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Ayub Ali and ors. Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1942Cal277
AppellantAyub Ali and ors.
RespondentEmperor
Excerpt:
- .....the abducted woman for the purpose of lodging information at the thana.8. during the course of the trial, statements made by the accused ayub ali in the course of the previous trial were proved and placed before the jury, and the jury were asked to consider these statements in connexion with the defence allegation that the woman sukhada sundari was married to the accused ayub ali on 13th june 1940. the learned sessions judge in his charge to the jury read out the statements recorded under section 342, criminal p.c., in the previous trial to the jury and after doing so stated : 'this clearly indicates that ayub ali had an opportunity of telling the judge, if he desired to do so, that he had married sukhada.' the learned judge then proceeded to discuss these statements and other evidence.....
Judgment:

Lodge, J.

1. The seven appellants before us and one Monomohan De alias Munna were placed on their trial before the Additional Sessions Judge of Tippera on a number of charges. They were tried by the learned Additional Sessions Judge and a common jury. The jury returned a majority verdict in respect of all the accused on all the charges framed. The verdict of the majority, namely, three of the jury was as follows:

Appellants Ayub Ali, Kader Ali and Nur Mian were guilty of offences punishable under Sections 147, 341, 365 and 366, Penal Code.

Appellants Nur Bux Gazi, Julmat Dhali, Abdul Rahman and Sujat Ali were guilty of offences punishable under Sections 147,341, 365/109 and 366/109, Penal Code.

The non-appealing accused Monomohan alias Munna was found guilty of offences punishable under Sections 365/109 and 366/109, Penal Code.

2. The learned Judge accepted the majority verdict of the jury and he sentenced Ayub Ali under Section 366, Penal Code to undergo rigorous imprisonment for six years. He sentenced Nur Mian and Kader Ali under the same section to undergo rigorous imprisonment each for four years. Under Section 366 read with Section 109, Penal Code, he sentenced Julmat Dhali, Nur Bux Gazi, Abdul Rahman and Sujat Ali each to undergo rigorous imprisonment for three years; and under Section 866 read with Section 109, Penal Code, he sentenced Monomohan De alias Munna to undergo rigorous imprisonment for four years. No separate sentences were passed against any of the accused persons in respect of the other offences of which they were found guilty.

3. The case for the prosecution briefly is as follows: One Sukhada Sundari widow of Suresh Majumdar was living with her five children in her husband's house in the village of Gulisha within the jurisdiction of Chandpur police station. On 12th June 1940 this woman left her home and on the following morning attended at the Chandpur mosque and went through a ceremony of some kind there. As she was coming away from the mosque in the company of Ayub Ali and another she was arrested by the police and made over to her relatives. A case under Section 366 was started against Ayub Ali and another. Ayub Ali and the other man were placed on trial on that charge before the Court of Session. During the pendency of that case and after the accused was acquitted, the woman Sukhada Sundari resided at the basha of a pleader, namely Nagendra Singh in the town of Chandpur. That case came to an end on 6th September 1940 with the acquittal of the two accused persons.

4. Some time after the acquittal of the accused in that case a proposal was made that the woman Sukhada Sundari should go on pilgrimage with one Jatindra Mohan Basu Raja and his family. The matter was discussed and according to the prosecution it was finally decided on 21st September 1940 that Sukhada Sundari should accompany the Basu Eajas on the pilgrimage. According to the prosecution Sukhada Sundari was agreeable to do so; according to the woman herself she was reluctant to go on the pilgrimage. According to the prosecution, Sukhada Sundari expressed a desire to go back to her village home and see her children and her relatives before going on the pilgrimage. No date however, was fixed for her return to Gulisa to visit her children and her relatives, but on 21st September, while Nagendra Babu and his wife were away from home, the accused Monomohan De alias Munna, a servant of Nagendra Babu, persuaded Sukhada Sundari against her better judgment to start for Gulisa that same evening. Munna engaged the boat of Dinabandhu for that purpose and persuaded Sukhada Sundari to go with him in that boat that evening. There are two routes by which one can travel from Chandpur to Gulisa. The shorter route via Brahman-Shakua goes through a portion of the country which is largely inhabited by Moslems.

