ABDUL AZIZ MUSALMAN Vs. EMPEROR

JUDGEMENT

(1.) THERE are four appellants before me in this case. One of them, Suleman, has been convicted by a jury of the offence of rape, and the other three of abetment. It is argued on their part that the charge to the jury is vitiated for two reasons. In the first place, it does not warn the jury that the case against each of the accused must be separately considered, nor does it marshall the evidence against each separately. In the second place, it does not bring to the notice of the jury important factors in favour of the accused, and so is a one-sided summing up of the evidence. In my opinion these complaints are well founded.

(2.) THERE can be little doubt that either of them is sufficient by itself to warrant interference in a jury trial. The first point has been considered in Khijiruddin Sonar v. Emperor AIR 1926 Cal 139. The present case is not one of those in which the evidence against all the accused stands on the same footing and so relieves the Court of distinguishing between them. The learned Government Advocate argues that the woman was undoubtedly assaulted and that it was difficult to ascertain exactly what part each accused played the lower Court was right in leaving the matter to the jury in a general way, after pointing out that whatever doubt there might be about the first man to rape her, the woman is consistent in stating that Suleman was the second. I do not think the point is as clear as this. The woman's story has differed materially from time to time, and there are certain improbabilities in the case which even though they are capable of explanation, should certainly have been brought to the notice of the jury. It is not enough to say that the learned pleader for the defence has presented the case for the defence in an able manner, and leave it at that. The earliest version we have about the incident is in the first information report which was made by the complainant herself. She states there that she was attacked from behind by a man with a black coat. In the Sessions Court she identifies this man as the accused Suleman. He threw her down on the ground while the accused Aziz pulled out a knife and threatened to thrust it into her month if she made any cry. But she says that in spite of this she cried out for help and struggled, and so was injured by the knife, and also otherwise. In the meanwhile the other man whom we now know as Suleman, loosened her clothing and his, and had sexual intercourse with her. At this point her husband and brothers (they are really her brothers-in-law) arrived on the scene evidently in response to her cries, and then these two ran away. As regards the other two accused whom she says were also there she stated: The other two had kept themselves standing at a little distance. They had done nothing.

(3.) THESE observations have my respectful concurrence. It is true the charge in the present case makes a passing reference to the first information report, and also brings some of the discrepancies between it and the woman's evidence to the notice of the jury; but not this important fact which would have entitled two of the accused to an acquittal if it had been believed; or rather, if the woman's present story bad been disbelieved. For the only use which can be made of a first information report is to corroborate or contradict the evidence of the witness who made it, after the preliminaries required by Section 145, Evidence Act, have been complied with. It does not form substantive evidence in itself: Sankaralinga Thevan v. Emperor AIR 1930 Mad 632, Emperor v. Chittar Singh AIR 1925 All 303, Emperor v. Ibrahim AIR 1928 Lah 17 and Gajadhar Lal v. Emperor AIR 1932 Oudh 99.