Joharmal Marwari vs The King-Emperor

Foster, J.—The petitioner owns a house in which the complainant who is a Brahmin rents a room. He has been convicted under Sections 457 and 354 of the Indian Penal Code on the allegations that on the night of the occurrence at 1 a.m. he entered the room where the complainant''s wife was sleeping, gagged her, laid one hand on her breast and with the other hand offered her some Government currency Notes. The wife resisted and in the struggle some brass utensils were upset. This gave alarm to three persons who were sleeping in the courtyard, namely, the woman''s husband (the complainant) his brother-in-law and his servant. The complainant called the accused parents to the spot and the complainant and his wife wept so loudly as to attract the attention of a passer by on the road outside. That passer by is a witness who deposes that he stopped to enquire what was the matter but was unable to enter the house because the petitioner''s brother had looked the entrance door from inside. The trial Court, a Second Class Magistrate, had no difficulty in accepting all the facts alleged and sentenced the petitioner to rigorous imprisonment for two months and a fine of Rs. 100 u/s 457 and one month''s rigorous imprisonment and a fine of Rs. 100 u/s 354, I.P.C., the imprisonment to run concurrently. The petitioner then appealed to the District Magistrate who dismissed the appeal, though to a large extent he rejected the evidence.

The petitioner has moved this Court in revision and I proceed to consider in their order the points raised. The first argument is that the judgment of the learned District Magistrate offends against principles ordinarily accepted in the trial of criminal cases. It would perhaps be better if I made reference at once to those parts of the judgment which afterwards coma under consideration. The learned District Magistrate has rejected the evidence of the complainant''s brother-in-law his agent and of the passerby on grounds which appear to me to be so clear that they should have been given importance in the original, Court but after rejecting these three witnesses, he does not by any means reject the whole of the prosecution case. He says "The conclusion which I draw from these facts is that the complainant and his wife were alone in the house; that there were no other witnesses except the family of the accused. If the wife''s modesty was outraged the complainant was helpless. If this is so the story of the complainant''s waking up his brother-in-law and the agent and urging them to go into his wife''s room can be ignored and also the fact that none of the neighbours heard any noise". I have some difficulty in gathering the meaning of this last sentence, but I surmise that the learned Magistrate finds that the waking up of the brother-in-law and the agent was a story which can be ignored and that it is a fact that the neighbours did not hear any noise, but that fact need not weigh against prosecution inasmuch as the offence was committed within the house against helpless persons. Then he finds that the prosecution rests on the evidence of the complainant and his wife. He finds that the wife had often been left alone in the house before and never suffered any previous molestation. The question that had to be considered by the Magistrate was whether the complainant and his wife ware discredited by the fact that the witnesses produced were perjured witnesses and the Magistrate expressly refers to the point. He deals with the probabilities of the case and finds that it is possible that the man may act on a sudden sexual impulse, shutting his eyes to everything else but his immediate gratification. But the strongest argument in considering probabilities is, in his opinion that the complainant and his wife being Brahmins and the accused being (What he calls) a Bania, it would be unlikely that the husband would faoe the humiliation and disgrace arising from disclosures, nor would the wife support him." Then he proceeds to record his findings "I do not believe any evidence of or reference to prosecution witnesses 2, 3 and 4, still my duty is to arrive at the truth, and I do believe after anxious consideration of all the evidence and relying on the evidence of the husband and the wife that the offence was committed." Mr. Nanuk in putting forward the case of the petitioner has pointed out that here we have not merely a case where eye-witnesses or witnesses of circumstances have been discredited and their exclusion from the prosecution case has left the residue unaffected in itself, though less supported, but it is a case where the evidence is interdependent. The woman states that she was gagged and assaulted and that the noise made in the struggle summoned the other inmates of the house, and that the accused was caught flagrante delicto. The argument is that refutation of the witnesses'' evidence is refutation of the evidence of the complainant and his wife themselves and that the Court has not considered this aspect of the case; it has treated the case as if it fell under the first category mentioned by Mr. Manuk, where evidence of a corroborating witness is discredited, but the only result is that the evidence of the witnesses whom remain is less supported, but in itself cannot be said to be refuted. The consequence of this, it is urged, is that the Court has rested not so much on the refuted evidence of the complainant and his wife as on pure conjectures. I have set out above the main arguments in the judgment of the learned District Magistrate, and it is my opinion that there is justice in this criticism. Once the evidence of the complainant and his wife has been refuted in large measure, and once the Magistrate trusts the fate of the case to a consideration of probabilities, that Magistrate is in danger of arriving at the realm of conjecture. I can suggest many other conjectures besides those which the learned Magistrate has himself adopted. I suggest some such conjectures without any prejudice and without any belief that any one of them is true-but-where such alternative conjectures are possible, how can it be accepted and a conviction based upon it? Here the conjecture selected by the learned District Magistrate is that the accused had a sudden sexual obsession and outraged a defenceless woman. The husband and wife were helpless and their only way of escape from the oppression of the accused, was to face the publicity from which both the complainant and his wife would otherwise have shrunk. That is one conjecture. I proceed to suggest others. Let us suppose the case of a jealous husband who (whether his jealousy is well founded or otherwise) brings a false charge against the persons he suspects. Let us take another case that suggested in the argument before us to-day, a husband finds his wife committing adultery, and she, to escape her husband''s wrath, accuses him of outraging her modesty. There are many possible conjectures, any one of which will fit in with the residue of the case. I can imagine a person accepting one or other of these interpretations as most apt to the circumstances but the point is that they will remain conjectures, and they are not the materials for a conviction in a criminal case. Mr. Manuk referred to the cases of Phat Ali Singh v. Emperor (1918) 5 Pat. L.W. 157 and Kalu Khalasi v. Emperor 17 C.W.N 538. In the former case it is laid down that it is a recognised principle that where a party comes into Court with a story which cannot be believed as to its essential details, it is impossible to rely on a part of the story for the purpose of convicting the accused; and in the second case the learned Judges give as a ground for setting aside the sentence that it was obvious in that case that in regard to the origin of the disturbance and the course of events the story as re-constructed by the Judge was wholly inconsistent with the story told by the witnesses. In my opinion both these cases indicate reasons for setting aside the decision of the learned District Magistrate now under revision.

