SURENDRA NATH DAS Vs. EMPEROR

JUDGEMENT

(1.) In this case the appellant was charged with rape under Section 376, I.P.C., and tried by the Sessions Judge of Burdwan and a jury who found him guilty by a unanimous verdict, and he was sentenced to five years rigorous imprisonment. The case for the prosecution was that the girl Rajlakshmi Debi lived with her parents at Kalna. On 10 Jaistha it is alleged that she went out to the house of one Panchu Moira to a wedding of Panchu's daughter. On the way she met the appellant's wife, who asked her if she would pluck out the grey hairs from her head. She said that she would, and asked her to sit down by the roadside. But the appellant's wife asked her to go to her house to do it, so she went there. While there the appellant came in, and according to her story she was made to lie down on the bed, when the appellant's wife produced a pot containing oil, which the appellant applied to the girl's private parts and to his own, and then raped her. His wife, who was a woman of 26 stood by and watched the rape, and further she held the girl's hands and gagged her while this was going on. Afterwards she asked the girl to come with her to a tank to get her cloth washed and said that when she came back she would give her same churis. The appellant's wife then took her to a tank but left her there. Rajlakshmi instead of coming back to the appellant's house went home. She was bleeding, and the blood was trickling down her legs. Her mother observed this and called the girl's father. When he came and asked her what she had been doing, she made a complaint saying that the appellant had raped her, and gave the particulars to which I have referred. On medical examination it was found that there was a tear in her vagina, and some congestion around her private parts. The evidence goes to show that she was under 14 years of age. Therefore no question of consent arises in this case, but she was developed far beyond her age. The orifice was much larger than usual, and the doctor said that this indicated that she had intercourse prior to the present occasion. Further he said that the evidence showed that she could not have been raped, and that the connexion must have been with her consent.

(2.) There are a number of improbabilities in the girl's story. The Court called two witnesses, whom the prosecution said had been won over by the defence, but as the Judge observes there was no evidence of this. They said that no marriage had been held on that day in Panchu's house, and that such a marriage was impossible according to the Hindu calendar. With regard to the times stated by the girl for her coming in and going out she says that she left her home at 3; her mother says that she left at 12 o clock mid-day and returned at 4 o clock. If this be true no explanation has been given for her absence for over four hours. She had never spoken to the appellant's wife before, though she knew her by her sight. It seems unlikely therefore that the woman would ask her to pluck out her grey hairs, and still more unlikely that the girl would have gone to her house. The girl did not scream when the attack of which she complained was being made upon her. Apparently she did nothing while the appellant's wife was going for the oil, or while the oil was being applied to her private parts and to those of the appellant. The appellant and his wife occupied two rooms in this hut, and according to the girl the outside door, and the inner doors were open during the time when the rape was taking place. Further she said that two women were in the second room, of which the door was open. That is what she said before the Magistrate. Before the Sessions Court she said that they were not there at the time but that she knew that they lived there, and she described their relationship to the appellant. This seems to show that she knew much more about the people in this house than she pretended. The fact alleged, that the wife helped in this disgusting business seems very unlikely, not only because she was the appellant's wife, but because of her age. The only possible suggestion for such conduct would be the superstition that a man can get rid of his venereal disease if he has connexion with a virgin. In such cases, as I understand, a wife in this country may assist her husband, but far from there being any evidence that the appellant had venereal disease, he was examined by the doctor who said that he had none, nor was there any trace that he had it previously. The hut in question was surrounded by other huts and shops. It was opposite Panchu's house and was within 100 yards of the girl's home. The accused's cloth was examined and no blood was found upon it. He was examined by the doctor and there was no injury found on his penis. There were no oil marks on the cloth of the girl or that of the accused nor was any oil found in the hut. The girl said that when she went to the tank she was not weeping, nor did she speak to any one, although there were shops on both sides of the road leading to the tank.

(3.) The medical evidence showed that she was not a virgin at the time when she said that the rape was committed. There were remains of a hymen, and the doctor said that her condition indicated that she must have lost her virginity at least three months before, and that she had frequent intercourse since. There were no outside injuries, either on the orifice or on the vulva. According to the doctor he would expect to find such marks in a case of rape. This indicates clearly that the girl consented to whatever was done, though this was not material to the present charge. Evidence was also given to show that the girl was intimate with a prostitute named Sasi, who was connected in someway with the appellant, and that she had been to her house in the evening. Two witnesses spoke to this.