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Criminal Appeal No. 86 of 1949, decided on 11th August 1949.
S. 297‑Charge to jury‑Essential facts and circumstances must be put to jury for and against accused‑Merely reading out evidence not enough‑Misdirection‑Retail.
It is settled law that while summing up the case to the jury. it is the duty of the Judge to sum up the case both for and against the prosecution in such a manner as to assist the jury in arriving at a right decision upon all important facts in the case. It is not sufficient merely to recount' the evidence. The Judge mutt assist the jury in weighing the evidence and must see to it that all essential facts and circumstances are put into the scales of justice on the proper side of the balance.
Unless these matters were pointedly brought to the notice of the Jury, the jury mss not properly direct and a retrial was necessary.
This is an appeal from the jail made , by Bahadur Khan, son of Sawan Khan who was tried by a Jury before a Judge of this Court (Bachal,. J.) on a charge under, section 376 of the Indian Penal Code. The jury by a majority of seven to two brought in a verdict of guilty against the appellant. The learned Judge accepted that verdict and sentenced the appellant: to five years rigorous imprisonment.
The victim of the rape in this case wag a women named Pachia alias Fatima, daughter of Issa a convert to Islam, who was twenty five years of age and who described herself as beggar woman. The prosecution case was that the appellant met this woman in the Bazar Chowk at Garikhata, offered her, a job gave her a cigarette to smoke, and then took her to the railway yard near the City Railway Station and inside a second class compart ment, and there committed rape upon her that on her cries Bahadur Shah a watchman and Shah Asghar, a Head Watchman came up that a constable on duty at the platform then arrived there, and that the woman was then taken to a police station, where she made complaint ; and that after air investigation the appellant was challaned and committed. During the investigation the clothes which the woman as well as the appellant were wearing at the time were examined, and it was found that the clothes of both were stained with semen.
The main evidence in the case was, that of the woman Pachia, and the two watchmen, Bahadnr Shah and Shah Asghar, who, it is alleged had come up on the cries of the woman.
Pachia was examined before the Committing Magistrate but could not be examined in the Sessions Court because she bad gone away to India. Her evidence before the. Committing Magistrate was brought on the record under section 33 of the Indian Evidence Act. In her evidence she stated as follows :‑‑
"My husband is in Monghyr, in India. About 4 days back the accused met me in the bazar Chuk in Gari Khata at about 7 p. m. He asked ins if I was prepared to take up a job and I said yes. Then he gave me a cigarette to smoke. He then took one inside a vacant compartment which was standing in the yard. He lay me on a berth and had sexual intercourse with me forcibly and against my' consent. His organ went 'into my private part. I raised cries because the accused bad‑deceived me and instead of giving me a job‑ had raped, me. On my cries chowkidar and police came up and caught hold of the accused and took us both to the police station. Police recorded my F I R. I produce it Ex. .1‑A. It is the same and bears my thumb Impression. The accused also discharged his semen into and on, my private parts. Police sent me to the hospital for examination and examined my trouser and clothes of the accused No cross‑examination to the accused.
Bahadur Shah the railway watchman on duty Stated:
"I was on duty in the North yard of the City Station on 20th May 1918 from 4 p. m to 12 p. m. I was patrolling about the carriages when at about 9 p. m. I heard a noise. I signalled Jamadar Asghar Shah and he also came. I heard cries, and weeping. I went to a second class compartment where I saw the woman below the accused who was in the act of intercourse with her. The accused was committing rape on her on the seat of the compartment. Asghar Shah also entered the compartment and witnessed the incident:"
Asghar Shah, Head Watchmen stated
"I am Head Watchman of the Watch and Ward at the City Railway Station. I was at the platform at the time of the incident at about 7 p. m. I was on duty from 4 p. m. to 12 p. m., on 20th 119ay 1948. Bahadur Shah gave me a signal. I heard cry of weeping of a woman from a second class compartment which was about 20 yards away from the platform.
Bahadur Shah got into the compartment first. I followed him and saw the woman below the accused who was committing rape on her. The woman was crying at that time when I entered the compartment. The accused got up and pulled up his trousers and tied the string."
The evidence of the witnesses and the evidence regarding the seminal stains on the clothes of the appellant and the woman left no doubt that the appellant had intercourse with the woman and that the act Had been completed. The main question in the case was, whether the appellant had intercourse with the woman against her will or without her consent.
The learned judge in the course of his summing up recounted the evidence given in the case by all the important witnesses including Mst. Pachia Bahadur Shah and Asghar Shah. After stating what Mst. Pachia had stated in her evidence the learned judge stated:
"You will remember that the accused has not cross‑examined this witness. No question has been put at all to this witness by the accused."
