Patna High Court
Shamsher Bahadur Saxena And Ors. vs The State Of Bihar on 3 August, 1955
Equivalent citations: AIR1956PAT404, 1955(3)BLJR537, 1956CRILJ1220, AIR 1956 PATNA 404
JUDGMENT Raj Kishore Prasad, J.
1. This is an appeal on behalf of ten persons, who, along with nine others, were put on trial before Mr. Gouri Shankar Prasad Sinha, 1st Assistant Sessions Judge at Muzaffarpur, for offences under Sections 120B, 366 and 368, Penal Code. Out of these 19 persons who were on trial, one of them was Ramautar Nonia, who was charged only under Section 366, Penal Code, and he was acquitted and the present appellants, except appellant Sarbasia Tatmain, were convicted under Sections 120B and 368, Penal Code, whereas Mosammat Sarbasia Tatmain was convicted under Sections 120B and 363, Penal Code.
Appellants 1 to 4, viz., Shamsher Bahadur Saxena, Maharaj Bahadur Saxena alias Laloo, Ramgulam Verma and Dayanand Singh alias Munji were each sentenced to six years' rigorous imprisonment under Section 368, Penal Code; appellants 5 to 8, viz. Asharfi Jha, Bhikhari Sonar, Bengali Sah and Ramnandan Kahar alias Mandan Kahar were each sentenced to four years' rigorous imprisonment under Section 368, appellant 9 Rajmangal Devi was sentenced to two years' rigorous imprisonment under Section 368 and appellant 10 Sarbasia Tatmain was sentenced to two years' rigorous imprisonment both under Sections 120B and 366, but her sentences were to run concurrently. Appellants 1 to 9 were not awarded any separate sentence under Section 120B, because each one of them had already been sentenced to various terms of imprisonment under Section 368.
2. In August, 1951, investigation of G.P.B.S. No. 11(4) of 1951 was ordered to be reopened, and accordingly Sub-Inspector Habibullah Khan took charge of that case on 29-9-1951. After reading the case diary of that case, and contacting the spies, he came to know that appellants 1 and 2, viz., Laloo and Shamsher, along with several other persons of other places, visited North Bihar Abla Anath Ashram at Laheriasaria on 30-9-51, and searched on 1-10-51 the Abla Anatri Ashram and recovered two letters (Exs. 20 and 20-A), and the contents of those letters corroborated the information which he had got from the spies, and consequently he started for Muzaffarpur.
After reaching Muzaffarpur he contacted the Officer-in-charge of the town thana on 3-10-51, and requested him to depute some body to help him in the investigation. J. N. Chatterjee Sub-Inspector, P. W. 92, and some constables were deputed to help him. All of them went to Bhartiya Anath Ashram in Tinkutia and raided it. He recovered certain papers after search in presence of certain witnesses on that day and scrutinized them.
The next day, that is, on 4-1-51, he again went to the Ashram and searched it, as the search on the first day was not finished, and recovered some more papers from there. He, along with M. N. Jha, Sub-Inspector, town thana (P. W. 81) who had also been in the meantime deputed to help him in the investigation by the Officer-in-charge of the police-station, went inside the Ashram and found 29 girls and women in that Ashram.
M. N. Jha was directed to take down statements of those girls as they were found weeping. He, therefore, recorded the statements of those girls and women; and the first girl, viz., Dukhni, P. W. 1, who was examined by him disclosed a cognizable offence, and consequently her statement, Ex. 17, was treated as fardbeyan, on which a formal first information report, Ex. 17/a, was drawn up. As the case was within the jurisdiction of town police station so M. N. Jha started investigation and Sub-Inspector (P. W. 19) began to assist him till the investigation of the case came in his charge on 4-12-51, and he after completing the investigation submitted charge-sheet against these appellants and others on 4-2-52.
3. The case of the prosecution as disclosed in the fard-beyan of Dukhni, P. W. 1, is that she was married to Ramchander Soori of Sitamarhi four years ago. 27 or 28 days before the date of the first information report, at about 8 a.m., she had gone from her house to take her bath in river Lakhnidei with a Sari and a Iota. There she met Sarbasia accused, the mother of Sunma, who, was a resident of Mahalla Puranibazar. Sarbasia advised Dukhni that she should marry somebody else, because she was often beaten by her Sasural people.
Dukhni at first did not agree, but after much persuasion and temptation she agreed to go to the house of her Nandosi at Muzaffarpur for a short time. Dukhni was brought by Sarbasia to Sitamarhi railway station and then by train to Muzaffarpur, where she was taken to the house of Shamsher accused. In the evening, after dark, Dukhni was taken by Shamsher and his wife to the Bhartiya Anath Ashram, from where she was recovered.
It is alleged by Dukhni that Shamsher, Lallu, Deonandan alias Muniji, Pitaji, namely, Ram-gulam Verma, Didi Rajmangal, besides others were keeping wrongfully confined many other girls in the Ashram and Dukhni named some of those girls in her first information. Dukhni further stated that she wanted to go to her Nandosi, Ajodhya Sha, but she was not allowed to go by the aforesaid accused persons, and was always kept confined in the Ashram, and the accused Bhikhari and Bengali, the servants of the Ashram, were keeping watch over her and the other girls.
It is further alleged that the aforesaid accused persons used to threaten the girls with assault if they wanted to make any trouble and consequently they always kept quiet. It is said that these appellants and accused Dr. Satnarain and Nandkumar who were also working in the Ashram and who have since been acquitted, use to keep concealed and confined the abducted and kidnapped girls, who use to be brought in the Ashram The names of some of these girls were changed in the Ashram and during her stay in the Ashram six girls were sold on the pretext of their marriage. It is further said that the aforesaid accused persons used to keep agents for abducting and kidnapping girls and bringing them to the Ashram.
The prosecution case was that there was a conspiracy amongst the appellants and the other accused persons, who have been acquitted, and in pursuance of that conspiracy young girls used to be abducted and kidnapped and brought to the Ashram for being sold on taking large sums of money. The police after recovering the abducted girls from the Ashram kept them in the Ashram of Kuber Singh that very town, after recording their statements.
