1. In this case the prisoner Wahid Ali was charged under Sections 368 and 376, I.P.C., and tried with five others by the Additional Sessions Judge of Sylhet and a jury who by a unanimous verdict convicted him under Section 368, and by a majority of 4 to 1 convicted him under Section 376.
2. The story for the prosecution wag that a girl Saharjan Bibi, aged 12, who was living with her brother while her husband was away, had been abducted by the accused with the assistance of others and had boon raped by him. The general facts, as alleged by the prosecution, are not of importance for the purpose of this appeal.
3. The case for the defence was inter alia that the girl's brother had been excommunicated for the elopement of his sister several times, that she was a woman of loose character, that after her marriage she ran away several times with other persons and that she had previously run away with Hurmat who had assisted the other accused but was absconding. It was also alleged that she had run away with one. Tahir who was, not put upon his trial. This being the position, a witness was called for the prosecution named Sheikh Ajai. He said that ho had soon the girl going away with the accused men on the night of the occurrence. He wont on to say that Tahir was his son, that ho lived at Sabkhai and had heard at the end of Kartic last that the girl had once run away with Hurmat; also that the girl had run away once or twice before, also that there was a panchayat regarding the running away of the girl.
4. The prosecution asked permission of the Court to declare the witness hostile, and permission was granted. The Judge states in a note that this permission was given, because the witness had shown bias towards the defence. He was then cross-examined by the prosecution and said that he did not go to the panchayat, that he did not know where it assembled, that he merely hoard from persons that there was a panchayat, that he did not: know who the members were, but that he heard that they formed different opinions. The Judge in his charge to the jury reminded them that the girl denied the suggestion that she had run away from her husband's house several times or that she ran away with Hurmat or that her husband married a second wife because of her loose character. He also reminded them that the witnesses said that the girl was of good character and that she had not run away with anybody. But in dealing with individual witnesses when he came to Sheikh Ajai, P. W. 18, he told the jury that he
had been declared hostile to the prosecution and that therefore his evidence should be altogether left out of account in your minds as he is not a witness of truth and is not entitled to credit, being prepared to make different statements at different times.
5. This was clearly a misdirection if the evidence given by Sheikh Ajai was relevant. Such evidence though given by a witness who had been cross-examined by the party calling him, must go to the jury with the rest of the evidence for them to, decide what it. was worth. Having said this, the learned Judge dealt with the evidence of the husband and reminded the jury that he had repelled the suggestion that his wife had run away with Hurmat or other men and said that his wife was a woman of good character, and towards the end of his charge he referred to the evidence of Ajai in these words:
P. W. 18. the hostile witness, said that he heard about a panchayat regarding the girl's elopement, that he could not say who the panchayats were or where they met, and said that they came to conflicting decisions.
6. That however is only part of the evidence which Sheikh Ajai had given in favour of the defence and if the evidence which he gave had been relevant, we should have been compelled to hold that the Judge's direction was a material misdirection. The evidence however is merely hearsay, and it is hearsay referring to specific acts of running away by the girl. Section 155, Sub-section 4, Evidence Act, provides that
when a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character.
7. Such evidence, in our opinion, means something more than that it can be proved that she has on specific occasions done acts which may be called immoral. Some meaning must be given to the word 'generally' and we think that the subsection refers to such evidence as that her general reputation was that of a prostitute, or that she had the general reputation of going about and committing immoral acts with a number of men. But the evidence given by Sheikh Ajai shows merely that she had run away with Hurmat and that she had done the same thing once or twice before, which might mean that she had run away with Hurmat on those occasions. Even if he meant that she ran away once or twice with persons other than Hurmat, still we do not think that that amounts to evidence of generally immoral character. That being so, the evidence ought to have been excluded as being hearsay evidence about specific acts committed by the girl. The face therefore that the Judge misdirected the jury with regard to the evidence of Ajai has not prejudiced the prisoner in any way. Consequently, there is no necessity for us to interfere.
8. With regard to the second point, namely that the learned Judge in his charge pointed out to the jury that they had to consider the case of Wahid Ali Serang, 'against whom the only evidence is that of the girl,' and failed to tell them that they ought to require corroboration of her evidence, the answer is that the learned Judge's statement is not accurate. It is true that the Judge forgot to give them this warning. But, in fact, there is corroboration of the statement, because the evidence is that immediately after she was rescued, she made a complaint of what had been done to her implicating Wahid Ali. Consequently, there was no necessity for the warning, and therefore no prejudice has been caused to the prisoner.
9. For both these reasons the appeal fails and must be dismissed.