After recounting all the evidence given in the case the learned Judge stated:
"You have heard from the evidence of Bahadur Shah and Asghar Shah, chowkidars that they went to the second class compartment on hearing the cries of the woman and her weeping. This fact of the woman raising cries and weeping is an important fact for your. consideration negativing consent on the part of the woman. The con duct of the woman in complaining of the incident of the rape too these witnesses is also an important point for your consideration ."
While concluding the learned judge stated:
" I might again tell you gentlemen, that you are the sole judges of fact. If you are satisfied that the evidence of the woman is corroborated by the above piece of evidence which I told you before or you are satisfied that the evidence of the woman alone even if not corroborated is sufficient in your opinion, it is open to you to return a verdict of guilty against the accused. If you return a verdict of guilty against the accused then you are bound by my directions on the point of law, that if you find that sexual intercourse was committed on the woman against her will, then the offence will be one under section 376; Indian Penal Code namely an offence of rape."
and he added:
"But if you do not believe the evidence at all or believe the statement of the accused to be true, that he has been falsely implicated at the, instance of the policeman and the chowkidars because they demanded guavas from him which he refuse then yon will return a verdict of got guilty against him."
It may be mentioned that the appellant in his statement had denied that he had had any intercourse with the woman, and had alleged that the whole case had been concocted against him by the chowkidars and the policeman, because he had refused to give them food and guavas.
The summing up of the learned judge, it appears to me, is open to criticism in at least three important matters.
In the first place it is clear that the main evidence against the appellant, in so far as it was alleged that the intercourse with Pachia was without her consent, was that of the woman only. Unless the woman's evidence could be accepted that she had been taken from the Chowk to the Railway yard and into the second class carriage on false pretences, and that she had not consented to the appellant having intercourse with her, the case against the appellant could not be established. The woman Pachia was not examined before the jury in the Sessions Court, but the evidence given by her in the committing Magistrate's Court was read out to the jury. She had not even been cross examined More the committing Magistrate. The learned Sessions judge made no comment on this evidence at all beyond stating "You will remember that the accused has not cross examined this witness. No question has been put at all to this witness by the accused." This comment in itself seems to me to be of a somewhat ambiguous character. It is open to the interpretation that the evidence given by the woman might be safely accepted as evidence, the truth of which had not been challenged, as the other side had not chosen to cress‑examine the witness at all, although it is probable that that is not what the learned judge intended to say. Even if we could take it, and I am very doubtful whether we would be justified in so taking it, that the Jury must have understood these words to mean that they had to take the evidence of Pachia as the evidence of a person which had not been tested by cross‑examination, I do not think the learned judge made it sufficiently clear to the jury that when the principal evidence, on a point which was very important, was the evidence of a witness who had never been cross‑examined at all, who did not appear before the Jury, and regarding whose integrity and truthfulness the jury were not in a position to form an opinion, this had necessarily to be regarded as a serious weakness, with regard to the proof of the particular point in question, It appears to me that under the circumstances of this particular case the failure of the learned Judge to point this out to the; Jury very clearly, was a failure which prevents us from holding that there was an adequate summing up of the case for the accused in this case. It is settled law that while summing up the case to the jury, it is the duty of the Judge to sum up the case both for and against the prosecution in such a manner as to assist the jury, in arriving at a right decision upon all important facts in the case. It is not sufficient merely recount the evidence. The judge must assist the jury in weighing the evidence, and must see to it that all essential. facts and circumstances are put into the scales of justice on the proper side of the balance. It appears to' me that the failure to point out that the evidence of Pachia could not be regarded as being on the same footing as the evidence of a witness who had been subjected to cross‑examination and had stood the test fairly, and of whose integrity and truth the jury were themselves in a position to form an opinion, was a failure to point out a very important fact, which might easily have affected the decision of the case, and which clearly should have been carefully considered as a fact weighing in favour of the accused.
On a reading of the summing up in this case, it further appears to me that the learned judge failed to bang to the notice of the jury sufficiently certain other aspects of the case which clearly required to be very carefully considered by the jury, and which might easily have led the jury to take a view in favour of the accused and against the prosecution.
According to Pachia's statement, she was merely a beggar, woman who had happened to meet the appellant in the Bazar Chowk in Garikhata, and had agreed to go with the appellant because he had offered her a job. It was an essential part of the Crown case that she did not go with the appellant in order to have sexual intercourse.
It is obviously open to argument that the Crown case, that the woman had not consented to go with the appellant to have intercourse with him, was not a probable one in. view of the proved fact that they did not go to the appellant's house, or to some place where a job might conceivably have been offered to her, but went inside a second class carriage in the railway yard, a place which appears to have been particularly selected for surrepticious sexual intercourse. It seems to me that this was an extremely important point in the case, which the jury should have been asked to take into consideration, and that the failure of the learned judge to bring this aspect of the case pointedly to the notice of the jury, and to ask them to consider it carefully, was a failure to place the case for the accused adequately before the jury.
