1. In this case the accused who is said to be a boy aged 13 years has been found guilty under Section 376, I.P.C., and has been ordered to be detained in a reformatory school for a period of six years in lieu of imprisonment. There was a charge under Section 304, I.P.C. But the jury acquitted the prisoner under that charge. The facts, shortly stated, are as follows: It is alleged that the accused Beni took a child named Hasi away on the afternoon of 18th April 1931, had sexual intercourse with her and afterwards removed the girl to his own house with the help of his mother, kept her there for the night and the next day also. The child, Hasi, was aged about six years. Some time in the afternoon or thereabouts on the last mentioned day, the girl died and the suggestion is that somebody belonging to Beni's house must have thrown away the dead body of the child into a pit in which it was found on the next day at about 10 or 11 a.m. Thereafter the matter was reported to the child's father and the dead body was taken home. Investigation followed and the accused was committed to take his trial in the Sessions Court. Evidence was led by the prosecution to prove that the deceased child was last seen alive with Beni and that the search for the child was at first infructuous and it was not until the third day, i.e., Monday the 21st April that a boy named Putul made certain statements to the police on which they were both arrested and sent up to Moulvibazar to have their confessions recorded by a Magistrate. The confessions made by the two boys Beni and Putul were recorded by the Magistrate on the same night and the accused were remanded to hajat. As stated above, there was a preliminary inquiry by the Sub-divisional Magistrate of Moulvibazar who committed the present accused to stand his trial in the Sessions Court.
2. At the hearing of this appeal, the main point which has been argued is this that Beni's confession before the Magistrate having been retracted before the Sub-divisional Officer, and also in the Sessions Court, before it could be used in evidence against Beni, it required corroboration, It is pointed out in the charge that such corroboration was to be found in the evidence of Putul recorded in the Sessions Court, Putul was an accomplice. Of that there cannot be any doubt and the learned Sessions Judge in an earlier part of his charge pointed out quite correctly that where a confession or statement, before it could safely be used against the confessor or the maker of the statement, required corroboration, such statement or confession could not be corroborated by the statements or the evidence of an accomplice. But in a later part of the learned Judge's charge he has apparently directed the jury to find for themselves whether the confession or statement of Beni did not derive corroboration from the evidence of Putul recorded in the Sessions Court. In other words, he has directed the jury to this effect that while the confessional statement of the accused could not be acted safely against the maker, i.e., the accused who made the confessional statement, the corroboration was to be sought in the evidence of accomplice recorded in the Sessions Court. This in our opinion, is wholly wrong and it is against the elementary rule that where the first statement required corroboration from an independent source, such corroboration could not be sought in the evidence of an accomplice recorded in the Sessions Court. Corroboration must be had from independent sources, and if such corroboration could not be had then the first statement was not corroborated at all and that being so, ordinarily it would be very unsafe to act on the first statement which was not corroborated.
3. In the second place, it has been argued that the statements made to the daroga by Beni showing the place in the jungle where the occurrence in question took place, could not be admitted in evidence, they being in the nature of a confession made to a police officer while in custody. It is said that under Section 27, Evidence Act, such statements are admissible in evidence. When one looks at the terms of Section 27, one realizes at once that Section 27 and the rule laid therein can have possibly no application whatsoever to the circumstances of this case and the statements made to the daroga must be treated as if they were statements made to a police officer in custody and in the nature of a confession. That being so, that statement must be ruled out and should not be treated as admissible in evidence against the accused. There is another circumstance to which we desire to call attention. It does not appear on the record that the retracted confession of Beni received any confirmation or support from the evidence of the medical gentleman who examined the child and who was called to give evidence. At the time when the medical gentleman examined the dead body of the child, the body was found to be in a state of decomposition and the medical gentleman was unable to say whether the offence of rape had been perpetrated by the accused on the child. In other words, there was no evidence to suggest that an offence punishable under Section 376, I.P.C., so far as the medical gentleman was concerned had been committed.
4. This being the state of the record, it follows from what has already been stated on the first two points concerned that the conviction by the jury on a charge of this description cannot be allowed to stand. The result is that in our opinion the conviction and sentence must be set aside and the case must be sent back for retrial in the light of the observations which follow. So far as Section 376 is concerned, having regard to the state of the record, we are of opinion that the accused should be acquitted under that charge. But the evidence on the record points to the fact that while the accused might not have committed the offence punishable under Section 376, he may have committed an offence punishable under Section 354. But this is a matter for inquiry and in sending the case back we desire that the District Magistrate should inquire whether or not the accused had been guilty of an offence punishable under Section 354, I.P.C., and we accordingly direct that he will take the necessary steps in this behalf. The accused who is on bail will remain on the same bail pending further orders of the District Magistrate.