1. This is an appeal by one Sreehari Sawarnabar who was tried by the learned Sessions Judge of Dinajpur sitting with a jury on a charge of rape on a child of some eight or nine years old. The jury unanimously found the accused guilty and the learned Judge agreeing with verdict sentenced him to five years rigorous, imprisonment and 16 strokes. The facts are briefly these : The girl who was raped named Durgamani was living with her mother one Sailabala who is a widow. On the day of occurrence the mother of the accused came to call Durgamani to collect firewood with the accused who was also collecting firewood. Durgamani went with the accused to a place called Puranbhita where they began to collect firewood. While the girl was engaged in collecting wood the accused Sreehari caught hold of her, placed her on the ground and proceeded to have sexual intercourse with her. Finally he let her go and the girl went back weeping to her mother to whom she told the matter. After some delay information was given to the authority and the appellant was put on his trial with the result already mentioned.
2. The appellant pleaded not guilty and it was suggested that the charge was the result of enmity. It was further suggested that the injury on the girl was due to the bite of a leech. The first point urged by the learned vakil for the appellant is that the learned Judge misdirected the jury by telling them that there was no evidence that the girl had been bitten by a leech beyond the doctor's statement, that it was possible that the wound on the girl was caused by the biting of a leech. The learned vakil contends that there is a statement by the girl's mother that the girl said that she had been bitten by a leech. The learned Judge was quite correct in saying that there was no evidence that the girl had been bitten by a leech beyond the doctor's statement. The statement of the girl's mother as to what the girl said is not evidence of the fact that she had been bitten by a leech. It could possibly be used to corroborate or to contradict the statement made by the girl. By itself it would not be substantive evidence of the fact that she had been so bitten. The learned vakil contends that under Section 6, Evidence Act, her statement to the mother would be a relevant fact. Section 6 provides as follows:
Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction are relevant, whether they occurred at the same time and place or at different times and places.
3. It is clear that the statement of the girl to her mother, if she had made any, did not form part of the transaction by which I understand the raping of the girl or occur during it. This transaction, namely raping of girl, was over when the perpetrator had gone away and the girl came away from the scene of occurrence to her mother's house. Therefore, this statement is not relevant under Section 6. Even then it would not be evidence of the fact that she had been bitten by a leech. It could only be evidence of the fact that she made that statement to her mother. There is therefore no misdirection by the learned Judge on this point.
4. The learned vakil then contends that the learned Judge did not tell the jury that the statement to the mother could be used to contradict the girl, and that the learned Judge should have specifically drawn the jury's attention to the statement. As a matter of fact the jury's attention was drawn to the fact that the mother had said that the daughter told her that she had been bitten by a leech. The jury themselves specifically questioned the girl on the point, for at the end of her cross-examination there is a note:
To the jury. It is not true that when I came home after the occurrence I told my mother that I had been bitten by a leech. I told my mother that I had been raped by accused.
5. Therefore although the learned Judge did not in his charge specifically draw the attention of the jury to this point the jury's attention had been drawn to it as is clear from the girl's answer quoted above. Therefore the omission on the part of the learned Judge to draw specifically the jury's attention to the point is of no importance.
6. It has next been argued that the mother Sailabala admitted in her cross-examination that since a certain salis she did not allow the accused to come to her house and the learned vakil suggests that the Judge should have put to the jury whether it is likely that in such circumstances the girl would be allowed to go with the accused. The learned Judge did draw the attention of the jury to the fact that there was enmity between the parties. He did not no doubt specifically suggest to the jury that they might consider the question as to whether, if there was any enmity between the parties, the girl would have gone with the accused to gather wood. No doubt the Judge might have put this point to the jury. But I do not think that the putting of this point specifically to the jury is of much importance when the jury's attention was drawn to the fact that there was enmity between the parties.
7. Then it is urged that the learned Judge should have drawn the attention of the jury to the contradiction between the statement of the girl that the place of occurrence was visible from other houses and the evidence of the Sub-Inspector who investigated the case that the actual spot of occurrence was not visible from other houses.
8. The Sub-Inspector was shown the spot by the child. The child, no doubt, said that Puranbhita is visible from certain other places. That is not the same as saying the place of occurrence is visible. The actual place of occurrence may be somewhere inside the Puranbhita. There is no contradiction between the girl's statement and that of the Sub-Inspector. The girl was not asked whether the place on which she was, was visible from other houses.
9. Lastly it has been urged by the learned vakil for the appellant that the sentence is too severe. Looking at the facts of the case we are not prepared to say for one moment that the sentence is severe. The rape has been perpetrated on a child of nine. In such cases infliction of whipping is a very suitable form of punishment in addition to the sentence of imprisonment. The result is, the appeal is dismissed. The accused, if on bail, must surrender to serve out his sentences.
10. I agree.