4. The appellants pleaded not guilty to the charges framed against them, and stated that they had been falsely implicated at the instance of Kuber Singh out of enmity, because he was also running a similar Ashram. The appellants' further defence was that their joint trial with Ramautar, who had been charged only under Section 365, Penal Code, and not also for conspiracy under Section 120B, has vitiated the whole trial, as such joint trial is illegal and this defect is incurable.
5. As stated before, 29 abducted or kidnapped girls were recovered from the Ashram, of whom 9, viz., P. Ws. 1, 11, 14, 20, 21, 22, 29, 30 & 39 were examined and some were tendered. The learned Sessions Judge found P. Ws. 1, 11, 14, 21 and 39 as having been abducted and P. W. 29 as kidnapped, and further found that P. Ws. 20, 22 and 30 were not abducted girls. The trial was held with the aid of four assessors.
All of them unanimously found the appellants 1, 2, 4 and 5 guilty and the appellants 3 and 6 to 10 not guilty under all the charges against them. Ninety-two witnesses were examined, and out of them 32 were tendered. The learned Assistant Sessions Judge, in a very careful and well-considered judgment, has, after consideration of the entire evidence, both oral and documentary, convicted the appellants, and acquitted others as stated before.
6. Mr. B. P. Samaiyar, who has appeared for the appellants, has challenged the legality of the trial itself on the ground of misjoinder of charges. The substance of his argument is that while Ramautar was charged only under Section 336, Penal Code, all others, including the appellants, were charged under Section 120B, Penal Code, and, therefore, it is contended that a Joint trial of all these persons for the two offences charged is illegal, and, consequently, the trial is vitiated.
He contends that the charge against Ramautar Nonia under Section 366, Penal Code, was for abducting Mossammat Monia, P. W. 10, wife of Siri Mahto, P. W. 8, of Sitamarhi from her father's house at Bargenia to one Bihar Shadi Karyalaya, Muzaffarpur, as appears from Ex. A, the receipt granted by Siri Mahto (alias Shiva Nonia), P. W. 8, the husband, to the Manager, Bihar Shadi Karyalaya, at the time of taking away his wife, Mania, also known as Phulkumari.
He contends, therefore, that, as the Bihar Shadi Karyalaya, Muzaffarpur, has had nothing to do with the Bhartiya Anath Ashram of the accused, the offences committed in respect of P. W. 10 and P. W. 1 and others, who were recovered from the Bhartiya Anath Ashram, are two distinct offences in respect of two distinct transactions relating to places and time, and as such they could not be said to have been committed in course of one and the same transaction so as to be covered by Section 239(a), Criminal P. C., and tried together, and, therefore, the joint trial was wholly illegal.
He relies on Section 233, Criminal P. C. and submits that, as this section provides for every distinct offence, of which any person is accused, there shall be a separate charge and every such charge shall be tried separately; therefore, there should have been separate trials in respect of the two charges, inasmuch as the present case was not covered by any of the exceptions contained in Sections 234, 235, 236 and 239, Criminal P. C. Mr. Shyam Nandan Prasad Singh, the learned Standing Counsel appearing for the State, however, relies on Section 239 (a), Criminal P. C., and contends that joint trial is covered by this section, inasmuch as the offence under Section 366, Penal Code, for which Ramautar Nonia was charged, was in the course of the 'same transaction' in which the other offences took place and for which the other accused were charged under Sections 120B and 368, Penal Code. We have, therefore, to see if the present case is covered By Section 239(a), Criminal P. C. (7) Mr. Samaiyar has argued that, if mis-joinder of charges is established, the trial must be deemed illegal, because held contrary to an express provisions of the law relating to the mode of a trial, and, therefore, such a defect will not be a mere irregularity so as to be curable under Section 537(a), Criminal P. C. In support of this, he has relied on Subramania Iyer v. King-Emperor, 28 Ind App 257 (A), where their Lordships of the Judicial Committee observed : "Their Lordships are unable to regard the disobedience to an express provision as to a mode of trial as a mere irregularity. Their Lordships in that case were considering whether there had been contravention of Section 234, Criminal P. C. The next case relied upon in this connection is Kottaya v. Emperor, 1947 PC 67 (AIR V 34) (B), In this case Sir John Beaumont while considering the effect of the breach of Section 162, Criminal P. C., observed as follows :
"When a trial is conducted in a manner different from that prescribed by the Code (as in 28 Ind App 257 (A)) the trial is bad, and no question of curing an irregularity arises; but if the trial is conducted substantially in the manner prescribed by the Code, but some irregularity occurs in the course of such conduct, the irregularity can be cured under Section 537, and none the less so because the irregularity involves, as must nearly always be the case, a breach of one or more of the very comprehensive provisions of the Code.
The distinction drawn in many of the cases in India between an illegality and an irregularity is one of degree rather than of kind. This view finds support in the decision of their Lordships' Board in the case of Abdul Rahman v. Emperor, 1927 PC 44 (AIR V 14) (Bl), where failure to comply with Section 360, Criminal P. C., was held to be cured by Sections 535 and 537. The present case falls under Section 637, and their Lordships hold the trial valid notwithstanding the breach of Section 162."
The next case relied upon is Nabijan v. Emperor, 1947 Pat 212 (AIR V 34) (C), in which Meredith J, which considering the effect of mis joinder of charges, or as his Lordship says, misjoinder of offences in the same trial, relied upon Subrahmania Iyer's case (A), referred to above, and said :
"Lord Halsbury having clearly said that disobedience to the provisions of Section 233 (of course read subject to its exceptions) cannot be cured under Section 537, it is, in my opinion, not open to any Court in this country, unless and until the Privy Council itself gives a decision to the contrary, to hold that such a disobedience is so curable. I respectfully disagree with those decisions in which misjoinder of offences in the same trial has been held so curable."
