EMPEROR Vs. MAHADEO TATYA

JUDGEMENT

(1.) THIS case arises on a certificate given by the Advocate General under Clause 26 of the Letters Patent. There were two accused. Accused No.1 was charged with rape, and accused No.2 was charged with abetment of rape and also with cheating.

(2.) THE general ground-work of the prosecution story is not in dispute. THE complainant Baloobai is a girl of about fifteen years of age, married, and accustomed to sexual intercourse with her husband for three months before the offence. On July 31, 1940, she was selling ghee near the sea-shore at Mahalaxmi. Accused No.1, who was a police constable, was on fixed point duty at the junction of Pedder Road and Warden Road ; and, according to him, his sister with whom he lived in Kamatipura was returning to Bombay the next day from her native place, and he wanted to buy some ghee, so he asked Baloobai the price of her ghee, and it was arranged that she should sell him some ghee at the rate of twelve annas, and he asked her to take the ghee round to his room. She said that she did not know the way to his room, and he then told accused No.2, who was an umbrella repairer who worked close to the place where accused No.1 was stationed, to take the complainant round to the room in Kamatipura. That was done. Baloobai entered the room at Kamatipura, and, according to her, accused No.1 arrived there subsequently, told the other people in the room to leave, and then fastened the doors and ravished her. He then asked accused No.2 to take her to Mahalaxmi railway station. On the way there accused No.2, by a device, deprived her of her ornaments and her pot of ghee and scales, and made off with them. Baloobai started to weep, and after sometime a police constable came along and asked her what was the matter. She said she had been robbed. So he took her round to the Agripada police-station, where a report was made to Sub-Inspector Reuben who was in charge. Sub-Inspector Reuben sent two constablesone of them being 3730,with her to enquire into the alleged offence. Whilst they were going towards Mahalaxmi, the complainant sat down two or three times, and when asked why she was sitting down she complained that a police jamadar had raped her. P. C. 3730 thereupon rang up Sub-Inspector Reuben and asked for directions, and Sub-Inspector Reuben told him to ascertain who the alleged jamadar was. THE complainant pointed out the place where the jamadar had been on duty, and from that it was easy to ascertain that the jamadar in question was accused No.1. THE complainant was then taken back to the police-station, and then, for the first time, her complaint of rape was recorded. That is exhibit6. Later that night accused No.1 was arrested. Accused No.2 was also found, having imprudently returned to his former beat with the stolen ornaments upon him. In due course both the accused were prosecuted. THE jury brought in a verdict against accused No.1 of guilty of rape by a majority of eight to one. THEy acquitted No.2 of abetment of rape, but returned a unanimous verdict of guilty against him of cheating. THE learned Judge sentenced accused No.1 to transportation for life and thirty stripes, and he sentenced accused No.2 to five years' rigorous imprisonment. On the day after that sentence had been passed the learned Judge had the case placed in the list again, because he had discovered that it was illegal to pass a sentence of whipping in conjunction with one of transportation for life, and therefore he set aside the sentence of whipping.

(3.) THE allegation that evidence was improperly excluded rests on this, that counsel for the accused is said to have been refused a copy of the first information whilst the complainant was giving her evidence, and after the first information was put in by a police-officer, the learned Judge refused to allow the complainant to be recalled and cross-examined upon it. It is difficult to ascertain from the record whether anything like a formal request was made to the learned Judge to direct a copy of the first information to be supplied to counsel for the accused, but in our opinion there can be no doubt that in fairness counsel for the accused ought to have been supplied with a copy of the first information when the complainant was giving her evidence. THE first information would have supplied strong material for cross-examination on several points. As an illustration, I may point out that in the witness box the complainant says that accused No.2 took her to the room of accused No.1, and she says, " I went and sat in the room. After a short time accused No.1 came." Now, if she had been pressed in cross-examination for details, she would probably have explained how she got into the room, in which there was a servant, how she persuaded the servant to allow her to go into the room, and where she sat, and so forth ; and having, as she probably would have done, committed herself in that way, it would then have been very relevant to point out that in her first information she says that " accused No.2 then seated me outside the house on the road, and awaited the arrival of the constable. I remained there for nearly two hours, after which the constable arrived there in plain clothes." Contradictions of that sort may very seriously discredit a witness, and counsel for the accused ought to have been given the material to cross-examine her.