A W KHAN Vs. STATE

JUDGEMENT

(1.) The appellant was tried on a charge of rape under Section 376 of the Indian Penal Code. There were three charges of rape against the appellant. One was in respect of rape committed on the girl Havatunnessa alias Hayatun on the 18th of March, 1960 at 10/1, Gurusaday Dutta Road, Calcutta. The second was in respect of rape on a girl called Kutchnur on the 17th of March, 1960 at the same place. The third charge was in respect of rape on another girl Arisha on the 14th of March, 1960 at the same place. The jury unanimously found the appellant not guilty in respect of the charge of rape against the two girls Kutchnur and Arisha. But the jury by a unanimous verdict found the appellant guilty of rape under Section 376 of the Indian Penal Code for committing rape on the girl Hayatunnessa alias Hayatun. It is against this unanimous verdict of the jury finding the appellant guilty of rape on Hayatunnessa that the present appeal is directed. The learned Assistant Sessions Judge accepted this unanimous verdict of the jury and convicted the appellant and sentenced him to rigorous imprisonment for five years.

(2.) The first task of Mr. Mitter, learned Counsel for the appellant, in challenging this unanimous verdict of the jury was to find misdirections in the learned Judge's charge to the jury. On this point of misdirection he confined himself to two main points. One is the First Information Report; it is submitted by Mr. Mitter that what the learned Judge treated as the First Information Report was not a first information report at all. The other is the learned Judge's charge on the nature of evidence of Hayatun who, it was contended, should have been regarded as an accomplice.

(3.) Taking the second point of Mr. Mitter first on the question of the evidence of the prosecutrix as an accomplice, it is necessary to say that this point is now concluded by the decision of the Supreme Court in Sidheswar Ganguly v. State of West Bengal. At page 759 (of SCR): (at p. 147 of AIR) the learned Judge observed: