# SIDHESWAR GANGULY v. THE STATE OF WEST BENGAL

- **Citation:** [1958] 1 S.C.R. 749
- **Court:** Supreme Court of India
- **Decided:** 1955-02-15
- **Case number:** Criminal Appeal No. 52 of 1955
- **Bench:** B. P. Sinha, J. L. Kapur
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sidheswar-ganguly-v-the-state-of-west-bengal-1422
- **Pages:** 13

## Headnote

Jury trial-Written statement filed by acCU!Jed-If
admissible-Rape-Evidence of prosecutrix-Corroboration
of-Misdirection to jury-Age of prosecutrix-Certificate
of fitness, Grant of-Principles-Constitution of India, Art.
134(1) (c).
Appellant was tried by the Sessions Judge and a jury
on the charge of committing rape. On the question of the
age of the girl expert medical evidence was produced but
no birth certificate was available. The father of the girl
could not be examined as he was dead. According to the
Police evidence the whereabouts of the mother were not
traceable but the Police Officer who himself made the
inquiry was not produced. As regards the commission of
the rape the girl herself was examined and there was the
evidence of another girl and some circumstantial evidence.
The accused filed.a written statement but the Judge refused
J9S7
October 24
750
SUPREME COURT REPORTS
[1958]
19S7
to read it out to the iury. The jury returned a unanimous
S .,L -G uJ verdict of guilty and the Judge, accepting the verdict coniuneswor ang y
·
d th
ll
.
. '
v
v1cte
e appe ant and sentenced hun to 5 years ngorous
The S1~1< of
imprisonment.
An appeal to the High Court was
West Bengal
summarily rejected. But the High Court granted "leave to
appeal" on the ground that on account of tj}e summary
dismissal'of the appeal appellant did not have the satisfaction of feeling that he had been fully heard and that justice
should also appear to have been done by a full consideration of the evidence by the appellate court.
Held that, the certificate granted by the High Court
amounts to a condemnation of the practice of summary dismissal of appeals, especially in jury trials. Such practice
prevails in most High Courts and has the sanction of statute
law. No certificate should be granted on a mere question
of fact nor in a case where there are no complexities of
law involved requiring an authoritative interpretation by
the Supreme Court.
Haripada Dey v. The State of West Bengal, [1956] S.C.R.
639, followed.
There is no provision in the Code of Criminal Procedure
requiring a Session Judge to accept a written statement
filed by an accused. If such a written statement is allowed
to be used at a Sessions tirial by jury, it may throw the door
open to irrelevant and inadmissible matter and cast an additional burden on the Judge of separating admissible from
inadmissible statements.
The Judge had rightly refused
the written statement to be read to the jury.
There is no rule of law or practice that there must be
corroboration of the testimony of the prosecutrix, before
conviction for rape. If the jury had been appraised of the
necessity of corroboration, it was for the jury to decide
whether or not it would convict on the uncorroborated
testimony of the prosecutrix in the particular circumstances
of the case before it.
Rameshwar v. The State of Rajasthan, (1952] S.C.R. 386
followed.
There was no misdirection on the question of the age of
the girl. The Sessicm Judge had pointed out the severa1
items of evidence to the jury. The failure of the prosecution to examine the Police Officer who actually made inquiry into the whereabouts of the mother does not affect
the case as in any case the inquiry would be the result of
hearsay.
CRIMINAL
APPELLATE
JURISDICTION:
Criminal
Appeal No. 52 of 1955.
Appeal from the judgment and order dated the
15th February, 1955, of the Calcutta High Court in
Criminal Appeal No. 40 of 1955 arising out of the
S.C.R.
SUPREME COURT REPORTS
751
judgment and order dated the 22nd January, 1955, of
~
the Additional Sessions Jμdge, 24 Parganas, Alipore, SidhmvarGanguly
in Trial No. 1 of January Sessions for 1955.
The siate oJ
•
West Bengal
A. C. Roy Choudhari, K. R. Choudhari. and
Sukumar Ghosh, for the appellant.
A. C. Mitra, K. B. Bagchi and P. K. Bose, for the
respondent.
1957. October 24. The following Judgment of the
Court was delivered by
SINHA J.-This appeal on a certificate granted by
the High Court at Calcutta, under art. 134(1)(c) of

## Text

S.C.R.