Very recently their Lordships of the Supreme Court in the case of Aftab Ahmad Khan v. The State of Hyderabad, 1954 SC 433 (AIR V 41) (D), had to consider the effect of misjoinder of charges and the effect of the contravention of the mandatory provisions of Section 233, Criminal P. C. In considering this question his Lordship Ghulam Hasan J. who delivered the judgment of the Court, while considering the contention of the learned counsel for the appellant that where there is disobedience of an express provision as to a mode of trial contained in Section 233 the trial is wholly vitiated and the accused is not bound to show that the misjoinder has caused any prejudice to him, referred to four decisions of the Privy Council, namely, 28 Ind App 257 (A), Abdul Rahman v. Emperor, 1927 PC 44 (AIR V 14) (E), Babulal Chaukhani v. King-Emperor, 1938 PC 130 (AIR V 25) (F) and 1947 PC 67 (AIR V 34) (B) and observed that the Privy Council in Babulal Chaukhani's case (S), referred to above, treated an infringement of Section 239(d) as an illegality vitiating the trial under the rule stated in Subramania lyer's case (A), as contrasted with the result of irregularity as Jaid in Abdul Rahman's case (13).
But his Lordship said that as the case before him was not under Section 233 of the Code, therefore, it was unnecessary to consider whether the violation of its provisions amount to an illegality vitiating the trial altogether, or it is a mere irregularity which can be condoned under Section 537.
8. I, therefore, held that disobedience to the provisions of Section 233, Criminal P. C., cannot be cured under Section 537, and that misjoinder of offences is an illegality which vitiates the whole trial, unless the same can be brought under the purview of some clause of Section 239, Criminal P. C.
9. The real question in controversy, therefore, is whether there has been misjoinder of charges in the case before us. It has been contended by Mr. Samaiyar that Section 239(a) does not apply to the present case inasmuch as, although the offence committed by Ramautar Nonia and the present accused may be the same, but certainly it was not committed in the course of the same transaction.
Several authorities have been cited by him in order to explain what is the meaning of the words "the same transaction", which are to be found in Section 239 (a), Criminal P. C. The words the same transaction" are also to be found in Section 239(d), Criminal P. C., and, therefore, the decisions on Section 239 (d) may be of great use in considering what is the meaning of the words "the same transaction" which have been used in Section 239(a) also.
The first case relied upon by him is Amritalal Hazra v. Emperor, 1916 Cal 188 (AIR V 3) (G) in which Mookerjee J. referred to several judicial decisions in which the expression "the same transaction" had been interpreted, and said :
"It is not possible to frame a comprehensive formula of universal application to determine whether two or more acts constitute the same transaction; but circumstances which must bear on the determination of the question in an individual case may be easily indicated; they are, 'proximity of time, unity or proximity of place, continuity of action, and community of purpose or design'" (underlined (here in ' ' -- Editor) by me.
10. In this case his Lordship was considering Section 239(d), Criminal P. C. The next case relied upon is Harshnath Chatterjee v. Emperor, 1915 Cal 719 (AIR V 2) (H) in which while considering the scope of Section 239, Criminal P. C., Beachcroft J. said as follows :
"The argument was that the possession of firearms is a totally distinct offence from the offence of conspiracy to manufacture arms, and as the offence of conspiracy Is complete so soon as the persons conspiring have formed a common intention, the two offences cannot be said to have been committed In the same transaction. The fallacy in this argument is that it assumes that the transaction is complete as soon as an offence is committed, in other words, that the term transaction is synonymous with the term 'offence'. It is clear that so long as the conspiracy continued, the transaction, which began with the forming of the common intention, continued, and the first two offences charged were committed in the course of this transaction".
In Babulal Chaukhani (F), referred to above, their Lordships of the Judicial Committee considered the provisions of Section 239(d), Criminal P. C. and Lord Wright, in delivering the judgment of the Board, observed :
"Whatever scope of connotation may be included in the words 'the same transaction' it is enough for the present case to say that if several persons conspire to commit offences, and commit overt acts in pursuance of the conspiracy (a circumstance which makes the act of one the act of each and all the conspirators) these acts are committed in the course of the same transaction, which embraces the conspiracy and the acts done under it. The common concert and agreement which constitute the conspiracy, serve to unify the acts done in pursuance of it".
His Lordship held that the relevant point of time in the proceedings at which the condition as to sameness of transaction must be fulfilled is the time of accusation and not that of eventual result. Two Patna cases have also been cited at the Bar. The first case is Ajablal v. Emperor, 1936 Pat 20 (AIR V 23) (I), in which the words "the same transaction" have been construed and an attempt has been made to find out what should be considered the "same transaction". In this case Verma J. observed as follows :
"The expression 'same transaction' has not been defined in the Criminal Procedure Code, and it is perhaps not desirable to attempt to frame any precise definition and not safe to lay down any single test of what 'one transaction' means".
His Lordship referred to Queen-Empress v. Fakirappa, 15 Bom 491 (J), in which it was pointed out that proximity of time and place was not essential. His Lordship also referred to the case of Emperor v. Datto Hanmant, 30 Bom 49 (K), in which the above observations were applied, and in which it was said that continuity of purpose rather than proximity of time, was the real test.
His Lordship observed that in some later decisions the observations made in Emperor v. Datto Hanmant (K) have been read as implying that identity of purpose was the sole test, and that in the absence of complete identity of purpose among the parties to an incident it will not be deemed to be one transaction. His Lordship summed up his observation as follows :
"It seems to me that any of the matters set forth in 15 Bom 491 (J) may in the circumstances of a particular case -- the events under consideration -- form one transaction; and all these matters are properly to be considered in deciding whether it is so or not. It is after all a question of fact in each particular case".
In this case his Lordship, with whom Rowland J. agreed, held that the various acts of the accused which brought about his escape from lawful custody of the petitioner Ajablal Rai formed part of the same transaction as contemplated by Section 239 (d), Criminal P. C., and, therefore, the joint trial of all the accused was legal. The second case relied upon is the case of Nabijah v. Emperor (C), already referred to, in which Bennett, J. referred to Babulal Chaukhani (F) and to several other cases on the point and summed up as follows :
"To sum up, therefore, both upon the plain and ordinary meaning of the words used respectively in Sections 235(1) and 239(d), Criminal P. C., and upon consideration of the relevant authorities, the word 'the same transaction' in Section 235(1), Criminal P. C., comprise all the acts of the person concerned which are done in one series in the course of carrying through the affair in question, or which are in direct and immediately casual or circumstantial relation thereto, and the prima' facie test, as the words 'in one series of acts so connected as to form' indicate, where the connection between the acts is that of purpose, is a certain degree of continuity of action, the degree varying with the nature of the purpose and the circumstances of the acts of all the persons concerned done in the acts is causal or circumstantial, is a direct continuity of action; whereas in Section 239(d), Criminal P. C., the words 'the same transaction' comprise all the acts of all the persons concerned done in the course of carrying through the affair in question, and the prima facie test, as the words 'in the course of indicate, is community and continuity of purpose".
