Case ID: 538

Judgment:
ION: Criminal Appeal No. 52 of 1955. Appeal from the judgment and order dated the 15th February	 1955	 of the Calcutta High Court in Criminal Appeal No. 40 of 1955 arising out of the 751 judgment and order dated the 22nd January	 1955	 of the Additional Sessions Judge	 24 Parganas	 Alipore	 in Trial No. 1 of January Sessions for 1955. A. C. Roy Choudhari	 K. R. Choudhari and Sukumar Ghosh	 for the appellant. A. C. Mitra	 K. B. Bagchi and P. K. Bose	 for the respondent. October 24. The following Judgment of the Court was delivered by SINHA J. This appeal on a certificate granted by the High Court at Calcutta	 under article 134(1)(c) of the Constitution	 is directed against the order of a Division Bench of that Court	 dated February 15	 1955	 summarily dismissing an appeal from the judgment and order dated January 22	 1955	 passed by the learned Second Additional Sessions Judge of Alipore	 accepting the unanimous verdict of guilty returned by the jury holding the appellant guilty under section 376 of the Indian Penal Code	 for having committed rape on a young girl	 named Sudharani Roy	 said to be about 14 15 years of age. The learned trial judge	 accepting the unanimous verdict of the jury and agreeing with it	 imposed a " deterrent punishment " of rigorous imprisonment for 5 years	 in view of the fact that he was in loco parentis to the large number of girls who were the inmates of the Nari Kalyan Ashram of which the appellant had been the secretary for a pretty long time. The learned counsel for the State of West Bengal raised a preliminary objection that the certificate granted by the Bench of the Calcutta High Court presided over by the learned Chief Justice	 was bad on the face of the judgment given by him while granting the certificate. We have	 therefore	 first to examine whether the preliminary objection is sound. As already stated	 the Division Bench before which the appeal came up for admission	 summarily dismissed it without giving any reasons. Apparently	 the Bench was not satisfied that there was any error of law or mis direction in the learned Sessions Judge 's charge to the jury which had returned a unanimous verdict of 752 guilty against the appellant. On March 7	 1955	 the Bench consisting of Chakravarty C. J. and section C. Lahiri J. passed the order to the effect that having heard the argument on behalf of the applicant for the certificate of fitness for the proposed appeal to this Court on March 4	 they had the opportunity of reading through the charge delivered by the learned trial judge	 and that they had " come to feel that before the application is disposed of	 we should see the depositions in full. " Accordingly	 they directed the records of the original trial to be called for and placed before them. The case	 therefore	 stood adjourned till the arrival of the records. The matter was heard again on March 17	 and on March 18	 the learned Chief Justice delivered a judgment which appears at pages 220 to 231 of the record. It is a full judgment giving the facts and history of the case and the evidence adduced on behalf of the prosecution. The learned Chief Justice	 in the course of his very elaborate judgment	 observed that the " learned Judge delivered an exhaustive charge to the jury from which he does not appear to have omitted any part of the evidence which was of any materiality whatsoever. The jury appear to have applied their minds critically. . Having examined the grounds taken in the appeal as presented to the High Court	 he made the following observations: " I have gone through the grounds taken in the petition of appeal to this Court and I have no hesitation in saying that if those were the grounds urged before the learned Judges	 no one need be surprised that their Lordships saw nothing arguable or worth attention in the case. Except one	 not one of the grounds urged by Mr. Roy Choudhury before us is to be found in the petition of appeal. . ." On an examination	 in great detail	 of the grounds urged before the Bench hearing the application for certificate	 the learned Chief Justice observed: " Mr. Roy Choudhury	 however	 urged before us six several points. Except one	 in respect of which there is something to be said	 none of them impresses me. " 753 It was not clearly indicated in the judgment what that single ground was. The penultimate paragraph of the order passed by the learned Chief Justice	 contains the following: " We are oppressed by the feeling that there were arguable points	 although they might not bear examination and the accused has not had the satisfaction of feeling that he has been fully heard by the Court of appeal. I would therefore grant him the leave he asks for	 not because we take any view in his favour of the evidence in the case	 but because justice should also appear to have been done and therefore the evidence ought to have received a full consideration by the appellate Court	 although the result might be to confirm the conviction. " We have set out the findings of the learned Chief Justice while granting "leave to appeal" to this Court	 in his own words	 to appreciate the reasons for granting " leave to appeal ". It