I have set out above an extract from the last portion of the Charge by the learned judge to the Jury. The learned judge there told the jury that they should acquit the accused (1) if they did not believe the evidence at all or (2) if they believed the statement of the accused to be true, that he had been falsely implicated at the instance of the policeman and the chowkidars because they had demanded guavas from him which he had refused to give It appears to me that here again the case for the accused was not correctly or adequately summed up before the Jury. It is obvious that in this case the jury might wall have believed most of the evidence in the case in fact all the evidence in the case‑except the evidence of the woman herself and further have totally disbelieved the obviously false and rather foolish statement of the accused, and yet coma to the conclusion that it had not been proved that the accused had intercourse with the woman against her consent; and this leads me to another aspect of the case which in my view ought to have been put to the jury.
The relevant evidence of witnesses Bahadur Shah and Shah Asghar has been set out above. As I read Bahadur Shah's evidence, it is to the effect that it was while Bahadur Shah "was patrolling about the carriages " that he first heard a noise, on which he signalled to Asghar Shah, who then also came up. It is clear that while patrolling, Bahadur Shah had approached the carriage is which the appellant and the woman were. It appears to me to be at least probable that he was very near the carriage in which the appellant and the woman were when he first heard " a noise ". This evidence is quite consistent with the woman not having made any noisy or raised any cries until Bahadur Shah, while patrolling, had come up near the carriage, and when it became clear to the woman that she and the appellant had been discovered or were likely to be discovered in the act Of intercourse, in a place where they were clearly trespassers. Under such circumstances it was not at all unlikely that a woman, of the type and character of Pachia, might make a great deal of fuss and raise cries and pretend that she had not been a willing party to the misconduct in which she was discovered. As the evidence of Bahadur Shah has been recorded, it is not at all clear that any notice was made or cries raised until Bahadur Shah had approached the carriage in which the woman and the appellant were. It was clearly not stated by Bahadur Shah that while he was away from the carriage he heard the noise and therefore went up to the carriage. He has not at all stated where and how far the was when he first heard the noise. It is not at all unlikely, on the evidence such as it is, that the noise was made and the woman raised the cries after she realised that Bahadur Shah was coming to the carriage or had come up to the carriage. Under these circumstances the evidence of Bahadur Shah could not properly be regarded as corroboration of the evidence of the woman. It would have been different if the evidence had shown that the woman had raised cries before she knew that Bahadur Shah was approaching them, before she realized that they were about to be caught while mis conducing themselves. This was a very important fact, which should, I think, have been very clearly brought to the notice of the jury.
I am of the view that unless the attention of the jury was pointedly brought to the matters which I have just referred to above, it could not be said that the case for the accused had been sufficiently put to the jury in the summing up. It is clear, 1 think, that if the jury had been properly directed with regard to these matters their decision might easily have been affected by them.
I therefore think that the conviction and the sentence in this case should be set aside on the ground that the jury were not properly directed, and I would order a retrial.
I agree that there should be a retrial. My ground for this is that the circumstances of the case indicated that the main issue if not the only issue was whether intercourse had taken place with the consent of the woman.
The learned Judge was perfectly correct in stating that in cases of sexual offences corroboration of the woman's story is necessary both as to the factum and as to her lack of consent. He has stated this in clear language. It‑is objected that he should have instructed the jury that the evidence of the woman having been recorded under section 33 of the Indian Evidence Act, the lack of cross‑examination meant that this test of the witness's veracity was absent and that the jury bad not had the woman before them so as to be able to judge from her demeanour whether she was or was not speaking the truth but as he did inform the jury that corroboration was needed as a matter of prudence, I think this objection is academic.
The chief point to my mind why the charge to the jury is defective is that the learned judge has instructed the jury, so far as I can see, that, if they found that the witnesses were true in stating that the woman had raised cries, this was an important fact negativing consent on the part of the woman. The learned Judge then continued that the conduct of the woman in complain ing of the incident of rape to these witnesses was also an important point for the jury's consideration in fact the learned judge appears to have told the jury that if the woman 'did com plain of having been raped, this necessarily was a corroboration of her story. He has not explained to the jury that such conduct may be explainable by 'the fact that to save herself or her reputation or to win sympathy she has turned round falsely to accuse the man of having raped her without her consent. The learned judge appears to have considered the evidence of Bahadur Shah and Asghar Shah, chowkidars compatible only with the woman's having raised cries purely because the accused was raping her without her consent. This may be a very probable reading of the evidence, but the alternative case should have been‑ put to the Jury whether the cries were uttered because the woman had heard people passing and apprehended that they might enter tire carriage. Therefore the learned judge should have put the case to the jury not merely that they must find whether the witnesses were to be relied upon when they stated that the woman raised cries and wept, but he should also have instructed them that they must find that the cries were due to her resisting rape and not to any cause consistent with her consent.
K.M.A. Retrial ordered.
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