5. The longer route via Bagra was considered by Sukhada to be safer. Accordingly, they travelled by Bagra and arrived at Gulisa on the following morning. On the morning of 22nd September Suihada had a meal in her mother-in-laws's house and visited other Hindu relatives in the village. At about midday, the accused Munna approached her and said that he had to return to Chandpur immediately as he had urgent work there, and he prevailed upon her to return with him there and then. Munna also said that it was necessary for him to travel by the shorter route via Brahman-Shakua. Sukhada Sundari at first was reluctant to go by this route but ultimately she agreed as Munna insisted, but she first secured an escort of Hindu relatives from the village. Accordingly Girindra Chandra Mazumdar, Jatindra Chandra Nandi and Nani Gopal (Nandi) of that village accompanied her in that boat and all started out on the return journey to Chandpur.

6. After travelling a distance of about a mile and a half, the party reached the northern end of the submerged fields of the village Chapila and were just entering the mouth of a khal when they found a boat coming from the opposite direction. When this boat reached them it turned across the khal and blocked their farther passage. The appellant Kader Ali came out from under the cover of that boat and jumped upon the cover of the boat in which Sukhada was travelling. The cover of the boat was broken by the force of his jump. The appellants Nur Mian and Ayub Ali also boarded Sukhada's boat in the wake of Kader Ali. These three men then commenced to drag Sukhada Sundari towards their boat. Sukhada Sundari resisted and screamed and clung to her friends, and her friends Girindra, Jotindra and Nanigopal attempted to save her. They were threatened, however, by the other accused who were also in the boat from which Ayub Ali and his companions had jumped. Accordingly, Jotindra, Girindra and Nanigopal gave up the struggle and allowed these men to drag Sukhada Sundari away. While this incident was in progress, the accused Munna sat quiet in the boat of Sukhada Sundari making no attempt to intervene. When the accused started away in their boat with Sukhada, Munna got into their boat and left the place with them. In the meantime, some 10 or 12 other boats had come up and surrounded the boat in which Sukhada Sundari's friends had been travelling. These boats remained round Dinabandhu's boat until the boat in which Sukhada Sundari had been taken, had gone some distance. Thereafter, they suffered the people in Dinabandhu's boat to proceed. Girindra and his friends decided to return to Gulisha. When they reached Gulisha they discussed the incident and determined to lodge information with the police. Accordingly, first information report was lodged with the police at 4 A. M. on the morning of 23rd September 1940, and the usual police investigation followed.

7. The accused Munna was arrested on 24th September 1940. None of the other accused were apprehended ' or surrendered until the middle of November. The woman Sukhada Sundari remained in the custody of the accused party until the case came up for trial. The defence story is that Sukhada Sundari after she became a widow was ill-treated by her husband's relatives, and also, owing to poverty, was in difficulties in maintaining her family. The appellant Ayub Ali is a neighbour and had been a friend of Sukhada Sundari's late husband. Sukhada fell in love with Ayub Ali and voluntarily left home with him in the previous June. On the morning of 13th June she attended Chandpur mosque and was there converted to Islam, and thereafter married Ayub Ali of her own free will. During the previous trial she remained in the custody of her Hindu relatives, and was by them induced to give false evidence against Ayub Ali. After the close of the previous trial, her Hindu relatives suggested that she should go on a pilgrimage, but she did not agree. She was afraid, however, that she might be compelled by them to go on a pilgrimage and she, therefore, decided to leave the house of Nagendra Babu, pleader, and to return to Gulisha. Accordingly, she set out on the evening of 21st September with Munna for Gulisha. She arrived at Gulisha on the morning of 22nd September and went to the house of her mother-in-law. Her mother-in-law abused her, insulted her and assaulted her with a broom-stick and refused to give her shelter. She then sought shelter in the house of another Hindu relative, viz., the witness Jatindra Chandra Nandi, but there too she was insulted and refused accommodation. Accordingly, of her own free will she went to the house of her husband Ayub Ali. The appellants, in their defence, denied that there was any such incident on 22nd September as alleged by the prosecution. The accused Munna put forward a different defence. He gave a story very similar to that given by the prosecution. According to him he too started back from Gulisha with the woman Sukhada Sundari in the afternoon of 22nd September and they were held up by the other accused in the manner described by the prosecution witnesses. ' He asserts, however, that he was no party to the abduction and denied that he left the place of occurrence in the company of the other accused persons. He asserted that he was sent to Chandpur by the relatives of the abducted woman for the purpose of lodging information at the thana.

