Allahabad High Court
Francis Hector vs Emperor on 28 September, 1936
Equivalent citations: 167IND. CAS.676, AIR 1937 ALLAHABAD 182
JUDGMENT Niamat Ullah, J.
1. This is an appeal by one Francis Hector, who has been convicted under Sections 376, 366-A, 368 and 363, Indian Penal code by the learned Sessions Judge of Mirzapur. The girl concerned in the case is Musammat Atwaria a chamarin by caste. Her age, according to the prosecution, is less than 14, but that matter is highly controversial as will appeal from the evidence to be discussed later on. For the Rest the story for the prosecution is as follows:
Musammat Atwaria is the daughter of one Sarju by his 'sagai' wife, Musammat Gauri. She was born in Santhal Parganas, where her parents had migrated to earn their livelihood. They were resident of Mirzapur which they visited off and on. They lived in Muhalla Purana Line. Musammat Atwaria was married to one Jethu, who is the adopted son of Thakuri. The letter was in the service of a clergyman as motor driver. Thakuri lived in his master's quarters in the Mission compound at Mirzapur. Sarju died two yeas before the occurrence and Musammat Gauri, who was left to earn her own livelihood, went to Gondia in the Central Provinces with her daughter Atwaria and a son. A year before these proceedings began Musammat Gauri brought her daughter to Mirzapur and left her with Jethu who was living with his adoptive father Thakur. Musammat Gauri went back to Gondia, and was not apparently in touch with the affairs of her daughter. Thakuri was the own out of employment and Musammat Atwaria was sent to his native village in the District of Jaunpur. She did not get on well with her husband's adoptive mother and sister. Thakuri brought her to Mirzapur, but Jethu did not care to allow his wife to live with him. The reason that he gives is that he bad no accommodation for her. He took her to Purana Line; but as her mother was no longer there, he made her over to Bis Ram, who is her mother's maternal uncle or maternal cousin. Musammat Atwaria stayed with Bis Ram for only two days. The letter sent her away on the pretext, according to Musammat Atwaria, that he could not maintain her. He directed her to go to her 'nana' and 'nani' who lived in Mirzapur Khurd. The 'nana' was not her mother's own father, but one Ram Das, an. uncle of some sort. Musammat Atwaria began to live with Ram Das but left him after a few days. She says that she did not get enough to eat at Ram Das's place, while Ram Das who has been, examined for the defence, alleges that her character was bad and therefore he did not like her to live in his house. She then began to live in another muhalla called Ghaswali gali, in the house of Ghulam Dastgir, a contractor who was supervising the construction of a building. She was in receipt of wages at the rate of there annas a day. She slept at night in his house with his wife or daughter at one place she mentions daughter and at another she refers to the woman as his wife. One Musammat Biranjia who lived at a little distance from the house of Ghulam Dastgir and was obviously known to Musammat Atwaria persuaded her to live in her house. Atwaria continued work under the contractor but lived with Musammat Biranjia. She once offered to introduce Musammat Atwaria to a man who would make her comfortable but Atwaria indignantly refused the offer. Not long afterwards Musammat Atwaria fell ill and did not go to work.
2. When she got better, she went to the contractor's house to demand the arrears of her wages. The contractor was away and she was told by someone in the house that he would return in the evening when she should come for her wages. Accordingly she went to the contractor in the evening but did not find him even then. She was returning to Musammat Biranjia's place, and when she passed through a lane called Chiniahwan Inara, she noticed a car approaching her. She stepped aside, but to her surprise found that the car stopped and a man in the car, who subsequently proved to be Nisar, asked her as to where she was going. She replied that she was going to her house. Thereupon he said that she had better go with him. She refused. Thereupon his companion who was subsequently found to be a man named Dr. Imtiza forcibly brought her into the car and gagged her. Nisar threatened to stab c her with a knife. Nisar had also a gun 1 with him. The car moved on and eventual try brought her to Nisar's residence in Muhalla Sabri. Nisar occupied a set of rooms on the first floor of the gate and buildings adjoining thereto. She was taken upset are, where she was detained for there months. It is said that she was kept in a small room which had a window, and the only exit used to be locked in the absence of Nisar and the doctor. Both of them are said to have committed rape on Musammat Atwaria. Not long after her arrival she met the present appellant Hector and Bishambhar Nath, who were friends of Nisar and used to visit his house frequently. One evening, while Nisar was downstairs, Hector came up and raised to have sexual inter course with her. She resisted, but was overpowered by Hector, who threatened to stab her.
