Lancelot Sanderson, C.J.
1. In this case the appellant, who was a Head Constable named Mir Mouze Ali, has been convicted at a trial by the Jury of offenses under Section 334 (extortion), 448 (house trespass), 342 (wrongful confinement) and 323 read with Section 109 for abetment of the offence of voluntarily causing hurt. He was tried along with another man who was a constable called Belat Ali, who was found guilty of an offence under Section 354 which offences is that of assaulting or using criminal force to a woman with intent to outrage her modesty. He was also convicted of offences under sections 323 and 342 of the Indian Penal Code. The second accused has not appealed.
2. We have to deal at the present moment with the appeal of Mir Mouze Ali alone.
3. There were other charges against these two men in respect of which they were acquitted. The first accused was charged with abetment of rape under Section 376 road with Section 109 and the second accused was charged with rape under Section 376. Of these charges the accused were acquitted. There was a further charge against the first accused under Section 354 together with Section 109, that is, the abetment of assaulting a woman with intent to outrage her modesty. He was acquitted of that charge. There was a charge against the second accused under Section 384, together with Section 109, that is, the abetment of extortion, and the second accused was acquitted of that charge.
4. The learned Vakil has argued that the direction of the learned Judge was wrong inasmuch as he referred to certain previous proceedings against these two accused and that such reference was inadmissible. The reference which the learned Judge made is as follows: After referring to the visit of Khorshed (the husband of the complainant) and his wife Baroo Bibi (the complainant), who appeared before Purna Chandra Mukerji, Mukhtear, and told him their story, whereupon the Mukhtear drafted a petition, Exhibit 2, and filed it in Court and the Sub-Divisional Magistrate examined the complain-ant Baroo Bibi on solemn affirmation on the same day, the learned Judge said: 'The Sub-Divisional Magistrate, in accordance with departmental rules, made a local investigation into the case and on the 9th of November made a report to the District Magistrate recommending the prosecution of the head constable and the constable under sections 342, 384, 448, 354 and 323, Indian Penal Code. The District Magistrate ordered their prosecution as recommended and sent the case for trial to the Additional District Magistrate. The Additional District Magistrate tried the case, and on the 23rd of December 1918 he convicted both the accused and sentenced them to 6 months' imprisonment each under the above sections. Though the woman repeated to him her story of rape by the constable and two others, he held that the story of rape was an exaggeration and a fiction. In appeal the Additional Sessions Judge affirmed the conviction and sentence on the 24th February 1919. Thereafter the two accused men moved the Hon'ble High Court and the High Court on 10th June [See Mir Moze Ali v. Emperor 54 Ind. Cas. 58 : 30 C.L.J. 7 132 : 23 C.W.N. 1031 : 21 Cr. L.J. 10.--Ed.] reversed the conviction and ordered that the case be committed to the Court of Session for trial. Accordingly on 18th July the two accused men were committed to this Court for trial.' My learned brother Mr. Justice Walmsley was a member of the Court which reversed the conviction and ordered a new trial, and as I understand the view which he and the other learned Judge took was that inasmuch as the story on behalf of the prosecution involved a charge of rape against one of the accused and abetment of rape against the other accused, the case ought to have been tried by a Court of Session, and ought not to have been tried by the Additional District Magistrate. Consequently they set aside the conviction and directed a new trial.
