SAMARALI Vs. EMPEROR

JUDGEMENT

(1.) These appeals have been ably argued before us and are put forward on behalf of three men who were convicted by a Judge and jury at Mymensingh for crimes of abduction and rape upon a young Hindu married woman. The appellants are Mohammedans. In my opinion, this was a false case and it was made no more easy before the jury to come to a correct conclusion by the manner in which it was handled by the learned Judge. As the learned Deputy Legal Remembrancer pointed out, it is perhaps difficult to put one's finger upon any striking piece of misdirection: but the whole of the summing up, in my opinion, was apt to mislead the jury by the learned Judge's misappreciation of the evidence which was laid before the Court. One of the most striking features of the case was that the witnesses whom one might have expected to have been called for the prosecution were called for the defence, while other witnesses whose names were originally mentioned as being prosecution witnesses concerning whom the defence alleged that they were at the bottom of the false charge made against these three men, were never called at all and the extra feature of the case is that one of the prosecution witnesses gave evidence which was quite inimical to the prosecution case and thereupon the learned Judge recorded in his diary that the Public Prosecutor declared this witness to be a hostile witness. He refers again to this event in the charge by using the expression. The witness was declared hostile by the prosecution -a phrase which I imagined at first was a slip, but evidently it is a true version of what occurred. It is very difficult to appreciate exactly what effect it would have upon a jury. But I think it is fair to draw the conclusion that the Public Prosecutor in this Court has very much more influence than he ought to have, and if he has very much more influence than he ought to have, it would only be a step further to imagine that the jury think that his evidence or rather the way he presents his evidence is to be accepted at a greater value than the way in which the defence evidence is presented. The conclusion that I draw is not far fetched in that regard and it is not right to declare a prosecution witness as hostile. The only way in dealing with witnesses who go back on their statements or testify in a way which is frankly against the interest of the party calling them lies with the Judge of the Court.

(2.) That is laid down quite correctly by Section 154, Evidence Act, and it is the duty of the Public Prosecutor in such circumstances or of counsel representing the Crown to formally ask the leave of the Court to cross-examine the offending witness both with regard to the evidence he has already given which is complained about and also, if necessary, to put questions to him to discredit his testimony generally. The case is also an unfortunate one, because one of the charges against the accused is under that dreadfully drawn Section 366 of the Code which is always giving trouble in these Courts, because we never know in an appellate Court really how the jury have made up their minds. It is an omnibus section dealing with both abduction and kidnapping and I think it is the duty of Judges with jury to adopt in part the system which is prevalent in England, and that is to put a specific question to the jury as to the conclusion they have come to in relation to the age of the girl whose maltreatment has been the subject of the charge. It was not done here. I very much doubt that the jury, unless it is specifically put to them, ever really understand what their duty is under Section 366. It is difficult even for a trained lawyer to appreciate and it must be extremely difficult for a layman. I am leaving to my learned brother a close analysis of this charge. I think the appeals must be allowed, the convictions and sentences set aside and the appellants set at liberty forthwith. Henderson, J.

(3.) The prosecution case was briefly as follows: One night at about 10 o clock Tarubala, P. W. 4, who is the wife of the complainant Jatindra Nag went out of the house to ease herself accompanied by her mother-in-law. She was suddenly attacked by a body of 8 to 10 persons, including the appellants and was forcibly carried off after being gagged. A search organised by the mother-in-law proved fruitless. The girl said in her evidence that the appellants had committed rape upon her at various places. Eventually the complainant received information from the thana to the effect that his wife had been found and was there. He accordingly, went and recovered her. It was never disputed by anybody that she was taken to the thana by the Chaukidar who gave evidence for the defence and who, as my learned brother has pointed out, ought really to have been called by the prosecution. There is divergence as to what happened at the thana. According to the police witnesses, the girl refused to return to her husband and the Sub-Inspector made her over to the witness Ram Kumar Das, with the request that he would send her back either to her brother or eventually to her husband.