3. The threat was carried out so far as to cause an injury on her chest. According to her story, she was kept confined in the house to such an extent that she was not allowed to leave her room for the calls of nature. Arrangement was made in one of the coiners of her room, where she could go to ease herself. According to the case for the prosecution, she was allowed to go to a square room, which was occupied by Nisar and which adjoined the small room in which she was kept, but this liberty was given to her only in the presence of Nisar and others. One day, when Nisar was absent, she heard music playing with a procession which was passing along the road. She peeped through the window and saw her mother and Chhatri, a caste fellow of hers, sitting on the platform opposite the gate. Nisar also noticed her mother and Chhatri and dragged her away from the window saying that if they were found out they would both be are rested. Nisar became apprehensive, and he devised means of more effectively concealing Musammat Atwaria. Accordingly he clipped her hair and gave her male attire to put on. She was removed at night to a house belonging to Bishambhar, known as Chakki Ghar, in a neighbouring muhalla. She was lodged in a room occupied by Hector. It is said that Hector, whose father has a bunglow not far away from Bishambhar's place, had quarreled with his father and was living in one of the rooms of Chakki Ghar, in which there was a flour mill from which the house derives its name. She remained there for about five days, during which Bishambhar also raped her. It was later considered desirable to transfer her to some other place. Accordingly she was taken by Hector on his bicycle to Muhalla Narghat. Nisar accompanied them on another bicycle. They lodged her in the house of Nur Mohammad where she lived for six days disguised as a boy. After that she was taken one Light to the house of Karimullah, Jarrah, near Ghanta Ghar. She lived in Karimullah's house in the same disguise for five lays. Thereafter she was brought by Nisar on "ekka" to his own house, where he lived for another seven days.
4. In the meantime her mother was in search for her daughter and the Arya Samajists lad started an agitation against Nisar keeping Musammat Atwaria, a Hindu girl. Nisar and his companions then conspired to take her over to a person named Maqbul Husain, who considered in Tillage Khamaeia, half of which is in Benaers Estate, the other half being part it British India. Accordingly she was put in an "ekka" which was covered. Babu Khan, a servant of Nisar and Musammat Mariam, his mistress, were seated on either side of Musammat Atwaria. Nisar and Hector led the way on there bicycles and took the "ekka" across the Ganges bridge to Khamaria. The "ekka" stopped at a certain place where Musammat Atwaria was made to alight find thence walk to the house of Maqbul Husain. Babu and Mariam returned on the 'ekka' and so did Nisar and Hector on there bicycles. Maqbul Husain lodged Musammat Atwaria in a certain room. She expected that Nisar and Hector would return after sometime and when they did not she enquired of Maqbul as to when the "Saheb" (meaning Nisar) would return. Maqbul scolded her, saying that she should not talk of the "Saheb," as she had been sold to him (Maqbul) and he would take her to the Punjab. She stayed in her new lodging during the night. Next morning when Maqbul was leaving his house she asked him as to where and how she would go to answer the call of nature. Maqbul pointed out a window, though which she should go out. Maqbul left her, locking the outer door of his house. Musammat Atwaria found a suitable opportunity and left the house though the window. She concealed herself in a sugarcane field, where she remained the whole day. Towards the evening she ran to Chaitganj Bazar, which is at a distance of one mile from Khamaria. There she noticed an 'ekka' standing near a shop. She went up to the 'office;' driver and asked him to take her lo Mirzapur. The 'ekka' driver demanded one rupee, and she agreed to pay it. In the meantime Police constable Ram Sakal Singh and Ram Lakhan Singh noticed her movements and came to her. They put certain questions to her but she refused to tell them anything about herself. They said they were Police constable but she demanded proof of that fact. They were in plain clothes, but had there uniforms with them. They showed them to. her to convince her that they were Police constables. When she was assured that they were Police constables and not likely to betray her, she narrated her story from beginning to end. The Police constables were going on there round. They lodged her in the house of a Bhujain and went away on there duty. They returned next morning and took her to the Police Station Chilh to which they were attached.
5. There she lodged a report, which is dated November 11, 1935, 8 A.M. In that report she charged nine persons with a number of offences. They were Nisar, Musammat Mariam, Babu Khan, Hector Bishambhar and four others not named. One of the fore, whose name is not mentioned, was doubtless Imtiza, "who is referred to in the report as "a doctor." Her mother was sent for, and arrived by the evening. The two were sent to the Kotwali at Mirzapur, and the officer in change of the Kotwali started the investigation. Hector was arrested on November 14, 1935. Bishambhar was also are rested. Nisar and Dr. Imtiza were not found and are said to be absconding; Maqbul Husain was also one of the accused and was not are rested. He is also said to be absconding. Babu and Mariam though named as accused, were not proceeded against by the Police. They were examined under Section 164, Criminal Procedure Code, as witnesses. Thus the only two persons who were actually prosecuted were Hector and Bishambhar, In the Court of the Committing Magistrate towards the conclusion of proceedings a pardon was tendered to Bishambhar, and Hector alone was committed to the Court of Session. Hector has been convicted of all the offence with which he was charged and, sentenced to various teems of imprisonment: the longest being five years rigorous imprisonment.
