9911796707
TMI Blog1963 (4) TMI 91X X X X Extracts X X X X X X X X Extracts X X X X ..... earned Presidency Magistrate, 8th Court, Calcutta, held the commitment proceedings, and was satisfied that the evidence adduced by the prosecution before him made out a prima facie case against both the accused persons. Since the offence in question was triable exclusively by the Court of Sessions, the learned Magistrate committed them to the Sessions on May 4, 1960. 2. The case of the appellant and his co-accused was then tried by the City Sessions Court at Calcutta with the aid of jury. The jury returned a verdict of guilty against the appellant in respect of all the three counts. A similar verdict was brought by the jury in respect of the co-accused Ganesh De. The learned Sessions Judge took the view that the verdict of the jury was not perverse, and so, he decided to accept the said verdict and accordingly convicted the appellant under s. 376 and sentenced him to suffer rigorous imprisonment for four years on the first charge. No separate sentence was awarded in respect of the other charges. Ganesh De was also sentenced to a similar period of imprisonment. This order was passed on July 9, 1960. 3. The appellant challenged the correctness of the order of conviction and sen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Some time, thereafter, she was sent back to her own house on her insistence. It appears from the evidence that Sandhya was again taken to the house of the appellant and was ravished by him. This happened on two or three occasions again. At one of these meetings with the appellant, Sandhya was introduced to a young man named Himangsu Ganguli. This young man had approached the appellant for a job. The appellant exploited the helpless position of both Himangsu and Sandhya, and asked them to go through a show of marriage. Thereafter, the appellant wanted a photograph in proof of their marriage and a group photo was accordingly taken with Ganesh De, Manibala, Himangsu and Sandhya, the last two having posed as husband and wife. Himangsu and Sandhya then went to the house of the appellant and gave him a copy of the photograph. This time again Sandhya was ravished by the appellant. That, in broad outlines, is the prosecution case against the appellant. 5. On June 6, 1959, Sandhya's mother filed a complaint that her daughter had disappeared. This complaint was investigated by the Enforcement Branch Calcutta, and in consequence, Sandhya was recovered from the house of Ganesh De on J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with which he is charged. (2) When the accused is charged with criminal breach of trust or dishonest misappropriation of money, it shall be sufficient to specify the gross sum in respect of which the offence is alleged to have been committed, and the dates between which the offence is alleged to have been committed, without specifying particular items or exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of section 234 : Provided that the time included between the first and last of such dates shall not exceed one year. 7. The appellant's contention is that it is only in cases under s. 222(2) where the prosecution is not required to specify the precise date and time at which the offence is committed; and that means that it is only in respect of the offences of criminal breach of trust or dishonest misappropriation of money to which the said sub-section applies that liberty may be claimed by the prosecution not to mention the date and time of the offence. In all other cases to which s. 222(1) applies, particulars as to the time and place of the alleged offence must be specifically mentioned. In our opinion, this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to bear in mind that the requirements of procedure are generally intended to subserve the ends of justice, and so, undue emphasis on mere technicalities in respect of matters which are not of vital or important significance in a criminal trial, may sometimes frustrate the ends of justice. Where the provisions prescribed by the law of procedure are intended to be mandatory, the legislature indicates its intention in that behalf clearly and contravention of such mandatory provisions may introduce a serious infirmity in the proceedings themselves; but where the provisions made by the law of procedure are not of vital importance, but are, nevertheless, intended to be observed, their breach may not necessarily vitiate the trial unless it is shown that the contravention in question has caused prejudice to the accused. This position is made clear by sections 535 and 537 Cr. P.C. 9. Take, for instance, the case of murder where the prosecution seeks to prove its case against an accused person mainly on circumstantial evidence. In such a case, investigation would generally begin with, and certainly gather momentum after the discovery of the dead body. In cases of circumstantial evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asonable course to adopt in dealing with contentions like the one raised by the appellant before us. The question of prejudice did not impress the High Court, because it has summarily dismissed the appeal. It is not a matter on which the appellant can be permitted successfully to challenge the view taken by the High Court. In this connection we ought to add that the decision in the case of Ali Hyder (1939) Cri. L.J. 280 to which the High Court has referred in granting a certificate on this point does not support the contention in question. 11. The next ground on which the High Court has granted certificate to the appellant is that the Division Bench should not have summarily dismissed his appeal, and in coming to the conclusion that this argument amounted to a substantial point of law, the High Court has referred to two decisions of this Court in Mushtak Hussein v. The State of Bombay [1953]4SCR809 , and Shreekantiah Ramayya Municipalli v. State of Bombay 1955CriLJ857 . In Mushtak Hussein's case, this Court has no doubt observed that it is not right for the High Court to dismiss an appeal preferred by the accused to that Court summarily where it raises some arguable points w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o satisfied, the appeal should be admitted; if on the other hand, the High Court is satisfied that there is no substance in the appeal and that the view taken by the Trial Court is substantially correct, it can summarily dismiss the appeal. It is necessary to emphasise that the summary dismissal of the appeal does not mean that before summarily dismissing the appeal, the High Court has not applied its mind to all the points raised by the appellant. Summary dismissal only means that having considered the merits of the appeal, the High Court does not think it advisable to admit the appeal because in its opinion, the decision appealed against is right. Therefore, we do not think the High Court was right in granting certificate to the appellant on the ground that his appeal should not have been summarily dismissed by another Division Bench of the said High Court. If the High Court in dealing with criminal appeals takes the view that there is no substance in the appeal, it is not necessary that it should record reasons for its conclusion in summarily dismissing it. 14. The third ground on which the certificate has been granted by the High Court is in regard to an alleged misdirection ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e side of the prosecution and not on the side of the appellant. 15. That leaves to be considered certain other alleged misdirections to which Mr. Chari has referred. Mr. Chari contends that in explaining the true legal position with regard to the evidence of a prosecutrix in cases of rape, the learned Judge did not tell the jury that in view of the contradiction brought out in the evidence of Sandhya and in view of her past career and record, her evidence should not be believed. Mr. Chari argues that when criminal courts require corroboration to the evidence of the prosecutrix in such cases, as a matter of prudence, it necessarily means that in the first instance, the prosecutrix must appear to the court to be a reliable witness. If the prosecutrix does not appear to be a reliable witness, or if her evidence suffers from serious infirmities, corroborations in some particulars would not help the prosecution, and according to Mr. Chari, this aspect of the matter was not properly brought to the notice of the jury by the learned Sessions Judge. We do not think there is any substance in this contention. We have carefully read the charge and we are satisfied that on the whole, the cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the onus to prove the fact that the girl was below 16 was on the prosecution and that if there was any doubt about her age, the benefit of the doubt must go to the appellant. We do not think there is any substance in this argument. In the first part of this charge, the learned Judge explained to the jury the essential requirements which had to he proved by the prosecution in support of its charge under s. 376, and there the learned Judge had made it clear to the jury that the prosecution had to show that the girl was below 16. That being so, we do not think that his failure to mention the point about onus once again when he dealt with the actual relevant evidence, can be said to constitute a misdirection, much less a material misdirection which may have led to the prejudice of the appellant. 17. The last misdirection on which Mr. Chari has relied is the statement of the learned Judge that the previous statements made by the girls which had been brought on the record do not constitute substantive evidence but are intended only to contradict the actual evidence given by her in court. It appears that on behalf of the appellant the evidence given by the girl on a previous occasi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