Meredith J. in the above case, however, reserved his opinion as to what are the essentials of Section 239(d), Criminal P. C. He observed:
"The two incidents were, in my opinion, so connected, both by community and continuity of purpose, and community and continuity of action, as to form part of the same transaction both within the meaning of Sections 235 and 239, Criminal P. C. That being so, it is unnecessary for the purpose of this case to decide whether the difference in the wording of the two sections is really significant, whether in short, continuity of action is enough for Section 235(1) without continuity of purpose, and whether community and continuity of purpose is enough for Section 239 (d) without continuity of action. Therefore, I will content myself with saying that, as at present advised, I am inclined to agree with the view of my learned brother as to the exact significance of each form of expression and the distinction between them but until I have to, I do not want to express a final view".
Their Lordships of the Supreme Court in Aftab Ahmad Khan (D), referred to above, considered the provisions of Sections 233 and 235, Criminal P. C. His Lordship Ghulam Hasan J. who delivered the Judgment of the Court, observed as follows:
"Section 233 embodies the general law as to the joinder of charges and lays down a rule that for every distinct offence there should be a separate charge and every such charge should be tried separately. There is no doubt that the object of Section 233 is to save the accused from being embarrassed in his defence if distinct offences are lumped together in one charge or in separate charges and are tried together, taut the Legislature has engrafted certain exceptions upon this rule contained in Sections 234, 236 and 239".
His Lordship held that no question of contravention of any express provision of the Act, such as Section 233, arose, because the fact that the offence of extortion was committed at a different place and at a different time it does not any the less make the act as one committed in the course of the same transaction. The above cases as well as some other cases were all reviewed recently by a Division Bench of this Court in State of Bihar v. Ramautar Singh, reported in 1956 Pat 10 ( (S) AIR V 43) (L).
Sahai J. who gave the main judgment of the Court, held that there was sufficient community of purpose, continuity of action, and proximity of time so as to constitute the entire series of facts committed by the appellant before him into one transaction.
10a. On a review of the above cases, I hold that the words 'the same transaction' comprise all the acts of all the persons concerned done in the course of carrying through the affair in question, and that the prima facie test, as the words 'in the course of indicate, is community and continuity of purpose. If several persons conspire to commit offences, and commit overt acts in pursuance of the conspiracy (a circumstance which makes the act of one the act of each and all the conspirators) these acts are committed in the course of the same transaction, which embraces the conspiracy and the acts done under it.
The common concert and agreement which constitute the conspiracy, serve to unify the acts done in pursuance of it. There may, or may not, be proximity of time, unity or proximity of place, or continuity of action, in all cases; but if there is both community and continuity of purpose or design, all the acts of all the persons concerned done in the course of carrying through the conspiracy or any other offence, will be considered acts done in the course of one and the same transaction. The words 'the same transaction' used in Section 239 (a), Criminal P. C., should therefore, have this meaning.
11. Applying these considerations to the facts of the present case, the joint trial of the appellants on the charge under Section 120B, Penal Code, with Ramautar Nonia in respect of the offence under Section 363, Penal Code, falls to be justified, if at all, under Section 239(a), Criminal P. C. by the existence of a community and continuity of purpose.
11a. I shall now proceed, therefore, to consider how far the facts of the present case justify the joint trial of the appellants. It will appear from the charge under Section 120B, Penal Code, that the period of conspiracy is between 1-1-51 and 4-10-51. From the charge under Section 366, Penal Code, against Ramautar it will appear that the period is between 1/5/51 and 30/6/51, during which it was alleged Ramautar abducted Mania P. W. 10.
The charge-sheet was submitted on 4/2/52 for conspiracy against all the appellants including Ramautar. It would appear, therefore, that Mania was abducted by Ramautar during the period within which the conspiracy is alleged by the prosecution to have been hatched and set on foot, and in pursuance of which several girls and women were either kidnapped or abducted and brought to a building known as Lallu's Ashram or Bhartiya Anath Ashram.
P. W. 10, Mania, in her evidence has stated that she was brought by Ramautar and Jankia Mallain to Muzaffarpur, who took her to a pucca house, where there was one male, two females and some girls, and she further stated that subsequently she came to know that the name of that male was Shamsher, one of the appellants. It has been mentioned before that during the search by the police many documents were recovered from the Bhartiya Anath Ashram run by Lallu and Shamsher.
Amongst such documents were some letters, Exts. 20 series. One of such letters was dated 10-8-51, Ex. 20/E. This letter is from Bhartiya Anath Ashram in the handwriting of Dayanand, one of the appellants. This letter was proved by P. W. 88. In this letter it has been mentioned that the name of the Ashram had been changed into Bhartiya Anath Ashram. This Ashram was in the house of Shamsher as stated by P. Ws. & 10 and 78.
The fact that the name of Ramautar accused did not find mention in the Uchant Bahi, Ex. 26, which will be considered in detail hereafter, is of no importance when it has been established that the Ashram known as Bihar Shadi Karyalay was being run by Shamsher and Laloo in the house belonging to Shamsher. It also shows that Laloo was treating the Ashram as a place of business in which girls of all kinds and ages were practically open for sale.
It would appear that the Bihar Shadi Karyalay, Muzaffarpur, as well as Bhartiya Anath Ashram, were both run by Laloo and Shamsher under different names. It was, therefore, in pursuance of the conspiracy that whatever happened during the period of that conspiracy namely, 1-1-51 to 4-10-51, v/as done in accordance with community and continuity of purpose, and as such it cannot be said that the charge under Section 366 against Ramautar was outside the ambit of this conspiracy unconnected with the present appellants.
