Rash Behari Lal Mandal v. Emperor — 1907 DIGILAW 213 (CAL)

JUDGMENT 1. The Petitioners, Rash Behari Lal Mandal, Bhai Lal Singh, Nirdhan Singh and Bahuran Kamat, were charged with having committed on the night of the 14th November 1906 the offences of rape and dacoity under secs. 376 and 395, I.P.C, at a village within the jurisdiction of the Sub-divisional Magistrate of Madhepura in the District of Bhagalpur. The inquiry was proceeding in the Court of the Sub-divisional Magistrate of Madhepura when, on the application of the Petitioners to this Court, the Court directed a transfer of the case from the Court of the Sub-divisional Magistrate of Madhepura to the District Magistrate of Monghyr to be tried by himself or by some other competent Magistrate subordinate to him. The District Magistrate of Monghyr directed Babu Sarat Chandra Chatterjee, one of the Deputy Magistrates subordinate to him and exercising first class powers, to hold the preliminary enquiry. On the 3rd June 1907, the Deputy Magistrate discharged the Petitioners under sec. 209, Cr. P.C, being of opinion that the case instituted by the complainant was false, that the witnesses for the prosecution bad made false statements and that the story told by them was in many respects improbable. Thereafter, an application was made to the District Magistrate of Monghyr under sec. 435 of the Code for a revision of the order of the Deputy Magistrate; and, on the 29th July 1907, the Magistrate directed under sec. 436 of the Code that the Petitioners should be committed to the Court of Sessions at Bhagalpur for trial on the charges of rape and dacoity and abatement thereof. The present application was made to us on the 12th August for an order to set aside the order of the District Magistrate directing the commitment of the Petitioners. On that date we issued a rule calling on the District Magistrate to show cause why his order of commitment should not be set aside on the ground that it was not supported by the evidence. 2. Notice of the rule was received by the District Magistrate of Monghyr on or about the 14th August. The record was on that date in the Court of the Sessions Judge and the Sessions Judge despatched the record to this Court on the 15th. On the 21st August the Crown entered appearance in the case. 3. 2. Notice of the rule was received by the District Magistrate of Monghyr on or about the 14th August. The record was on that date in the Court of the Sessions Judge and the Sessions Judge despatched the record to this Court on the 15th. On the 21st August the Crown entered appearance in the case. 3. The rule was fixed for hearing on the 26th August and there Was ample time for Counsel on behalf of the Crown to prepare himself to show cause on that date. On the 21st August, however, the District Magistrate of Monghyr wrote to the Registrar of this Court for the return of the record to his office so that he might show cause against the rule issued by us. The Petitioners, however, had filed printed copies of the record and on the 23rd August the necessary number of copies was after comparison supplied to the Remembrancer of Legal Affairs. We did not, therefore, direct that the record should be sent to the office of the District Magistrate but directed that a copy of the paper-book should be sent. It was also unnecessary to send back the record as the Crown had already entered appearance and Intended to show cause by Counsel and in fact Counsel had been supplied with a printed copy of the record. 4. On the 26th August an application was made to us by the Deputy Legal Remembrancer who appeared to show cause for the postponement of the case for a fortnight, but the application was opposed by the Counsel for the Petitioners and, as ample time had already been given to show cause, we declined to postpone the case except for one day. The case came on for hearing before us on the 27th instant. 5. The Deputy Legal Remembrancer practically declined to show cause; but, on questions put by us, he stated that this Court has full jurisdiction to deal with the case on facts and to consider the propriety of the order of commitment made by the District Magistrate. The authorities to which he referred In support of his view are Harbans Singh v. Fakir Das 7 C.W.N. 77 (1902), Pirthi Chand Lal v. Sampatia 7 C.W.N. 827 (1903), Queen-Empress v. Namdev Satuaji ILR 11 Bom. 372 (1887), and Re Kalyan Singh ILR 21 All. 285 (1899). The authorities to which he referred In support of his view are Harbans Singh v. Fakir Das 7 C.W.N. 77 (1902), Pirthi Chand Lal v. Sampatia 7 C.W.N. 827 (1903), Queen-Empress v. Namdev Satuaji ILR 11 Bom. 372 (1887), and Re Kalyan Singh ILR 21 All. 285 (1899). The law on the subject seems to us to be quite clear. Sec. 215, Cr. P.C, bars our reviewing a commitment made under secs. 213, 214, 477 and 478 except on a point of law; but it does not bar our revising under sec 439 a commitment order made under sec 436, Cr. P.C. Under sec. 439 of the Code, we have all the powers of an Appellate Court. 6. The only matter to which the Deputy Legal Remembrancer drew our attention is that there is nothing to show that the evidence of Bharosl Dusadh was admitted by the Deputy Magistrate; we shall presently deal with this piece of evidence. The Deputy Legal Remembrancer declined to enter into the facts of the case and left the case in our hands. We accordingly reserved our judgment in order to go through the evidence and to decide without the help of the Counsel for the Crown the question of the propriety of the order made by the District Magistrate of Monghyr. 7. We have gone through the evidence and after a careful consideration of the reasons given respectively by the Deputy Magistrate and the District Magistrate the conclusion we have arrived at is that a prima facie case for commitment has not been made out. The Deputy Magistrate entered fully Into the evidence and, apart from the discrepancies in the statements of the witnesses, he came to the conclusion that a prima facie case of rape and dacoity was not established inasmuch as the story told by the witnesses for the prosecution was absurd on the face of it. He was also of opinion that the witnesses had deliberately made false statements on various points. The learned District Magistrate has not sufficiently considered the question of probabilities. 8. The only point, as we have said, relied on by the Deputy Legal Remembrancer is that the deposition of Bharosl Dusadh, at whose house the family of the complainant took refuge after they were driven from their house, was not accepted in evidence. The learned District Magistrate has not sufficiently considered the question of probabilities. 