appears that the learned Chief Justice and his brother judge	 contrary to the legal position that one Bench of the High Court has no jurisdiction to sit in judgment on the decision of another Division Bench	 have	 in fact	 done so. But in the instant case	 the learned Chief Justice has gone further and observed that the summary dismissal of the appeal by the Criminal Bench	 has not given satisfaction to the appellant that he had been fully heard	 and that it did not appear to him that justice had been done. Such observations are not conducive to the maintenance of a healthy atmosphere for the administration of justice in the highest Court in the State. Furthermore	 the observation almost amounts to a condemnation of the practice of summary dismissal of appeals	 especially against orders passed in a case tried by a jury where the appellant has to make out clear grounds of law. Such a practice prevails	 so far as we know	 in almost all the High Courts in India and has the sanction of the statute law as contained in the Code of Criminal Procedure. This Court has repeatedly called the attention of the High Courts to the legal position that under 754 article 134(1)(c) of the Constitution	 it Is not a case of granting leave" but of "certifying that the case is a fit one for appeal to this Court. " Certifying " is a strong word and	 therefore	 it has been repeatedly pointed out that a High Court is in error in granting a certificate on a mere question of fact	 and that the High Court is not justified in passing on an appeal for determination by this Court when there are no complexities of law involved in the case	 requiring an authoritative interpretation by this Court. On the face of the judgment of the learned Chief Justice	 the leave granted cannot be sustained vide the case of Haripada Dey vs The State of West Bengal (1)	 and a number of decisions of this Court referred to therein. In view of those authorities of this Court	 it is clear that the certificate granted by the High Court is not a proper one. The preliminary objection is	 therefore	 upheld. But the appeal having been placed before this Court	 we have to satisfy ourselves whether there are any grounds on which this Court would have granted special leave to appeal under article 136 of the Constitution. In order to appreciate the grounds raised in support of the appeal by the learned counsel for the appellant	 it is necessary to state the following facts: The appellant was the honorary secretary of a large institution for receiving and looking after young girls and women who had no homes of their own or had gone astray. It is called the ' Nari Kalyan Ashram ' and is located in one of the quarters of the city of Calcutta. The appellant in his capacity as the secretary	 used to come to the Ashram daily in the evening at about 7 p.m.	 and stay there till mid night or past mid night. In his office room	 there was a bed stead with a bedding spread thereon. He used to occupy the bed and requisition the services of girls to massage his body. Between January and April	 1954	 the accused who was in the 'habit of calling the girls named Sudharani	 Narmaya	 Kalyani and others	 for that purpose	 is said to have committed rape on those girls. The subject matter of the charge in this case is the offence of rape said to have been 755 committed on the two girls Narmaya and Sudharani	 one after the other	 on the night of April 20	 1954. On April 29	 1954	 at about 10 p.m.	 the officer in charge of the Maniktala police station	 accompanied by Sub Inspector Nirmal Chandra Kar	 went to the Ashram in connection with collecting information regarding the escape of some girls from the Ashram. Narmaya and Sudharani are said to have given information to the said officer in charge of the police station	 alleging rape on them. They also pointed out a steel locker in the room of the secretary	 where	 it was alleged	 he used to keep rubber sheaths used by him before he had sexual intercourse with each of them. The police officers aforesaid obtained the key from the appellant	 with which the steel locker was opened and a leather bag inside the locker was pointed out by the girls. The bag was found to have contained a rubber sheath along with other articles. After recording the information	 the police officer in charge of the Maniktala police station	 investigated the case and submitted a charge sbeet against the appellant. After the preliminary inquiry by a magistrate	 the appellant was committed for trial to the Court of Session on a charge of rape upon the two girls	 under section 376	 Indian Penal Code. The defence of the appellant was that the case against him was completely false and had been concocted by the police with the help of the inmates of the Ashram and the Assistant Secretary	 Tarun Kumar Sarkar who was one of the prosecution witnesses. At the trial	 the prosecution examined 23 witnesses	 in support of the case against the accused. The two victims of the alleged outrage by the appellant	 were examined	 namely	 Sudharani Roy	 P.W. 2 and Narmaya	 P.W. 5	 who both deposed that the appellant used to come to the Ashram in the evening at about 7 p.m.	 and used