Chittaranjan Das Vs. State of West
Bengal  INSC 113 (22 April 1963)
22/04/1963 GAJENDRAGADKAR, P.B.
GUPTA, K.C. DAS
CITATION: 1963 AIR 1696 1964 SCR (3) 237
C 1968 SC 609 (10) R 1970 SC 977 (6) RF 1970
SC1033 (3) RF 1973 SC 278 (3) R 1973 SC2187 (8) E 1974 SC 274 (7) R 1976 SC 794
Jury Trial-Charge of rape-Particulars as to
time and place if must be mentioned-High Court summaraily dismissing the
Appeal-Propriety-Charge to jury-Misdirection-Previous statements of the
prosecutrix, if substantive evidenceVerdict if and when preverse, Indian Penal
Code, (Act 45 of 1860), ss. 109, 376-Code of Criminal Procedure, 1898(Act V of
1898) ss. 222(1), 421-Indian Evidence Act, 1872(1 of 1872), s. 145.
The appellant was the Zonal officer of the
Refugee Rehabilitation office and the co-accused Ganesh De was a peon in the
said office. One Sandhyarani, a minor girl was staying with her mother in the
Refugee colony. She was induced by one Manibala to go to her place with a
promise for a nurse's job. In course of time, she was taken to the appellant's
house in about the middle of November 1958 on the representation that he wanted
to give her employment.
The appellant held out the hope of a job for
her and managed to ravish her. Similarly, she was taken to the house of the
appellant on two or three occasions within a period of one month and each time
he bad sexual intercourse with her.
Sandhya's mother filed a complaint which was
investigated and she was recovered from the house of Ganesh De. Sandhya's
statement was recorded and challan was forwarded which specified the dates on
which the appellant had raped Sandhya. The charge was framed against the
appellant on three counts and in the three counts, periods were mentioned
within which the appellant was alleged to have committed rape on Sandhya. The
first period was between 18.11.1958 to 21.11.1958, second was 1. 12.1958 to
6.12.1958 and the third was 9.12.1958 to 15.12. 1958. Ganesh De was charged
under s, 376 read with s. 109 of the Indian Penal Code. They were tried by the
City Sessions Court with the aid of jury. The jury returned a verdict of guilty
against the appellant in respect of all the three counts which was accepted by
the Sessions Judge and the appellant was convicted and sentenced under s. 376
to undergo rigorous imprisonment for four years on the first charge. No
separate sentence was 238 awarded in respect of the other charges. Ganesh De
was also sentenced to a similar period of imprisonment. The appellant preferred
an appeal, which was summarily dismissed by a vision Bench of the High Court.
The appellant then obtained a certificate under Art. 134(1) (c) of the
Constitution, hence this appeal.
Held that where it is possible to specify
precisely the necessary particulars required by s. 222(1), the prosecution
ought to mention the said particulars in the charge but where the said
particulars cannot be precisely specified in the charge having regard to the
nature of the information available to the prosecution, failure to mention such
particulars may not invalidate the charge.
In dealing with the question as to whether
the charge framed in a criminal trial has contravened s. 222(1), the court will
have to examine all the relevant facts and if it appears to the Court that
having regard to them, the charge could and ought to have been framed more
precisely, the court may reach that conclusion and then enquire whether the
defective charge has led to the prejudice of the accused.
The charge framed in the present case did not
contravene the requirement of s. 22(1),2 and was therefore, valid.
Ali Hyder v. Emperor, (1939) 40 Cr. L.J. 280,
Held further, that the position under s. 421
is clear and unambiguous. If the High Court in dealing with criminal appeals
takes the view that there is no substance in the appeal, it is not necessary
that it should record reasons for its conclusion in summarily dismissing it.
Therefore, the High Court was not right in granting certificate to the
appellant on the ground that his appeal should not have been summarily
dismissed by another Division Bench of the High Court.
Mushtak Husain v. State of Bombay, A.I.R.
1953 S.C.282 and Shreekantiah Ramayya Municipally v. State of Bombay, A.I.R.
1935 S.C. 287, distinguished.
Held further that the requirement as to
corroboration in regard to the evidence of a prosecutrix had been elaborately
explained by the Sessions Judge to the Jury and having regard to the several
statements made by the learned Judge in his charge on this topic, it is
difficult to accept that the charge was materially defective in this matter.
