants, the connexion of appellants 2 and 3 being more especially to my mind those of accomplices rather than actual principals, leads me to the conclusion that it would be in no way safe to uphold any of these convictions. Consequently we direct that the appeals be allowed and the convictions and sentences be set aside. The appellants, who are on bail, will be discharged from their bail bonds.
7. My learned brother has fully set forth in his judgment the facts of this case and it will not be necessary for me to do so again. I entirely agree with him that the way in which the learned Judge dealt with the defence case amounts to a most serious misdirection. Now it may well be that the two appellants who were servants of the landlord did procure the girl for the Sub-Inspector and it may be that the Sub-Inspector did have connexion with her with her consent possibly in the landlord's kutchery. Now I should have no difficulty in believing that the jury entirely rejected the defence version, that nothing happened to this girl at all and I should think it extremely probable that they disbelieved the story of the Sub-Inspector that he loved the girl, a story which was put forward for the purpose of providing a motive for the launching of the prosecution. Now in view of this the effect of the learned Judge's charge would be that a very sensible rejection by the jury of this defence suggestion put a sort of imprimatur on the truth of the prosecution case. It will clearly have no effect of this kind whatsoever. The learned Judge should have told the jury in plain and unmistakable terms that if they refused to believe the defence case it would in no way help in determining whether the prosecution was true or not. It sometimes happens that the prosecution story and the defence story are both false and such may possibly be the case here.
8. I am further of opinion that the learned Judge's charge, clearly expressed as it was, was too colourless and failed to bring before the jury the main circumstances in the case. For example, he spent a great deal of time in putting before the jury observations with regard to the various witnesses in the order in which they had deposed in Court. I cannot imagine that method of dealing with the evidence afforded any assistance to the Jury at all. I do not propose to do more than give one or two examples of the way in which the prominent features of the case were not clearly laid before the jury. Now, I can understand that it is quite possible for a police officer to carry off a girl by force. In such a case one would expect him to use his own constables. I can also imagine that he might try to procure a girl with the assistance of the local landlord and in such cases it is only natural that some servant of the landlord would be employed for the purpose. In the present case we have a combination of those two methods and in addition evidence which makes the Sub-Inspector behave as though he was almost a lunatic. Such aspects of the prosecution story were not presented to the jury at all.
9. I need only refer to one unfortunate method of dealing with the individual witnesses. In this case the most important witness is the girl herself. In putting her evidence before the jury the learned Judge asked them to estimate its value by considering whether it appeared to be tutored or to be true. This suggests that the alternatives are tutoring or truth. This is clearly misleading. She may have invented the whole thing herself. In such a case her evidence though it need not be tutored, would undoubtedly be false. The effect of this misdirection may have been that the jury came to the conclusion that the evidence was not tutored and therefore thought that it must be ipso facto true. Now the verdict, as my learned brother has pointed out, was an extremely narrow one. In my opinion, a very serious misdirection may quite possibly have accounted for it. This is a matter which we must take into consideration in considering whether we should order a retrial or not. Now the prosecution case is stamped with most of the well marks of concoction and I have no doubt that the charges of abduction and rape are entirely false. In these circumstances I agree that the only proper order for us to make is to direct that the convictions and sentences should be set aside.