Sidheswar Ganguly vs The State Of West Bengal

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 52 of 1955

Decision Date: 24 October, 1957

Coram: Bhuvneshwar P. Sinha, J.L. Kapur

In the case of Sidheswar Ganguly versus The State of West Bengal, decided on 24 October 1957, the Supreme Court of India recorded that the judgment was authored by Justice Bhuvneshwar P. Sinha and Justice J. L. Kapur, forming the bench for the matter. The petitioner, Sidheswar Ganguly, was the appellant, and the respondent was the State of West Bengal. The citation for this decision is reported as 1958 AIR 143 and 1958 SCR 749. The issues addressed in the appeal concerned the admissibility of a written statement filed by an accused in a jury trial for the offence of rape, the requirement of corroboration of the prosecutrix’s testimony, alleged misdirection to the jury regarding the age of the girl, and the propriety of granting a certificate of condemnation of summary dismissal of appeals under Article 134(1)(c) of the Constitution of India.

The factual background disclosed that the appellant had been tried before a Sessions judge and a jury on the charge of committing rape. Expert medical evidence was produced to establish the age of the girl, but no birth certificate was available. The father of the girl could not be examined because he was deceased. Police records indicated that the whereabouts of the mother could not be traced, yet the police officer who had actually made the inquiry was not produced before the court. Regarding the alleged commission of rape, the girl herself was examined, and additional testimony was offered by another girl together with some circumstantial evidence. The accused filed a written statement, but the judge refused to read it to the jury. The jury returned a unanimous verdict of guilty, and the judge accepted the verdict, convicting the appellant and sentencing him to five years of rigorous imprisonment. The appellant’s appeal to the High Court was summarily dismissed, although the High Court later granted leave to appeal on the ground that the summary dismissal had denied the appellant the satisfaction of being fully heard and the appearance of justice through a comprehensive consideration of the evidence by the appellate court.

The Supreme Court held that the certificate granted by the High Court amounted to a condemnation of the practice of summary dismissal of appeals, particularly in jury trials, a practice that prevails in most High Courts and is sanctioned by statutory law. The Court emphasized that no certificate should be issued on a mere question of fact or in a case lacking complex legal issues requiring authoritative interpretation by the Supreme Court. The Court relied on Haripada Dey v. The State of West Bengal, [1956] SCR 639, as precedent. It observed that the Code of Criminal Procedure contains no provision obliging a Sessions judge to accept a written statement filed by an accused, and that allowing such a statement to be used at a jury trial could introduce irrelevant and inadmissible material, imposing an additional burden on the judge to separate admissible from inadmissible statements. Accordingly, the judge’s refusal to have the written statement read to the jury was deemed correct. The Court further noted that there is no rule of law or established practice requiring corroboration of the prosecutrix’s testimony before a conviction for rape. If the jury had been advised of the necessity of corroboration, that instruction would have been for the jury to consider in deciding whether to convict on uncorroborated testimony in the specific circumstances of the case.

In this case, the jury was required to decide whether to convict on the uncorroborated testimony of the prosecutrix, taking into account the particular circumstances of the trial, and the Court followed the principle stated in Rameshwar v. The State of Rajasthan, [1952] S.C.R. 386. The Court recorded that there was no misdirection regarding the question of the girl’s age, and that the Session judge had duly pointed out several items of evidence to the jury. The Court also observed that the prosecution’s failure to examine the police officer who had made an inquiry into the mother’s whereabouts did not affect the case, because such an inquiry would in any event have been based on hearsay. The judgment then set out the appellate proceedings, noting that the appeal arose under Criminal Appellate Jurisdiction, Criminal Appeal No. 52 of 1955, and was taken from the judgment and order dated 15 February 1955 of the Calcutta High Court in Criminal Appeal No. 40 of 1955, which itself emanated from the judgment and order dated 22 January 1955 of the Additional Sessions Judge, 24 Parganas, Alipore, in Trial No. 1 of the January Sessions for 1955. Counsel for the appellant appeared, as did counsel for the respondent. The appeal was heard on 24 October 1957, and the judgment of the Court was delivered by Justice Sinha. The appeal challenged a certificate granted by the Calcutta High Court under article 134(1)(c) of the Constitution and was directed against the order of a Division Bench dated 15 February 1955, which had summarily dismissed an appeal from the judgment and order dated 22 January 1955. That earlier order had accepted the unanimous guilty verdict returned by the jury, finding the appellant guilty under section 376 of the Indian Penal Code for the alleged rape of a young girl named Sudharani Roy, who was said to be about fourteen to fifteen years old. The trial judge, agreeing with the jury’s verdict, imposed a “deterrent punishment” of rigorous imprisonment for five years, emphasizing that the appellant, as secretary of the Nari Kalyan Ashram, was in loco parentis to the many girls residing there. The State of West Bengal raised a preliminary objection, contending that the certificate issued by the High Court Bench, presided over by the Chief Justice, was infirm on its face. Consequently, the Court first examined the validity of that preliminary objection. It noted that the Division Bench, which had dismissed the appeal for admission, had done so without providing reasons, apparently because it was not satisfied that any error of law or mis-direction had occurred in the Sessions Judge’s charge to the jury, which had delivered a unanimous guilty verdict. On 7 March 1955, the Bench comprising Chief Justice Chakravarty and Justice S. C. Lahiri passed an order indicating that they had heard argument on behalf of the applicant for the certificate of fitness for the proposed appeal, had reviewed the charge delivered by the trial judge, and felt that before disposing of the application they should examine the depositions in full, directing that the records of the original trial be called for and placed before them.