The contention of Mr. Samaiyar that as the charge under Section 366 against Ramautar is in respect of abduction of Mania from Bihar Shadi Karyalay, which is another Ashram unconnected with the present Bhartiya Anath Ashram, must, therefore, fail. This Ramautar In furtherance of the objective of the conspiracy had also brought an abducted girl to the said Ashram to keep her in concealment. All the acts complained of, said to be committed by all the accused including Ramautar, were in pursuance of a common design and in all of them there was community and continuity of purpose.
In the present case, there was not only community and continuity of purpose, but also continuity of action arid proximity of time so as to constitute the entire series of acts committed by the appellants, & the other accused, including Ramautar, into one & the same transaction within the meaning of Section 239(a), Criminal P. C. I, therefore, hold that the joint trial is perfectly valid, and is covered by Section 239(a), Criminal P. C.
12. On the merits of the case, Mr. Samaiyar's contentions may be summarised thus : (1) the Ashram run by Shamsher and Laloo was a bona fide Ashram and whatever was done by the appellants was done bona fide; (2) no conspiracy had been established amongst, the appellants and as such the charge under Section 120B, Penal Code, must fail; (3) the evidence of P. Ws. 11, 14, 21, 29 and 39 besides being unreliable was also inadmissible in evidence; (4) the charge under Sections 336 and 368, Penal Code, against the appellants must also fail, because it had not been established by the prosecution that the kidnapped and abducted girls and women were wrongfully confined, or as a matter of fact kept confined at all; and (5) the appellants had been falsely implicated at the instance of Kuber Singh, who was on inimical terms with Shamsher.
13. As regards the first contention that the Ashram was run on bona fide lines and in ordinary course of business Mr. Samaiyar has relied strongly on the fact that the Ashram people always tried to contact the parents, or other guardians of the girls, who used to be brought to the Ashram through the police, and made enquiries from the police, if and when necessary, in order to know the whereabouts of such abducted or kidnapped girls.
(After discussing the evidence, his Lordship rejected the contention of Mr. Samaiyar, that the Ashram was run in bona fide lines.)
14. The second contention of Mr. Samaiyar is that no conspiracy had been established amongst the appellants and as such the charge under Section 120B, Penal Code, must fail. I may at once say that the oral and documentary evidence adduced in the present case and which has been mentioned and fully discussed by the learned Assistant Sessions Judge leave no room for doubt that the conspiracy was hatched and completely and effectively carried out.
Exhibit 21/a, a reference to which has already been made, shows the object of the formation of the so-called Bhartiya Anath Ashram and also how the first object was given a go-by and this Ashram was converted into a place for keeping kidnapped and abducted girls. In conspiracy persons are often required to do various acts at various stages; and if some of them, for the first time, enter into the conspiracy at a later stage they 'would be deemed to be members of the conspiracy, provided their act is calculated to promote the act of the conspiracy.
Exhibit 21/a also makes it clear that the accused persons who are named in those proceedings became members of the institution only to carry out their odious design of collecting abducted arid kidnapped girls, married and unmarried, and then marrying them after, taking heavy amount from the candidates for the marriage. It appears farther from the evidence of P. Ws. 14, 20, 29 and 30 that they indulged in illicit intercourse too under the camouflage of a seemingly pious institution. Such kind of conspiracy can only be proved by circumstantial evidence.
In the present case there is no dearth of such evidence to prove that a conspiracy had been hatched by the appellants. In the overt acts, as have been proved in this case, there is a clear inference of agreement and acknowledgment of the purpose of the conspiracy. Exhibit 26, to which a reference has already been maae, proves how the abducted and kidnapped girls, who have been examined in the present case, particularly, P. Ws. 1, 11, 14, 21, 29 and 39, were abducted or kidnapped and brought to the Ashram and kept confined there and later on sold at high prices.
15. At this stage I may mention that Ex. 26, the genuineness of which was challenged and has been dealt with by me earlier, was also challenged on the ground that it was inadmissible in evidence. The contention was that Section 10, Evidence Act does not apply to the present case, because unless a conspiracy was proved the entries in Ex. 26, and the facts mentioned therein, will be inadmissible in evidence.
It should be remembered that Ex. 26 represents the acts of the accused in the course of actually carrying out the conspiracy and not after it was ended, and as such Ex. 26 could be admissible in evidence under Section 10, Evidence Act. A reliance was placed on Reg. v. Blake, (1844) 6 QB 126 (M), and on the case of Mirza Akbar v. King-Emperor, 1940 PC 176 (AIR V 27) (N). The leading case in (1844) 5 QB 126 (M) illustrates the two aspects of it because that authority shows both what is admissible and what is inadmissible. In referring to this case their Lordships of the Judicial Committee in Mirza Akbar (N) observed as follows:
"What in that case was held to be admissible against the conspirator was the evidence of entries made by his fellow conspirator contained in various documents actually used for carrying out the fraud. But a document not created in the course of carrying out the transaction, but made by one of the conspirators after the fraud was completed, was held to be inadmissible against the other.
No doubt what was contained in it amounted to a statement evidencing what had been done and also the common intent with which at the time it had been done, but it had nothing to do with carrying the conspiracy into effect. Lord Denman said at p. 138 that the evidence must be rejected on the principle that a mere statement made by one conspirator to a third party, or any act not done in pursuance of the conspiracy, is not evidence for or against another conspirator."
Their Lordships after a consideration of the matter construed Section 10, Evidence Act by observing as follows:
"Their Lordships think the words of Section 10 must be construed in accordance with it and are not capable of being widely construed so as to include a statement made by one conspirator in the absence of the other with reference to past acts done in the actual course of carrying out the conspiracy after it has been completed. The common intention is in the past. In their Lordships' judgment the words 'common intention' signify a common intention existing at the time when the thing was said, done or written by one of them.
Things said, done or written while the conspiracy was on foot are relevant as evidence of the common intention, once reasonable ground has been shown to believe in its existence. But it would be a very different matter to hold that any narrative or statement or confession made to a third party after the common intention or conspiracy was no longer operating and has ceased to exist is admissible against the other party. There is then no common intention of the conspirators to which the statement can have reference. In their Lordships' judgment Section 10 embodies this principle."
