A. N. SURTI, D. H. SHUKLA, J. ( 1 ) HEINOUS inhuman and beastly offences like Rape and such others in any form or measure are in the nature of permanent stigmas on humanity and men of the world will have to stand with their heads down in utter shame even in heaven for their sexual perversity and perverted passions in life; and they will even shake the confidence of the Creator that men do not deserve to be human and are more like the animals rather than humans. Such offences will constantly remind the decent and the democratic citizens of the society the slowly forgotten Darvins theory of human evolution. The recent increase of such offences in the country is a warning bell to us about not only the law and order situation in the country but also about the dignity and safety of the helpless the weak and the suffering women in the society. The constant increase of such offences after the independence also creates a situation for the Legislation to reconsider test and even to modify out long standing court procedure for a fair criminal trial which has otherwise stood successfully and effectively the test of time for more than a couple of centuries assuring to our citizens that unless they are proved to be guilty of the alleged accusation there will be a presumption of innocence in their favour. Suffice it to say that let the fair name of such an admirable fair trial the enviable legacy of the Rulers of the past be not spoilt or stigmatised in any manner whatsoever by any hasty legislation creating or providing on the statute book any statutory presumption against the accused viz. unless the contrary is proved the accused shall be presumed to be guilty of the alleged accusation of rape or cruelty to women in its just and timely zeal for the eradication of offences like `rape and cruelty to women. unless the contrary is proved the accused shall be presumed to be guilty of the alleged accusation of rape or cruelty to women in its just and timely zeal for the eradication of offences like `rape and cruelty to women. In this behalf with all modesty and being fully conscious of the fact that the two respective fields of judiciary and legislature are distinct and separate; and without the remotest intention of doing any improper indecent or inexpedient trespass over the legislative field but with the same degree of anxiety that suitable effective and stringenlty deterrent steps should be taken for the total eradication of such offences let all concerned should equally not forget the basic concept of Criminal Jurisprudence which has been so proudly and richly inherited by us even from the foreign rulers of the past that the fruit of liberty is an extremely precious one and that its preservation duty by the authority in power is a sacred one and the Judges presiding over the courts constituted in the country are the sensitive sentinels for the same. ( 2 ) THE press and the people are conscious of the aforesaid situation and are rightly keen for the eradication of the said offences. The elected representatives of our people in the Parliament and the best of social institutions are actually worrying for the same. It is in this context that we may usefully refer from the book Encyclopaedia Britannica Vol. 18 on RAPE which is in the following terms :"rape, in law, is the crime committed by a man in obtaining unlawful carnal knowledge of a woman without her consent by fear force or fraud. A husband cannot commit rape upon his wife unless she is legally separated from him. A felony at common law rape was reduced in England to a misdemeanour in 1275 but in 1285 was again declared a felony with benefit of clergy and so remained until 1275 when the punishment was made more severe. It became a capital offence by the Offences Against the Person Act 1861 and is now punishable with imprisonment for life The law of England regards as immaterial whether the woman is chaste or unchaste married or single. The offence is complete if consent is extorted by threats of death or immediate bodily harm by fraud or by false pretenses or by personating the womans husband. The offence is complete if consent is extorted by threats of death or immediate bodily harm by fraud or by false pretenses or by personating the womans husband. IN the United States the elements of the crime under statute are similar to those at common law. The age when effective consent can be given by the woman has commonly been set by the various states between 14 and 18 years. Want of age on the part of the man is not a defense as at common law but ismply presumptive evidence of lack of physical capacity. Many states require the testimony of the woman to be corroborated by other evidence and require the prosecution to be initiated within a year or less after the commission of the offence. The punishment is usually imprisonment though a number of states especially in the South prescribe or permit death as the penalty. " ( 3 ) IT is in the background of this clouded atmosphere that we are required to dispose of the two appeals wherein one the accused a police officer is awarded life imprisonment for the commission of an offence of rape alleged to have been committed on a young girl aged about 17 years and made punishable under section 376 of the Indian Penal Code and in the other companion appeal accused named Raju is awarded 10 years R. I. for the commission of the said offence. The case before us illustrates as to how innocent persons can be raped in for the alleged accusation. . . . . . . . . . . . . . . . ( 4 ) BEFORE we part with this case we must say that when we admitted the appeals we thought it desirable to refer the matter to the Full Bench to decide the bail applications of the appellant accused as well as Raju as we fell that there was not a single reasonable ground which would justify the learned Trial Judge to base the impugned order of conviction. We also felt that the two appeals should be referred to the larger Bench as there was climate in the society that there should not be any ATROCITY ON WOMEN. We also felt that there is climate in the society that the police officer or those in power should not become atrocious to women. We also felt that the two appeals should be referred to the larger Bench as there was climate in the society that there should not be any ATROCITY ON WOMEN. We also felt that there is climate in the society that the police officer or those in power should not become atrocious to women. We also felt that the public feeling on that score has been considerably roused by the press and the elected representatives of our people. On this point there is lot of agitation even in daily newspapers and