1. Appellant in this case has been convicted, in accordance with the majority verdict of the jury, of an offence under Section 376, Penal Code. The case involves an unusual and interesting point of law. The facts are briefly, that about noon on 30th August last, Bansori, a child of 3 1/2 years of age, complained to her mother of pain in her private parts. The same evening, the child's elder sister reported to her mother a statement, made by the child to her, suggesting the conclusion that the child had been raped by a man whose description she gave to her sister. The father who was present, overheard part of the story. Next morning when returning from a walk with Bansori, he found the appellant, a motor driver employed by the owner of the house, sitting on the stairs. He asked Bansori if the appellant was her assailant, and she nodded. He then informed the police. The child was medically examined and it was found that her hymen was ruptured, and the labia swollen and inflamed. In the opinion of the doctor, the injuries were due to rape. When the case came up for trial, the learned Judge, as he was empowered to do, directed the jury that the child Bansori was not a competent witness. She was not examined in the proceedings. Evidence was given by her mother, father and sister of her statements and con-duct, and on that evidence, appellant has been convicted. On appeal the point taken is that there was no admissible evidence to prove the guilt of the appellant. She could not testify, and in the circumstances, no hearsay evidence could be given. We are of opinion that this contention is a valid con-tention, and must prevail; indeed it was conceded on behalf of the Crown that no provision of the Evidence Act covered the reception of hearsay evidence in such a case. The evidence given was second hand evidence, with regard to which the English rule, as stated by Best in his treatise on Evidence, is that no matter how unanswerably the absence of the original source is accounted for, the inferior evidence will not be received.
2. The general rule is of course, qualified by statutory exceptions, but none of those exceptions, as stated in the Evidence Act, appear to apply to the facts of the present case. In our opinion therefore evidence of statements made by the child to other people, or of conduct amounting to a statement, is not admissible against the appellant. We are fortified in this view by the decision in R. v. Brasier (1799) 168 E.R. 202. While this case is more often referred to in the text books as an authority on the question of the competency of an infant witness to depose, and for the proposition that the testimony of such a witness must be given on oath, it went further and laid down, as the unanimous opinion of twelve Judges, that information relative to an alleged assault given to other persons by a child who was not examined as a witness, was not receivable. The facts of that case were practically identical with those now in question. The case was proved by the mother of the child and another woman, to whom the child had told the circumstances of the injury done to her. The only corroborative evidence was that the prisoner lodged at the place she had described, that she had received some injury, and that when she saw him next day, she declared he was the man. It was held that evidence of her statements ought not to have been received, and this decision, given in 1799, was followed in a subsequent case R. v. Tucker (1808) 1 Phil. & Arn. Ev., 10th Edn. 10 decided in 1808. This appeal must accordingly be allowed. The conviction of the appellant and the sentence passed upon him are set aside, and he will be acquitted and discharged from his bail.
3. I agree.