MADAN TILAKDAS Vs. EMPEROR

JUDGEMENT

(1.) The appellants here are five in number. They were tried by the Assistant Sessions Judge at Mymensingh for what may be called gang rape and other semi cognate offences. As sometimes happens in these cases, the learned Judge did not rule out certain charges against the appellants which, I think, were highly redundant, for example, the charge of house- trespass by night-quite an unnecessary charge and one possibly calculated not to clarify the case when the jury came to consider the whole of the evidence finally. The verdict of the jury, it may be noted, was not a unanimous one; it was a 3 to 2 verdict, and the appellants were sentenced to in all five years rigorous imprisonment apiece. But owing to the fact that the learned Judge let in these redundant charges, he was placed in the position of having to impose con. current sentences which, to my mind, was mere waste of time. Now, the prosecution case was broadly as follows: They said that a certain woman by name Mon Mohini was abducted from her husband's house in the middle of the night, her husband being in the house at the time and also her mother being there, by these five men. Having broken into the house and seized upon her, they carried her away to a deserted spot where they all in turn raped her, beat her and finally she got back to her house the next morning. Subsequently, a report was made to the police and an exhibit was shown consisting of a garment said to be stained with semen.

(2.) The defence case, to use a trans-Atlantic phrase which has now become a colloquialism in the English language, was that these charges were what is known as a frame-up. It was denied that the incident ever took place at all. It was said that the woman, in addition to being a liar, was an immoral girl. It was said that she was a woman who was habitually unfaithful to her husband. She used to go out to other men, she dressed herself in male clothing and masqueraded as a boy and her general conduct was so bad that the people in the village prevented their young boys from meeting her if possible, because if she happened to go down to certain village tank which is a common evening gossip place nearby, she would get hold of the village boys, and seduce them. The defence also called attention to certain discrepancies in her evidence before the trying Magistrate compared with the evidence which she gave at the jury trial more specially with regard to the place where she said she was criminally assaulted. It was said to be the edge of a bed, but the defence contend that she misdescribed the place in the way she referred to the nature of the ground and so on. Thus it will be seen that here are two diametrically opposite stories supported on oath by two sets of witnesses, one set of whom must be perjuring themselves before the Court, by no means an easy case to try, and a case in which the presiding Judge ought to exercise the greatest possible vigilance and the greatest possible care in assisting the jury. Now, I have read his charge to the jury with as much care as I possibly can, I have read it more than once and I feel that the effect made upon me is that the learned Judge himself was labouring under a great difficulty of mind owing to the form in which he made his address. It cannot be said, and it very rarely can be said, of the Judges in the district that he was not careful in presenting the full materials to the members of the jury. It is a very exhaustive charge. But, again, I say that the impression it has made upon my mind is that although he accepted the verdict of the majority, he would have been pleased if a verdict had been brought in the other way. I may be wrong in the view I take, but it is possible, on having read hundreds of such charges to the jury and directed them.

(3.) Now what is the duty of a Judge in these difficult and hard swearing cases in which there is undoubtedly, and I believe it is, common ground here that there was strong enmity on either side on the part of the two factions in the village. I think the Judge's duty may be said to be this: If he feels very strongly that the prosecution's case is a true one, whilst maintaining his care and his vigilance in presenting all the facts before the jury, he ought to, as much as possible, conceal his feelings. It is no part of a Judge's duty to act as an Assistant Public Prosecutor. But if he feels that there is something extremely suspicious about the prosecution case, if he finds that the main witness for the prosecution is a person whose testimony should be regarded with the greatest caution, then he ought to show his hand to the jury. He is not a mere judicial automaton, that is worse than useless and waste of public time. And I do feel that Judges in the District should bear in mind that if they are of the opinion that the case for the defence is a worthy case and needs backing up by judicial authority, they ought to take that course and this Court will never blame them for so doing, so long at least as my learned brother and I sit here. Let the Judge not bother about what the local authorities think about it, let him not bother about any report of the police authorities. His duty is to act as a check and an effective check upon the wrongful conviction of persons who may be innocent or may be in that position which justifies the benefit of the doubt being exercised in their favour. It is questionable what the truth of this case really is. If the defence story is correct and the alleged victim Mon Mohini is an unreliable woman, then a wide door is open to her in the charge she made, she may turn an incident in which perhaps she was the original instigator into one which appears to be a criminal offence against her. Again, I say, as this charge reads to me, it is not by any means a bad charge, because it is careful, but it is what I call, with due respect to the learned Judge, a wishy-washy charge. In those circumstances I propose to exercise the right which all appellate Courts can exercise by passing an order in favour of the defence on the basis that the alleged crime is one of very doubtful proof, and the jury have not on the whole been properly directed. The appeals will, accordingly, be allowed and the convictions and sentences set aside. We direct that the appellants be released forthwith. Henderson, J.