Sobha Ram vs Kashmiri Lal

Teja Singh, C.J.—The facts giving rise to this revision petition are as follows: A case u/s 376, I.P.C. and Section 511 and Section 342, I.P.C. was registered, at police station Totu against Kashmiri Lal accused. After taking the prosecution evidence the Magistrate decided to charge the accused u/s 354, I.P.C, On the conclusion of the case Kashmiri Lal was convicted under the same section and was ordered to pay a fine of Rs. 200/- or in default to undergo two months'' simple imprisonment. On appeal, the learned Sessions Judge set aside Kashmiri Lal''s conviction. Sobha Ram has now come to this Court on the revision side with the prayer that the order of the Sessions Judge acquitting Kashmiri Lal of the offence for which he had been convicted by the trial Magistrate be set aside and the appeal be sent back for fresh decision.

It is in the evidence that Sobha Ram was a tenant of Kashmiri Lal and the houses of the two were quite near each other. In fact only another house intervened between them. On 25-3-1950 Mst. Maya Devi, minor daughter of Sobha Ram was accosted by the accused while she was returning home from her school and was asked to bring an eye medicine for. him from her mother. Maya Devi went home and informed her parents that the, accused wanted a medicine; Ram Devi mother of. Maya Devi, was unable'' to find the medicine at that time and accordingly sent her other daughter to call the servant so that he might be asked if he knew anything of the medicine. After the girl had gone Mt.'' Ram Devi was able to and the medicine and sent Maya Devi with it to the accused''s house. The story proceeds that when Maya Devi handed the medicine to the accused he asked her to accompany him to the house and when they were both inside the ''baithak'' the accused shut the doors and chained it froml inside. Then he removed the ''salver'' of the girl and himself became naked before her. The girl got terrified at the sight of the accused''s male organ in erection and started shrieking her outcries attracted to the scene her parents and later on a number of other persons and when they peeped through the glass panes of a window they saw the girl sitting on a table without her salver and. the accused trying to put on his payjama. Sobha Ram, kicked at the door and was about to force it open when the accused came out. Sobha Ram took the girl to his house; the accused also followed them and apologised for the wrong that he had done and asked to be forgiven; Later on Sobha Ram took a train to Kandaghat with Mt. MayaDevi and reported the matter to the District Magistrate who asked him to make a written complaint. Sobha Ram presented a written complaint to the District Magistrate next morning who forwarded it to the Asst. Superintendent of Police Kandaghat for investigation. The Assistant Superintendent of Police went to Totu accompanied by Sobha Ram and his daughter and lodged the first information report.

The principal witness in the case was Mt. Maya Devi who gave her age as 7 or 8 years. Her parents Sobha Ram and Ram Devi corroborated her testimony. The other witnesses in the case were Paras Ram, Sobha Ram''s servant, Mt. Santi, Sardar Balwant Singh, District Magistrate and A.S.L. Magher Singh who investigated the case.

There can be no doubt that the question involved in the case was only one of fact, viz., whether Kashmiri Lal committed the offence in the manner deposed to by Mt. Maya Devi. The trial Magistrate believed the girl''s statement and further held that it was corroborated on material points by the evidence of other witnesses. The learned Sessions Judge took a contrary view and his finding was that the case against the accused was not proved beyond doubt. Mr. M.L. Sethi, learned Counsel for the Petitioner, argued that. the judgment of the learned Sessions Judge was vitiated by a number of reasons, and. particularly stressed the following: (1) that he Started with the wrong premise that in a.case of this kind the statement of Mt. Maya Devi could not be relied upon unless it was materially corroborated by independent evidence; (2) that he erroneously disregarded the first information report and did not allow it to be used for corroborating Sobha Ram''s statement; and (3) that in his opinion the failure of the prosecution to produce other persons who were alleged to have been present at the time the girl was taken out of the accused''s house and the accused was alleged to have admitted his guilt were not put in the witness-box was fatal to the, case. I have no hesitation in coming to the conclusion that the point of view from which, the learned Sessions Judge approached the case was not quite sound and his view that Mt. Maya Devi who, strictly speaking, was prosecutrix in the case, could not be implicitly relied upon without material corroboration. He cited a passage from Rattan Lal''s Law of Crimes in which the learned author has observed that a charge u/s 354, I.P.C. is one which is very easy to make and very difficult to rebut and when such a charge is made it is necessary to see whether it is supported by independent evidence besides that, of the woman herself or is corroborated by her conduct and the surrounding circumstances and is consistent with ordinary probability. Now the authority upon which Rattan Lal''s observation is based is not available to us and it is difficult to say whether the observation in question reproduces what was held in that case, and if so, what were the circumstances under which this observation came to be made. But viewing the matter generally, my own opinion is that there is no warrant for laying down the wide proposition that in a case u/s 354 or, for the matter of that, in any case relating to a sexual offence, excepting rape, independent corroboration of the prosecutrix''s evidence can be insisted upon. So far as the rape case is concerned, the necessity to insist upon independent corroboration arises from the fact that the Court has to decide whether or not the intercourse took place with the prosecutrix''s consent and with a view to giving a finding on that point it is only reasonable to expect evidence other than that of the prosecutrix. Different, however, is the case with an offence u/s 354 and particularly when the circumstances under which it is alleged to have committed are likely (sic) to those of the present case. In a case of this kind, it cannot even be alleged that the prosecutrix could have given her consent. This aspect of the matter was considered by Broomfield J., in- Emperor Vs. Banubai Ardeshir Irani, and it was held that when a woman goes into the witness box and alleges that a certain individual in the dock has committed a sexual offence against her the Courts require that her evidence shall be corroborated is restricted to cases of rape only and should not be extended to other cases of sexual nature. It may also be mentioned that in the present case Mt. Maya Devi''s evidence was materially corroborated by the statement of her parents and I am in agreement with the Petitioner''s counsel that the learned Sessions Judge was wrong in disbelieving these witnesses on the ground that they were interested witnesses. As the learned Sessions Judge has himself remarked in his order, there was practically no ill-will between Sobha Ram and the accused and consequently it was difficult to believe that Sobha Ram could have gone to the length of putting up his minor daughter with allegations which by their very nature must reflect upon the honour of the girl and the family. In the circumstances, I am of the opinion that Sobha Ram and Ram Devi have been wrongly regarded as interested witnesses.

