BUDHU MIAN Vs. EMPEROR

JUDGEMENT

(1.) The appellant has been convicted for the offence of rape and sentenced to transportation for seven years by a Magistrate exercising powers under Section 30, Criminal P.C. The appeal was from jail, but Mr. Chakravarti with our permission assisted us as an amicus curia. (His Lordship after narrating the fact of the case, proceeded:) [1a] As to whether that intercourse was rape or not would depend in the first instance as to the age of the girl, If the girl was under 14 years of age, it would be rape whether the sexual intercourse was with or without her consent. If the girl was above 14 years of age, it would have to be proved that the sexual intercourse was without her consent. (Thereafter considering the evidence as to the age of the girl and holding that she was under 14 years of age, his Lordship proceeded:)

(2.) It was contended that in sexual cases, it was necessary to have corroboration of the evidence of the prosecutrix. I would hesitate to lay down a rigid rule that this must be so in every case. As a matter of caution and prudence, it is undoubtedly desirable for a Court to leek for corroborative evidence in order to satisfy itself that the girl is not falsely implicating an accused. There may be, however, cases of the grossest kind where it is impossible to find evidence of corroboration and if the Court after exercising every care possible, comes to the conclusion that the evidence is satisfactory, I can see for myself no provision of law which would prevent a Court from acting upon that evidence though it be the solitary evidence in the case. It appears, however, in this particular case, that there is ample corroboration of the girl. (Thereafter, referring to the corroborative evidence his Lordship proceeded:)

(3.) A question of law was raised by Mr. Chakravarti and he has placed before us a number of authorities and urged that there had been no compliance with Section 256, Criminal P.C. and consequently the trial was vitiated. In order to follow his argument, it will be necessary to state certain facts. The appellant was brought before the Magistrate on 3-7-1945 and on 13-7-1945 Mr. Ozair received the record when he summoned prosecution witnesses for 10-8-1945. On that date he examined five prosecution witnesses. He asked the appellant as to whether he would cross-examine them, when the appellant: said that he would not. The witnesses were accordingly discharged. The Magistrate fixed the next day as the date for further hearing of the case. On this date, namely 11-8-1945, three witnesses for the prosecution were examined and a charge under Section 376, Indian Penal Code, was framed. The Magistrate after the framing of the charge on this date asked the appellant as to whether he would cross-examine the witnesses after charge. The appellant declined to do so. So the witnesses were discharged. The appellant was also asked whether he would cross-examine the five witnesses examined on 10-8-1945 and here again the appellant declined. The case for the prosecution therefore was closed and the appellant was examined under Section 342, Criminal P.C. The Magistrate records that he questioned the accused as to whether he wished to examine any witnesses; if so, he should name them and they would be summoned; but the appellant replied in the negative. Thereafter arguments were heard and 13 August was fixed as the date for delivery of the judgment; but the Magistrate postponed the matter until 14 August when he delivered his judgment convicting the appellant. On both these dates the accused was present. Under Section 256, Criminal P.C., the normal course to pursue by a Magistrate in a warrant case after charges have been framed is to question the accused at the commencement of the next hearing as to whether he wishes to cross-examine any of the prosecution witnesses. But Section 256 also permits a Magistrate to ask such a question of an accused immediately after the framing of the charge provided he records in writing hid reasons for doing so. In this particular case the Magistrate did not record his reasons for asking the accused immediately after the framing of the charge as to whether he wished to cross- examine any of the prosecution witnesses. The question before us is Whether the omission to record reasons is in itself sufficient to vitiate the proceedings or whether it is an irregularity curable under Section 537 of the Code. Two decisions of this Court which are binding upon us are to be remembered when considering this question namely, Nisar Ahmad V/s. Emperor A.I.R. 1939 Pat. 172 and Hazara Singh V/s. Emperor A.I.R. 1947 Pat 157. Both these cases are clearly authorities, in my opinion, for the proposition that the omission to record reasons is not in itself sufficient to vitiate the trial but is an irregularity curable under Section 537, Criminal P.C., provided the irregularity has not caused a failure of justice or that the circumstances appearing in each particular case show that there had been prejudice to the accused by such failure. In addition to the view of this Court to be found in the two decisions just cited, there appears to be the view of the Bombay High Court in Vishram Narayan V/s. Emperor A.I.R. 1930 Bom. 241 to the same effect where the view of Patkar J. in Emperor V/s. Laxman Hamshet A.I.R. 1929 Bom. 309 has been approved. There is similarly the decision of a single Judge of the Allahabad High Court in Emperor Vs. Chhajju to the same effect and the decision of Sir Shadi Lal C.J. of Lahore High Court in Mt. Ghasiti V/s. Emperor A.I.R. 1926 Lah. 155. Mr. Chakravarti, however, relied upon the decision of Campbell J. in Phuman Singh V/s. Emperor A.I.R. 1925 Lah. 339 and the decision of Jackson J. in In re Baju Achari A.I.R. 1927 Mad. 78 for the contrary view. It is unnecessary for me to go into the decisions of these two learned Judges who have taken the contrary view for I am bound to follow the decisions of our own Court. Mr. Chakravarti, however, had referred also to Ramchandra Modak V/s. Emperor A.I.R. 1926 Pat. 214 but the facts of that particular case are to my mind distinguishable and in the light of the two later decisions of this Court, what I have to determine is whether there has been in the circumstances of this particular case prejudice to the appellant by the failure of the Magistrate to record his reasons for asking the accused forthwith after the framing of the charge as to whether he wished to cross-examine the prosecution witnesses. It seems to me that right from 10th August to the date of judgment the attitude of the appellant was that he was not interested in the trial. He was asked after framing of the charge whether he wanted to cross-examine the prosecution witnesses, but he declined. He was asked whether he would name any defence witnesses; if so, the Magistrate would call them, but he declined. All this took place on the 11th. From 11 to the 13 August there was an interval of time and on 13 August when judgment was not delivered, if the accused felt, that he wished to defend himself, he could have told the Magistrate either that he wished to cross-examine the witnesses or to have named the defence witnesses whom he wanted to be summoned. Whether such a prayer would have been allowed or not is a different matter; but it is the conduct of the appellant which I am considering and it certainly gave no indication on 13th August that he had been thinking out a line of defence or that he might possibly be able to obtain the assistance of a lawyer. Similarly on the next day, namely, 14-8-1945, before judgment was delivered there was again an interval of time in which, if he felt like it, he might have approached the Court with the prayer that as he is undefended he might be given an opportunity to cross-examine the witnesses. I am unable to say that in this particular case there is anything to indicate that there had been any prejudice caused to the appellant or that the trial has resulted in a miscarriage of justice owing to the failure on the part of the Magistrate to record his reasons for questioning the accused immediately after the charge as to whether he wished to cross-examine the prosecution witnesses. Even in his grounds of appeal he makes no complaint that if he had been given an opportunity, he would have been able to secure proper legal advice or that if he had been given further time he would have cross-examined the prosecution witnesses. On the other hand, he states in his grounds of appeal that he is a poor man and therefore has not been able to defend the case properly. In my judgment having regard to the observations of Harries C.J. in Nisar Ahmad V/s. Emperor A.I.R. 1939 Pat. 172, it seems to me that the failure to record reasons under Section 256 of the Code for questioning the accused forthwith after the framing of the charge as to whether he wished to cross-examine the prosecution witnesses is not in itself an irregularity which vitiates the trial. I have examined the conduct of the accused in the course of the trial and it appears to me that at no time did he wish to defend himself although he pleaded not guilty to the charge which was framed and there is nothing on the record to show that there has been a failure of justice or that he has been prejudiced in any way.