to stay there till after mid night in his special room which contained a bedstead and a bedding and a steel almirah and other pieces of furniture. On the &ate of the occurrence in question	 first Narmaya was called in by the appellant and then Sudharani	 and the appellant is said to have committed rape first on 96 756 Narmaya and then on Sudharani	 in the presence of both of them	 against their will and without their consent. They further deposed that the appellant had intercourse with them after putting on the sheath. In between the two acts	 he had a cup of tea with which he swallowed " a black pill " which is suggested to have been an aphrodisiac. The accused paid them each eight annas and warned them not to divulge those acts on pain of being severely dealt with	 if they disclosed the same. Kalyani	 P.W. 19	 is another young girl who was an inmate of the Ashram on the material dates. She is a girl who was both deaf and dumb	 and her intelligence was below normal. As she was feeble minded	 she was not allowed to continue her studies at the school. She has given evidence by signs which were interpreted by the principal of the Deaf and Dumb School	 who had taught her at that school. Her evidence	 if accepted	 would be a corroboration of the testimony of the victims aforesaid of the outrageous act of the appellant. Besides this direct oral testimony	 there was also evidence tending to show that the appellant was in the habit 'of having himself massaged at night by the girls of the Ashram	 and that the police found a rubber sheath in his bag kept in the steel locker inside his special room. There was also the evidence of a woman employee of the Ashram that she had been asked by the ' appellant to keep a number of rubber sheaths which she had buried underground	 and which on her pointing out	 had been discovered by the police. There was also the evidence of a complaint made the next day by the victim girls to the assistant secretary when be came to the Ashram in connection with his work there. The prosecution also led evidence to show the age of the girl Sudharani to be below 16. It produced the register of the girls in the Ashram which has a column for mentioning the age of the inmates. The estimate of her age by medical evidence	 was given after X ray examination and the stage of ossification and other indicia for determining the age of a person. The medical estimate of her age was that she was between 13 and 757 14 years on the date of the X ray examination	 that is May 19	 1954. That	 in barest outline	 is the prosecution case and the evidence adduced in support of it. Beyond cross examining the prosecution witnesses and pointing out contradictions and omissions in their evidence	 the accused did not adduce any positive evidence in support of his defence. The appellant was tried by a jury assisted by the learned Additional Sessions Judge at Alipore. The jury returned a unanimous verdict of guilty against the accused in respect of the charge of committing rape on Sudharani and a unanimous verdict of riot guilty in respect of the charge of rape on Narmaya. The jury answered the judge 's question as regards the charge with respect to Narmaya in these words: "Not guilty as we found with consent and she is above 16 years of age." As the jury did not give any such clue in respect of their verdict of guilty so far as rape on Sudharani was concerned	 it is difficult to say whether they found consent in her case also	 and returned a verdict of guilty because they were of the opinion that she was under 16 years of age. In this Court	 the learned counsel for the appellant raised a large number of contentions	 but as most of them concerned the appreciation of evidence with reference to omissions and contradictions	 it is not necessary to deal with those arguments. It is only necessary to notice the following points raised	 namely	 (1) that the learned judge refused permission to counsel for the appellant to read out the written statement filed on behalf of the appellant at the Sessions stage	 (2) that there was a serious misdirection in respect of corroboration of the testimony of the alleged victims of rape	 and (3) that the direction as to the age of the girl Sudharani was not complete. In our opinion	 there is no substance in any one of these contentions. Firstly	 as regards the refusal to permit the written statement of the accused being placed before the jury	 it has to be observed that there is no provision in the 758 Code of Criminal Procedure for such a written statement being filed at the Sessions stage. Section 256(2) which occurs in Chapter XXI	 headed " Of the trial of Warrant Cases by Magistrates "	 does contain the specific provision that if the accused person puts in a written statement	 the magistrate shall file it with the record. But there is no corresponding provision in the Code	 requiring a Sessions Court to accept a written statement at that stage on behalf of the accused. But the accused has the right to make a statement under section 342 of the Code	 which has to be considered by the Court for what it is worth. In a jury trial	 the Court has got to be circumspect to see that nothing