239 The failure of the learned judge to
mention the point about onus to prove the age of the girl once again, when he
dealt with the actual relevant evidence, cannot be said to constitute a
misdirection, much less a material misdirection which may have led to the
prejudice of the appellant.
When a previous statement is put to a witness
in crossexamination under a. 145 of the Indian Evidence Act, its primary
purpose is to contradict the witness by reference to the evidence given at the
trial, and so, it cannot be said that the learned judge was wrong in law in
telling the jury that the previous statement on which the defence relied may help
the defence to contend that the girl was not a straightforward witness and was
changing her story from time to time, but the said previous statement cannot be
treated as substantive evidence at the trial. That being the true legal
position the charge did not suffer from serious misdirection.
In a jury trial where questions of fact are
left to the verdict of the jury sometimes the verdicts returned by the jury may
cause a disagreeable surprise to the Judge, but that itself can be no
justification for characterising the verdict as perverse. The appeal,
therefore, must be dismissed.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 165 of 1960.
Appeal from the judgment and order dated July
22, 1960, of the Calcutta High Court in Criminal Appeal No. 448 of 1960.
A.S.R. Chari, N.S. Bindra, and D.N.
Mukherjee, for the appellant.
B. Sen, S. C. Mazumdar and P. K. Bose., for
1963. April 22. The judgment of the Court was
delivered by GAJENDRAGADKAR J.-The appellant Chittaranjan Das was charged with
having committed an offence punishable under section 376 I.P.C. This charge was
framed against him on three counts.
It 240 was alleged that between November 18,
1958 and November 21, 1958 at 29A and B, Kailash Bose Street, Calcutta, lie
committed rape on Sandhyarani Das Gupta alias Nirmala. The second count was
that he committed the same offence at the same place and in respect of the same
girl between December 1, 1958 and December 6, 1958 ; and the third count
related to the commission of the said offence between December 9, 1958 and
December 15, 1958 at the same place and in respect of the same girl. Along with
the appellant, Ganesh De was charged with having abetted the appellant in the
commission of the said offence, the charge framed against Ganesh De being under
section 376 read with s. 109 of the Indian Penal Code. The learned Presidency
Magistrate, 8th Court, Calcutta, held the commitment proceedings, and was
satisfied that the evidence adduced by the prosecution before him made out a
prima facie case against both the accused persons.
Since the offence in question was triable
exclusively by the Court of Sessions, the learned Magistrate committed them to
the Sessions on May 4, 1960.
The case of the appellant and his co-accused
was then tried by the City Sessions Court at Calcutta with the aid of jury.
The jury returned a verdict of guilty against
the appellant in respect of all the three counts. A similiar verdict was
brought by the jury in respect of the co-accused Ganesh De.
The learned Sessions judge took the view that
the verdict of the jury was not perverse, and so, he decided to accept the said
verdict and accordingly convicted the appellant under s. 376 and sentenced him
to suffer rigorous imprisonment for four years on the first charge. No separate
sentence was awarded in respect of the other charges. Ganesh De was also
sentenced to a similiar period of imprisonment. This order was passed on July
241 The appellant challenged the correctness
of the order of conviction and sentence passed against him by the learned
Sessions judge by preferring an appeal before the Calcutta High Court. A
Division Bench of the said High Court did not feel impressed by the points made
on appellant's behalf, and so, his appeal was summarily dismissed on July 22,
The appellant then applied for a certificate
under Article 134 (1) (c) of theConstitution. This application was allowed by
Labiri C.J. and Bose J. on the ground that some of the points which the
appellant wanted to raise before this Court by his appeal were substantial
points of law, and so' _they granted him a certificate under the said Article.
It is with this certificate that the
appellant has come to this Court.
Before dealing with the points which fall to
be considered in the present appeal, it is necessary to state briefly the
material facts leading to the prosecution of the appellant.