5. We have been informed by the learned Vakil for the appellant that although there may have been during the course of the trial a reference made to the evidence which the individual witnesses gave on the previous occasion when the two accused were tried, there was no reference either by the prosecution or the defence to the result of those proceedings and, after reading the summing up of the learned Judge, we think we must take it that that was so, The learned Judge, as 1 have shown by reading a part of his judgment, not only referred to (he previous proceedings but referred to the result of those proceedings, and also referred to the fact that the Additional District Magistrate convicted them of certain offences and that his decision was upheld by the Additional Sessions Judge The learned Vakil has pointed out that there was no warning given to the Jury that they must disregard altogether the result of the previous proceedings and that the responsibility was upon the Jury, and that they must act upon the evidence which was given in the case and upon that evidence alone. He urged that the fact that the learned Judge has referred to those previous proceedings and to the result of the previous proceedings and the omission to warn the Jury to pay no attention to the result of those previous proceedings may have affected the minds of the Jury materially in arriving at the conclusion at which they did. In my judgment that does amount to misdirection In my judgment, if it was necessary for the learned Judge to refer to the previous proceedings, he certainly ought to have warned the Jury that they must not allow the result of those previous proceedings to affect their minds. It would have been much better if all reference to the previous proceedings could have been avoided. I am not in a position to say whether it was, but assuming for the sake of argument that it was necessary to refer to the previous proceedings, then I think that, the learned Judge ought to have dealt with them in such a manner as to avoid if possible, the minds of the Jury being affected by the result of the previous proceedings.
6. I need not consider the further points raised by the learned Vakil, because in my judgment the matter to which I have already referred amounted to misdirection
7. Then we have to consider what course should betaken. The appellant has already stood his trial on two occasions and in my judgment it would not be right, having repaid to the circumstances of this case to direct that he should stand his trial a third time.
8. It remains for me to consider whether I should accede to the argument of the learned Counsel for the Crown that the misdirection of the learned Judge was not sufficient to vitiate the whole of the proceedings and that we ought to uphold the conviction of the appellant having regard to the evidence which was given in the case.
9. The facts of this case are extraordinary. The charges are that the head constable and the constable went to the house of the complainant's husband with the main object of ascertaining the whereabouts of a man who was supposed to be connected with a dacoity and who was also supposed to be a paramour of the complainant; that the offences of which these two men were charged were committed on that occasion in daylight with a considerable number of people in the immediate neighbourhood. The woman's story is that the second accused went into her house, her husband having been previously bound in the courtyard of the house by the first accused, and that the second accused ravished her in her house; that the first accused was close by and the ravishing practically took place under his nose, so to speak; that she called out that she was being ravished and losing her honour and begged her husband to pay money to the head constable in order that she might be released from the oppression which was being practised upon her. Thereupon, her husband begged the first accused to accept money and release his wife and after some haggling as to what the amount should be, the husband of the complainant paid to the first accused the sum of Rs. 80.
10. As I have already pointed our, the Jury have rejected the charge of rape against the second accused. They have rejected the charge of abetment of rape against the first accused. They have further found the second accused to be guilty of an offence under Section 354, which is assaulting a woman with intent to outrage her modesty, but they have rejected the charge of abetment against the first accused : and the learned Counsel for the Crown was constrained to admit that he did not understand how they could find the second accused guilty of an offence under Section 354 and at the same time acquit the first accused of the abetment of that offence, which, if it took place at all, must have taken place under the nose, so to speak, of the first accused. The facts of this case are so bound up together and the evidence with regard to them is so dependent one part upon the other, that I find it very difficult to say--seeing that the evidence with regard to the rape and the abetment of rape is taken by the Jury to be unreliable and seeing that the evidence with re gird to the abetment of an offence under Section 354 against the first accused is taken by the Jury to be unreliable with regard to the rest of the evidence, that the other charges were made out. In my judgment in this case when part of the evidence as regards the main charges against the accused men must be rejected, it would not be safe to convict the accused upon the rest of the evidence.
11. For these reasons in my judgment the conviction and sentence of the appellant must be set aside and he must be released. If he is on bail, his bail bond must be discharged.
12. With regard to the second accused, Balat Ali Khan, who has not appealed, the judgment which we have just delivered with regard to the misdirection will affect his case as much as the case of the first accused. We asked the learned Deputy Legal Remembrancer if he had anything to say why we should not set aside the conviction in his case also. He having nothing to say, we are of opinion that we ought to exercise the powers vested in us under Section 439 of the Criminal Procedure Code and relying upon the authority of the case of Broja Rakhal Mozumdar v. Empress 5 C.W.N. 330, we exercise the powers vested in us under that section and set aside the conviction of and the sentence passed on the second accused, Belat Ali Khan, and direct that he be released.
13. I agree.