On March 4, the Bench that was considering the application for a certificate of fitness to appeal heard the arguments presented on behalf of the applicant. After hearing those arguments, the Bench also examined the charge that the learned trial judge had delivered to the jury. The members of the Bench subsequently expressed that, before disposing of the application, they felt it necessary to review the entire depositions from the trial. Consequently, they ordered that the records of the original trial be fetched and placed before them. The proceedings were therefore adjourned pending the arrival of those records. The matter was called again on March 17, and on March 18 the learned Chief Justice delivered a comprehensive judgment, which occupies pages 220 to 231 of the record. That judgment set out in detail the facts and the background of the case as well as the evidence that the prosecution had produced. In the course of his extensive analysis, the Chief Justice observed that the learned trial judge had delivered an exhaustive charge to the jury and had not omitted any portion of evidence that was material to the case. He further noted that the jury appeared to have applied its mind in a critical manner to the evidence. After reviewing the grounds of appeal that had been presented to the High Court, the Chief Justice remarked that he had examined the grounds contained in the petition of appeal to this Court and that, had those same grounds been urged before the learned High Court judges, it would not be surprising that the judges found nothing arguable or worthy of further consideration. He added that, apart from a single point, none of the grounds raised by Mr Roy Choudhury before the Court were found in the petition of appeal. When the Chief Justice later examined in detail the points that Mr Choudhury had raised before the Bench hearing the certificate application, he observed that six separate points had been advanced, but that, except for one point about which something could be said, none of them impressed him. The judgment did not specify which of the six points constituted the one that merited attention. In the penultimate paragraph of his order, the Chief Justice expressed the feeling that there were arguable points, even if they might not warrant detailed examination, and that the accused had not been given the satisfaction of being fully heard by the appellate Court. Accordingly, he stated that he would grant the leave to appeal sought by the applicant, not because the Court was taking any view in his favour on the merits of the evidence, but because justice ought to appear to have been done and because the evidence should receive full consideration by the appellate Court, even if the ultimate result might be to confirm the conviction. The findings of the Chief Justice in granting leave to appeal were therefore set out in his own words to illuminate the reasons for that grant.

It appears that the learned Chief Justice and the judge who sits with him acted in a manner that contradicts the established rule that a single Bench of the High Court does not possess authority to pass judgment on a decision made by another Division Bench, and that they actually exercised such unauthorised jurisdiction. In the present matter, the learned Chief Justice further remarked that the Criminal Bench had summarily dismissed the appeal, a step that, in his view, failed to give the appellant a feeling of being fully heard and gave the impression that justice had not been done.

Such remarks, the Court observed, are detrimental to preserving a sound environment for the administration of justice within the highest court of the State. Moreover, the comment effectively condemns the practice of summarily dismissing appeals, particularly when those appeals arise from jury trials and require the appellant to demonstrate clear legal grounds. The Court noted that, to its knowledge, this practice exists in nearly all High Courts across the country and is supported by statutory provisions contained in the Code of Criminal Procedure.