Sandhyarani Das Gupta was a minor girl who
was staying with her mother Soudamini in the -Refugee Colony at Ghola. It
appears that one Maniprova alias Manibala Majumdar induced this young girl to
go to her house 'at Ashutosh Mukherjee Road, Bhowanipur sometime in the first
week of November 1958. Manibala induced Sandhya to go to her place with a
promise that she would secure a nurse's job for her. The appellant was the
Zonal Officer of the Refugee Rehabilitation Office at Tollygunge at that time
and, according to the prosecution, the co-accused Ganesh De was a Peon in the
said office. The prosecution alleged that in course of time, Sandhya was taken
to the appellant in his house in about the middle of November 1958 on the
representation that the appellant wanted to give her employment. When Sandhya
met the appellant, the appellant held out the hope of a job for her and he
managed to ravish her. Similarly, Sandhya was taken to the house of the
appellant on two or three occasions within a 242 period of one month and each
time the appellant had sexual intercourse with her. Every time this happened
the appellant promised that he would provide Sandhya with a job.
The prosecution case is that as a result of
this sexual intercourse, Sandhya conceived and the appellant was anxious to
cause her abortion. In accordance with the plan, Manibala attempted to cause
her abortion but did not succeed, and so, the girl was taken to the
Chittaranjan Sevasadan on February 11, 1959 where the abortion was completed.
Some time, thereafter, she was sent back to her own house on her insistence. It
appears from the evidence that Sandhya was again taken to the house of the
appellant and was ravished by him. This happened on two or three occasions
again. At one of these meetings with the appellant, Sandhya was introduced to a
young man named Himangsu Ganguli. This young man had approached the appellant
for a job. The appellant exploited the helpless position of both Himangsu and
Sandhya, and asked them to go through a show of marriage. Thereafter, the
appellant wanted a photograph in proof of their marriage and a group photo was
accordingly taken with Ganesh De, Manibala, Himangsu and Sandhya, the last two
having posed as husband and wife. Himangsu and Sandhya then went to the house
of the appellant and gave him a copy of the photograph. This time again Sandhya
was ravished by the appellant. That, in broad outlines, is the prosecution case
against the appellant.
On June 6, 1959, Sandhya's mother filed a
complaint that her daughter had disappeared. This complaint was investigated by
the Enforcement Branch Calcutta, and in consequence, Sandhya was recovered from
the house of Ganesh De on June 10, 1959. She was then taken to the Tollygunge
Police Station where her statement was recorded. It, however, appeared that the
offence which on 243 Sandhya's statement seemed to have been committed by the
appellant was within the jurisdiction of the Amherst Street Police Station, and
so, the case papers were transferred to the said Police Station. Sandhya's
statement was again recorded at this Police Station on June 12, 1959. As a
result of the statement, Challan was forwarded which specified November 14,
1958, May 30, 1959 and June 6, 1959 as the dates on which the appellant had
Subsequently, the appellant was arrested and
he along with the co-accused was charged before the Court of the Presidency
Magistrate as we have already mentioned.
In 'granting certificate to the appellant,
the High Court has held that the point which the appellant sought to raise in
regard to the invalidity and illegality of the charge was a point of substance.
In fact, it has observed that the scheme of section 222 -of the Criminal
Procedure Code seems to suggest that the charge framed in the present case contravened
the requirement of s. 222 (1), and was therefore, invalid. The High Court also
appears to have thought that this contention received support from a decision
of the Calcutta High Court in Ali Hyder v. Emperor, (1). It is, therefore,
necessary to examine this argument at the outset.
We have already set out the 3 counts of the
charge framed against the appellant and we have noticed that in the three
counts periods were mentioned within which the appellant was alleged to have
committed rape on Sandhya. The first period was between 18.11.1958 to
21.11.1958, second was 1.12.1958 to 6.12.1958 and the third was 9.12.1958 to
15.12.1958. The argument is that s. 222 (1) Cr. P.C. requires that the charge
must specify, inter alia, the particulars as to the time when the offence was
committed, and this means that the precise date on which and the time at which
the offence was committed must be stated (1) (1939) 40 Cr. L. J. 280.
244 in the charge. Before dealing with this
argument, it is necessary to read s. 22 :
"(1) The charge shall contain such
particulars as to the time and place of the alleged offence and the person (if
any) against whom, or the thing (if any) in respect of which, it was committed,
as are reasonably sufficient to give the accused notice of the matter with
which he is charged.
