1. This Rule was issued at the instance of a head constable Mir Moze Ali and a constable Belat Ali. The former has been convicted under Section 384, Section 342 read with Section 114 : Section 354 read with Section 109, Section 323 read with Section 109 and Section 448 of the Penal Code, while the latter has been convicted under Section 384 read with Section 109, and Sections 354, 323, 448 and 842 of the Penal Code. Eassh of them has been sentenced to undergo six months rigorous imprisonment.
2. In the Rule issued by us the District Magistrate was asked to show cause why the convictions should not be set aside, or an order passed directing that the petitioners be committed for trial to the Court of Session.
3. The facts are as follows: In September ah dacoity was committed in a village within the jurisdiction of Uzirpur Thana, to the staff of which the petitioners belong. A man named Golam Ali was arrested and he made a confession implicating one Dalai Khan. The investigating Sub-Inspector was very anxious to arrest this Dulal Khan, as well as other men named by Golam Ali. He went to the village of Chandipur, and found Baru Bibi, the wife of Khurshed, at the house of her father Raham Ali. It was reported that this woman had an intrigue with Dulal Khan, and she was questioned. It is alleged that a serious incident took place at Chandipur but we are not concerned with that. She was sent from Chandipur to Bauikhali to the house of her husband Khurshed, and it is there that the alleged occurrence, which forms the subject-matter of these proceedings, took place on October 15.
4. It is said that on that morning the petitioners with a Dafadar and some Choukidars surrounded Khurshed's house: they demanded the surrender of Dulal Khan: on Khurshed saying that be was not there, the head constable bound his hands, and ordered the constable to go inside the room where Baru Bibi had retired, and compel her to divulge the whereabouts of Dalai Khan. Thereupon the constable, a Dafadar and a Choukidar entered the room, took Baru Bibi to the cookshed and committed a very serious assault on her: they kicked her, struck her with their fists and with the but-end of a gun, stripped her and each in turn outraged her. The woman screamed, and called to her husband begging him to pay the men to go away, and after some haggling the head constable accepted eighty rupees, and went away with his men.
5. The charges against the petitioners are very grave indeed. If the woman's story is true, rape was committed on her in an aggravated form, and the fear which compelled the husband to pay money to the head constable was of the moat horrible kind.
6. The question at once arises, why were the petitioners not committed to the Sessions? The explanation given by the learned Magistrate is that the story of rape is probably an exaggeration. So it may be, but we have to consider whether that is a satisfactory reason for not committing the accused. If the story depended only on the statement made by the woman, the explanation might be sufficient : but that is not the case. It appears that the woman's wearing cloth was found by the Chemical Examiner to bear traces of semen. That does not carry the case far, but it is a piece of corroboration, however slender. Khurshed says that his wife told him immediately afterwards that she had been outraged by the three man, and several witnesses speak to hearing cries from Baru Bibi implying more or less directly that she was being outraged. It appears to me that if this evidence is believed, it may be enough to support a charge of rape, and that, therefore, the case ought to have been tried by a Court competent to deal with the offence of rape. I do not think I had better say more on the matter, for to say more might lead to misunderstanding. In my opinion, the accused ought to have been committed to the Court of Session for trial. The convictions and sentences must, therefore, be set aside, and the Magistrate must draw up charges in regard to the allegations of rape, and commit the accused for trial on those charges and on charges relating to the other offences.
7. The petitioners are now on bail. They will be allowed to remain on the same bail pending the disposal of the case by the Court of Session.
Shamsul Huda, J.
8. In this case in view of its special circumstances we allowed the learned Vakil for the petitioners to place the whole evidence before us. If the case had come before us on appeal, having regard to the nature of the evidence, I would have felt very great hesitation in upholding the conviction. The very fact that most of the material witnesses have been disbelieved upon the gravest of the charges preferred against the accused, I mean the charge of rape under Section 376 of the Indian Penal Code, would have rendered it unsafe to accept the rest of the prosecution story, but that charge was triable exclusively by the Court of Session and I can find no justification for the Deputy Magistrate disregarding it and trying the accused upon the other charges, which were intimately connected with that charge and ought to have been tried with it. I have anxiously considered the question whether having regard to the nature of the evidence in the case it is necessary for the ends of justice to direct a trial by the Court of Session, but I have come to the conclusion that in revision we should not take the responsibility of coming to a conclusion even incidentally regarding a charge upon which the accused has not been tried. It was due both to the prosecution and the defense that the charge of rape should be tried by a competent Court and I agree with my learned brother in the order passed by him. The accused are public servants and should be given the fullest opportunity of vindicating their character, as the conviction means other consequences not less serious than the punishment actually inflicted.