SUPREME COURT REPORTS
749
but as rightly pointed out by the learned trial magisJ9S7
trate,
the appellant cannot be criminally liable Ra""'~ Nadar
for being reckless or unwise in carrying on his busiThe ;iare of
ness. In our opinion, therefore, the le~rned Judge
Madras
below was in error in characterizing the order of
Sinha J.
acquittal as a perverse one. The learned Judge's decision is based on an erroneous assumption that the
appellant was bound by law to disburse the amounts
collected in a particular competition amongst the
prize winners of that competition. But it has not been
pointed out by what proce~s that conclusion was
reached. Nor has the learned counsel for the respondent brought any statutory or other rule to our notice
casting an obligation on the appellant to appropriate
the entry fees in a particular manner. That being so,
it must be held that misappropriation has not been
made out either on evidence or as a matter of law.
In the result, the appeal is allowed and the order
passed by the High Court set aside and the order of
acquittal passed by the trial c?urt is restored.
Appeal allowed.
SIDHESWAR GANGULY
v.
THE STATE OF WEST BENGAL
(B. P. SINHA and J. L. KAPUR, JJ.)
Jury trial-Written statement filed by acCU!Jed-If
admissible-Rape-Evidence of prosecutrix-Corroboration
of-Misdirection to jury-Age of prosecutrix-Certificate
of fitness, Grant of-Principles-Constitution of India, Art.
134(1) (c).
Appellant was tried by the Sessions Judge and a jury
on the charge of committing rape. On the question of the
age of the girl expert medical evidence was produced but
no birth certificate was available. The father of the girl
could not be examined as he was dead. According to the
Police evidence the whereabouts of the mother were not
traceable but the Police Officer who himself made the
inquiry was not produced. As regards the commission of
the rape the girl herself was examined and there was the
evidence of another girl and some circumstantial evidence.
The accused filed.a written statement but the Judge refused
J9S7
October 24
750
SUPREME COURT REPORTS
[1958]
19S7
to read it out to the iury. The jury returned a unanimous
S .,L -G uJ verdict of guilty and the Judge, accepting the verdict coniuneswor ang y
·
d th
ll
.
. '
v
v1cte
e appe ant and sentenced hun to 5 years ngorous
The S1~1< of
imprisonment.
An appeal to the High Court was
West Bengal
summarily rejected. But the High Court granted "leave to
appeal" on the ground that on account of tj}e summary
dismissal'of the appeal appellant did not have the satisfaction of feeling that he had been fully heard and that justice
should also appear to have been done by a full consideration of the evidence by the appellate court.
Held that, the certificate granted by the High Court
amounts to a condemnation of the practice of summary dismissal of appeals, especially in jury trials. Such practice
prevails in most High Courts and has the sanction of statute
law. No certificate should be granted on a mere question
of fact nor in a case where there are no complexities of
law involved requiring an authoritative interpretation by
the Supreme Court.
Haripada Dey v. The State of West Bengal, [1956] S.C.R.
639, followed.
There is no provision in the Code of Criminal Procedure
requiring a Session Judge to accept a written statement
filed by an accused. If such a written statement is allowed
to be used at a Sessions tirial by jury, it may throw the door
open to irrelevant and inadmissible matter and cast an additional burden on the Judge of separating admissible from
inadmissible statements.
The Judge had rightly refused
the written statement to be read to the jury.
There is no rule of law or practice that there must be
corroboration of the testimony of the prosecutrix, before
conviction for rape. If the jury had been appraised of the
necessity of corroboration, it was for the jury to decide
whether or not it would convict on the uncorroborated
testimony of the prosecutrix in the particular circumstances
of the case before it.
Rameshwar v. The State of Rajasthan, (1952] S.C.R. 386
followed.
There was no misdirection on the question of the age of
the girl. The Sessicm Judge had pointed out the severa1
items of evidence to the jury. The failure of the prosecution to examine the Police Officer who actually made inquiry into the whereabouts of the mother does not affect
the case as in any case the inquiry would be the result of
hearsay.
CRIMINAL
APPELLATE
JURISDICTION:
Criminal
Appeal No. 52 of 1955.
