Chamuddin Sardar And Anr. vs Emperor on 14 November, 1935

Calcutta High Court
Chamuddin Sardar And Anr. vs Emperor on 14 November, 1935
Equivalent citations: AIR 1936 Cal 18, 160 Ind Cas 1028
Author: L Williams


Lort Williams, J.

1. In this case, a rule was issued to show cause why the convictions and sentences passed upon the petitioners under Section 366, I. P. C., should not be set aside. The learned Sessions Judge was asked to submit his explanation of a statement made by him in para. 3 of his judgment to this effect: “It has not been contended that there was any misdirection or non–direction on points of law” and with special reference to para. 2 of the petition in revision in which a number of points were specified, which had been pressed upon the attention of the learned Judge on behalf of the accused. The first of these points was that the Assistant Sessions Judge, when charging the jury, had failed to direct them on the question of necessity of corroboration of the girl’s evidence; further, that the Assistant Sessions Judge had failed to direct the attention of the jury to certain evidence given by the girl to the effect that she had not objected to going with the two accused, which was obviously very material upon the question of abduction. There were other points referred to in the petition with which it is not necessary to me to deal. The learned Sessions Judge seems to have misunderstood the direction given by this Court, because in his explanation he says that:

2. As there is ample corroboration (for what it is worth) of the girl’s evidence, the question of the corroboration of the girl’s evidence does not arise as a point of law.

3. Then he refers to certain evidence which, in our opinion, does not amount to the kind of corroboration required by law. The point to which we desired to draw the learned Judge’s attention was that if the Assistant Sessions Judge had failed to direct the jury on the question of the necessity of corroboration and had failed to warn them about the danger of convicting the accused on the girl’s evidence alone, in sexual cases such as this, that was a non-direction which vitiated the trial. It seems clear, therefore, taking into consideration the evidence of the girl to which our attention has been drawn and the charge to the jury, that the statement in para. 3 of the learned Sessions Judge’s judgment was erroneous, because it had been clearly contended before him that there was misdirection and non–direction on points of law, namely, the failure of the learned Judge to give the jury the necessary caution which has been referred to by this Court on many occasions and is specifically stated in Nur Ahmed v. Emperor 1934 Cal 7. The headnote of that case states that it is extremely dangerous and permissible only in exceptional cases to convict a man of a sexual offence on the uncorroborated testimony of the complainant. The rule must be properly emphasised in the charge to the jury. It is unnecessary to repeat all that was said on that occasion, except to say that the Judge should point out to the jury that they are entitled, if they please, to convict the accused upon the uncorroborated testimony of the girl, but that it is dangerous to do so in cases dealing with sexual offences such as rape, abduction and similar cases, and that only in exceptional cases should they convict upon the uncorroborated testimony of the girl.

4. Now, in the present case, the girl said in her evidence that she had been beaten by her husband, because she had not said her prayers, and had gone out of the house to a tank, where she met the two petitioners. They told her that her husband would beat her again, and so they would take her to her Nani’s bari if she would come away with them. After they had repeated this statement, she agreed to go and they took her away from that place. Eventually she was handed over to three other persons who kept her confined and raped her. But no charge of rape was made against them. The present accused were charged under Sub-section 363 and 366, I. P. C., and the jury brought in a majority verdict of guilty under Section 366, the majority being one of three to two. In cross–examination the girl said that she had left her husband once or twice before and had gone to her father’s house. She was further asked whether she got frightened and told the accused to take her to her Nani’s bari and she said “Yes”. She also said that she could not stand being beaten any more and that she did not object to going with them, that she went of her own accord and that neither of the two petitioners ever made any immoral proposal before. Before this occurrence she had never been in her husband’s house for more than 15 or 16 days at a time. The learned Assistant Sessions Judge failed altogether to give any warning to the jury upon the question of corroboration. Apparently, he forgot all about the necessity of giving this direction: Nor did he direct them as to whether there was evidence corroborating her statement, of the kind required by law, that is to say, evidence independent of her own statements. So far as the learned Assistant Sessions Judge gave any direction at all, it appears to have been misleading, because the evidence of Meher, Marfat and Samir might have been thought by the jury to be corroborative evidence upon the question of abduction. This evidence consisted of statements made by the girl to them and, therefore, was not the kind of corroboration required by law.

5. These being the circumstances of this, it is obvious that the convictions cannot be allowed to stand. In view of the fact that the Magistrate originally considered the complaint of the girl to be suspicious, and in view,of the evidence of the girl to which I have referred, about her going away willingly and, further, in view of the fact that it was a majority verdict of 3 to 2, we do not think it necessary to send this case back for a retrial. The convictions and sentences are set aside and the accused acquitted. The accused, who are on bail, will be discharged from the bail bonds.

Cunliffe, J.

6. I agree.

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