1. This rule was obtained on the ground that a certain statement made by the prosecution to the Sub-Inspector of Police at the Park Street Police Station was not allowed to be proved by the defence. It appears that the girl was found in the house of the accused at Utterpara and brought down to the Calcutta Police Station at Park Street where she made a statement to Mrs. Mac Gilchrist who had brought the girl up from her childhood and after having a talk with her made a statement to the Police Sub-Inspector. Thereafter the accused was charged under Section 376, with rape on the girl and under Section 354 for outraging her modesty. The trial Court in its judgment says that the statement was not proved because it was entered in a confidential diary of the Police Sub-Inspector. The Crown has not appeared in this case and I have, therefore, to decide the question raised on the law and facts placed before me by the learned Counsel for the accused. He has referred to Section 78-A, Calcutta Police Act (4 of 1866) under which the police Sub-Inspector investigating a cognizable offence may examine orally any person attending at the investigation and may reduce it in writing and such person shall be bound to answer all questions relating to the case put to him. That is the only section which deals with the power of the Sub-Inspector to record the statement of a person in connexion with a criminal charge. In the Police Act there is no section corresponding to Section 162, or Section 172, Criminal P.C, which do not apply to the Calcutta Police. In the Act itself I do not find mention of any confidential diary which is privileged and cannot be reached by any party in a criminal case. This rule was issued on the ground that the trial Court was wrong in not having the diary in which the statement of the girl was entered before it and to have it used in evidence. The learned Sessions Judge on this point only remarked that the complaint of the girl was entered in a confidential diary and since it was not produced it was not necessary to notice it further. If the book was not privileged and there was no justification for holding it back, the defence had legitimate grievance in not being able to get hold of it and use it for its own purpose. That statement was very important as it was the first statement made to a responsible police officer. It has been pointed out to me that the girl was in charge of the Bengal Police for about a day but she made no statement there. The statement which she first made relative to this matter accordingly assumes great importance. If the record of the statement was not privileged, it was the duty of the prosecution to place all the evidence it had in its possession before Court. The withholding of this document naturally suggests that it is not favourable to the prosecution. It is not a private prosecution and I cannot too strongly protest against Crown prosecutions degenerating into private cases. This rule must be made absolute on the ground on which it was issued.
2. The only question that now remains is whether the matter should be sent back to the trial Court for a retrial of the case after admitting the statement made by the girl to the police. The case has been hanging on for about two years. The accused was originally charged with committing rape upon the girl. According to the girl's story the rape must have continued for a considerable time. During the course of the trial the trying Magistrate before charge was framed held that no case of rape could be made out and discharged the accused under that charge. The girl was examined medically and the result of the examination does not prove that there was any actual rape. All that the medical evidence goes to show is that the girl's private parts are fairly developed but there was no indication of complete coition. This disproves the charge of rape and the accused was accordingly discharged of that charge. He has now been convicted under Section 354, I.P.C., for outraging the modesty of the girl. In a ease where the accused is charged with rape it is possible to convict him only under Section 354, I.P.C., if the charge of rape or attempt at rape fails. But in this particular case the accused was said not to have committed rape on any particular occasion or only once but of having lived with the girl for some time and ravished her on more than one occasion. According to the girl's story the accused had committed rape upon her. But according to the medical evidence it must be held that so far as the charge of rape is concerned the story was false. I do not say that the evidence on the record directly relating to the charge under Section 354, I. P. C, is not sufficient for a conviction. But I am only considering the desirability of sending the case back to the trial Court to reopen the prosecution from the beginning and to have another protracted trial in this case when the accused has been sentenced to pay a fine of Rs. 1,000 only. Considering the nature of the case and that the prosecution has lasted for such a length of time and that the accused is a man of social position and that he has been sufficiently punished, if he has committed any offence, by the ignominy, agony and suspense which must have been caused to him, I think it will not be in the interest of justice to order that the accused should be retried.
3. I accordingly make the rule absolute and acquit the accused. The fine if paid will be refunded.