Appeal from the judgment and order dated the
15th February, 1955, of the Calcutta High Court in
Criminal Appeal No. 40 of 1955 arising out of the
S.C.R.
SUPREME COURT REPORTS
751
judgment and order dated the 22nd January, 1955, of
~
the Additional Sessions Jμdge, 24 Parganas, Alipore, SidhmvarGanguly
in Trial No. 1 of January Sessions for 1955.
The siate oJ
•
West Bengal
A. C. Roy Choudhari, K. R. Choudhari. and
Sukumar Ghosh, for the appellant.
A. C. Mitra, K. B. Bagchi and P. K. Bose, for the
respondent.
1957. October 24. The following Judgment of the
Court was delivered by
SINHA J.-This appeal on a certificate granted by
the High Court at Calcutta, under art. 134(1)(c) of
the Constitution, is directed against the order •Of a
Division Bench of that Court, dated February 15, 1955,
summarily dismissing an appeal from the judgment
· and order dated January 22, 1955, passed by the learned Second Additional Sessions Judge of Alipore,
accepting the unanimous verdict of guilty returned by
the jury, hQlding the appellant guilty under s. 376 of
the Indfan Penal Code, for having committed rape on
a young girl, named Sudharani Roy, said to be about
14-15 years of age. The learned trial judge, accepting
the unanimous verdict of the jury and agreeing with
it, imposed a "deterrent punishment" of rigorous
imprisonment for 5 years, in view of the fact that he
was in loco parentis to the large number of girls who
were the inmates of 'the Nari Kalyan Ashram of which
the appellant had been the secretary for. a pretty long
time.
The ~earned counsel for the State of :West.Bengal
raised a preliminary objection that the certificate
granted by the Bench of the Calcutta High Court
presided over by the learned Chief Justice, was bad on
the face of the judgment given by him while granting
the certificate. We have, therefore, first to examine
whether the preliminary objection is sound. As already stated, the Division Bench before which the
appeal came up for admission, summarily dismissed
it without giving any reasons. Apparently, the Bench
was not satisfied that there was any error of law or .
mis-direction in the learned Sessions Judge's charge
to the jury which had returned a unanimous verdict of
Sinha J.
752
SUPREME COURT REPORTS
[1958]
1957
guilty against the appellant. On March 7, 1955, the
Sidheswar Ganguly Bench consisting of Chakravarty C. J. and S. C.
The ;,~,. of Lahiri J. passed the order to the effect that having
West Btngal heard the argument on behalf of the applicant for the
Sinha J.
certificate of fitness for the proposed appeal to this
Court on March 4, they had the opportunity of reading through the charge delivered by th~ learned trial
judge, and that they had "come to feel that before
the application is disposed of, we should see the depositions in full." Accordingly, they directed the
records of the original trial to be called for and placed before them. The case, therefore, stood adjourned
till the arrival of the records. The matter was heard
again on March 17, and on March 18, the learned
Chief Justice delivered a judgment which appears at
pages 220 to 231 of the record. It is a full judgment
giving the facts and history of the case and the evidence adduced on behalf of the prosecution. The
learned Chief Justice, in the course of his very elaborate judgment, observed that the "learned Judge
delivered an exhaustive charge to the jury from which
he does not appear to have omitted any part of the
evidence which was of any materiality whatsoever.
The jury appear to have applied their minds critically ........ " Having examined the grounds taken in
the appeal ·as presented to the High Court, he made
the following observations :
"I have gone through the grounds taken in the petition of appeal to this Court and I have no hesitation
in saying that if those were the grounds urged before
the learned Judges, no one need be surprised that their
Lordships saw nothing arguable or worth attention
in the case. Except one, not one of the grounds urged
by Mr. Roy Choudhury before us is to be found in
the petition of appeal. ............. "
On an examination, in great detail, of the grounds
urged before the Bench hearing the application for
certificate, the learned Chief Justice observed :
"Mr. Roy Choudhury, however, urged before us
six several points. Except one, in respect of which
there is something to be said, none of them impresses
me."
S.C.R.
·SUPREME COURT REPORTS
.753
It was not clearly indicated in the .. judgment what
I~S7
that single groilnd was. The penultimate paragraph Sldhe;;;;;Ganguly
of the order _passed by the learned_. Chief Justice, . The $iate of
contains the following :
Weit Bengal .