The Court reiterated that, repeatedly, it has drawn the attention of the High Courts to the constitutional position under Article 134(1)(c), which deals not with the grant of leave but with the certification that a case is fit for appeal to this Court. The term “certifying” carries great weight, and the Court has consistently warned that a High Court errs when it issues a certificate based solely on factual questions, without the presence of complex legal issues that demand authoritative interpretation by this Court.

Having examined the judgment of the learned Chief Justice, the Court concluded that the certificate of leave granted cannot be sustained, citing the decision in Haripada Dey v. State of West Bengal and several other authorities referenced therein. In light of those precedents, the Court held that the certificate issued by the High Court was improper, and accordingly upheld the preliminary objection.

Nevertheless, because the appeal now lies before this Court, the Court must determine whether any grounds exist that would justify the grant of special leave to appeal under Article 136 of the Constitution. To assess the arguments presented by counsel for the appellant, the Court first set out the relevant factual background. The appellant served as the honorary secretary of a large charitable institution that housed and cared for girls and women who were homeless or had strayed from respectable society. This institution, known as “Nari Kalyan Ashram,” was situated in one of the quarters of the city of Calcutta. In his capacity as secretary, the appellant regularly visited the Ashram in the evenings and remained there until midnight or later.

In this case, the appellant, who acted as honorary secretary of the Nari Kalyan Ashram, was reported to come to the Ashram each evening at approximately seven o’clock and to remain there until after midnight. In the room that served as his office, a bed-stead was placed with a spread of bedding, and it was alleged that the appellant occupied this bed and regularly demanded that the resident girls massage his body. Between January and April of 1954, it was asserted that the appellant, who frequently called upon the girls known as Sudharani, Narmaya, Kalyani and others for this purpose, committed rape on those girls. The specific charge before the court concerned the offence of rape alleged to have been committed on two girls, Narmaya and Sudharani, one after the other, on the night of 20 April 1954. On 29 April 1954, at about ten o’clock in the evening, the officer-in-charge of the Maniktala police station, accompanied by Sub-Inspector Nirmal Chandra Kar, visited the Ashram to obtain information about the escape of some girls from the institution. During that visit, Narmaya and Sudharani are said to have informed the police officer that they had been raped by the appellant and to have indicated a steel locker situated in the secretary’s room, which they alleged contained the rubber sheaths that the appellant used before having sexual intercourse with each of them. The police officers obtained the key from the appellant, opened the locker and, with the assistance of the girls, identified a leather bag inside the locker. The bag was found to contain a rubber sheath together with other articles. After recording the information, the officer-in-charge of the Maniktala police station investigated the matter and submitted a charge-sheet against the appellant. Following a preliminary inquiry by a magistrate, the appellant was committed for trial to the Court of Session on a charge of rape under section 376 of the Indian Penal Code. The appellant’s defence asserted that the case was entirely false and had been fabricated by the police in collusion with the Ashram’s inmates and the Assistant Secretary, Tarun Kumar Sarkar, who was listed as one of the prosecution witnesses. At trial, the prosecution examined twenty-three witnesses in support of its case. The two victims, identified as Sudharani Roy (PW-2) and Narmaya (PW-5), each testified that the appellant habitually arrived at the Ashram in the evening at about seven o’clock and stayed there until after midnight in a special room that contained a bed-stead, bedding, a steel almirah and other pieces of furniture. They further recounted that on the date of the alleged offence, the appellant first called Narmaya and subsequently Sudharani, and that he proceeded to rape Narmaya first and then Sudharani, in the presence of both girls, without their consent and against their will. They also reported that the appellant had sexual intercourse with them after

According to the prosecution evidence, after dressing himself with a rubber sheath, the accused took a cup of tea in which he swallowed a black pill that the witnesses suggested was an aphrodisiac. The accused then paid each of the two girl-victims eight annas and warned them in threatening terms that they must not disclose what had occurred, promising severe punishment if they did. The prosecution also called Kalyani, identified as PW-19, who was an inmate of the Ashram at the relevant time. Kalyani was described as both deaf and mute and as having an intelligence level below normal; because of her feeble-mindedness she had been prohibited from continuing her studies at the school. She communicated her testimony by means of signs, which were interpreted by the principal of the Deaf and Dumb School who had taught her. The prosecution argued that, if accepted, Kalyani’s testimony would corroborate the statements of the two primary victims regarding the alleged indecent acts of the appellant.