5.I am further of opinion that, the Sessions Judge was wrong in disallowing the first information report to be used for corroborating Sobha Ram''s testimony and this was not a proper course in which he should have drawn any inference adverse to the prosecution for its failure to produce some of the witnesses who were present on the occasion mentioned above. I have ascertained from the record that such witnesses were four in number and out of these two were the tenants of the accused and the remaining two reached the spot at a late stage when the whole thing was over. In the view that I take, it is clear to me that the Sessions Judge wrongly allowed the accused''s appeal and set aside his conviction. The trouble, however, is that sitting as a Court of revision it is not open to me to set aside the order of acquittal when it involves merely the appraisement of the evidence of the prosecution witnesses, even though I believe that the appraisement of the evidence by the Sessions Judge was erroneous. Mr. Sethi cited before me a number of cases to show that the High Court has the power to entertain a revision petition by a private person against an order of acquittal, whether made by a trial Court or by a Court in exercise of its appellate jurisdiction and it can even set aside the acquittal on such a petition and order retrial or rehearing of the appeal as the case may be This is no doubt true but it must be remembered that the exercise of this power is subject to the important restriction laid down in Sub-section (4) of Section 439 that a finding of acquittal shall not be converted into one of conviction. Now, if I set aside the Sessions Judge''s order of | acquittal in this case on the ground that the view taken by him as regards the reliability and sufficiency of the prosecution evidence was wrong, it will be tantamount to this that though I would be remanding the appeal for fresh decision in fact I would be laying down that the accused should be convicted. Such a course, as was pointed out by their Lordships of the Supreme Court in- Logendra Nath Jha and Others Vs. Shri Polailal Biswas, is not legal and violates against the provisions of Section 439, Code of Criminal Procedure, Mr. M.L. Sethi argued that I need not mention in my order that the witnesses produced by the prosecution were trustworthy or that their evidence was sufficient for proving the offence against the accused and that all I need say is that the Sessions Judge misdirected himself by disbelieving the evidence for the reasons given by him. I am inclined to think that even this expression of opinion by me as regards the evidence would not make any difference, because the natural effect of it would be that when the appeal goes back for fresh decision whoever hears it again is bound, to be influenced by my remarks. The question'' of course, would have been quite different had it been possible for me to set aside the order of acquittal on a technical or a purely legal ground without touching the prosecution evidence. I agree that out of the three points on which the Sessions Judge was shown to have erred the first two could be described as legal points but I cannot lose sight of the fact that it was not on these points that the Sessions'' Judge rested his judgment but upon general appreciation of the prosecution evidence.

As a last resort Mr. M.L. Sethi argued that the evidence made out two offences against the accused, one u/s 354, I.P.C. and the other u/s 342, I.P.C. and since the'' trial Magistrate charged the accused only under the former section, the entire proceedings front the stage of the framing of the charge, including those of the appellate Court, consequent upon the accused''s conviction u/s 354 should be set aside and the case should be sent back with the directions that the accused should fee charged u/s 342, I.P.C. This prayer of the learned Counsel cannot be accepted either, first because the evidence in. support of the charge u/s 342 is exactly: the same as that in support of the other charge, which the learned Sessions Judge has held to be not proved and it is, therefore, very doubtful whether the accused can be convicted of the second charge, and secondly because the trial Magistrate in the order that he made before he charged the accused u/s 354 held that no charge of wrongful confinement had been made out, and the complainant took no steps to have that order corrected.

The result, therefore, is that the petition fails and is dismissed.