"We are oppressed by the feeling that there were
arguable points, although they might not bear examination and the accused has not had the satisfaction of
feeling that he has been fully heard by the Court of
appeal. I wolild therefore grant him the leave he asks
for, not because .we take any view in his favour of the
evidence in the case, but bet::ause justice should also
app~ar to have been done and therefore the evidence
ougnt to have received a full consideration by the
appellate Court, although the result might be to confirm the conviction."
We have set out the findings of the learned Chief
Justice while granting "leave· to appeal" to this Court,
in his own words, to appreciate the reasons for granting "leave to appeal". It appears that the learned
Chief Justice and his brother judge, contrary to the
legal position that one Bench of the High Court has no
jurisdiction to sit in judgment on the decision of another Division Bench, have, in fact, done so. But in
the instant case, the learned Chief Justice has gone
further and observed that the summary dismissal of
the appeal by the Criminal Bench, has not given satisfaction to the appellant that he had been fully beard,
and that it did not appear to him that justice had
been done. Such observations are not conducive to
the maintenance of a healthy atmosphere for the
administration of justice in the highest Court in the
State. Furthermore, the observation almost amounts
to a condemnation of the practice of summary dismissal of appeals, especially against orders passed in
a case tried by a jury where the appellant has to make
out clear grounds of law. Such a practice prevails,
so far as we know, in almost all the High Courts il'l
India and has the sanction of the statute law as contained in the Code of Criminal Procedure.
This Court has repeatedly called the attention of
the High Courts to the legal position that under Art.
L2SC/61 (P. VJ)-2
Sinha J.
754
SUPREME COURT REPORTS
[1958]
1957
134(1)(c) of the Constitution, it is not a case of
Sidheswar Gaozuly "granting leave" but of "certifying" that the case is
The ;;.,, of a fit one for appeal to this C~urt.. "Certifying" is a
Wm Bengal strong word and, therefore, it has been repeatedly
Sinha J.
pointed out that a High Court is in error in granting
a certificate on a mere question of fact, and that the
High Court is not justified in passing on an appeal.
for determination by this Court when there are. no
complexities of law involved in the case, requiring an
authoritative interpretation by this Court. On the
face of the judgment of the learned Chief Justice,_the
leave granted cannot be sustained vide the case of
Haripada Dey v. The State of West Bengal ('), and
a number of decisions of this Court referred to therein. In view of those authorities of this Court, it is
clear that the certificate granted by the High Court
is not a proper one. The preliminaDY objection is,
therefore, upheld. But the appeal having been placed
before this Court, we have to satisfy ourselves
whether there are any grounds on which this Court
would have granted special leav to appeal. under Art.
136 of the Constitution.
In order to appreciate the grounds raised in support of the appeal by the learned counsel for the
appellant, it is necessary to state the following facts :
The appellant was the honorary secretary of a large
institution for receiving and looking after young girls
and women who had no homes of their own or had
gone astray. It is called the 'Nari Kalyan Ashram'
and is located in one of the quarters of the city of
Calcutta. The appellant in his capacity as the secretary, used. to come to the Ashram daily ip the evening at about 7 p.m., and stay there till mid-night or
past mid-night. In his office room, there was a bedstead with a bedding spread thereon. He used_ to
occupy the bed and requisition the services of girls
to massage his body. Between January and April,
1954, the accused who was in the habit of calling the
girls named Sudharani, Narmaya, Kalyani and others,
for that purpose, is said to have committed rape on
those girls. The subject-matter of the charge in this
case is the offence of rape said to have been commit-
(') [1956) S.C.R. 639.
S.C.R.
SUPREME COURT REPORTS
755
ted on the two girls Narmaya and Sudharani, one after
i 9s7
the other, on the night of· April 20, 1954. On April Siilheawar Gang.Ty
29, 1954, at about 10 p.m., the officer-in-charge of
The s~~te 01
the Maniktala police station, accompanied by Sub~
West Bengel
Inspector Nirmal Chandra Kar, went to the Ashram
s;iiha J.
in connection with collecting information regarding
the escape of some girls from the Ashram. Narmaya
and Sudharani are said to have given information to
the said officer-in-charge of the police station, alleging rape on them. They also pointed out a steel locker
in the room of the secretary, where, it was alleged,
he used to keep rubber sheaths used by him before
he had sexual intercourse with each of them. The ·
police officers aforesaid obtained the key from the
appellant, with which the steel locker was opened and
a leather bag inside the locker was pointed out by
the girls. The bag · was found to have contained a
rubber sheath along with other articles.
