Kamij Shaikh vs Emperor

Beevor, J.—The appellant has been convicted by a 1st class Magistrate invested with powers u/s 30, Criminal P. C. u/s 366A, Penal Code, and has been sentenced to five years rigorous imprisonment.

The girl in question, one Samiran Bibi, was found at night at the house of the appellant which is in the same village as her husband''s house She had been missing from her husband''s house for some days according to the prosecution story, and the prosecution was started on the basis of her story which was that she was induced to go to the appellant''s house by threats, the appellant escorting her with a hasua. She also alleged that she was promised jewellery and comfort when she would be sent to Burdwan for another marriage She also alleged that during her stay in the appellant''s house she was raped by the appellant more than once.

The learned Magistrate gave very good reasons in his judgment for disbelieving the story that the girl went to the appellant''s house as the result of threats as alleged by her, but he accepted her story that she had been taken there by he appellant. He summed up his findings on this point in the following, sentence: "In other words the complainant''s story that she had been., taken there by Kamij (the appellant) must be accepted corroborated as it is by the unassailable fact of her being recovered from his house," This finding followed another finding feat, the appellant''s story that, she had been planted in his house was untrue.

In my opinion the learned Magistrate rightly recognised the need for corroboration of the evidence of the girl in this case I am far from holding that the evidence of the girl always needs corroboration in cases u/s 366A, but where it is found that the girl in question has been definitely lying on important points in her story, then it is unsafe to rely on other parts of her evidence to convict any person of a criminal offence unless that evidence is corroborated on material points.

Now I cannot agree with the learned Magistrate that the presence of the girl in the house of the appellant was a material point for the purpose of corroboration in this case When once the story of threats had been disbelieved, the question which remained for decision was did the girl go to the appellant''s house of her own accord or under inducement, and if she went by inducement, was that inducement given by the appellant. Now on neither of these points would the presence of the girl in the house indicate in any way which way the question should be answered. It is consistent with either answer to the question. It is useless to speculate on possibilities or probabilities. To my mind there are varieties of possibilities, and in the absence of reliable evidence it is wrong to take the view that one possibility is more probable than another and treat that probability as corroboration of a witness who has been found clearly unreliable I can find no other circumstances in the evidence to corroborate the girl''s story that she went to the house of the appellant as a result of inducement by him and I must, therefore, hold that the charge u/s 366A, Penal Code, has not been proved against the appellant.

This appeal is, therefore, allowed; The conviction and sentence are set aside and the appellant is discharged from his bail.