SREEHARI SWARNAKAR Vs. EMPEROR

JUDGEMENT

(1.) This is an appeal by one Sreehari Sawarnabar who was tried by the learned Sessions Judge of Dinajpur sitting with a jury on a charge of rape on a child of some eight or nine years old. The jury unanimously found the accused guilty and the learned Judge agreeing with verdict sentenced him to five years rigorous, imprisonment and 16 strokes. The facts are briefly these : The girl who was raped named Durgamani was living with her mother one Sailabala who is a widow. On the day of occurrence the mother of the accused came to call Durgamani to collect firewood with the accused who was also collecting firewood. Durgamani went with the accused to a place called Puranbhita where they began to collect firewood. While the girl was engaged in collecting wood the accused Sreehari caught hold of her, placed her on the ground and proceeded to have sexual intercourse with her. Finally he let her go and the girl went back weeping to her mother to whom she told the matter. After some delay information was given to the authority and the appellant was put on his trial with the result already mentioned.

(2.) The appellant pleaded not guilty and it was suggested that the charge was the result of enmity. It was further suggested that the injury on the girl was due to the bite of a leech. The first point urged by the learned vakil for the appellant is that the learned Judge misdirected the jury by telling them that there was no evidence that the girl had been bitten by a leech beyond the doctor's statement, that it was possible that the wound on the girl was caused by the biting of a leech. The learned vakil contends that there is a statement by the girl's mother that the girl said that she had been bitten by a leech. The learned Judge was quite correct in saying that there was no evidence that the girl had been bitten by a leech beyond the doctor's statement. The statement of the girl's mother as to what the girl said is not evidence of the fact that she had been bitten by a leech. It could possibly be used to corroborate or to contradict the statement made by the girl. By itself it would not be substantive evidence of the fact that she had been so bitten. The learned vakil contends that under Section 6, Evidence Act, her statement to the mother would be a relevant fact. Section 6 provides as follows: Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction are relevant, whether they occurred at the same time and place or at different times and places.

(3.) It is clear that the statement of the girl to her mother, if she had made any, did not form part of the transaction by which I understand the raping of the girl or occur during it. This transaction, namely raping of girl, was over when the perpetrator had gone away and the girl came away from the scene of occurrence to her mother's house. Therefore, this statement is not relevant under Section 6. Even then it would not be evidence of the fact that she had been bitten by a leech. It could only be evidence of the fact that she made that statement to her mother. There is therefore no misdirection by the learned Judge on this point.