(2) When the accused is charged with criminal
breach of trust or dishonest misappropriation of money, it shall be sufficient
to specify the gross sum in respect of which the offence is alleged to have
been committed, and the dates between which the offence is alleged to have been
committed, without specifying particular items or exact dates, and the charge
so framed shall be deemed to be a charge of one offence within the meaning of
section 234 :
Provided that the time included between the
first and last of such dates shall not exceed one year." The appellant's
contention is that it is only in cases under s. 222 (2) where the prosecution
is not required to specify the precise date and time at which the offence is
committed ; and that means that it is only in respect of the offences of
criminal breach of trust or dishonest misappropriation of money to which the
said sub-section applies that liberty may be claimed by the prosecution not to
mention the date and time of the offence. In all other cases to which s. 222
(1) applies, particulars as to the time and place of the alleged offence must
be specifically mentioned. In our opinion, this contention is not well founded.
In fact, Mr. Chari who appeared for the appellant himself fairly conceded that
in almost every charge 245 to which s. 222 (1) applies, it is usual to state
that the particular offence was committed on or about a certain date.
In other words, it is not suggested by Mr.
Chari that the specific date and the specific time must necessarily be stated
in the charge in every case. If it is permissible to say in a charge that a
particular offence was committed on or about a specified date, without
specifying the particular time, it is difficult to hold that because a period
of four or five or six days is indicated in the charge within which the offence
is alleged to have been committed s. 222 (1) has been contravened. It is true
that sub-section (2) specifically deals with two kinds of offences and makes a
provision in respect of them, but that is not to say that in every other case,
the time must be so specifically mentioned as to indicate precisely the date
and the time at which the offence was committed.
It is quite clear that of the charge mentions
unduly long period during which an offence is alleged to have been committed,
it 'would be open to the criticism that it is too vague and general, because
there can be no dispute that the requirement of s. 222 (1) is that the accused
person must have a reasonably sufficient notice as to the case against him. The
basic requirement in every criminal trial therefore, is that the charge must be
so framed as to give the accused person a fairly reasonable idea as to the case
which he is to face, and that validity of the charge must in each case be
determined' by the application of the test, viz., had the accused a reasonably
sufficient notice of the matter with which he was charged ? It is quite
conceivable that in some cases by making the charge too vague in the matter of
the time of the commission of the offence an accused person may substantially
be deprived of an opportunity to make a defence of alibi, and so, the criminal
courts naturally take the precaution of framing charges with sufficient
precision and particularity 246 in order to ensure a fair trial ; but we do not
think it would be right to hold that a charge is invalid solely for the reason
that it does not specify The particular date and time at which any offence is
alleged to have been committed.
In this connection, it may be relevant to
bear in mind that the .-requirements of procedure are generally intended to sub
serve the ends of justice, and so, undue emphasis on mere technicalities in
respect of matters which are not of vital or important significance in a
criminal trial, may sometimes frustrate the ends of justice. Where the
provisions prescribed by the law of procedure are intended to be mandatory, the
legislature indicates its intention in that behalf clearly and contravention of
such mandatory provisions may introduce a serious infirmity in the proceedings
themselves ; but where the provisions made by the law of procedure are not of
vital importance, but are, nevertheless, intended to be observed, their breach
may not necessarily vitiate the trial unless it is shown that the contravention
in question has caused prejudice to the accused. This position is made clear by
sections 535 and 537 Cr. P. C.
Take, for instance, the case of murder where
the prosecution seeks to prove its case against an accused person mainly on
circumstantial evidence. In such a case, investigation would generally begin
with, and certainly gather momentum after the discovery of the dead body. In
cases of circumstantial evidence of this character, it would be idle to expect
the prosecution to frame a charge specifying the date on which the offence of
murder was committed. All that the prosecution can do in such cases is to
indicate broadly the period during which the murder must have been committed.
That means the precision of the charge in
respect of the date on which the offence is alleged to have been committed will
depend upon the nature of the information available to the prosecution in a
given case. Where 247 it is possible to specify precisely the necessary
particulars required by's. 222 (1), the prosecution ought to mention the said
particulars in the charge, but where the said particulars cannot be precisely
specified in the charge having regard to the nature of the information
available to the prosecution, failure to mention such particulars may not
invalidate the charge.