6. Hector, accused, has denied all tae allegations against him, except so far that he has admitted having had illicit connection with Musammat Atwaria. His case is that she was a woman of loose character, that she had been turned out by her husband and was earning her livelihood by working as a labour and that she had illicit connection with several persons, including Nisar and himself, whom she visited off and on.
7. There are two cardinal points in the case on which both sides have connected their efforts. According to the prosecution Musammat Atwaria is below 14 years of age and, at all events, less than 16; while according to the defence her age is about 18. The importance of her age lies, in the main, in the attempt on the part of the prosecution to establish the charge of rape. If she is less than 14, no question of her consent can arise. If her age is above 14 but less than 16, the charge of kidnapping from lawful guardianship will be made out in case she is found to have been taken out of the keeping of her lawful guardian The second point, on which stress is laid by, the prosecution is the use, of force, in her being taken to the house of Nisar and in detaining her thereafter. If this allegation; is found to be proved, the question of age becomes comparatively immaterial, (His Lordship then considered, the evidence of Musammat Atwaria and her mother in respect of her age and found that not could be placed on it and the referred to the medical evidence on the, side of both the prosecution and defence and proceeded.) The learned Sessions Judge has discarded the evidence of Col. Mac Gilchrist and Major Quraishi on the ground that they are partial to the defence. It appears that Khan Bahadur Tasadduq Husain, the father of Nisar, accused, was for sometime the Civil Surgeon of Mirzapur and in the course of his career as a medical man he got acquainted with all. Mac Gilchrist, who admitted in his advice that K.B. Tasadpuq Husain had seen him sometime before gave evidence in the case. Tae cross-ex limitation was not pressed further and I line no justification for questioning the impartiality of a man in the position of Col. Mac. Gilchrist. The learned Judge has also considered the evidence of Major Quraishi as based on the ground that Major Quraishi was not a stranger to the family of K.B. Tasadduq Husain.
8. I do not agree with the learned Sessions Judge even if it be the case that Major Quraishi is related to K.B. Tasadduq Hussain. These witness gave their opinions and also the grounds on which they are based. Unless there is something in their evidence which creates a suspicion that they have misstated the grounds or have manifestly formed an untenable opinion, it will not be eight to characterise their evidence as partial. It may be said generally that expect evidence produced by an interested party may have not certain amount of unconscious bias in favour of that party; but on a question like this it is easy for the Court to see that the difference of opinion between Col. Townsend on the or hand and Col. Mac Gilchrist and Major Quraishi on the other is purely of a scientific character. The Court has before it the ground upon which each expect bases his opinion, and it is for the Court to accept one opinion or the other, without characterising the opposite opinion as partial. I am bound to say that there is a good deal to be said in favour of the opinion expressed by Col. Mac Gilchrist and Major Quraishi. At the same time, the opinion expressed by Col. Townsend, who is also an expert of distinction, is based after a careful examination on scientific lines. He had an advantage which the other medical witness had not, viz., that he examined Musammat Atwaria's person. If the result of the case had rested entirely on the finding as regards the age of Musammat Atwaria, I would have held it to be so doubtful that the case for the prosecution must fall to the ground; but I am prepared to accept, for the purpose of this case, that Musammat Atwaria's age is between 14 and 16, as declared by Col. Townsend.
9. The more important question is whether Musammat Atwaria was forcibly carried to the house of Nisar, where she was detained against her will. (His Lordship then examined the evidence of Musammat. Atwaria on this point and continued). Musammat Atwaria's evidence is not corroborated by the evidence of any other witness. It cannot be maintained that corroboration is not possible. The prosecution themselves secured the evidence of at least four persons whom they examined under Section 114, Criminal Procedure Code. One of them was Narbada Prasad. His statement under Section 164 is on the record, and one can see at a glance why he was not examined at the trial. If he had stuck to his statement made under Section 164, Criminal Procedure Code, his evidence would have shown that Musammat Atwaria lived in the house of Nisar as a regular mistress, that she used to come downstairs in a big enclosure behind the gate, in which there was a latrine and a public water tap, that she was frequently seen by him in that enclosure when she went into the lateinr and that he saw her in a bed in the varandah occupied by Nisar upstairs. There is no evidence to suggest that Narbada Prasad was in collusion with the accused. The Investigating Officer who gave evidence did not even allege that Narbada Prasad was in collusion and was not for that reason examined as a witness. This explanation was given to me in the course of arguments by the learned Government Pleader. This is, however, no explanation. It is only a bare assertion. Similarly Musammat Nanki, a sweeper woman, was examined under Section 164. She used to go into the house and clean it and frequently saw the girl sitting on a cot in the square room playing cards with Nisar and others. Both Narbada Prasad and Musammat Nanki said that she was in female attire having a clean 'dhoti' on. Babu Khan and his misters Mariam, who always resided in the house and looked after Musammat Atwaria, were also examined under Section 164, add their statements also do not support the prosecution. I cannot treat these statements recorded under Section 161, Criminal Procedure Code, as evidence in the case; but I am referring to them merely to show that there were witness who were in a position to give relevant evidence, but the prosecution deliberately withheld their evidence without establishing the slightest reason for the suggestion that they had been won over by the defence.