The second point taken is that there was no sufficient notice given to the defence to meet this new case now adopted by the learned District Magistrate. The argument is that the accused met the evidence in the only way possible, namely by refuting the prosecution witnesses, and that he had no notice of the case which has now been made the foundation for the petitioner''s conviction. On the other hand Mr. Aziz who has been permitted to argue the case on the other side urges that this is not a case of prejudice at all. The accused knew the charge he had to meet. He knew that the essential facts in issue were whether he had entered the room and outraged the woman''s modesty, and he knew that the Magistrate is quite within his rights when he tests the evidence and sifts the story by elimination of what is incredible. I am not inclined to say what of these two arguments should prevail, because I have already found that the conviction is based on conjectures and that it should not be maintained.

But there is one other point remaining. The learned District Magistrate has recorded his finding--"I do believe after anxious consideration of all the evidence and relying on the evidence of the husband and the wife, that the offence was committed". Now, it is asked on the petitioner''s side--what offence? Where are the findings of fact to indicate what offence has been found against the petitioner? In this connection it is pointed out that as regards many of the incidents, the evidence of the woman has been held to be refuted. So it is necessary that we should know what is the residue which has been accepted. The struggle resulting in an alarm being given to the other inmates of the house has apparently been discredited. The next finding of fact which comes before one''s notice is whether the woman was gagged. The importance of this question is that it is the only act of the accused which could possibly be interpreted as a precaution taken to keep the trespass concealed from the notice of the person entitled to exclude or eject the trespasser I refer to Section 443 of the Indian Penal Code. There is in fact no finding on this point, and it is at once open to the petitioner to argue that the Magistrate never applied his mind to a consideration of the legal elements of the offence of lurking house trespass. So it is argued that the conviction u/s 457 does not rest on any findings of fact. The argument is fortified by the circumstances in this particular case. It was most necessary to know which findings of fact remained after the Magistrate had himself admitted that a large part of the story had been refuted.

The application is allowed. The conviction and sentences are set aside. The petitioner shall be discharged from his bail and set at liberty and the fine, if paid shall be refunded.