16. Their Lordships approved the construction which had been applied to Section 10 in some Indian decisions and said that in these cases the distinction was rightly drawn between, communications between conspirators while the conspiracy was going on with reference to the carrying out of conspiracy and statements made, after arrest or after the conspiracy has ended, by way of description of events then past. In the present case Ex. 26 came into existence after the conspiracy had started and whatever has been mentioned therein has been made by fellow conspirators in the course of carrying out the transaction and not after the conspiracy had ended.
17. Section 10, Evidence Act deals with 'things said or done by conspirator in reference to common design'. Anything said, done or written by any of the conspirators in the course of carrying out the conspiracy or the common intention or design in pursuance of it would be admissible against the other; but if anything is said, done or written by any fellow conspirator after the conspiracy was no longer operating and had ended on ceased to exist, it will be inadmissible against the other, because there is then no common intention or design of the conspirators to which the things said, done or written by a fellow conspirator can have any reference, and it had nothing to do with carrying the conspiracy into effect. I, therefore, hold that Ex. 26, on the principles laid down above, is admissible in evidence.
18. The evidence of the witnesses who have been examined on behalf of the prosecution to prove how, when and on what conditions and to whom they were married go to establish that the girls were given to them after taking a heavy price although a small amount was mentioned in the documents of the Ashram.
It may be mentioned here that the rokar bahi of the Ashram was not exhibited. P. W. 62 has stated that he married in Lallu's Ashram; Lallu demanded Rs. 925 from him and at that time Lallu's brother, Shamsher, Muniji and Rajendra Jha were present; he paid Rs. 925/- in the hand of Lallu but he got a receipt of Rs. 125/- only and he was asked that in the event of an enquiry he should say that he paid Rs. 125/- only and not more, and after that he was married to Lakshmi Devi. Many more witnesses on the point have been examined, for instance, P. W. 86 Saksena married to Rajmangali, one of the accused; P. W. 47 married to Rajkali.
It may be mentioned here that evidence has been adduced to show that the activities of the Ashram were not confined only in the Bihar State, but also outside it. P. W. 56, who is a resident of the district of Barailey in U. P. has stated how handbills used to be distributed by a Shadi Karyalaya which was situated in the Punjabi hotel near Barailey railway junction station and how on getting such a handbill he was asked by his father to enquire about the marriage in the Karyalaya itself. He stated that he came with P. W. 57 to Samaj Shadi Karyalaya, Barailey, where he met Bholanath Singh, one of the accused since acquitted, and he was given a marriage form which he filled up on payment of Rs. 7/, and thereafter he was told that they should come after getting a letter from him.
When they got a letter from Bholanath he took Rs. 150/- from P. W. 56 for expenses and then P. Ws. 6 and 7 and Bholanath came to Muzaffarpur and there appellant Shamsher demanded Rs. 370/- as the price of the girl approved by him. Shamsher and Bholanath then asked P. W. 56 to pay Rs. 870/- which was done and then he was married. There is, "therefore, convincing and reliable evidence on the record to prove that a regular conspiracy was formed and it was effectively given effect to. I, therefore overrule the contention of the appellants that conspiracy has not been proved.
19. The third contention of Mr. Samaiyar is that the depositions of P. Ws. 11, 14, 21, 29 and 39 are unreliable and inadmissible and their evidence should be ignored.
20. The first ground on which Mr. Samaiyar says, the evidence of these girls and women should be rejected is that no information regarding these girls or women was ever lodged either by them or their relations before the police, nor any relation of theirs has been examined to support their story of abduction or kidnapping, and, that except in the case of Dukhni, P. W. 1, the abductors of these girls are not accused.
When their evidence has been corroborated by other independent witnesses and reliable documents, as discussed hereafter, there is no reason on this score to reject their evidence. Besides this it is a matter of common knowledge that in such cases guardians or parents do not generally lodge any information to save themselves from disgrace and notoriety, and, therefore, on that account their evidence cannot be rejected.
21. The second objection, which has been very strongly urged by Mr. Samaiyar, is that these girls, namely, P. Ws. 1, 11, 14, 21, 29 and 39, are all accomplices, and, therefore, it was not safe to convict the accused on their testimony, unless there was corroboration in some material particular of their testimony affecting the accused. He relies on the observation of Lord Reading C.J., in the leading case of King v. Baskerville, reported in 1916-2 KB 658 (O):
"The corroboration must be some evidence other than that of an accomplice, and, therefore, one accomplice's evidence is hot corroboration of the testimony of another accomplice".
He relies also on Sachinder Rai v. Emperor, 1939 Pat 536 (AIR V 26) (P) for the proposition that it is extremely dangerous, and permissible only in exceptional cases, to convict a man of a sexual offence on the uncorroborated testimony of the complainant; and that the corroboration must be by independent evidence coming from another person altogether. In this case the accused had been convicted under Sections 366 and 166-A, Penal Code, upon the evidence of the victim alone.
Harries O. J. agreed with Meredith J. and observed that this case belonged to that class of cases, commonly referred to as sexual cases; and in such cases it is essential that the learned Judge should specially warn the jury of the danger of convicting upon the uncorroborated testimony of the woman concerned. His Lordship further said :
"It is true that there is no rule of law in this country requiring corroboration, but experience has shown both in England and in India that it is extremely dangerous in this class of case to act solely upon the woman's evidence. The rule is a rule of practice, but it has been followed for, such a length of time that it has virtually become a rule of law".
Meredith J. referred to the Calcutta decisions in Emperor v. Nur Ahmad, 1934 Cal 7 (AIR, V 21) (Q) and in Chamuddin Sardar v. Emperor, 1936 Cal 18 (AIR V 23) (R), and held that failure to warn the jury of the danger of convicting the accused on the girl's evidence ajone amounts to a non-direction, which vitiates the trial. Mr. Samaiyar then relied on Baldeo v. Emperor, 1946 Pat 426 (AIR V 33) (S) in which the above decisions, and some other decisions also such as. Rex v. Job Whitehead, (1928) 21 Cr. App Rep 23 (T) and Abdul Gafur Kotwal v. Emperor, 1938 Cal 658 (AIR V 25) (U), were considered; and Das J. with whom Pande J. agreed, held that the failure of the Judge, to give the jury the usual caution that in cases of this nature (in this case the accused had been convicted under Section 376, I. P. C.) it is unsafe to rely on the uncorroborated testimony of the prosecutrix, amounts to non-direction, and to treat the statements of the prosecutrix, herself to other witnesses as corroborative evidence in such cases is a misdirection, which vitiates the charge to the jury. Mr. Samaiyar also relies on the decision of their Lordships of the Judicial Committee in Bhuboni Sahu v. The King, 1949 PC 257 (AIR V 36) (V) in which the law in India relating to accomplice evidence was considered, and Sir John Beaumont, in delivering the judgment of the Board, said :
The law in India relating to the evidence of, accomplices stands thus: Even before the passing of the Indian Evidence Act, 1872, it had been held by a Full Bench of the High Court of Calcutta in Queen v. Elahee Buksh, 5 Suth WR Cr 80 (W), that the law relating to accomplices evidence was the same in India as in England. Then came the Indian Evidence Act, which by Section 133 enacts that 'An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice'.
