Feroze Kazi and Others vs Emperor

Harries, C.J.—The three appellants Feroze Kazi, Mangal Bouri and Rabi Bouri, were tried by a learned Magistrate having powers u/s 30, Criminal P.C., upon a charge of rape. They were found guilty u/s 376, I.P.C. Feroze Kazi was sentenced to five years and six months rigorous imprisonment and was also ordered (to pay a fine of Rs. 60; Mangal Bouri and Rabi Bouri were each sentenced to a term of four years and six months'' rigorous imprisonment. Against these convictions and sentences the appellants have preferred the present appeal.

The case for the prosecution can be shortly stated as follows. Bhimi Bourin, a young girl of about fifteen years of age, was in her father''s house in the late afternoon of 1st March 1939. Her father had gone to another village in connexion with some marriage, whereas her mother had gone out to sell milk. The only person in the house with Bhimi Bourin was a young child. According to the prosecution, the appellants, Feroze Kazi, Mangal Bouri and Rabi Bouri, entered the house, seized Bhimi Bourin and wanted to have sexual intercourse with her. She attempted to struggle, whereupon Rabi and Feroze stuffed a cloth in her mouth. Mangal, it is then alleged, threw her down on her back and Feroze Kazi had sexual intercourse with her by force.

After that Rabi, held the girl when Mangal ravished her and later Mangal held her so that Rabi could ravish her. After the appellants had left the house, this little girl managed to raise a cry which brought a number of villagers to the scene. She was found to be bleeding freely from her private parts and was obviously in a very distressed condition. Some time after, her mother arrived. According to the prosecution, the girl told Jainul (P.W. 4) that the three appellants had raped her, and according to the girl''s mother, Peli Bourin (P.W. 11), the girl said that she had been raped by Feroze.

At about 10 P.M. Budhu Bouri, a cousin of the girl, made a report at the Para police station, and in that report he states that he had heard that his sister had been ravished by the people of Hariharpur and that these people were preventing the girl coming to the thana and were trying to settle the matter amicably. He mentions that the occurrence took place in the evening when the girl''s father was away, and it is also said that he could not name the people who ravished the girl.

A police constable was ordered to proceed to Hariharpur and to bring the girl to the police station. The constable went and later the girl, who was still in a very distressed condition, was brought to the police station where she made a statement. Police investigation began and in due course the three appellants were arrested and brought to trial. The case was heard by Mr. A.N. Chakravarty, a Magistrate of the First Class exercising powers, u/s 30, Rriminal P.C. He eventually came to the conclusion that the case had been established against all three appellants and convicted and sentenced them in the manner in which I have already indicated.

Mr. S.M. Gupta, who has appeared on behalf of the appellants, has contended that the convictions cannot be maintained upon the merits, and in my view, there is certainly considerable force in this contention in the cases of Mangal and Rabi. The evidence against these two appellants is not very convincing.

As I have stated, Budhu, a cousin of the girl, who made the first report at the thana, stated that he did not know the names of the persons who had ravished Bhimi. According to him, he went near the house and heard that the little girl had been raped by some of the villagers and without making any further inquiries he went to the thana. In evidence Budhu stated that before he went to the thana he had heard the name of Feroze Kazi mentioned as the person who had ravished Bhimi, but in my view it is quite impossible to accept this statement.

His statement to the police at 10 P. M. on the evening of the occurrence makes it clear that at that time he did not know who had ravished this little girl. His statement in evidence that he knew before he went to the police station that Feroze was the ravisher, is obviously untrue. Budhu''s evidence, is corroborated by Yakub (P.W. 2) who accompanied Budhu to the police station. This witness also says that Budhu told him that Feroze had ravished the little girl; but in spite of that it is clear that Budhu told the police that he did not know who were the guilty persons. It is to be observed that even if the evidence of Budhu and Yakub was accepted, there is nothing in it implicating Mangal and Rabi. However, I am satisfied that when Budhu and Yakub went to the thana, they did not know who had raped this little girl.

Bhimi (P.W. 3) implicates all three accused; but it is very significant to note that her mother Peli (P.W. 11) states quite clearly that the little girl named only Feroze to her as her ravisher. It has been urged by Mr. Gupta that Mangal and Rabi have been introduced into this case because of enmity. It appears clear that Mangal and Rabi had been the cause of the family of this little girl being outcasted. It appears that Kafi one of the family, was being kept by Rakhal Musalman, and this had angered the Bouris. They had moved in the matter and consequently the family of this-little girl had been outcasted. It may well be that there was ill-feeling against Mangali and Rabi and that might be the reason why they were implicated in this case. In any event the only evidence against them is the evidence of the little girl coupled with the evidence of Jainul (P.W. 4).

