1. The two appellants have been sentenced to five years rigorous imprisonment and to 12 stripes each for committing rape. Basuvi, the woman whom they are said to have raped on 26th August 1929, was found drowned on 30th August 1929 in a neighbouring canal.
2. Therefore she has not given evidence and a preliminary question of law arises whether her statement to her mother-in-law P. W. 2, made shortly after the alleged departure of the two accused from her bedroom on 26th August 1929 is admissible in evidence. The learned Judge holds that it is admissible
not only under Section 32 (1), Evidence Act, as relating to the cause of her death; but also under Sections 6 and 8 of the Act,
an observation which argues little attention either to fact or law.
3. The woman is said to have been raped on Monday and was alive on Thursday morning and so Section 32 can have no applicability. That section refers to the actual cause of death, or to the transaction resulting in death. If a woman is raped, and decides three clays later to commit suicide the rape is not the cause of her death or, transaction resulting in her death, though it may be the contingent motive. Then her statement could only be relevant under Section 6, if it is so Connected with her rape as to form part of the same transaction is one of what are known as the res gestae. Taylor offers as the best general idea of what is meant by res gestae everything that may fairly be considered an incident of the event under discussion and proceeds to lay down that a mere narrative of a past occurrence cannot explain an act. The leading case upon statements made after ravishment is Regina v. Lillyman  2 Q.B. 167, and there it is assumed at the very outset that such a statement is no part of the res gestae: p. 170.
4. As regards Section 8, it must be borne in mind that section covers the relevancy of conduct. If the conduct of a woman who has been ravished is such that she lodges a complaint, then that conduct is relevant and the terms in which the com-plaint was made are relevant as conduct but they are not relevant as direct proof of the act. There is no reason to suppose that here the statutory law of India departs from the Common Law of England and the point is clearly stated in Regina v. Lillyman  2 Q.B. 167:
the particulars of the complaint may so far as they relate to the charge against the prisoner be given in evidence, not as being evidence of the facts complained of but as evidence of the consistency of the conduct of the prosecutrix with the story told by her in the witness-box and as negativing consent on her part.
5. Therefore if she does not go into the witnessbox there is nothing to confirm or corroborate and the statement or com-plaint cannot be proved. Section 8 does not render it admissible.
6. Mukkadi Gowda, P. W. 1, had often told his master D. W. 1, that his wife was a loose woman and he wanted to get rid of her. He was even saying this in August 1929. On 26th August he was away from home leaving only women in the house, his wife Basuvi, his mother Rachi, P. W. 2. and his aunt Sidhi, P. W. 4.
7. Rachi heard Basuvi cry out' 'Ayyo, appa' at about midnight and taking a light went out and talked with one Chikkamalla P. W. 6, whom she found waiting outside. Chikkamalla told her that he had been hired by the two accused to cut firewood and they had left him outside while they went into her house. Rachi says that she herself saw the accused running away; probably at most she saw persons running away and concluded from what Chikkamalla told her that she had seen the accused. She then went to Basuvi whom she found quite naked. She does not say that she noticed any kind of injury upon her. Then she went back to bed and slept soundly. The aunt, P. W. 4, tells the same story.
8. At sunset on the 28th, Makkai Gowda returned home and heard from his wife that she had been raped. He went to two leaders of the caste but found them out and spent that night with his wife leaving her early next morning. Ha returned at 9 a. m. to find her gone. On the 30th her body was found in the canal He reported this to the headman but said nothing of the rape. The Sub-Inspector P. W. 11. came to the place at 2 p. m. on the 30th receiving the headman's report Ex. D that a body had been found. Apparenly the story of the rape first came out at the inquest but he has been asked nothing about it and there is no first information report.
9. The doctor, P. W. 3, held the post mortem on the morning of the 31st. The body was badly decomposed and he thinks decomposition must have set in on the 27th or 28th of even earlier. If Basuvi died on the 29th the medical evidence is at variance with the fact. The lips of the vagina were scratched and the vulva badly contused which might have been caused by rape. There were bruises on the left cheek and temple and the eye was inflamed. He could not give the cause of death.
10. Accused 2 was found to have some scratches on his penis, but that is not evidentiary.
11. This evidence does not warrant a conviction. If Basuvi was lacerated and bruised on the 26th, the other woman would presumably have heard of it. When they were roused they were more interested in learning from Chikkamalla what persons had been visiting Basuvi that night than in going to her assistance. As they both wont back to bed and to sleep they evidently did not think much of it nor did Makkadi Gowda regard it as a matter for public complaint. But this was a flagrant instance of his wife's misconduct and he probably beat her which would account for her black eye. If as suggested the accused were stifling the cries of a virtuous woman the injuries should have been nearer the mouth. After encountering her husband she may have drowned herself or she may have been killed and thrown into the water. The only reliable evidence against the accused is that of the one man who says that they left him outside and his story is quite consistent with the theory that they visited Basuvi with her consent and were not raping her. They may have treated her with more violence than she relished but there was nothing she thought worth showing to the other women. In fact the evidence is that when they came in she was careful to conceal her private parts (P. W. 2). If the learned Judge had seen the significance of this circumstance combined with the fact that the other women were not upset, and the husband thought it no matter for public complaint, and if he had not misdirected himself on the law, he would probably have agreed with the assessors who were- unanimous for an acquittal. Their opinion must be upheld. The accused are acquitted.