1. In this case Ohajuddin Molla and Nur Ahmed alias Nonia were tried by the Additional Sessions Judge at Alipore and a jury which consisted of three Hindus and two Mahomedans. They were convicted Under Sections 366 and 376, I. P. C, by a majority of 3 to 2. The learned Judge considers that the verdict against Nur Ahmed was against the weight of evidence and unreasonable and that he ought to be acquitted under both the sections.
2. The facts were that a girl named Kiron Bala Dassi of the Bairagi caste lives in a small village near to a much larger Mahomedan village. According to her story, some time before the date of the offence alleged in this case, Ohajuddin made immoral suggestions to her, asking her to go and live with him. She said that she was highly shocked and screamed out with fear. This is alleged to have taken place at midday, while she was working in her hut and Ohajuddin is alleged to have called her from outside. Further, it is suggested that before this incident, some persons approached her bari at night, but were chased away by male members of her family. There is the evidence of one witness that Ohajuddin was seen among those who were running away. This witness was Adel Molla. His evidence appears to be unsatisfactory, because it is clear that he told two entirely different stories before the Magistrate and before the Sessions Judge. On the night of the alleged offence the girl's husband was away. Her evidence was that two men whom she did not name came into her hut and gagged her with a piece of cloth. She tried to scream, but they brandished a knife; then they dragged her away to their house and raped her one after the other.
3. The next day, she was kept in the house and Ohajuddin forced her to eat and then raped her twice that day. The next morning, Ohajuddin came with Maniruddi and let her out. Maniruddi was not there the previous night. Ohajuddin told her to go to her father's house and on her way home she met her 'deor' and the chaukidar to whom she told what had happened. Then, 'looking unwillingly' at the two men in the dock, she said 'Ohajuddin and Maniruddi are in the dock.' It will be noticed that in her examination-in-chief she did not mention either of the two accused when she described what happened in her hut, nor did she mention anybody else but Maniruddi, who she said was with Ohajuddin when she was let out on the Thursday morning.
4. Not satisfied however with the paucity of evidence elicited in examination-in-chief, the learned pleader on behalf of the accused brought out a great deal more evidence in her cross-examination, which in my experience almost invariably seems to be the practice in this country. She said then that she had known both the accused for some four years, but neither of them had been to her hut before. She said that she could not see their faces in the dark, nor could she see any knife or whether they had a knife or not. Then she explained her former evidence by saying that she was threatened in the room twice by word of mouth. She said that the accused were outside the curtain when she awoke: she was pulled outside the curtain and then they seized and gagged her. In view of this evidence it is a little difficult to understand why the girl was not able to scream before she was gagged and threatened. Then she said that she was taken by them to their house and it is apparent from other evidence of witnesses who saw three persons going along together, that she was walking quietly between the other two. Her mouth was not gagged, but she says it was ' clogged' and explains that expression as meaning that she was threatened with a knife, although she did not see one, which seems a little difficult to understand. Then the Court cross-examined her and elicited that at Ohajuddin's house that night she saw his face. Still she persisted in not mentioning the other man. Then there was further cross-examination, the pleader for the accused being still dissatisfied with the amount of evidence elicited against his client. And after further cross-examination, she said that she recognized them both on the Tuesday night and that she saw their faces clearly in the dawn.
5. It appears from the evidence that she was confined the whole of Wednesday in a room in which there were two open windows. She made no effort to escape though she was left alone there. She did not see Nonia the whole of that day. Finally, the jury put some questions to which she said that on Tuesday night it was dark and she recognized the accused by their voices. Before the Magistrate she had sworn that she could not recognize either of the two men. They took her inside some one's house where both of them raped her in the course of the night ; they were with her the whole of the night, but she could not recognize them at all. She says however that the next morning, when there was light, she recognized them both. This, again, sounds a somewhat improbable story.. It is a little difficult to understand why they waited until she was able to recognize them when the light came. She did not make any complaint of actual hurt, nor were any marks found upon, her, There was evidence of one or more witnesses who saw her leaving Ohajuddin's house on Thursday morning weeping. During the search for the girl, Ohajuddin assisted ; in fact, it was he who said 'Let us all join in search of the girl.' They searched Hindu houses but did not suspect any Mahomedan. When previously some men had been chased from their house at night, they did not suspect them of coming after Kiran Bala, but thought they were thieves. Ohajud-din has a young wife aged between 18 and 20 and two daughters. One witness said that he saw two men, whom he did not recognize, carrying a woman off. He-knew their voices to be of Ohajuddin and Nonia, but he was not called as a witness. When the chaukidar met her, she used a curious expression 'Ohajuddin took me away and dishonoured my religion. ' Kanai Bairagi, one of the witnesses, said that there had been a maramari between him and the accused before and there was friction between Ohajuddin and Chandra about the advances to Kiran Bala. This witness in the Court below said that when he observed two men taking a woman away, he did not recognize any one.
