1. In this case the three appellants before us, Ismail, Meher and Amir Sheikh, have been convicted under Section 366 and Section 376, Indian Penal Code, and sentenced each to five years' rigorous imprisonment.
2. The trial was by Jury in the Court of the Additional Sessions Judge of Mymensingh. By a majority of four to one the Jury brought in a verdict of guilty and the learned Judge, though not agreeing with the verdict, accepted it inasmuch as for a reason given he was unable to say that it was perverse. We may then at the outset say that it is no longer the law that before making a reference the Judge must be satisfied that the verdict is perverse. It is sufficient that he should be clearly of opinion that a reference is necessary for the ends of justice, and possibly the Judge did not mean to say more than this, that his dissent was not so complete as to enable him to arrive at any such clear opinion.
3. The case for the prosecution was that at about 1 to 2 a.m., on the night of the 12th of August 1917, some 6 men came to the house of one Alok Baishnabi, and that after breaking open the door four of them entered: two of them dragged out and held Alok, while the other two dragged out her adopted daughter, one Jagat Priya, a young woman of about 16 years of age. The six men eventually carried Jagat Priya to a jute field near a banyan tree where three of the six left. The remaining three, whom by the light of the moon Jagat Priya recognised as the three appellants, next proceeded to ravish her, one after the other. Thereafter she was taken to the tank of Ismail or his father Ijjat's Bari, and thence by Ismail alone to his house where she spent the night; she made her escape next morning at about 9 a.m.
4. Alok's Bari, it may be observed, is in a village called Naodhar, while Ismail or his father Ijjat's Bari is in village Bagnan but the two villages adjoin and the distance of Ijjat's Bari from Alok's is only if miles. Isamil, Meher and Amir are cousins and Ismail's father Ijjat is the Zemidar's Tahsildar in Bagnan where the villagers are resisting attempted enhancement of rent.
5. The evidence for the prosecution is to be found in the depositions of Alok and Jagat Priya, of some neighbours who speak of hearing Alok's call for help or of a search made at her instance and of seeing that the latch of her door was broken. A 2nd lot of witnesses speak of the woman's return journey across the fields to the Bari of one Judhistir or Govind Majhi, of the statements she then made, and also of inquiries made about her by Ismail that day.
6. From the evidence of the women themselves and of the other witnesses it is abundantly clear that they are professional beggars and of no character. The elder woman, it would seem, brought up and desires to retain the younger for purposes of immoral gain. Jagat Priya has for a year been living apart from her 2nd husband, a Bairagi, one Hari Das, from whom Alok recovered her with Police assistance. They receive male visitors, constables on their rounds and others, at all hours of the night. For same time Jagat Priya disappeared with one Mohesh, and on another occasion lived in the house of one Hari Sen for some two months. Both mother and daughter are now living in the house of one Arjun, a priest and a Daffadar. All these things we learn from Hindu witnesses, and from Hindu and Muhammadan witnesses alike we learn that Jagat Priya and her mother used to beg at Ismail's or Ijjat's Bari as elsewhere, We also learn that Ismail has been seen at Alok's house in the afternoon, smoking or chewing pan with Jagat Priya, who again first denied and then admitted that on that very afternoon Ismail had made an enquiry of some sort at their house.
7. The appellants merely pleaded their innocence but the cross-examination on their behalf suggested that the woman had gone on the night in question on a visit to Ismail at his Bari, and that she left either in ordinary course or because threatened by Ismail's wife (whom she admittedly saw and spoke to) with conversion to Muhammadanism, that she was seen on her return journey and has been instigated to and assisted in her false story by her Hindu paramours such as Arjun, and by the discontented tenants of Bagnan.
8. On the evidence which we have gone through and which we have reviewed above, there can be little doubt that the Judge's view of the case is the better view and that it would have been well had he made a reference. But as he has not done so, we have to consider whether there is in his charge any material misdirection or whether in a case such as the present, where being accused of sexual offences against a Hindu woman, three Muhammadans are placed on their trial before a Jury composed of four Hindus and one Muhammadan, he has given the Jury sufficient assistance and guidance.
9. The first criticism we have to make is that while having regard to the learned Judge's view we would expect the general trend of the charge to be in favour of acquittal, the charge, whether so intended or not, in fact reads as one in favour of conviction.
10. We then next find that when addressing the Jury on the question of the girt Jagat Priya's character, the Judge says: 'As to the girl's character, its importance in the case was that if she was practically a prostitute she had no character to lose, and, therefore, one factor against the probability of a false charge of rape did not exist in this case.' It is of course well known that when a woman who has hitherto borne a good reputation is found with some favoured lover she is apt to defend herself by calls for assistance and a cry of raps, and ill becomes essential to ascertain whether her outcry preceded or followed discovery. The Judge's observation seems to be based' on judicial experience in this connection; but in the circumstances of the present case it appears to have no application. In this case the evidence of the witnesses, whom both Judge and Jury have believed, indicates that this woman has a number of Hindu visitors, and it may well be that she found herself under the necessity of giving some plausible explanation of her return from the house of a Muhammadan at a late hour of the morning. In any view of the case the bad character of the woman cannot well be said to render the truth of her story more probable and if the learned Judge really intended this, we think he erred.
11. It may perhaps be said that in the present case the alarm was raised and complaint made by the older woman in the first instance. But that does not appear very material, inasmuch as her evidence indicates that though the mother favoured visits to her adopted daughter she did not desire to be deprived of the profits of association with her. Hence the prolonged absence of the daughter would naturally cause anxiety and alarm to the mother.
12. We next find that when speaking of the first information the learned Judge said this: 'One point against the accused's version was the first information; certainly if it had been known or suspected that Ismail had enticed away the girl, the name of another man would not have been introduced into the first information: Further if Ismail's intrigue with Jagat Priya was notorious, it might have been expected that he would be Suspected and that he would be mentioned in the first information.' Here the learned Judge is referring to the fact that in the first information the complainant Alok Baishnabi stated that she suspected one Samed Ali, who had been twice to their house in the course of the day, once at noon and once at dusk. Now if Samed Ali, a man of a different village, made the 2 visits Alok speaks of, it would seem natural that she should suspect and mention him even though Ismail was also in the habit of frequenting the house, all the more as the visit by Ismail which the daughter seeks to minimise was in the old woman's absence and it is not clear when she came to know of it. In any case the question for the Jury was not whether the defence suggestions were true in all their details but whether the prosecution case of a forcible abduction had been made out.
13. We think also that it should have been pointed out that the scratches and bruises on the woman's legs and arms which may have impressed the Jury were not inconsistent with voluntary intercourse under unfavourable conditions, and may possibly have been due in part to the scuffle in the fields with Meher on the following day.
14. On the whole we think that in this case the Jury have not had the assistance which should have been given and we, therefore, acquit the appellants and direct that they be now set at liberty.