In this connection, it may be useful to refer
to the facts in the present case. The evidence of Sandhya shows that she and
the members of her family had to face the terrible problems posed before the
refugees in that part of the country, and in her anxiety to help her destitute
family in its hour of need Sandhya was very easily persuaded by Manibala to
adopt the course of earning money by selling her body. In such a case, if the
minor girl has been exposed to the risk of having sexual intercourse with
several people from time to time, it is unreasonable to expect that she would
be able to specify the precise dates on which particular individuals had
intercourse with her. If it is insisted that in a case of this kind, the charge
of rape framed against the appellant must specify the date on which the offence
was committed by him, it would really mean that the appellant cannot be charged
with the offence because the unfortunate victim would, in the ordinary course
of things, not be able to state precisely the dates on which she was made to
submit to the appellant. Therefore, in dealing with the question as to whether the
charge framed in a criminal trial has contravened s. 222 (1), the Court will
have to examine all the relevant facts and if it appears to the Court that
having regard to them, the charge could and ought to have been framed more
precisely, the Court may reach that conclusion and then enquire whether the
defective charge has led to the prejudice of -the accused. That, in our
opinion, is the reasonable course to adopt in dealing 248 with contentions like
the one raised by the appellant before us. The question of prejudice did not
impress the High Court, because it has summarily dismissed the appeal. It is
not a matter on which the appellant can be permitted successfully to challenge
the view taken by the High Court.
In this connection we ought to add that the
decision in the case of Ali Hyder (1) to which the High Court has referred in
granting a certificate on this point does not support the contention in
The next ground on which the High Court has
granted certificate to the appellant is that the Division Bench should not have
summarily dismissed his appeal, and in coming to the conclusion that this
argument amounted to a substantial point of law, the High Court has referred to
two decisions of this Court in Mushtak Hussein v. The State of Bombay, (2 ) and
Shreekantiah Ramayya Municipalli v. State of Bombay (3). In Mushtak Hussein's
case, this Court has no doubt observed that it is riot right for the High Court
to dismiss an appeal preferred by the accused to that Court summarily where it
raises some arguable points which require consideration. It was also added that
in cafes which prima facie raise no arguable issue, that course is, of course,
justified. It is in the light of this conclusion that this Court stated that it
would appreciate it if in arguable cases the summary rejection orders give some
indications of the views of the High Court on the points raised.
In the case of Shreekantiah Ramayya it
appeared that out of the two appeals filed separately by two different accused
persons against the same judgment, one was summarily dismissed by one Bench of
the High Court and the other was admitted by another Bench. It is in the light
of this somewhat anomalous position that this Court repeated its observation
made in the case of Mushtak Hussein (2), that summary rejections of appeals (1)
(1939) 40 Cr. L .T. 280. (2) A I.R. 1953 $.C. 282.
(3) A. I. R. 1955 S. C. 287, 249 which raise
issues of substance and importance are to be disapproved.
With respect, there can be no9 doubt whatever
that in dealing with criminal appeals brought before them the High Courts
should not summarily reject them if they raise arguable and substantial points
and it would be stating the obvious if we were to add that no High Court
summarily dismisses a criminal appeal if it is satisfied that it raises an
arguable or substantial question either of fact or of law. In this connection,
it is, however, necessary to bear in mind that it is for the High Court which
deals with the criminal appeal preferred before it to consider whether it
raises any arguable or substantial question of fact or law, or not. Section 421
(1) of the Code provides that on receiving the petition and copy under s. 419
or s. 420., the appellate court shall peruse the same, and, if it considers
that there is no sufficient ground for interfering, it may dismiss the appeal
summarily. The proviso to this section requires that no appeal presented under
s. 419 shall be dismissed unless the appellant or his pleader has had a
reasonable opportunity of being heard in support of the same. Sub-section (2)
empowers the appellate court to call for the record of the case before
dismissing the appeal under sub-section (1) but it does not make it obligatory
on the court to do so. Therefore, the position under s. 421 is clear and
unambiguous. When a criminal appeal is brought before the High Court, the High
Court has to be satisfied that it raises an arguable or substantial question;
if it is so satisfied, the appeal should be admitted; if, on the other hand,
the High Court is satisfied that there is no substance in the appeal and that
the view taken by the Trial Court is substantially correct, it can summarily
dismiss the appeal. It is necessary to emphasis that the summary dismissal of
the appeal does not mean that before summarily dismissing the appeal, the High
Court has not applied 250 its mind to all the points raised by the appellant.