8. During the course of the trial, statements made by the accused Ayub Ali in the course of the previous trial were proved and placed before the jury, and the jury were asked to consider these statements in connexion with the defence allegation that the woman Sukhada Sundari was married to the accused Ayub Ali on 13th June 1940. The learned Sessions Judge in his charge to the jury read out the statements recorded under Section 342, Criminal P.C., in the previous trial to the jury and after doing so stated : 'This clearly indicates that Ayub Ali had an opportunity of telling the Judge, if he desired to do so, that he had married Sukhada.' The learned Judge then proceeded to discuss these statements and other evidence and suggested to the jury that the attitude taken by the accused in the previous trial was inconsistent with the attitude taken in the present trial. He did however draw the attention of the jury also to a petition Ex. B filed in Court during the previous trial by one of the defence witnesses, in which it was clearly asserted that Sukhada had been married to Ayub Ali. The learned advocate for the appellants has argued before us that the statements made by Ayub Ali under Section 342, Criminal P.C., in the previous trial should not have been admitted in evidence and he has further argued that if the statements were admitted in evidence the learned Judge should have emphasised in his charge before the jury that in the previous trial the factum of marriage was not strictly speaking, relevant. In our opinion, the line of defence taken in the previous trial was certainly a relevant fact, and the jury were entitled to know what defence Ayub Ali had taken in that case in view of the attitude taken by the defence in the present case, viz., that Sukhada was married to Ayub Ali on 13th June 1940. We are unable to hold that the learned Judge was wrong in admitting the previous statements into evidence, or that he misdirected the jury when he stated his opinion that the attitude taken by Ayub Ali in the previous trial was inconsistent with his attitude in the present trial. The fact that the learned Judge placed before the jury, Ex. B shows that he placed all the relevant materials before the jury. The fact that he emphasised his own inference from those materials does not justify us in holding that he misdirected the jury on this point.

9. During the course of the trial the statements made by the woman Sukhada Sundari during the previous investigation and during the previous trial were admitted into evidence. Four statements were taken from Sukhada Sundari during the previous investigation and trial. Her first statement was recorded by the police under Section 162, Criminal P.C. Her next statement was recorded by a Magistrate under Section 164, Criminal P.C. Her third statement was made during the enquiry before the committing Magistrate, and her fourth statement was her evidence on oath during the actual trial in the Court of Sessions. The learned Judge placed all these four statements before the jury. The learned advocate for the appellants has contended before us that a wrong use has been made of the statements of Sukhada recorded during the previous investigation and trial. He has contended that if previous statements of a witness are to be used as substantive evidence except as provided in Section 288, Criminal P.C., they must be statements corroborating her evidence in Court and admissible under Section 157, Evidence Act. But, inasmuch as the previous statements of Sukhada Sundari contradict her evidence in this Court in almost every particular, the learned advocate contended that they were not admissible under Section 157 of the Act. If they be regarded as admissible under Section 155, Evidence Act, for the purpose of impeaching the credit of the witness then the statements, according to the learned advocate, are not admissible as substantive evidence. They are merely admissible to show that the present statements of the woman Sukhada are not reliable. Moreover, according to the learned advocate, inasmuch as the provisions of Section 145, Evidence Act, were not complied with they ought not to have been admitted even under Section 155, Evidence Act.

10. There can be no doubt that the prosecution were entitled to prove these previous statements in order to impeach the credit of the witness Sukhada. It may be observed that Sukhada was examined not as a prosecution witness in the present case but as a Court witness. It is true that the provisions of Section 145, Evidence Act, were not strictly complied with. The attention of the witnesses was not drawn to each one of the previous statements that were made by her which were ultimately used for the purpose of contradicting her, but she was cross-examined generally as to the circumstances under which she made her previous statement and in some detail as to particular statements made by her. It is obvious from a perusal of that cross-examination, that she was not able to give any satisfactory explanation of the conflict between her statements during the previous trial and her statements in the present trial, and the failure to put each individual statement to her obviously did not result in any miscarriage of justice. In our opinion the statements recorded by her in the previous trial were rightly admitted in evidence, and though there was a failure in some respects to comply with the provisions of Section 145, Evidence Act, that failure was of no importance in the present case.