10. In these circumstance, the prosecution must face the inference arising, from their conduct in withholding evidence. Their plain duty was to produce these witness; and it was for the Court to believe or disbelieve them. At any rate same foundation should have been laid for the suggestion that they were hostile. The meet fact that their evidence was expected to be inconsistent with that of Musammat Atwaria in some respects was no justification for refusing to examine them as witness. In this connection the Sessions Judge showed a regrettable disregard of the provisions of Section 540, Criminal Procedure Code. It is the duty of the trial Judge to examine all such witness as appear to be in a position to give important evidence. The learned Judge could have seen at a glance that some, if not all of those examine under Section 164, Criminal Procedure Code, were not under the influence of the defence and the wholesale charge of partiality was groundless. I would have had these witness examined even at his late stage, were it not for the belief that their evidence would further weaken the evidence of Musammat Atwaria whom I disbelieve. His Lordship then considered the evidence of the approver and the other witness and holding that the prosecution story was not borne out by any reliable evidence, continued.) The last question is whether the accused can be considered to have committed any offence on the findings which I have arrived at, namely, that Musammat Atwaria willingly came to the house of Nisar and lived there and possibly at some other place but that the allegations of force and fraud are not true. The appellant has been convicted under Sections 376, 363, 366-A and 368, Indian Penal Code. I proceed to consider each charge separately. If Musammat Atwaria had been belt the age of I-I, the appellant would have, been guilty under Section 37, as he admits having had sexual inter course, with her. But, on the evidence of Col. Townsend and according to my finding, she was much above 14. He cannot, therefore, be held guilty under Section, having regard to my finding that she was a consenting party to the sexual inter course with the appellant or anyone else of the group of persons whose names have been mentioned by her in that connection.
11. Section 363, Indian Penal Code, refers to kidnapping from lawful guardianship or from British India. Kidnapping from lawful guardianship is defined in Section 361 as taking or enticing a minor under 16 years of age, if a female, out of the keeping of the lawful guardian of such minor. Assuming that Musammat Atwaria was below 16 years of age, there was no taking out of the keeping of the lawful guardian, as she had no lawful guardian at the time when she came to the house of Nisar or when she lived in the room of Hector, appellant, assuming this part of the case for the prosecution to be true. She had been turned out by her husband and was free to go anywhere she liked. It was argued before me that she was in the "constructive guarding" of her husband. I do not think this contention can be upheld. Where a minor is living with a lawful guarding, but is taken or enticed away from a street or some other place of resort, the position is entirely different. The guardian the care and custody of the minor even though the letter is not actually in the house. But, where the guardian abandons the care and custody of the minor and allows her to go anywhere she likes, she cannot be considered to be in his care or custody. The casein Emperor v. Ewaz All 36 A 624 : 30 Ind. Cas. 647 : A.I.R. 1915 All. 390 : 16 Cr. .J. 663 : 13 A.L.J. 848 is in point. So far as the allegation that she was kidnapped out of British India is concerned, the charge must fail in the absence of a finding that Musammat Atwaria was conveyed to village Khamaria without her consent. I have already held that it has not been established that she was not a consenting party to any thing which Nisar or the appellant did. No question of want of consent of the person authorized to consent on her behalf can arise, as she was above 12 (Section 90, Indian Penal Code).
12. Section 306-A, Indian Penal Code, also does not apply as, assuming the age of Musammat Atwaria to be below 18, there is no reliable evidence that she was taken by the appellant from one place to another with the intention that she be seduced or forced to illicit inter course with another person. On the own showing of the prosecution, she was taken from one place to another, assuming this part of the story to be true, with the intention of keeping her out of the way of her mother. Lastly, Section 368, Indian Penal Code, pee support that the offence of kidnapping or abduction has taken place, so that anyone wrong fully concealing or confining the person kidnapped or abducted is guilty of an offence under Section 368, Indian Penal Code. On the above findings no offence of kidnapping or abduction has been made out. The charge under this section, therefore, fails. The result is that the appeal is allowed, the conviction and sentences passed by the lower Court are set aside and the appellant Francis Hector is acquitted. He need not surrender to his bail.