is allowed to be placed before the jury which is not evidence. It is not necessary to decide whether in the case of a Sessions trial without a jury	 such a statement is receivable. But if such a written statement is allowed to be used at a Sessions trial by a jury	 it may throw the door open to irrelevant and inadmissible matter and	 thus	 throw an additional burden on the presiding judge to extricate matter which was admissible from a mass of inadmissible statements which may have been introduced in the written statement. In view of these considerations	 in our opinion	 the learned Sessions Judge rightly refused to allow the written statement put in by the appellant	 to be read out before the jury. On the question of corroboration	 the learned judge in his charge to the jury	 has	 at more than one place	 pointed out the necessity of corroboration of the evidence of the victims of the alleged crime. Referring to the evidence of Kalyani	 P.W. 19	 aforesaid	 the learned judge has charged the jury in these terms: ". whether her evidence is a corroboration with respect to the committing of rape by accused on Sudharani Roy on 20th April	 1954. If the evidence of Kalyani appears unreliable to you or the evidence of Tarun	 there remain the uncorroborated testimonies of Sudharani and Narmaya. The rule of prudence demands that it is unsafe to convict an accused on the uncorroborated testimony of an accomplice or accomplices. But I must tell you	 gentlemen	 that it 759 is within your legal province to convict upon such unconfirmed evidence	 provided you can come to the conclusion in the particular circumstances of this case that corroboration can be dispensed with. " It will be noticed that if the learned judge has made any mistake	 the mistake is in favour of the accused and. not against him in so far as the learned judge refers to the evidence of the two girl victims as that of accomplices. A girl who is a victim of an outrageous act is	 generally speaking	 not an accomplice though the rule of prudence requires that the evidence of a prosecutrix should be corroborated before a conviction can be based upon it. Hence	 the girl Sudharani was not exactly in the position of an accomplice though the judge may	 as a rule of prudence	 warn the jury that such a rule of prudence required corroboration of the testimony of the prosecutrix	 but that it was open to the jury to convict even on the uncorroborated testimony of the prosecutrix if the jury	 in the particular circumstances of the case before it	 came to the conclusion that corroboration was not essential to conviction. Hence	 the learned Sessions Judge was fully justified in telling the jury that there was no rule of law or practice that there must be corroboration in every case	 before a conviction for rape. If the jury had been apprised of the necessity	 ordinarily speaking	 of corroboration of the evidence of the prosecutrix	 it is for the jury to decide whether or not it will convict on the uncorroborated testimony of a prosecutrix in the particular circumstances of the case before it. In other words	 insistence on corroboration is advisable but is not compulsory in the eye of law. In the instant case	 apart from the evidence of the two victims aforesaid	 there was the evidence of the deaf and dumb girl	 Kalyani	 and the other circumstantial evidence in support of the prosecution case. It is well established that the nature and extent of corroboration	 necessary	 vary with the circumstances of each case. The nature of the corroborative evidence should be such as to lend assurance that the evidence of the prosecutrix can be safely acted upon. See	 in this connection	 the observations of this Court in the case 760 of Rameshwar vs The State of Rajasthan (1) to the following effect: "The only rule of law is that this rule of prudence must be present to the mind of the judge or the jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must	 in every case	 be corroboration before a conviction can be allowed to stand. " Lastly	 we do not find anything basically wrong with the direction in the charge to the jury as regards the age of the girl Sudharani and as to the nature of the evidence to prove her age. The learned judge pointed out the several items of evidence which had been adduced by the prosecution bearing on the question of the girl 's age. The only conclusive piece of evidence may be the birth certificate	 but	 unfortunately	 in this country such a document is not ordinarily available. The Court or the jury has to base its conclusions upon all the facts and circumstances disclosed on examining all the physical features of the person whose age is in question	 in conjunction with such oral testimony as may be available. The girl 's father was dead. Her mother apparently has left her to her own fate	 and according to the evidence of the police	 the mother 's whereabouts were not traceable. It was sought to be argued that the police officer who himself made the inquiry	 should have been examined	 otherwise	 the result of the inquiry is a mere hearsay. An inquiry whether made by one or the other police officer	 would	 almost in every case	 be the result of