11. As to the question whether the statements previously recorded were used for a wrong purpose, it has been argued by the learned advocate for the appellants that these previous statements were used as substantive evidence of the facts contained in. them. In our opinion it cannot be said that they were in fact used for that purpose. The learned advocate for the appellants drew our attention to that portion of the charge to the jury in which the learned Judge summarised the various conflicting statements of the woman Sukhada and particularly to the final sentence in the paragraph in question. That sentence reads: 'It is necessary for us to come to a decision as to which version is true.' The learned advocate has argued from this sentence that the learned Judge treated both sets of statements as substantive evidence and requested the jury to decide which of the two sets of statements they could rely upon. In our opinion the sentence to which reference has been made, does not justify this interpretation. In the present trial the defence emphasised their assertion that Sukhada was married to Ayub Ali on 13th June 1940. In respect of one of the charges at least the question whether or not she was married to Ayub Ali before the date of the present occurrence was of the greatest importance, as the learned Judge himself pointed out. The question, therefore, whether or not the woman had been married was of great importance in this particular case, and the learned Judge was right in drawing the attention of the jury to this conflict in evidence and he was right in asking them to come to a decision as to which of the two stories was true. But the learned Judge in inviting the jury to come to a decision as to which of the two versions was true did not rely on the evidence given by the woman during the previous trial. He emphasised circumstances which were not seriously disputed, and he asked the jury to come to their decision after considering all these circumstances. In our opinion the learned Judge was substantially correct when he told the jury that they had to decide which of the two versions was correct, and the Judge did not in fact treat the previous statements of the woman Sukhada as substantive evidence. We are unable therefore, to hold that there was any misdirection to the jury in the manner in which the previous statements of the woman Sukhada were dealt with.

12. The learned advocate for the appellants has pointed out that in his charge to the jury, when the learned Judge discussed the evidence regarding each of the questions in issue he omits to refer at each stage to the evidence of the woman Sukhada on the point. It is perfectly true that the learned Judge does not in the earlier part of his charge refer to the evidence of Sukhada. He reserved all reference to the evidence of Sukhada to the end of his charge, and he then pointed out the circumstances under which she had made her various statements, and showed that in his opinion her evidence on either side was wholly unreliable. The evidence of the woman Sukhada was sufficiently emphasised by the learned Judge in his charge, and the mere omission to refer to that evidence which, on the face of it, was unreliable, when discussing each question in issue, is not a misdirection, which vitiates the trial.

13. The learned advocate further contended that in the charge to the jury the case against each individual accused has not been separately discussed and he has argued that as the evidence against the different accused is different, thereshould have been a separate discussion, and the failure to discuss the evidence against each accused separately is sufficient to vitiate the trial. In the early stages of his charge the learned Judge emphasised the necessity of considering the evidence against each of the accused separately, and of coming to a separate and distinct conclusion whether each of the accused was guilty or not, and, if guilty, of which of the offences with which he was charged. The learned Judge did in fact consider the case of the accused Munna separately from that of the other accused. He set out the defence of Munna separately and at a later stage of his charge he discussed both the evidence and the law regarding the case against Munna quite separately from the other accused. Moreover, he pointed out to the jury during the course of his charge that one accused, namely, Kader Ali had pleaded alibi both in the committing Magistrate's Court and in his statement under Section 342, Criminal P.C., in the Court of Sessions, and he pointed out that there was no evidence whatsoever in support of the plea of alibi and he also pointed out to the jury that even if they rejected the plea of alibi, that was not sufficient to establish the case against the accused Kader Ali, and that they must be satisfied from the prosecution evidence that the guilt of Kader Ali had been established. Moreover, in his general discussion of the evidence of the prosecution witnesses when discussing contradictions and discrepancies in that evidence, he pointed out that the evidence varied in respect of the different accused persons. He pointed out the deficiencies and the discrepancies in the identification of the various accused persons. As all the accused persons other than Munna were defended together, and as there is no indication on the record that apart from the plea of alibi on behalf of Kader Ali there was any separate defence for each of these accused, we are unable to hold that the charge to the jury was defective in the present case, merely from the fact that the evidence against each accused was not tabulated at the end of the charge. The evidence against the separate accused was indicated during the course of the charge and the duty of the jury to consider the ease separately against each of the accused was emphasised. It would have been more convenient if at the end the evidence against each accused had been tabulated, but in the circumstances of the present case we do not consider the failure so to tabulate it was a misdirection vitiating the trial.

14. These are the only criticisms which have been preferred against the charge to the jury. We have considered them carefully, and have come to the conclusion that there are no misdirections in the charge which would justify us in ignoring the majority verdict of the jury, or in setting aside that verdict. In the result, therefore, we see no reason to interfere with the convictions and sentences. We, therefore, order that this appeal be dismissed.

Pal, J.

15. I agree.


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