Further evidence presented by the prosecution aimed to establish a pattern of conduct by the appellant. It was alleged that he habitually received nightly massages from the girls residing in the Ashram. In addition, the police recovered a rubber sheath from a bag kept in a steel locker inside the appellant’s private room. A female employee of the Ashram testified that the appellant had instructed her to conceal a number of rubber sheaths by burying them underground; when she pointed out the location, the police subsequently discovered the sheaths. The prosecution also produced evidence of a complaint lodged on the day following the alleged incident by the victim girls to the assistant secretary who visited the Ashram in relation to his official duties. To establish the age of one victim, Sudharani, the prosecution introduced the Ashram’s register, which contained a column indicating the ages of its inmates, and asserted that Sudharani’s age was recorded as being below sixteen. Medical evidence based on an X-ray examination, assessment of ossification stages, and other age-determining indicators was offered, with the medical examiner estimating that Sudharani was between thirteen and fourteen years old as of the date of the X-ray on 19 May 1954. In summary, this constituted the prosecution’s case and the evidentiary material relied upon. The accused, after cross-examining the prosecution witnesses and highlighting contradictions and omissions in their testimonies, did not adduce any positive evidence in his defence. The trial proceeded before a jury assisted by the learned Additional Sessions Judge at Alipore. The jury returned a unanimous verdict of guilty on the charge of raping Sudharani and a unanimous verdict of guilty on the charge of rape on Narmaya, describing the latter verdict as a finding of rioting. When the judge asked the jury to state their view on the charge relating to Narmaya, the jury replied, “Not guilty as we found with consent and she is above …”

In that case the jury returned a unanimous verdict of guilty against the accused for the rape of Sudharani, while it gave a unanimous verdict of not guilty for the charge relating to Narmaya, stating that the latter had been committed with consent and that she was above sixteen years of age. Because the jury did not give any similar explanation for its guilty finding with respect to Sudharani, it was difficult to ascertain whether the jurors had also found consent in her case or whether they had based the guilty verdict on the belief that she was under sixteen years of age. During the hearing before the Court, counsel for the appellant advanced a large number of contentions, most of which concerned the appraisal of evidence in view of alleged omissions and contradictions. The Court deemed it unnecessary to address those arguments in detail and focused only on three specific points raised by the appellant: first, that the learned Sessions Judge had refused to allow the appellant’s written statement, filed at the Sessions stage, to be read to the jury; second, that there was a serious misdirection concerning the requirement of corroboration of the testimony of the alleged victims; and third, that the direction given on the age of the girl Sudharani was incomplete. The Court found no substance in any of these allegations. Regarding the refusal to permit the written statement, the Court observed that the Code of Criminal Procedure contains no provision allowing a written statement to be filed by the accused at the Sessions stage. Section 256(2) deals only with the trial of warrant cases by magistrates and obliges a magistrate to file a written statement with the record if the accused provides one. No analogous provision exists for a Sessions Court. Although the accused retains the right to make a statement under section 342, such a statement must be considered by the Court in its proper context and may not be placed before a jury as evidence. Allowing a written statement in a jury trial could introduce irrelevant and inadmissible material, creating an additional burden on the presiding judge to separate admissible facts from inadmissible content. In light of these considerations, the Court concluded that the Sessions Judge had rightly refused to have the appellant’s written statement read to the jury. On the question of corroboration, the Court noted that the learned judge, in his charge to the jury, had repeatedly emphasized the necessity of corroborating the victims’ testimony and had explained the legal position that conviction on uncorroborated testimony of an accomplice is normally unsafe, while also indicating that a jury may dispense with the requirement of corroboration if it is convinced by the particular circumstances of the case. The Court therefore found that the judge’s directions, far from being a misdirection, were in fact favourable to the accused.