8. The only point, as we have said, relied on by the Deputy Legal Remembrancer is that the deposition of Bharosl Dusadh, at whose house the family of the complainant took refuge after they were driven from their house, was not accepted in evidence. Bharosi Dusadh was examined at Madhepura before the case was transferred to Monghyr and he died before he was cross-examined, The Public Prosecutor tendered his evidence before the enquiring Magistrate at Monghyr. It does not appear from the record whether the evidence was admitted or not; but there is nothing to show that the evidence was rejected and even if it was, the evidence was not that of an eye-witness but of one who could corroborate the women who, it is alleged, were raped. The witness, however, was not cross-examined and it was no fault of the accused that he was not cross-examined. We have read that evidence and treated it as part of the record and we are of opinion that it is not of any value and is not sufficient to outweigh the imperfections and improbabilities in the evidence for the prosecution. 9. The very revolting nature of the offence or more accurately the offences of rape alleged to have been committed by six men on three women, by two men successively on each woman, near to and in the presence of each other and in the presence of the landlord of the women and the master of the men at a comparatively early part of the night carries with it the insignia of unnaturalness, and highly cogent evidence is, therefore, necessary to support the charges under sec 376, I.P.C. Some of the persons accused of the commission of the alleged offences belong to high castes and this fact adds to the character of improbability of the story for the prosecution. That the accused, Rash Behary Mandal, would be personally present at the scene having walked at night from his own residence to the house of a Dusadh situated at some distance at night is also extremely improbable. There was no necessity for his presence and his stay at the place for a sufficiently long time to witness the robbery which, the prosecution alleges, followed the offences of rape. There was no necessity for his presence and his stay at the place for a sufficiently long time to witness the robbery which, the prosecution alleges, followed the offences of rape. Sundry things, not of much value, were taken away and were most unaccountably returned notwithstanding that most of the things were not identifiable. The circumstantial evidence which might support the statements of the women, who are alleged to have been raped and of the eye-witnesses is wanting. The place where the offences are said to have been committed did not show signs of violence and the persons of the women were not medically examined for the discovery of marks of violence in the commission of the offences of rape. The women declined to be medically examined. The backs of two of the women did not show even a scratch. The first information gave the story of rape on an old woman but it was too absurd to be supported by evidence and was abandoned in Court. The inconsistency between the first information and evidence might be explained and an explanation has been attempted to be given but a considerable amount of discredit attaches to the entire story on account of such serious discrepancy. 10. The case for the prosecution rests almost entirely on oral evidence which was disbelieved by the Court which was in the most advantageous position of testing the credibility of oral evidence. If Bash Behary Lal had been actuated by a desire of satisfying his lust, his presence at the scene could be accounted for. But a mere desire of revenge at the elopement of a woman of his own class with Laturan and at the persistency of Kunji, one of Laturan's relatives, to stand as his surety when Laturan was charged with the commission of theft are not in themselves sufficient to move a man of position and wealth to do personally what the prosecution alleges he did. These matters have been carefully dealt with by the Deputy Magistrate and the District Magistrate has not given the weight which they deserve in testing the credibility of oral evidence. 11. The oral evidence, apart from the improbabilities of the prosecution story, is highly unsatisfactory. These matters have been carefully dealt with by the Deputy Magistrate and the District Magistrate has not given the weight which they deserve in testing the credibility of oral evidence. 11. The oral evidence, apart from the improbabilities of the prosecution story, is highly unsatisfactory. The District Magistrate has based his conclusion on the assumption of the truthfulness of the witnesses for the purposes of the preliminary enquiry before commitment, but in dealing with the evidence he had to consider whether a prima facie case had been made out and to perform in the position of an Appellate Court as nearly the same duties as the Magistrate who had held the preliminary enquiry. It has been repeatedly held by the Superior Courts in India that a Magistrate holding a preliminary enquiry would not exceed his jurisdiction if he examines the credibility of testimony and should not commit a person for trial in the Sessions Court if he be of opinion that notwithstanding direct evidence the case is improbable and the evidence unreliable. 12. Kunji, the complainant, and Gopal did not enquire who raped each of the women though they had ample time to do so and the matter was left to the women themselves for development at a latter stage. In other points of their evidence they show evident signs of fabrication. Gopal Dusadh is as unsatisfactory as Kunji. He heard the order given by Rash Behary Lal and heard cries of the outraged women but it is curious that none of the neighbors came to help or heard the cries. Rash Behary Lal might be influential but that would be no reason for people not coming there. None of the neighbors was examined before the Deputy Magistrate. Gopal also contradicts the women on material points. The Dusadhins, Rania, Bhagia and Bhikni, the women alleged to have been raped, stand uncorroborated. The story told by Lakhia is absurd on the face of it. The other witnesses are not of much importance. 13. The credibility of the testimony of the prosecution witnesses must also be considerably shaken by the fact of Police control over them throughout the investigation and enquiry. 14. The story told by Lakhia is absurd on the face of it. The other witnesses are not of much importance. 13. The credibility of the testimony of the prosecution witnesses must also be considerably shaken by the fact of Police control over them throughout the investigation and enquiry. 14. On the whole, we are of opinion that the reasons given by the District Magistrate for setting aside the order of the Deputy Magistrate are insufficient, that he has not sufficiently met the reasons given by the latter for discharging the accused and that this is not a case in which a commitment to the Court of Sessions should have been directed. We accordingly set aside the order of the District Magistrate and upholding the order of the Deputy Magistrate, we direct that the Petitioners to be discharged.