HANUMAN SARMA Vs. EMPEROR

JUDGEMENT

(1.) The appellant Hanuman Sarma has bean convicted under Section 354, I. P. C., and sentenced to rigorous imprisonment for two years and a fine of Rs. 300. Hanuman was put on his trial on charges under Secs.376 and 354, I.P.C. The trial was held with the aid of four assessors. Two of the assessors found the accused not guilty, according to one the accused was guilty under Secs.376 and 354, I. P. C., while according to the fourth the accused was guilty under Secs.354 and 376/511, I. P. C. The learned Judge acquitted the appellant of the charge under Section 376, I. P. C., but convicted him of the charge under Section 354, I. P. C., and sentenced him in the way as stated before.

(2.) The accused Hanuman Sarma is a young man of about 22 or 23 and the victim in the present case is a girl aged about 6. The case for the prosecution was briefly this: Ajodhya Prosad, the father of the girl whose name was Gumti on his way to office, left her on the road in the police bazar in the town of Shil-long in front of the Thakur Bari there, his idea being that on return from his office he would take the girl with him to the house of one Badri Prosad where he had to go to attend a feast. When Ajodhya came back from office he found that the girl had already returned home. This was on 18 May 1931. The girl told her father that a brother of Chima the little daughter of the priest of that Thakur Bari had done a bad deed to her, Ajodhya did not pay any particular heed to what the girl said. On 22 May, however he noticed some marks on the bed sheet of the girl and on the 22nd as well as on the 23 the girl complained of some pain when passing urine. On the next day the 24 Ajodhya took the girl to the shop of a Marwari opposite the Thakur Bari and there the girl identified the present accused Hauuman who was a son of the priest as the person who had done the bad deed to her. There was a panchayati held and the father of the accused expressed his regret. The girl was examined by the Civil Surgeon on the 26 when the doctor found that she had gonorrhoea. The accused was examined by the same Civil Surgeon on the next day, namely, the 27 and the Civil Surgeon found that Hanuman also had gonorrhoea. On these facts the accused was put on his trial with the result as stated before. The order passed by the learned Judge was assailed before us on several grounds and I propose to deal with them one by one. The girl Gumti was the most important witness in the case, in fact she was the only eyewitness to the occurrence. It was said that Gumti was not a competent witness under Section 118, Evidence Act, and that being so, her testimony should be thrown out altogether. In support of the contention that Gumti was not a competent witness our attention was drawn to the answer which she gave in Court when she was asked for the reasons why she had identified the accused. On being asked why she had pointed out the accused she replied, malum nehi; bera nehi. But a perusal of the girl's deposition would show that before she gave this answer she had given another answer and that was that she pointed out the accused because her father asked her whether the accused was the man who had done the deed. To argue from this that Gumti was a witness who could not give any comprehensible or rational replies to questions would in my opinion be a contention without much substance in it. The deposition which the girl gave in Court was a pretty long one and a perusal of the same would show that although her replies might not always have been of a very analytical nature she could understand questions and she could give reasonable and comprehensible answers to them. (After discussing the evidence, his Lordship proceeded.) I have referred to the fact that the girl as well as the accused were found to have gonorrhoea, the girl being examined on the 26 and the accused Hanuman Sarma on the 27 by the Civil Surgeon.

(3.) It was said that the testimony of the Civil Surgeon when he deposed that he had found gonorrhoea on the accused on examining him, was inadmissible in evidence inasmuch as the Civil Surgeon had not recorded that before examining the accused person he had obtained his consent to such examination and in support of this contention our attention was drawn to the case of Emperor V/s. Bhondar Prodhan . I do not think this case can be of much assistance to the accused. It is true that the Civil Surgeon admits that he did not put down in writing that before examining the accused he had obtained his consent. But the case cited is not an authority for the proposition that unless the fact that consent has been obtained is put down in writing it is to be held that no consent was in fact [obtained. The case lays down it is true that unless such consent is taken the Civil Surgeon's evidence would be inadmissible. But the Civil Surgeon was as a matter of fact examined in the present case and he has deposed in clear terms that before examining the accused he told him that he (the accused) had the right to refuse examination and he deposed also that the accused was quite willing to be examined by him. Mr. Basu next contended that a conviction under Section 354, I. P. C, is not maintainable in view of the fact that a sense of modesty had not sufficiently developed in the girl. Apart from the question whether a development; of sense of modesty would be necessary for a conviction under Section 354, I. P. C., I am of opinion that the case was clearly a case of attempted rape under Section 376/511, I. P. C. On behalf of the appellant it was urged that it will not be within our competency to convict the accused under Section 376/511, I. P. C , remembering that the order of the Sessions Judge amounted to an acquittal of the accused of the charge of rape under Section 376, I. P. C.