In this case, the Court observed that the victims of the alleged offence were central to the trial. Referring specifically to the testimony of Kalyani, who was identified as PW 19, the learned Sessions Judge addressed the jury with a detailed charge. The Judge asked the jurors to consider whether Kalyani’s evidence served as corroboration of the alleged rape committed by the accused against Sudharani Roy on 20 April 1954. He warned that if the jurors found Kalyani’s evidence or the evidence of Tarun to be unreliable, the only remaining testimonies would be those of Sudharani and Narmaya, which were uncorroborated. The Judge explained that the rule of prudence ordinarily makes it unsafe to convict an accused on the uncorroborated testimony of an accomplice or accomplices. Nevertheless, he told the jurors that the law permitted conviction on such unconfirmed evidence if, after considering the particular circumstances of the case, they concluded that corroboration could be dispensed with. The Court noted that any error by the Judge in this direction would be favourable to the accused rather than detrimental, since the Judge referred to the evidence of the two girl victims as that of accomplices. The Court emphasized that a girl who suffers an atrocious act is generally not an accomplice, although prudential rules require that the testimony of a prosecutrix be corroborated before a conviction can be based upon it. Accordingly, Sudharani was not precisely an accomplice, but the Judge was within his discretion to caution the jury that corroboration of a prosecutrix’s testimony is a prudent requirement, while also affirming that the jury could convict on uncorroborated testimony if it found, given the facts, that corroboration was unnecessary. The Judge was therefore justified in stating that there is no absolute rule of law or practice obligating corroboration in every rape case before a conviction can be entered. Once the jury was made aware of the usual need for corroboration of a prosecutrix’s evidence, it remained within the jury’s authority to decide whether to convict on uncorroborated testimony in the specific circumstances before them. In other words, while seeking corroboration is advisable, it is not a mandatory legal requirement. In the present matter, besides the testimonies of the two victims, the prosecution also relied on the statement of the deaf-and-dumb girl Kalyani and other circumstantial evidence. It is well settled that the nature and extent of corroboration required vary with the facts of each case, and the corroborative material must provide sufficient assurance that the prosecutrix’s evidence can be safely relied upon. The Court referred to the observations made in Rameshwar v. State of Rajasthan, which underscored that the sole rule is that the prudential requirement of corroboration must be appreciated by the judge or jury, and there is no rigid practice demanding corroboration in every case before a conviction stands.

The Court explained that the rule of prudence must be present in the mind of the judge or the jury, and they must understand and appreciate it. The Court also clarified that no procedural rule requires corroboration in every case before a conviction may stand. Turning to the charge given to the jury about the age of the girl named Sudharani, the Court found no substantial defect. The learned judge identified several pieces of evidence produced by the prosecution that related to the question of her age. Although a birth certificate would be the only conclusive proof, such a document is rarely available in this country. Accordingly, the judge instructed that the jury must base its conclusion on all facts and circumstances revealed by examining the physical features of the person whose age is in question, together with any oral testimony that may be available. The father of the girl was dead, and the mother had apparently abandoned her, with police evidence indicating that the mother’s whereabouts could not be traced. Counsel argued that the police officer who made the inquiry should have been examined, otherwise the inquiry would amount to hearsay. The Court noted that an inquiry made by any police officer would, in almost every case, be considered hearsay. Because the girl was a displaced person, locating evidence about her parents was especially difficult. In view of these circumstances, the Court held that the learned Sessions Judge did not commit any error in that portion of his charge to the jury.

In his concluding directions, the learned judge told the jury that in a criminal trial the accused must receive the benefit of doubt and that no conviction should follow unless it can be stated clearly and unequivocally that the girl’s age was below sixteen years. He reminded the jurors that they had seen the girls, heard expert evidence, and should also consider the various factors uncovered during cross-examination. On that basis, the jurors could conclude that Sudharani Roy was under sixteen on the night of 20 April 1954, even though the ossification test is not a reliable guide. He further instructed that, given this finding, the question of consent would become immaterial. The Court observed that the learned Sessions Judge presented the evidence for and against the charge in a very balanced manner.

The trial judge presented the evidence in a comprehensive manner and then allowed the jury to reach its own determination. Medical testimony indicated that Sudharani’s age on the date of the alleged offence fell within the range of thirteen to fourteen years. In contrast, the medical examination of the second girl, for whom the accused had been acquitted, placed her age between fifteen and sixteen years. Consequently, the jury applied a commonsense assessment and appears to have concluded that Narmaya was likely older than sixteen, rendering a rape charge against the accused untenable with respect to her. Regarding Sudharani, the jurors seem to have determined that she was not yet sixteen, and therefore they found the prosecution’s case against the accused on that charge to be sustained. The learned judge’s charge to the jury was read aloud on more than one occasion, and in the view of the Court it was a thorough and balanced instruction, tending toward verbosity rather than brevity. After reviewing the charge and the evidence, the Court concluded that the appeal lacked any substantive merit. Accordingly, the appeal was dismissed, and the judgment of acquittal on the charge relating to Narmaya and conviction on the charge relating to Sudharani was affirmed.