ARABINDA DEY Vs. STATE

JUDGEMENT

(1.) The appellant was tried by a learned Sessions Judge and a jury upon a charge of rape. He was found guilty by a majority of 3 to 2. The learned Sessions Judge accepted the verdict of majority, convicted the appellant under Section 376 and sentenced him to five years' rigorous imprisonment and also five, stripes.

(2.) The appellant being dissatisfied with the verdict, conviction and sentence, has preferred an appeal to this Court and the appeal is confined to questions of law, namely, whether there were any misdirections in the charge of the learned Judge to the jury. Before discussing the charge it will be convenient shortly to set out the facts which gave rise to the prosecution. The girl said to be raped was of the name of Dulali. She was about seven years of age and went about with her father, Gangasadhan Ghatak, earning their living by begging. It is said that they came to the town of Burdwan about two months previous to the incident which led to this charge. They were accustomed to sleep at night on the verandah of a Thakurbari which was owned by the appellant and actually adjoined his house. On 17-11-1950, the prosecution alleged that the little girl: and her father were sleeping on the verandah, of this Thakurbari when at or about midnight the appellant came there and enquired who they were. On the father replying that they were beggars, Arabinda is said to have asked them if they had taken any food. They replied that they had, but Arabinda it is said, insisted that they must take something from him. Arabinda then sat beside the little girl passed his hand over her body and pulled down the pyjama she was wearing. He then it is said inserted something into her private parts. which caused her intense pain whereupon she cried out. Arabinda, it is said, then went into the house and hurriedly brought out some sweetmeats and offered them to both the father and the child. Shortly after, persons came by including one Sivada Mukherjee, carrying a powerful light and as he approached the appellant ran back into his house.

(3.) The father and the girl went to the thana which was nearby and made a first information report & it is interesting to note that in that first information report no allegation of rape is made. Investigation was made by the police and a charge-sheet was submitted to the Court. In that charge-sheet all that was suggested against the appellant was the crime of outraging this little girl's modesty. Upon that charge the case proceeded.