Summary dismissal only means that having considered the merits of the appeal,
the High Court does not think it advisable to admit the appeal because in its
opinion, the 'decision appealed against is right. Therefore, we do not think
the High Court was right in granting certificate to the appellant on the ground
that his appeal should not have been summarily dismissed by another Division
Bench of the said High Court. If the High Court in dealing with criminal
appeals takes the view that there is no substance in the appeal, it is not
necessary that it should record reasons for its conclusion in summarily
dismissing it. .
The third ground on which the certificate has
been granted by the High Court is in regard to an alleged misdirection in the
charge delivered by the learned Sessions judge to the jury. It appears that in
dealing with the argument of the defence that the charge was vague and that the
dates specified in the charge did not correspond to the dates given by Sandhya
in her evidence, the learned Judge told the jury that if the statement of the
girl in her crossexamination is taken as the basis, the dates on which the girl
was ravished by the appellant would not be covered by the three sets of dates
mentioned in the charge, and then he added that "in case you hold that the
charges are in order, in that case you shall proceed to consider the
evidence." It was urged by the appellant before the Division Bench of the
High Court which granted the certificate that the last statement constituted a
misdirection. The argument was that whether or not a charge is valid is a
question of law which the learned judge should have decided himself and given a
direction to the jury in accordance with his decision;
inasmuch as he left that question to the
jury, he failed to exercise his jurisdiction and to discharge his duty, and as
such the 251 charge must be held to suffer from a serious misdirection.
This argument appears to have appealed to the
Division Bench which granted the certificate and has been pressed before us by
Mr. Chari. In our opinion, there is no substance in this argument. We should
have stated earlier that after the committal order was passed by the presidency
Magistrate, the appellant moved the High Court in its revisional jurisdiction
and urged that the charge framed against him was defective and invalid and
should be quashed. The High Court rejected this contention and held that the
charge was valid within the meaning of s. 222 and s. 234 of the Cole.
Therefore, the true position is that at the
time when the learned Sessions judge delivered his charge to the jury, the
question about the validity of the charge had been considered by the High Court
and so far as the learned Sessions Judge was concerned, the finding of the High
Court was binding on him, so that when the learned Sessions judge told the jury
that they may consider whether the charges were in order, he was really leaving
it open to the jury to consider the matter which had been decided against the
appellant and in favour of the prosecution. If there can be any grievance
against this part of the charge, it would be in the side of the prosecution and
not on the side of the appellant.
That leaves to be considered certain other
alleged misdirections to which Mr. Chari has referred. Mr. Char;
contends that in explaining the true legal
position with regard to the evidence of a prosecutrix in cases of rape, the
learned judge did not -cell the jury that in view of the contradictions brought
out in the evidence of Sandhya and in view of her past career and record, her
evidence should not be believed. Mr. Chari argues that when criminal courts
require corroboration to the evidence of the prosecutrix in such cases, as a
matter of prudence, it necessarily means that in the first instance, the 252
prosecutrix must appear to the court to be a reliable witness. If the
prosecutrix does not appear to be a reliable witness, or if her evidence suffers
from serious infirmities, corroborations in some particulars would not help the
prosecution, and according to Mr. Chari, this aspect of the matter was not
properly brought to the notice of the jury by the learned Sessions judge. We do
not think there is any substance in this contention. We have carefully read the
charge and we are satisfied that on the whole, the charge has not only been
fair, but has. been more in favour of the appellant than in favour of the
prosecution. In fact, the whole tone of the charge indicates that the learned
Sessions judge was not satisfied that the prosecution had really made out a
case against the appellant beyond a reasonable doubt. But in delivering charge
to the jury, the learned Sessions judge can never usurp the function of the
jury. He cannot pronounce on the reliability or otherwise of any witness. The
requirement as to corroboration in regard to the evidence of a prosecutrix like
Sandhya has been elaborately explained by the Sessions judge to the jury. He
told them that the most important witness in the case was Sandhya and that
there was hardly any corroborative evidence to her story. He also warned them
that though it was not illegal to act upon the evidence of a prosecutrix, it
was unsafe to adopt that course and he said that before convicting the
appellant on the uncorroborated testimony of Sandhya, the members of the jury
should ask themselves whether they were so much convinced about the
truthfulness of the girl as to accept her evidence in its entirety. He referred
to the broad and material contradictions brought out in her evidence and asked
them to bear that fact in mind in deciding whether they should accept her
testimony or not. Having regard to the several statements made by the learned
judge in his charge on this topic we find it difficult to accept Mr. Chari's
grievance that the charge was materially defective in this matter.