hearsay. The girl is said to be a displaced person. The difficulty of tracing evidence of the parents of such a person is all the greater. Hence	 in all the circumstances of the case	 the learned Sessions Judge has not committed any error in this part of his charge to the jury. On this part of the case	 the learned judge gave the following concluding directions: " In criminal trial the accused must get the benefit of doubt and there should not be any conviction unless it can be clearly and unequivocally said that (1) 761 the age of the girl was below 16. But	 gentlemen	 in this case you have seen the girls	 you have heard the evidence of the experts and you should also take into consideration the various factors found out in cross examination and in considering all these facts you can arrive at the conclusion that Sudharani Roy was under 16 years of age on the night of the occurrence on 20th April	 1954	 taking into consideration the facts that ossification test is not a sure guide	 even in spite of this	 you can come to the conclusion that Sudharani Roy was under 16 years of age on the night of the occurrence	 i.e.	 on 20th April	 1954. 1 would tell you	 gentlemen	 that the question of consent would be immaterial." In our opinion	 the learned Sessions Judge placed the evidence pro and con very fairly and fully	 and left it to the jury to come to their own conclusion. According to the medical evidence	 Sudharani was between 13 to 14 years of age on the relevant date	 whereas the other girl in respect of whom	 the accused was acquitted	 was found by the medical test to be between 15 and 16 years. The jury	 therefore	 took the commonsense point of view and appeared to have come to the conclusion that Narmaya may well have been above 16	 and that	 therefore	 the accused could not be convicted for rape on her. In respect of the girl Sudharani	 they may have come to the conclusion that she was not above 16	 and that	 therefore	 the prosecution had succeeded in bringing the charge home to the accused. We have read the charge of the learned judge to the jury more than once	 and	 in our opinion	 it is a very fair and full charge	 erring more on the side of verbosity than of brevity. In our opinion	 there is no merit in the appeal. It is accordingly dismissed. Appeal dismissed.

Summary:
Appellant was tried by the Sessions judge and a jury on the charge of committing rape. On the question of the age of the girl expert medical evidence was produced but no birth certificate was available. The father of the girl could not be examined as he was dead. According to the Police evidence the whereabouts of the mother were not traceable but the Police Officer who himself made the inquiry was not produced. As regards the commission of the rape the girl herself was examined and there was the evidence of another girl and some circumstantial evidence. The 750 accused filed a written statement but the judge refused to read it out to the jury. The jury returned a unanimous verdict of guilty and the judge	 accepting the verdict	 convicted the appellant and sentenced him to 5 years rigorous imprisonment. An appeal to the High Court was summarily rejected. But the High Court granted "leave to appeal" on the ground that on account of the summary dismissal of the appeal appellant did not have the satisfaction of feeling that he had been fully heard and that justice should also appear to have been done by a full consideration of the evidence by the appellate court. Held that	 the certificate granted by the High Court amounts to a condemnation of the practice of summary dismissal of appeals	 especially in jury trials. Such practice prevails in most High Courts and has the sanction of statute law. No certificate should be granted on a mere question of fact nor in a case where there are no complexities of law involved requiring an authoritative interpretation by the Supreme Court. Haripada Dey vs The State of West Bengal	 ; 	 followed. There is no provision in the Code of Criminal Procedure requiring a Session judge to accept a written statement filed by an accused. If such a written statement is allowed to be used at a Sessions trial by jury	 it may throw the door open to irrelevant and inadmissible matter and cast an additional burden on the judge of separating admissible from inadmissible statements. The judge had rightly refused the written statement to be read to the jury. There is no rule of law or practice that there must be cor roboration of the testimony of the prosecutrix	 before conviction for rape. If the jury had been appraised of the necessity of corroboration	 it was for the jury to decide whether or not it would convict on the uncorroborated testimony of the prosecutrix in the particular circumstances of the case before it. Rameshwar vs The State of Rajasthan	 	 followed. There was no misdirection on the question of the age of the girl. The Session judge had pointed out the several items of evidence to the jury. The failure of the prosecution to examine the Police Officer who actually made inquiry into the whereabouts of the mother does not affect the case as in any case the inquiry would be the result of hearsay.