After
recording the information, the police officer-in-charge
of the Maniktala police station, investigated the case
and submitted a charge-sheet against the appellant.
After the preliminary inquiry by a magistrate, the
appellant was committed for trial to the Court of s~ssion on a charge of rape upon the two girls, under
s. 376, Indian Penal Code.
The defence of the appellant was that the case
against him was completely false and had been concocted by the police with the help of the inmates of
the Ashram and the Assistant Secretary, Tarun
Kumar Sarkar who was one of the prosecution wit-
.nesses. At the trial, the prosecution examined 23
witnesses, in support of the case against the accused.
The two victims of the alleged outrage by the appellant, were examined, namely, Sudharani Roy, P.W. 2
and Narmaya, P.W. 5, who both deposed that the
appellant used to come to the Ashram in the evening
at about 7 p.m., and used to stay there till after midnight in his special room which contained a bedstead
and a bedding and a steel aimirah and other pieces
of furniture. On the date of the occurrence in question, first Narmaya was called in by the appellant and
then Sudharani, and the appellant is said to have committed rape first on Narmaya and then on Sudharani,
756
SUPREME COURT REPORTS
[1958]
!!!!_
in the presence of both of them, against their will and
Sidlruwar Ganguly without their consent.
They further deposed that
The lt~1e of the appellant had intercourse with them after putting
Wm Bengal on the sheath. In between the two acts, he had a
Sinha J.
cup of tea with which he swallowed "a black pill"
which is suggested to have been an aphrodisiac. The
accused paid them each eight annas and warned
them not to divulge those acts on pain of being severely dealt with, if they disclosed the same. Kalyani,
P.W. 19, is another young girl who was an inmate of
the Ashram on the material dates. She is a girl who
was both deaf and dumb, and her intelligence was
below normal. As she was feeble-minded, she was
not allowed to continue her studies at the school. She
has given evidence by signs which were interpreted
by the principal of the Deaf and Dumb School, who
had taught her at that school.
Her evidence, if
accepted, would be a corroboration of the testimony of
the victims aforesaid of the outrageous act of the
appellant. Besides this direct oral testimony, there
was also evidence tending to show that the appellant
was in the habit of having himself massaged at night
by the girls of the Ashram, and that the police found a
rubber sheath in his bag kept in the steel locker inside
his spe.'ial room. There was also the evidence of a
woman e.nployee of the Ashram that she had been
asked by the appellant to keep a number of rubber
sheaths which she had buried under ground, and
which on her pointing out, had been discovered by
the police. There was also the evidence of a complaint
made the next day by the victim girls to the assistant
secretary when he came to the Ashram in connection
with his work there. The prosecution also led evidence to show the age of the girl Sudharani to be
below 16. It produced the register of the girls in the
Ashram which has a column for mentioning the age
of the inmates. The estimate of her age by medical
evidence, was given after X-ray examination and the
stage of ossification and other indicia for determining the age of a person. The medical estimate of her
age was that she was between 13 and 14 years on the
S.C.R.
SUPREME COURT REPORTS
757
date of the X-ray examination, that is May 19, 1954.
1957
That in barest outline, is the prosecution case and the s1dhem-;;:(;11111u1y
evidence adduced in support of it.
Beyond crossTht ;,~,e of
examining the prosecution witnesses and pointing
West Bengal
out contradictions and omissions in their evidence,
Sinha J.
the accused did not adduce any positive evidence in
support of his defence.
The appellant was tried by a jury assisted by the
learned Additional Sessions Judge at Alipore. The
jury returned a unanimous ver~ct of guilty against
the accused in respect of the charge of committing
rape on Sudharani and a unanimous verdict of not
guilty in respect of the charge of rape on Narmaya.
The jury answered the judge's question as regards
the charge with respect to Narmaya in these words:
"Not guilty as we found with consent and she is
above 16 years of age."
