Panchu Choudhry vs Emperor

Bucknill, J.—This was an application in Criminal Revision Jurisdiction made by one Panchu Chaudhry who was convicted of rape by the Assistant Sessions Judge of Monghyr on the 25th of April of this year, and was sentenced to two years'' rigorous imprisonment. An attempt was made to raise before me arguments based upon the general merits of the case and also as to the nature of the sentence. I have read through very carefully all the evidence and the learned Judge''s judgment and, although the Assessors did not think that the evidence for the prosecution was altogether reliable, I am bound to say that I cannot see any ground for thinking that the learned Judge has come to a wrong decision, nor do I think that, assuming as I do, his decision was right, the sentence was in any way too severe.

The points, however, upon which I was particularly addressed were two in number. The first of these was with regard to the procedure adopted by the Judge in connection with the reception by him of the evidence of a small girl who it is said, was an eye witness of the occurrence. In order to understand this point which has been urged, it is necessary, very shortly, to refer to the circumstances under which, it is said, that the offence took place.

The complainant was a young married woman about 18 or 20 years old who was engaged in company with two little girls, aged about 11 and 7 respectively in scraping up grass in a glade in the middle of a thick field of rahar, she was seized by the accused, a young man of about 20 or 22, who pushing her on the ground, had connection with her notwithstanding her attempts to push him off. The two little girls stood by frightened and in tears, and saw it all. I need not detail what took place afterwards or the circumstances under which the complainant told what had taken place to persons whom she subsequently encountered, because those circumstances are not really material with regard to the immediate point under consideration. The Assistant Sessions Judge, in coming to the decision which he did, relied very materially upon the evidence of these two children as corroboration of the story which was told in Court by the complainant herself. In the case of the elder girl he writes at the foot of her deposition: "Explained to the witness in Hindi and admitted by her to be correct. I believe this witness understood what was asked of her and gave the answers recorded fairly intelligently." With regard to the younger girl, however, he does not make any comment beyond the formal one: "Explained to the witness in Hindi and admitted by her to be correct." It is clear from the judgment that the Judge does rely upon the evidence of both these children and, therefore, I think, it must be presumed that, in doing so, he must have felt satisfied that both the children were capable of giving intelligent and intelligible evidence although they were of tender years. It is admitted that what he wrote at the foot of the deposition of the elder child was sufficient to indicate that her evidence was capable of being received and that it was adequate for any purposes necessary. Whether or not he accidently omitted to make a similar entry on the deposition of the younger child I do not know; but I am inclined to think that it was probably accidental. However, it is argued before me that the omission to record any statement of the kind indicated is one which vitiates the proceedings and makes it necessary that there should be a new trial. I have been unable to find any authority, nor has any clear authority been pointed out to me, which would justify me in coming to any such conclusion. I should like, however, to point out that it is undoubtedly of very great, importance that when the evidence of child of tender years is adduced the, Judicial Officer should, for the sake of precaution, ascertain, as a preliminary measure, by means of a few, simple questions, whether the intelligence of the child is such that (whether sworn or not) it is capable of giving testimony which is patent of credit; and it is certainly desirable that something should, at the commencement of the record of the evidence of the witness of this character, be entered to show that such a test has been in fact made. It may, of course, turn out in the course of the examination at the trial that the test has been a fallacious one and that the evidence which the child gives is not intelligible and in such a case of courses it is always open to the Judicial Officer to say, at any stage, that he cannot accept the evidence which the child is giving. On the other hand, I do not find that there is any thing obligatory imposed by law upon a Judge definitely to make on the record any endorsement of his own view as to a child''s capacity, and when, as in this case, he has clearly relied upon the evidence given, it would be absurd to suggest that he could have been other than thoroughly satisfied as to the capacity of the child to given intelligible testimony. I observe that in these depositions there seems no clear indication as to whether either of the children was sworn or affirmed or neither. But it seems to be a common practice to omit to note what has taken place with regard to the taking of an oath or the making of an affirmation. I cannot, therefore, think that, under the circumstances shown in this case, there is any ground for interference in Revisional Jurisdiction on this point. I have been referred to the cases of Sheikh Fakir v. Emperor [1906] 11 C.W.N. 51; 4 Cri. L.J. 412 Dhani Ram v. Emperor [1916] 38 All. 49; 13 A.L.J. 1072; 16 Cri. L.J. 829, 31 I.C. 1005 Fatu Santal v. Emperor [1920] 6 P.L.J. 147; 2 P.L.T. 288; 22 Cri. L.J. 417, 61 I.C. 705 and Queen-Empress v. Lal Sahai [1889] 11 All. 183; (1889) A.W.N. 65. But all that they may, in my opinion, seem substantially to show is that it is important that, in some way or other, it should be clear that the Judge has satisfied himself that the child whose, evidence has been taken before him is capable of giving evidence of an intelligible nature.

The second point is a very small one. It is suggested that the examination which was made of the accused in the Sessions Court after the close of the prosecution under the provisions of section 342 of the Code of Criminal Procedure was not in accordance with law. On the ground that it was inadequate, I am not prepared, without very convincing authority, to say that it is open in Revisional Jurisdiction of this Court to enquire into the sufficiency of the examination which has been made under the section. Indeed, it is freely admitted that it is impossible to lay down any very definite hard and fast rule and my own view is that this Court would not enquire, in Revisional Jurisdiction, into any such sufficiency, except possibly in very exceptional and special circumstances. Here I have looked at the examination which was made both in the committing and in the trial Courts. It must be remembered that the accused was defended by a legal practitioner and that every thing which could be urged on his behalf was urged. In the Committing Court, the accused was only asked one question which was as follows: "Did you forcibly outrage Rudia Chamarin in the rahar field"? The answer was "No, I did not do any thing." In the trial Court this statement was read over to him and he was then asked if he wished to add any thing to that statement. His answer was that he would file a written statement. I cannot, I think, in these circumstances say that in this case this was insufficient or that it showed any special circumstance which would justify any interference by me. It can easily be seen that if it is to be said that a Judicial Officer must ask this or that question or this or that series of questions under the provisions of section 342 of the Code of Criminal Procedure, the practical effect of the working of that section could be criticised in revisional applications on every possible occasion. I can well understand that where an accused is undefended, the Tribunal may well point out to him the elements of the evidence adduced against him which seem in his own interest to demand his explanation but where an accused is defended by a legal practitioner it would be, I think, altogether impossible to expect or desirable to contemplate a Tribunal entering upon a lengthy examination of an accused person which might easily develope into a recounting of the history of the whole case or into what would be far worse, some sort of cross-examination.

For these reasons, 1, therefore, think that this point must also fail and that the application must be rejected.