1.This is a reference under the provisions of Section 307, Criminal P. 0. The prisoner, Amir Hussain, was committed to the Court of Session on a charge of rape, the allegation being that he had sexual intercourse with a girl named Parida, aged about 4j years. He was tried by the Assistant Sessions Judge of the Upper Districts, with the aid of a common jury. The jury returned a unanimous verdict of not guilty. The learned Assistant Sessions Judge felt unable to accept this verdict, which he regarded as perverse and contrary to the weight of evidence. He accordingly made this reference recommending that the accused be convicted of the offence of tape or, at all events, of an offence punishable under Section 864, Penal Oode, and punished therefor.
2. The case for the prosecution was as follows: The girl Farida Begara is the daughter of one Mofizuddin Ahmed who was appointed temporarily to work as a fitter in Ouphulia Tea Estate, which is about 7 or 8 miles distant from his home at Moran. When he went to the tea estate to work, he took with him his daughter, Farida Begara, and 2 of his sons, in order that he might get ration concessions; and he remained there for 2 or 8 months, keeping his daughter, Parida with him throughout. After the expiration of 2 or 8 months he returned home with his daughter to Moran. Shortly after -.their return, FuleshTori, wife of Mofizuddin and mother of Parida, was washing the under-garments of the girl when she noticed a reddish stain on the under-pants. Seeing the stain, she became suspicious and showed it to her husband, Mofizuddin and then questioned her daughter, Farida. Farida explain-ed that while she was staying at Ouphulia Tea Estate, two men, Amir Hussain and one Nabalok had sexual intercourse with her repeatedly. On hearing this, information was given to the Police and an investigation was started. The accused Amir Haroja alias Amir Hussain was arrested and placed in jail custody. While in jail custody, he was examined medically and found to be Buffering from gonorrhea. The .girl Parida was also examined by a doctor, and a slight wound on the left labium of the vagus and a healed rupture of the hymen, were found, as also a whitish discharge from the vagina. A smear from the vagina was sent for medical examination, but the doctor who examined it was unable to state what was the exact cause of the discharge. He found something which might have been gono-cocci in the smear but was unable to say with certainty that it was gonococci. On this material, the acoused Amir Hussain was placed on trial. The evidence against him consists of the statement of the girl, Farida, and the evidence of the parents as to the circumstances under which she first made the statement. In addition, there is the evidence of the medical officers who examined the girl and the vaginal smear taken from the girl, and of the medical officer who examined the accused and discovered that he was suffering from gonorrhea. There is no other evidence in the case. The case, therefore, stands on the uncorroborated testimony of the girl, Farida. This girl may have been the victim of an indecent assault. She made no complaint about it at the time; she did not scream or attract any attention, she said nothing about the assault upon her until questioned by her mother, and questioned by a mother who felt suspicious that a sexual offence had been committed. In the circumstances, it seems to us that the jury were justified in treating the evidence of this little girl with great caution. The jury had the advantage of seeing the girl examined and observed her demeanour in Court; and if they decided that the girl's evidence, uncorroborated as it was, was insufficient to warrant a conviction we are unable to say that they were wrong in so doing. In our opinion this was not a fit case for a reference under Section 307, Criminal P. C, at all. We, therefore, order that the reference be rejected, that the verdict of the jury be accepted and the accused, Amir Hussain alias Amir Hamza, be acquitted of the charge and set at liberty at once.