Illustration (B) to Section 114, Evidence Act, however, provides that "The Court may presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars". Reading these two enactments together, the Courts In India have held that whilst it is not illegal to act upon the uncorroborated evidence of an accomplice it is a rule of prudence so universally followed as to amount almost to a rule of law that it is unsafe to act upon the evidence of an accomplice unless it is corroborated in material respects so as to implicate the accused; and further, that the evidence of one accomplice cannot be used to corroborate the evidence of another accomplice.
The law in India, therefore, is substantially the same on the subject as the law in England, though the rule of prudence may be said to be based upon the interpretation placed by the Courts on the phrase corroborated in material particulars in Illus. B to Section 114".
In my opinion the law regarding accomplice evidence, and the nature and extent of corroboration which is necessary in such a case has now been firmly established by their Lordships of the Supreme Court in Rameshwar v. The State of Rajasthan, 1952 SC 54 (AIR V 39) (X). In this case the conviction was based on the evidence of fee-victim and her mother alone.
After considering all the decisions on the point
-- English and Indian -- Bose J-, with whom Fazl Ali J. agreed, observed that though a woman, who has been raped, is not an accomplice, but in all these cases a large volume of case law has grown up which treats the evidence of the complainant somewhat along the same lines as accomplice evidence though often for widely differing reasons & the position now reached is that the rule about corroboration has hardened into one of law. His Lordship then observed that "it is important to understand exactly what the rule is, and what the expression 'hardened into a rule of law' means". His Lordship then said :
"In my judgment, this branch of the law is the same as in England, and I am of opinion that the lucid exposition of it given by Lord Reading, the Lord Chief Justice of England, in The King v. Baskerville (O) (referred to above) cannot be bettered".
22. The law regarding accomplice evidence, and the nature and extent of corroboration necessary, therefore, can be re-stated thus:
23. The Evidence Act nowhere requires that in class of cases, commonly referred to as sexual, cases, there should be corroboration of the testimony of an accomplice. Although it says in Section 114 (b) that the Court may presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars, it makes it clear in Section 133 that an accomplice shall be a competent witness against the accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. There is no doubt, therefore, that the uncorroborated evidence of an accomplice is admissible in evidence.
But it has long been a rule of practice at Common Law, which has become virtually equivalent to a rule of law, and which is exactly the law in India, so far as accomplices are concerned, and it is certainly not any higher in the case of sexual offences, that the Judge should warn the jury of the danger of convicting a prisoner on the uncorroborated testimony of an accomplice or accomplices, and it lies in the discretion of the Judge, to advise them not to convict upon such evidence; but the Judge should point out to the jury that it is within their legal province to convict upon such unconfirmed evidence. If after this proper caution by the Judge, the jury nevertheless convict the prisoner, his conviction "will not be quashed, merely upon the ground that the accomplice's testimony was uncorroborated. The only clarification necessary in India is where this class of offence is sometimes tried by a Judge without the aid of a jury. The true rule in every case of this type is that the rule about the advisability of corroboration should be present to the mind of the Judge. In such cases it is necessary that the Judge should give some indication in his judgment that he had this rule of caution in mind, and should proceed to give reasons for considering it unnecessary to require corroboration on the facts of the particular case before him and show why he considers it safe to convict without corroboration in that particular case. It is wrong for a Judge to think that he could not, as a matter of law, convict without corroboration.
The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the Judge, and in jury cases, must find place in the charge, before a conviction without corroboration can be sustained.
24. The nature and the extent of the corroboration that is required when it is not considered safe to dispense with it, must necessarily vary with the circumstances of each case, and also according to the particular circumstances of the offence charged.
It is however clear (i) that it is not necessary that there should be independent confirmation of every material circumstance in the sense that the independent evidence in the case, apart from the testimony of the complainant or accomplice, should itself be sufficient to sustain conviction; all that is required is that there must be "some additional evidence rendering it probable that the story of the accomplice (or the complainant) is true and that it is reasonably safe to act upon it", (ii) The independent evidence must not only make it safe to believe that the crime was committed, taut must in some way reasonably connect the accused with it; (iii) the corroboration must come from independent sources and thus ordinarily the testimony of one accomplice would not be sufficient to corroborate that of another accomplice; (iv) the corroboration need not be direct evidence that the accused committed the crime; it is sufficient if it is merely circumstantial evidence of his connection with the crime.
25. 'Independent' merely means independent of sources which are likely to be tainted.
26. Applying the above rule of law to the present case, we find that in this case there is no question of the convictions having been based on uncorroborated testimony of the girls. The evidence of these girls, namely, P. Ws. 1, 11, 14, 21, 29 and 39, has been corroborated in all material particulars by independent evidence of unimpeachable character, namely, Uchant Bahi, Ex. 26, which, as I have stated before, was maintained by the Ashram itself and which was recovered from the possession of the Ashram.
I have already given reasons why I consider this Uchant Bahi, Ex. 26, as genuine and most reliable. The other documents, such &s Proceeding Book, 'letters and the like, which have been mentioned before, also corroborate fully the evidence of these girls. Independent witnesses, as already discussed, have also been examined whose evidence amply and fully corroborate the evidence of these girls.