As the jury did not give any such clue in respect of
their verdict of guilty so far as rape on Sudharani
was concerned, it is difficult to say whether they found
consent in her case also, and returned a verdict of
guilty because they were. of the opinion that she was
und~r 16 years of age.
In this Court, the learned counsel for the appellant
raised a large number of contentions, but as most of
them concerned the appreciation of evidence with
reference to omissions and contradictions, it is not
necessary to deal with those arguments. It is only
necessary to notice the following points raised, namely,
(1) that the learned judge refused permission to counsel for the appellant to read out the written statement
filed on behalf of the appellant at the Sessions stage,
( 2) that there was a serious misdirection in respect
of corroborlttion of the testimony of the alleged victims of rape, and (3) that the direction as to the age
of the girl Sudharani was not complete.
In our
opinion, there is no substance in any one of thesr
contentions.
Firstly, as regards the refusal to permit the written
statement of the accused being placed before the jury,
it has to be observed that there is no provision in the
758
SUPREME COURT REPORTS
[1958]
1957
Code of Criminal Procedure for such a written stateSidheswar Gangidy ment being filed at the Sessions stage. Section 256(2)
Fhe siat• 01 which occurs in Chapter .XXI, h~aded "Of the trial of
West Bengal
Warrant-Cases by Magistrates , does contain the
Sinha 1•
specific provision that if the accused person puts in a
written .statement, the magistrate shall file it with the
record. But there is no corresponding provision in
the Code, requiring a Sessions Court to.accept a written statement at that stage on behalf of the accused.
But the accused has the right to make a statement
under s. 342 of the Code, which has to be considered
by the Court for what it is worth. In a jury trial, the
Court has got to be circumspect to see that nothing is
allowed to be placed before the jury which is not evidence. It is not necessary to decide whether in the
case of a Sessions trial without a jury, such a statement is receivable. But if such a written statement is
allowed to be used at a Sessions trial by a jury it may
throw the door open to irrelevant and inadmissible
matter and, thus, throw an additional burden on the
presiding judge to extricate matter which was
admissible from a mass of inadmissible statements
which may have been introduced in the written state•
ment. Jn view of these considerations, in our opinion,
the learned Sessions Judge rightly refused to allow
the written statement put in by the appellant, to be
read out before the jury.
On the question of corroboration, the learned
judge in his charge to the jury, has, at more than one
place, pointed out the necessity of corroboration of
the evidence of the victims of the alleged crime.
Referring to the evidence of Kalyani, P.Vl. 19, aforesaid, the learned judge has charged the jury in these
terms:
" ........ whether her evidence is a corroboratilm
with respect to the committing of rape by accused
on Sudharani Roy on 20th April, 1954. If the evi"
dence of Kalyani appears unreliable to you or the evidence of Tarun, there remain the uncorroborated
testimonies of Sudharani and Narmaya. The rule of
prudence demands that it is unsafe to convict an
accused on the uncorroborated testimonv of an accom-
. plice or accomplices. But I must tell you, gentlemen,
S.C.R.
SUPREME COURT REPORTS
759
that it is within your legal province to convict upon
such unconfirmed evidence, provided you· can come to
the conclusion in the particular circumstances of this
case that corl'bboration can be dispensed with."
It will be noticed that if the learned judge has made
any mistake, the mistake is in favour of the accused
and not against him in so far as the learned judge
refers to the evidence of the two girl victims as that
of accomplices. A girl who is a victim of an outrageous act is, generally speaking, not an accomplice
though the rule of prudence requires that the evidence of a prosecutrix should be corroborated before a
conviction can be based upon it. Hence, the girl
Sudharani was not exactly in the position of an accomplice though the judge may, as a rule of prudence,
warn the jury that such a rule of prudence required
corroboration of the testimony of the prosecutrix, but
that it was open to the jury to convict eve.n on the
uncor~oborated testimony of the prosecutrix if the
jury, in the particular circumstances of the case
before it, came to the conclusion that corroboration
was not essential to conviction. Hence, the learned
Sessions Judge was fully justified in telling the jury
that there was no rule of law or practice that there
must be corroboration in every case, before a conviction for rape. If the jury had been apprised of the
necessity, ordinarily speaking, of corroboration of the
evidence of the prosecutrix, it is for the jury to decide whether or not it will convict on' the uncorroborated testimony of a prosecutrix in the particular circumstances of. the case before it. In other words,
insistence on corroboration is advisable but is not compulsory in the eye of law. In the inst,11nt case, apart
from the evidence of the two victims aforesaid, there
was the evidence of the deaf and dumb girl, Kaly ani,
and the other circumstantial evidence in support of
the prosecution case. It is well established that the
. nature and extent of corroboration, necessary, vary
with the circumstances of each case. The nature of
the corroborative evidence should be such as to lend
assurance that the evidence of the prosecutrix can be
safely acted upon. See, in this connection, the
observations of this Court in the case of Rameshwar
1957
Sidhuwar Ganguly
y,
The State of
West Bengal
Sinha J~
760
SUPREME COURT REPORTS
[1958J
19J7
v. The State of Rajasthan(') to the following effect :
Sit//zeswar GOllgu/y
"
w.