6. Elaj Molla said that he saw three folk walking together and he asked them where they were going. He vaguely recognized Ohajuddin from his voice chiefly. He did not feel suspicious of them. They were walking in the ordinary way. The accused being Mahomedans and the girl a Hindu, it is unfortunate that the jury was composed as it was. It is obviousfrom the references which I have made to the evidence that this case is unsatisfactory from many points of view apart from the direction given by the Judge to the jury. His charge unfortunately, is somewhat short and sketchy. There is little attempt to deal with the story in chronological sequence or to examine or weigh the evidence with care and point out its relevancy to the jury. The Judge has quite properly warned them that in cases of this description arising out of sexual matters, when charges are made against a man by a woman, it is dangerous to convict upon her evidence alone and that they ought to require corroboration of her story before they bring in a verdict of ' guilty.' He said that they were entitled to accept the evidence of the girl, but that they should be slow in accepting it. They should scrutinize her evidence very carefully, and unless her story convinced them so much that they felt that it did not possibly stand in need of any corroborative evidence, they should nob accept her uncorroborative evidence. This direction was correct. But, in my opinion, the learned Judge has not emphasized sufficiently the danger of convicting any man upon the uncorroborated testimony of the girl in oases such as this. He ought to have dealt with this part of the charge, so as to make the jury understand that only in exceptional cases would they be justified in accepting the uncorroborated testimony. Unfortnnately also, he misdirected them by stating that there was corroborative evidence and it was only this:
that the prosecution says that there were those two instances before, that she was missing all the night and the following day. But she could equally have been missing if she had gone of her own free will. The corroborative evidence consists of what the girl said to the manager and to her deor.
7. This is not the kind of corroboration required by law. The leading case on this subject, in which the whole law was exhaustively discussed by Lord Beading, who was then the Lord Chief Justice, is R. v. Baskerville 12 Cr App Rep 81. This being the leading case on the subject, I am surprised to find no reference to it in some of the leading text-books, except a passing reference upon another point. In that case, the learned Lord Chief Justice said:
We hold that evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only her evidence that the crime has been committed but also that the prisoner committed it.
8. Then referring to the Criminal Law Amendmend Act, 1885, Sections 2 and 3, he says:
The language of the statute 'implicating the accused' compendiously incorporates the test applicable at common law in the rule of practice. The nature of the corroboration will necessarily vary according to the particular circumstances of the offence charged. It would be in a high degree dangerous to attempt to formulate the kind of evidence which would be regarded as corroboration, except to say that corroborative evidence is evidence which shows or tends to show that the story of the accomplice, that the accused committed the crime is true, not merely that the crime has been committed, but that it was committed by the accused.
9. Again, at p. 89, he says:
What is required is some additional evidence rendering it probable that the story of the accomplice is true and that it is reasonably safe to act upon it. The corroboration must be by some evidence other than that of an accomplice and therefore one accomplice's evidence is not corroboration of the testimony of another accomplice.
10. It is clear therefore that the kind of corroboration required by the rule must be independent evidence, that is to say, the evidence of some witnesses other the girl herself. If there were any doubt about this, it was made clear in the case of Job Whitehead 21 Cr App Cas 23 the head-note of which is that 'the witness cannot be corroborated by himself.' The Lord Chief Justice, Lord Hewart, in that case said that corroboration should come from another person altogether.' Therefore applying the rule to the evidence in this case, it is clear that the evidence referred to by the learned Judge is not corroborative evidence within the mean-ins of the rule, because what the girl said to the manager and to her deor and what she said about Ohajuddin having made improper proposals to her were statements made by her and equally dependent upon whether her testimony-was to be believed or not. The fact that she was missing all the night and the following day was not a fact which implicated either of the accused, and this the Judge has realized, because he points out that she could equally have been missing, if she had gone of her own free will. The fact that some persons had been near the house at night on a previous occasion and one of them was Ohajuddin, even if the evidence of identification can be relied upon, is not evidence which implicates Ohajuddin in the offence charged. The only piece of corroborative evidence, which I can find in the record, is the statement of one or more witnesses that they saw her coming out of Ohajuddin's house on the Thursday morning weeping. But this has not been referred to by the Judge as corroborative evidence within the meaning of the rule which the jury might take into consideration to confirm the story of the girl.
11. The learned Judge has pointed out a number of reasons which induced him to think that there has been a miscarriage of justice in this case and we agree with him that the trial for various reasons has been unsatisfactory. Against Nonia there is nothing but the girl's evidence and that is not very convincing. Against Ohajuddin, there is, as I have already pointed out, some evidence which might be accepted as corroboration within the meaning of the rule. It is true that if, after a careful and sufficient warning, the jury choose to condemn either or both of them, upon the girl's statement alone, there is nothing in law to prevent them from doing so. That being the position, we think that the fairest and the best way of dealing with this case is to set all the convictions and sentences aside and to direct a new trial of both the accused, and we direct that they shall be tried by another Judge, because this Judge will not wish to try the same case all over again. The accused who are on bail will continue on the same bail, pending further orders by the trial Court.
M.C. Ghose, J.
12. I agree.