There is ample and definite indication in the judgment of the learned Assistant Sessions Judge that he had this rule of caution regarding the necessity of corroboration in mind, because he considered 'Sachinder Rai v. Emperor', (P) referred to above, relied upon on behalf of the accused. He has discussed the evidence of each of these girls, namely, P. Ws. 1, 11, 14, 21, 29 and. 39, and shewn how the version of abduction or kidnapping of each of these is corroborated by circumstantial evidence, oral testimonies of independent witnesses and documents, some of which have been mentioned above, which were recovered from the Bhartiya Anath Ashram itself, particularly by Ex. 26, wherein these girls are mentioned in the khata of their agents, except in the case of Dukhni who is mentioned in Ex. 26 in the khata of Reshmi, I, therefore,' reject the contention of the appellants that the evidence of P. Ws. 1, 11, 14, 21, 29 and 39 should be rejected as it is uncorroborated or not corroborated by independent evidence.
27. The third ground of attack is that the evidence of these girls is inadmissible, because they speak of previous acts of several accused, which are unconnected with the present indictment. I think there is no substance in this contention. The case of 'R v. George Joseph Smith', (1915) 11 Cr. App. Pep 229 (Y), relied upon by Mr. Samaiyar, does not, in my opinion, support him. Section 15, Evidence Act runs thus :
"When there is a question whether an act was accidental or intentional, or done with a particular knowledge or intention, the fact that such act formed part of a series of 'similar occurrences, in each of which the person doing the act was concerned, is relevant".
Illustration (a) to Section 15, Evidence Act, is in point, and it covers the present case, inasmuch as what these prosecution witnesses have stated is that such act or acts, as deposed to by them, formed part of a series of similar occurrences, in each of which, some of the accused doing the act was concerned. In the case of 'George Joseph Smith (Y)', the Lord Chief Justice, while considering whether the evidence 'was admissible or not in that case, observed as follows :
"Whether the evidence was admissible or not depends on principles of law which have been considered by this Court many times, and which depend in the main on the statement of the law by Lord Herschell in 'Makin v. Attorney-General for New South Wales', (1893) 14 N. S. W. Rep. 1 (Z). The Lord Chancellor there points out: "It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely, from his criminal conduct or character, to have committed the offence for which he is being tried.
On the other hand, the mere fact that the evidence adduced tends to shew the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused".
It is, therefore, a general rule of law that when there is 'prima facie' evidence that an accused is guilty of the act charged, evidence of 'similar acts' is admissible to show that those acts were done with intent. The evidence of previous acts of several accused, when such acts formed part of a series of 'similar occurrences', in each of which the person doing the act was concerned, is admissible under Section 15 of the Evidence Act. In my opinion, therefore, the evidence of these prosecution witnesses is admissible in evidence.
28. The fourth contention of Mr. Samaiyar is that the charges under Sections 366 and 368, Penal Code, must fail, because some of these girls as well as D. Ws. 2, 3 and 4 have stated that the girls of the Ashram were free to go about in the Ashram and they used to go outside the house to bring water from the tap and as such it is argued that on the evidence of these girls alone it is absolutely clear that they were not kept confined at all.
I am afraid I cannot accept this contention, because confinement does not consist in keeping any person shut up in a room, or confined in a particular place, but if any person is kept in a building under the strict supervision of the person in charge of the place, and out of fear he does not run away from that place, it cannot be said that that person was not kept confined in that place. None of the D. Ws. except the Dhobi witness, has named any of the girls, whom they had seen coming out, either to take water or for some other purpose and as such the evidence of the D. Ws. is valueless.
In the present case there is evidence of the girls themselves that they used to be kept confined and used to be assaulted whenever they wanted to do anything against the wishes of the accused, who were in charge of the Ashram, and as such on the evidence of the girls and other evidence in the case I am satisfied that wrongful confinement of these abducted girls has been proved.
I agree with the learned Assistant Sessions Judge that "the oral and the circumstantial evidence, coupled with the documents which have been recovered" from the Bhartiya Anath Ashram, are conclusive to prove that the persons who were in charge of the Ashram, or who were working in the Ashram as servants, managers, etc., had full knowledge of the fact that P. Ws. 1, 11, 14, 21 and 39 were abducted and P. W. 29 was kidnapped and they had kept them confined and concealed in the Ashram with this knowledge". In my opinion, therefore, the convictions under Sections 336 and 368, Penal Code, have been proved and must be maintained.
29. The last contention of Mr. Samaiyar is that these appellants have been falsely implicated at the instance of Kuber Singh with whom Shamsher was on inimical terms, as admitted by some of the prosecution witnesses, and, therefore, they should be let off. In this connection the evidence of P. W. 11 has been relied upon. P. W. 11 stated before the Committing Magistrate in the cross-examination that there was quarrel between Shamsher ana Kuber on account of the Ashram.
It is submitted that Kuber was running an Ashram and Shamsher was also running an Ashram, and, therefore, there was a feeling of competition between the two and on account of Shamsher also running a separate Ashram Kuber entertained feelings of enmity against Shamsher, and that because these girls, namely, P. Ws. 1, 11, 14, 21, 29 and" 39, who were recovered from the Ashram of Shamsher and Lallu, were kept thereafter in the Ashram of Kuber, and they came from his Ashram to depose in Court, their statements in Court were not voluntary statements but tutored statements at the instance of Kuber and as such whatever they have said in Court should be rejected.
I am afraid I cannot accept this contention. These girls were recovered on 3-10-1951, by P. W. 81, M. N. Jha, the officer-in-charge and after their statements had been recorded by P. W. 81, they were taken from Lallu's Ashram to Kuber's Ashram and kept there. Whatever statements these girls and women have made in Court are quite consistent with their statements, which were recorded by P. W. 81 at the time of their recovery, and as such it cannot be said that these prosecution witnesses were making any statement contrary to their previous statements at the instance of Kuber Singh, I, therefore, reject this contention also.
30. I, therefore, uphold the convictions of the appellants under Sections 120B, 366 and 368, Penal Code, and also maintain their sentences, which I do not consider, in the circumstances of this case, to be at all severe.
31. In the result, the appeal is dismissed, the convictions and sentences are upheld, and the appellants must now surrender to their bail bonds to serve out the remainder of their sentences.
Banerji, J.
32.I agree.