HARENDRA PROSAD BAGCHI Vs. EMPEROR

JUDGEMENT

(1.) The appellant in this case was convicted under Section 376, I.P.C., in accordance with the majority verdict of the jury and sentenced to four years rigorous imprisonment. The case for the prosecution was that the appellant, a shop-keeper, was a neighbour of one Sudhir Bagchi. The complainant in the case, a little girl named Fudan Dasi, went to Sudhir Bagchi's shop to get some alochal and when she was returning the appellant got her into his shop on the pretext of giving her sweets whereupon he shut the door, laid her on a dhokra and had sexual intercourse with her. After some time she was allowed to go whereupon she informed her mother and other inhabitants of the village. The next morning the brother of the girl, who was away at the time of the incident, came back, heard this story and reported the matter to the thana. The medical evidence supported the case of rape and there was other corroborative evidence. Certain witnesses deposed that on the day after the occurrence the appellant came to the house of the girl and caught her mother's hand and asked for mercy, whereupon the child's brother threw him out. Chemical examination disclosed that spermatozoa was detected on the dhokra or quilt and that blood was found on the dhoti worn by the appellant, which was seized by the police.

(2.) The learned Judge in his charge to the jury said that although a conviction based on the sole testimony of the girl in such a case was not illegal, it is extremely dangerous to convict the accused on her evidence alone unless that was corroborated in material particulars by credible evidence coming from independent sources. The corroborative evidence must be such as to confirm in material particulars the story that not only the crime was committed but that it was committed by the accused person. In dealing with the question of corroboration the learned Judge said that the mere facts that blood was found upon the appellant's dhoti and spermatozoa was found on the dhokra were of no value whatsoever.

(3.) Now in so far as the charge to the jury goes it certainly cannot be said that the learned Judge misdirected the jury in a way such as to prejudice the appellant. In point of fact his direction, in our opinion, went very far in favour of the appellant. The learned Judge was undoubtedly right when he said it was unsafe to convict an accused on the uncorroborated testimony of the prosecutrix in such a case, but omitted to add that if in spite of this warning the jury came to the conclusion that they believed the girl and thought that the accused was guilty, they had the right to convict him on that uncorroborated testimony. Much stress was laid in argument on the case in Surendra Das V/s. Emperor in support of the contention that the learned Judge had misdirected the jury in the present case. What was laid down in that case, as the report shows, is that it has been the practice for many years for the Judge to warn the jury not to accept the evidence of the prosecutrix unless corroborated in some material particular incriminating the accused. But the Judge ought to tell the jury that if, in spite of his warning, they believe the girl and think the accused guilty, they have the right to convict on her uncorroborated evidence. The proper direction in such a case is that it is not safe to convict on the uncorroborated testimony of the prosecutrix, but the jury, if satisfied of the truth of her evidence, may, after paying attention to that warning, nevertheless convict. Corroboration is required in fact, but not as a matter of law. The precise meaning of this last dictum, which is quoted from Russell on Crimes, is not clear.