The only rule of law is that this rule of prudence
1J::S,8'8!:;fi must be present to the mind of the judge or the jury
as the case may be and be understood and appreciated
by him or them. There is no rule of practice that
there must, in every case, be corroboration before a
conviction can be allowed to stand."
Sinha J.
Lastly, we do not find anything basically wrong
with the direction in the charge to the jury as regards
the age of the girl Sudharani and as to the nature of
the evidence to prove her age. The learned judge
pointed out the several items of evidence which had
been adduced by the prosecution bearing on the queS..
tion of the girl's age. The only conclusive piece· of
evidence may be the birth certificate, but, unfortunately, in this country such a document is not ordinarily available. The Court or the jury has to base
its conclusions upon all the facts and circums_tances
disclosed on examining all the physical features of
the person whose age is in question, in conjunction
with such oral testimony as may be available. The
girl's father was dead. Her mother apparently has left
her to her own fate, and according to the evidence of
the police, the mother's whereabouts were not traceable. It was sought to be argued that the police officer
who himself made the inquiry, should have been examined, otherwise, the result of the inquiry is a mere
hearsay. An inquiry whether made by one or the
other police officer, would, almost in every case, be
the result of hearsay.
The girl is said to be a displaced person. The difficulty of tracing evidence of
the parents of such a person is all the greater. Hence,
in all the circumstances of the case, the learned Sessions Judge has not committed any error in this part
of his charge to the jury. On this part of the case,
the learned
judge gave the following concluding
· directions :
"In criminal trial the accused must get the benefit
of doubt and there should not be any conviction unless it can be clearly and unequivocally said that the
(') [1952] S.C.R. 386.
-
S.C.R.
SUPREME COURT REPORTS
761
age of the girl was below 16. But gentlemen, in this
~
case you have seen the girls, you have heard the evi- Sidheswar Gangi.ly
dence of the experts and you should also take into conThe liate 01
sideration the various factors found out in cross-examiWest Bengal
nation and in considering all these facts you can arrive
Sinha J.
at the conclusion that Sudharani Roy was under 16
years of age on the night of the occurrence on 20th
April, 1954, taking into consideration the facts that
ossification test is not a sure guide, even in spite of
this, you can come to the conclusion that Sudharani
Roy was under 16 years of age on the night of the
occurrence, i.e., on 20th April, 1954. I would tell you
gentlemen, that the question of consent would be
. immaterial."
In our opinion, the learned Sessions Judge placed the
evidence pro and con very fairly and fully, and left
it to the jury to come to their own conclusion. According to the medical evidence, Sudharani was between 13 to 14 years of age on the relevant date,
whereas the other girl in respect of whom, the accused was acquitted, was found by the medical test to
be between 15 and 16 years. The jury, therefore, took
the commonsense point of view and appeared to have
come to the conclusion that Narmaya may well have
been above 16, and that, therefore, the accused could
not be convicted for rape on her. In i:espect of the
girl Sudharani, they may have come to the conclusion that she was not above 16, and that, therefore,
the prosecution had succeeded in bringing the charge
home to the accused. We have read the charge of the
learned judge to the jury more than once, and, in
our opinion, it is a very fair and full charge, erring
more on the side of verbosity than of brevity.
In our opinion, there is no merit in the appeal. It
is accordingly dismissed.
Appeal dtsmissed.