EMPEROR Vs. ISSUF MAHOMED

JUDGEMENT

(1.) This is an appeal from a conviction and sentence passed by the Sessions Judge of Surat. The accused were charged with the offence of rape under Section 876 and Section 376 read with Section 114 of the Indian Penal Code. The case was tried by a jury, and the jury after the absence of an hour returned a verdict of guilty, unanimous as regards accused No. 2, and by a majority of 4 to 1 as regards accused No. 1. That being so, we can only interfere with the verdict of the jury on a point of law.

(2.) Now, the story shortly of the complainant was that she was raped by the two accused, who are boys of seventeen years of age, in a creek at the back of the house where she worked. The story had some curious features about it, because the medical evidence was that the complainant's body showed no marks of violence, though the alleged offence took place on stony ground, and no attempt seems to have been made by the complainant to summon help though there were various people in the immediate vicinity, if not actually looking on, at any rate within ear shot. It was suggested on behalf of the accused by their counsel that the learned Judge did not emphasise these facts in his summing up. I think the summing up was quite a fair and proper summing up and I should not have been inclined to interfere with the verdict on that account.

(3.) Various points of law were suggested, but, in my opinion, there is substance in only one of them, and that is a point which raises a question under Section 162 of the Criminal Procedure Code. Each of the accused made statements in the committing Magistrate's Court. The effect of the statements was that although they were at the place of the offence on the day in question they had not had sexual intercourse with the complainant, and accused No. 1 accounts for the fact that he had scratches on his knees by saying On the day previous to the day of the alleged offence, I had fallen down from the cycle and I had been injured on my knees. And accused No. 2 says I met Bhanki (the complainant), near the end of Bazar, she was drunk, She called me and demanded eight annas from me saying she wanted for drinking liquor. I said I had no money. She pressed me much for many, but I did not give and I went away home. I know nothing about this offence.