The latter''s evidence, in my view, cannot possibly be accepted. He says that shortly after the occurrence he came to the house and found'' the little girl weeping. She told him what had happened and named the three appellants. She asked Jainul to tell her mother and Jainul would have the Court believe that he immediately went home and did not mention a word to anybody. Jainul is the brother of one Rakhal who, it is alleged, is on terms of enmity not only with Mangal and Rabi but also with Feroze. Rakhal, it is said, took a very keen interest in this prosecution, and he was certainly consulted very soon after this occurrence. Jainul, therefore, can well be regarded as a. person who is interested in the result. In any event his evidence is of such a nature that it cannot possibly be accepted. It is inconceivable that Jainul, finding this little girl in such a condition, would go to his home and do nothing and say nothing.

The only other evidence which tends to corroborate the girl is the evidence of Dugi (P.W. 7) who stated that the girl''s mother had said that her daughter had been raped by a Musalman, and the evidence of Khadi (P.W. 10) who stated that the girl''s mother had said that Feroze Kazi had raped her daughter. In my judgment, the evidence against Mangal and Rabi is of such a slight nature that it would be unsafe to convict them. It has been laid down time and again that in cases of this kind the evidence of the complainant must be corroborated. As I have stated, the only evidence which really corroborates the girl''s evidence against Mangal and Rabi is the evidence of Jainul, which cannot possibly be accepted.

There is evidence, however, against Feroze, though that evidence is open to criticism; but in my view, it is not necessary to come to a definite conclusion upon this evidence. The conviction of the three appellants cannot possibly be sustained by reason of the grave irregularities and illegalities committed during the course of the trial. A perusal of the order-sheet in this case makes it clear that the defence were asked to summon their witnesses before all the witnesses for the prosecution had been examined.

On 9th June 1939, there appears the following order:

Cross-examined after charge and discharged 13 P.W.''s and one P.W.''s cross examination declined after charge and discharged. To 12th July 1939 for doctor and lady doctor and defence witnesses. Summon D. Ws. for that date in sufficient time.

On 12th July 1939, there appears this order:

Examined and cross examined after charge and discharged lady Doctor and Assistant Surgeon. No defence witness cited. To 24th July 1939, for orders (Arguments on 22ud July 1939.)

The order passed on 22nd July 1939, is ''Heard arguments. To 24th July 1939, for orders.'' On 24th July 1939, the order sheet shows that the accused were convicted and sentenced.

Nowhere in the order sheet does it appear that the accused were ever examined as required by Section 342, Criminal P.C. From the record, however, it appears that the accused were examined on 24th July 1939, that is on the day upon which they were convicted and two days after the arguments in the case had been closed. The judgment in this case is obviously a considered judgment and may have been written before 24th July 1939, when the accused were actually examined. In any event the accused were examined at such a late stage that there is a real danger that the learned Magistrate had made up his mind before he had examined the accused. In these circumstances, Mr. Gupta has urged that the trial was vitiated and that the conviction cannot possibly be maintained. It is abundantly clear that the accused cannot be called upon to produce witnesses until the case for the prosecution has been completed. Section 256, Criminal P.C., is in these terms:

(1) If the accused refuses to plead, or does not plead, or claims to be tried, he shall be required to state, at the commencement of the next hearing of the case or, if the Magistrate for reasons to be recorded in writing so thinks fit, forthwith, whether he wishes to cross-examine any, and, if so, which, of the witnesses for the prosecution whose evidence has been taken. If he says he does so wish, the witnesses named by him shall be recalled and, after cross-examination and re-examination (if any), they shall be discharged. The evidence of any remaining witnesses for prosecution shall next be taken, and, after cross-examination and re-examination (if any), they also shall be discharged. The accused shall then be called upon to enter upon his defence and produce his evidence.

(2) If the accused puts in any written statement, the Magistrate shall file it with the record.

This Section makes it clear that the accused shall be called upon to enter upon his defence and produce his evidence after the case for the prosecution is over. In the present case, however, the accused were asked to summon their witnesses and to be ready to produce them before all the wit-nesses for the prosecution had been examined. As I have already stated, the medical witnesses had not been called, yet the accused were asked to summon their witnesses before they knew what the medical evidence against them was likely to be. It is to be observed that this was a case tried by a Magistrate with powers u/s 30, Criminal P.C. There had been no preliminary hearing and commitment to sessions, and, therefore, it was most important that the accused should know what the evidence against them was before they were called upon to produce their witnesses.

The accused did not produce witnesses on the day upon which the medical witnesses were examined for the prosecution, and the learned Magistrate thereupon adjourned the case to 22nd July for arguments. In every criminal trial the Court must examine the accused. Section 342, Criminal P.C., provides:

(1) For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, the Court may, at any stage of any inquiry or trial without previously warning the accused, put such questions to him as the Court considers necessary, and shall, for the purpose aforesaid, question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence....

From the very terms of the Section it is clear that the Court must examine the accused at the end of the case for the prosecution and before he is called upon for his defence.

All that the learned Magistrate] did in present case was to adjourn the case for arguments the moment the case for the prosecution was concluded. He made no attempt to examine the accused persons and never asked them if they wished to call any evidence on their behalf. When he found on the last day upon which prosecution witnesses were examined that no defence witnesses had been summoned, he adjourned the matter to hear arguments of counsel. On 22nd July 1939, he heard arguments and he adjourned the case to 24th July 1939, for judgment. Why counsel for the defence did not point out that the appellants had not been examined is not known; but one thing, however, is clear that there was no examination of the three appellants until the day fixed for judgment in the case.

They were then examined, and in my view, their examination was of a most perfunctory nature. In any event, it was too late to examine the accused when arguments had been heard and when the learned Magistrate had either already written his judgment or was about to write his judgment. To examine the accused at this stage of the proceedings is worse than useless. In the examination the accused were asked two questions (1) "did you outrage Bhimi Bourin?" and (2) "where were you at that time?"

Each of the accused denied that he had outraged the little girl and each of the accused set up an alibi. It is to be observed that not one of the accused was asked whether be wished to enter upon a defence and call witnesses. The answers of the appellants to the question "where were you at the time of the offence" make it clear that they were setting up an alibi yet the learned Magistrate never gave them any opportunity to establish that alibi when once they had set it up. The learned Magistrate had certainly asked the accused to summon witnesses at an earlier date; but in my judgment the accused were not bound, to summon their witnesses or to produce them until they themselves had been examined.

In my judgment the irregularities or illegalities which I have pointed out in this trial vitiate the whole proceedings and make it impossible to maintain the convictions. It has been urged by the learned Assistant Government Advocate that at most the defects which I have pointed out, amount to irregularities and therefore curable by reason of the provisions of Section 537, Criminal P.C. It is true that irregularities are curable by the terms of that Section provided that such have not in fact occasioned a failure of justice.

It has been held that failure to comply with the provisions of Section 342, Criminal P, C, is an illegality which vitiates the trial and which is not cured by Section 537, Criminal P.C.: see Surendra Lal Shaha v. Isamaddi AIR (1926) Cal 480 and Ramcharan Singh v. Emperor AIR (1926) Pat 29. There is however a Bench decision of this Court, Mohiuddin v. Emperor AIR (1925) Pat 414 which suggests that failure to comply with Section 342, Criminal P.C., would not vitiate the trial if no mis carnage of justice had resulted from the same. It is unnecessary in this case to decide whether a failure to observe the provisions of Section 342, Criminal P.C., is merely an irregularity curable u/s 537 or is an illegality which vitiates the whole trial and which can never be cured. Even if what I have pointed out in this case only amount to irregularities, they are of such a serious nature that they must be held to have occasioned a failure of justice.

As I have pointed out earlier, the learned Magistrate heard arguments in this case before he knew what the accused would say by way of defence. That in itself is a very serious matter. How could a learned Magistrate give due weight to arguments address-ed to him without knowing precisely what the accused wanted themselves to say? Further, I cannot understand how counsel for the defence could possibly put the case of his clients until his clients had been examined as required by law. After examination which as I have said, took place after the conclusion of the arguments in the case, the appellants were never asked whether they desired to call witnesses to support their alibi. Asking the appellants to summon witnesses during the progress of the case for the prosecution could, in no way, excuse the learned Magistrate from not asking the appellants when they were examined whether they desired to call witnesses or not to support their defence. In short, this case was decided without the appellants ever receiving an opportunity to adduce evidence to support their respective Cases.

Lastly, the learned Magistrate must have made up his mind in this case before he ever examined the accused. He examined the latter on the day which he fixed to deliver his considered Judgment, and there is a real danger in this case that due weight was not given to the statements of the accused. In these circumstances, it is impossible to hold that the omissions which I have pointed out, even if they-amount only to irregularities, did not seriously prejudice the appellants. That being so, the convictions, in my view, must be set aside. It must now be decided whether his case should be re-heard. In my view the case against Mangal and Rabi is such a weak one that there is no real chance of these two appellants being convicted. The case against Feroze is somewhat stronger, though, as I have already pointed out, the evidence against this appellant can be subjected to considerable criticizm. There is undoubtedly enmity between the parties in this case, and I am very undoubtful as to the value of any evidence adduced upon a re-hearing of this case.

Taking all the circumstances into consideration, I think it would be dangerous to order a re-hearing in the case of Feroze. That being so, I think the only course open to this Court is to set aside the convictions and acquit all the appellants. For the reasons which I have given, I would allow this appeal, set aside the convictions and sentences and acquit the appellants of the charge u/s 376, I.P.C. The appellants are on bail and their bail bonds are hereby discharged.

Meredith, J.

I agree.