253 The next misdirection or) which Mr. Chari
has relied is in regard to the prosecution evidence about the age of the girl.
The prosecution alleged that the girl was below If) years of age, whereas the
defence contended that she was above 16 and was a consenting party. As usual,
evidence was given by the prosecution in support of its case as to the girl's
age. This evidence consisted of the testimony of the girl's mother Saudamini
and of Dr. Nag as well as Dr. Saha.
Having summarised the material evidence
fairly and accurately, the learned judge told the jury that the said evidence
was no doubt somewhat conflicting and he warned them that they had to decide as
a question of fact whether the age of the girl at the relevant time was above
16. Mr. Chari contends that at this stage,
the learned judge should have told the jury that the onus to prove the fact
that the girl was below 16 was on the prosecution and that if there was any
doubt about her age, the benefit of the doubt must go to the appellant. We do
not think there is any substance in this argument. In the first part of his
charge, the learned judge explained to the jury the essential requirements
which had to be proved by the prosecution in support of its charge under s.
376, and there the learned judge had made it clear to the jury that the
prosecution had to show that the girl was below 16. 'That being so, we do not
think that his failure to mention the point about onus once again when he dealt
with the actual relevant evidence, can be said to constitute a misdirection,
much less a material misdirection which may have led to the prejudice or the
The last misdirection on which Mr. Chari has
relied is the statement of the learned judge that the previous statements made
by the girls which had been brought on the record do not constitute substantive
evidence but are intended only to contradict the actual evidence given by her
in court. It appears that on behalf of the appellant the evidence given 254 by
the girl on a previous occasion had been brought out under s.145 of the Indian
Evidence Act. In that statement the girl had sworn that Anil Chatterjee had
sexual relations with her day after day and that she had sexual relations with
others also. The girl admitted in her cross examination that her statement had
been recorded on a previous occasion by the Magistrate, Alipore, but when the
contents of the statement were put to her, she said she did not remember
whether she had made those statements or not.
Now, it is clear that when a previous
statement is put to a witness in cross-examination under s.145 of the Indian
Evidence Act, its primary purpose is to contradict the witness by reference to
the evidence he gives at the trial, and so, it cannot be said that the learned
judge was wrong in law in telling the jury that the previous statement on which
the defence relied may help the defence to contend that the girl was not a
straightforward witness and was changing her story from time to time, but the
said previous statement cannot be treated as substantive evidence at the trial.
That is the true legal position and no grievance can be made against the charge
for stating the said position in the terms adopted by the learned Sessions
judge. Therefore, we do not think that the grievance made by Mr. Chari that the
charge suffered from serious misdirections is well founded.
There is one more point which we may mention
before we part with this appeal. After the verdict was returned by the jury,
the learned Sessions Judge considered the question as to whether he should
accept the said verdict, or should make a reference. In that connection, he
observed that the verdict that the jury had returned against the appellant, was
practically based on the uncorroborated testimony of the prosecutrix but he
thought that the said course adopted by the jury cannot be said to be illegal
and he was not prepared to take the view that the verdict of the jury was in
any way perverse.
255 Mr. Chari contends that having regard to
the general tone of the charge delivered by the learned judge to the jury, the
learned judge should have treated the verdict as perverse and not acted upon
it. We do not think that this contention can be accepted. In his charge, the
learned judge no doubt indicated that the evidence of the girl was not
satisfactory, that it was not corroborated and that there were other
circumstances which showed that the prosecution case might be improbable, but
having done his duty, the learned judge had to leave it to the jury to consider
whether the prosecution had established its charge against the appellant beyond
reasonable doubt or not. The jury apparently considered the matter for an hour
and half and returned the unanimous verdict of guilty. In the circumstances of
this case, we cannot accede to Mr. Chari's argument that the Session Judge was
required by law to treat the said verdict as perverse. In a jury trial where
questions of fact are left to the verdict of the jury, sometimes the verdicts
returned by the jury may cause a disagreeable surprise to the judge, but that
itself can be no justification for characterising the verdict as perverse.
In the result, the appeal fails and is dismissed,
the appellant to surrender to his bail bond.