we read the same moment we normally open the newspapers during the morning hours. We always read in newspapers about the offences involving women and atrocities on them. We were also told by the Bar that the necessary bill in this behalf is introduced in the Parliament for the safety of women in regard to the atrocities on women for serious offences like rape etc. Under those circumstances we desired that the Full Bench should decide the bail applications which were vehemently pressed before us by the learned advocates who appeared on behalf of the P. S. I. and one Raju at the time when both the appeals were placed for admission before us. They also agreed that the matter should be referred to the Full Bench to decide the bail applications. Under the aforesaid circumstances we took the assistance of senior advocates Shri Daulatbhai C. Trivedi and Miss Kusum M. Shah and both of them also agreed that having regard to climate in regard to the aforesaid offences we should refer the matter to the Full Bench for deciding the bail applications of the accused P. S. I. and Raju. We profusely thank them for their valuable assistance on such a delicate situation having spared their time though they are busy advocates at the Bar. ( 5 ) UNDER the aforesaid circumstances the Full Bench was constituted by Honourable the Chief Justice and the Full Bench passed the following order on September 12 1980. "in these two matters placed before us under order of reference by the Division Bench we have ascertained from counsel appearing in these two matters that they are willing to go for final hearing in the week of 22nd September 1980 preparation of paper books dispensed with. Record and proceeding of the case has been called for from the Trial Court forthwith. Mr. Record and proceeding of the case has been called for from the Trial Court forthwith. Mr. Shethna states that he will get the compilation of the evidence including documentary evidence if any prepared for the use of the Court. The two matters to be placed on Board for final hearing on 24th September 1980 subject to over night part heard. In view of this situation bail applications are not pressed by the respective counsel for the accused. Reference is therefore disposed of. " ( 6 ) IN accordance with the direction of the Full Bench the two appeals were placed before us for hearing on 24th September 1980 but as Bhavna the victim of the incident was not served we adjourned the matter on 26th September 1980 to enable the State to serve Bhavna with the notice of appeal. We felt that service of the notices of the appeals to Bhavna was absolutely necessary as the learned Trial Judge had passed orders for compensation in favour of Bhavna. Under the aforesaid circumstances these appeals were kept for hearing on 26th September 1980. ( 7 ) WHEN these two appeals were placed for hearing on 26th September 1980 Bhavna and Shri Amratlal Chandulal Thakkar were very much present in Court as we requested them whether they were willing to have any advocate of their choice but they stated that they were not inclined to brief any advocate. Under the aforesaid circumstances we repeatedly asked Bhavna as well as Shri Thakkar as to whether they would like to have any legal assistant and that they would not require to pay any fees as we were inclined to see that legal aid was given to them without any charges but Bhavna as well as Shri Thakkar obstinately told us that they were not inclined to engage any private advocate and not in a mood even to take the benefit of legal aid or any lawyers assistance. When we were placed under the aforesaid precarious situation we did request Mr. J. R. Nanavati the learned Government Pleader and Public Prosecutor to see that the learned Advocate General assists us in the matter and that if for any reason the learned advocate General could not attend the matters we did request Mr. J. R. Nanavati to assist us Yesterday i. e. on 27th September at 11 Oclock. J. R. Nanavati the learned Government Pleader and Public Prosecutor to see that the learned Advocate General assists us in the matter and that if for any reason the learned advocate General could not attend the matters we did request Mr. J. R. Nanavati to assist us Yesterday i. e. on 27th September at 11 Oclock. We also mentioned in our said order that the learned Advocate General should do his very best to remain present when the appeals would be heard. ( 8 ) WHEN the appeals reached hearing Yesterday the victim Bhavna was very much present in the Court and requested us that the matter should be adjourned but we did not grant the said request of Bhavna or Shri Thakkar under the circumstances aforesaid. We did request the learned Government Pleader and Public Prosecutor to see that the Advocate General attends the matter having regard to the seriousness of the matter in as much as the accusation against one of the accused was that the offence of rape was committed by the accused P. S. I. in the premises of police station itself. Mr. Nanavati the learned Government Pleader and Public Prosecutor did convey to us that he talked about our aforesaid request to the learned Advocate General on 26th September 1980 to remain present in the Court but the Government Pleader and Public Prosecutor told us yesterday that the Advocate General was busy attending Machhu Commission work. With a sense of distress we said to Mr. Nanavati that the matter before us should have been given importance having regard to the seriousness of the crime involved viz. the commission of the offence of rape having been committed in the police station itself. We also took a note of the fact that it was purely for the law officers of the State to consider and decide as to in which matters they should choose to appear. No doubt that the work of Machhu Commission is an important work but it is more or less a dead postmortem whereas the present type of the crime worries all sections of the society in the country. Under the aforesaid circumstances we had to feel ourselves reluctantly satisfied at the valuable assistance given by the learned Government Pleader and Public Prosecutor Mr. Nanavati. Under the aforesaid circumstances we had to feel ourselves reluctantly satisfied at the valuable assistance given by the learned Government Pleader and Public Prosecutor Mr. Nanavati. The next best professional services were extremely valuable to us in the absence of the learned Advocate General He did assist us to his very best and we were glad that he readily and without the slightest hesitation appeared before us maintaining the high traditions of the Bar and the Bench. Appeal allowed : Conviction set aside. .