Emperor vs Phagunia Bhuian

Foster, J.—In this case Phagunia Bhuian was charged with committing rape upon a small girl aged about 6 years by name Sanichwa Bhuini, on 7th May 1923. The Jury returned an unanimous verdict of not guilty, but the Sessions Judge of Gaya found himself unable to agree with the verdict and has referred the case to the High Court u/s 307, Criminal P.C. The facts are as follows:

The child Sanichwa was playing near the landlord''s house in her village when the accused (whose age is about 22 years) came up and offered to give her cooked rice if she would come with him. The accused lifted her up, thrust a piece of cloth into her mouth and carried her to a latrine immediately in front of the landlord''s house, that is in front of Miran Khan''s house. Another landlord of the village, Warasat, lives in a house behind Miran Khan''s. Having taken the child into the latrine the prosecution case continues he attempted sexual intercourse in consequence of which a rupture was caused to the vagina. The child went home and informed her relatives. Her cloth was wet with blood, and she was carried to the thana bleeding. She was subjected to medical examination, and the medical evidence indicates that some one or other had committed rape effecting penetration, with the result of very serious injury to her person. Sanichwa has died since she deposed in the inquiring Magistrate''s Court. There are upon the record two statements made by her; the first is the First Information lodged at 1 a.m. on the 8th May, that is about 12 hours after the occurrence, at the Sherghati Police Station, 13 miles from the place of occurrence; the other statement is her deposition given on the 21st May in the inquiring Magistrate''s Court.

The Sub-Inspector who recorded the First Information went to the spot and arrested the accused on the day after the date of occurrence and the Senior Sub-Inspector subsequently took over charge of the investigation the same day. Meanwhile the accused had been sent to Gaya. On the following day, the 9th May, the Senior Sub-Inspector went also to Gaya and examined the accused, and on the same day the accused was produced before a Magistrate and made the following statement:

The girl was playing under the kanota. I induced her to go with me and cohabited with her. When blood began to flow I left her. I do not know her name.

In the Sessions Court this confession was repudiated by the accused who stated that he had been beaten by the landlord who had not paid him wages. He denies that he had made any confession and he denied having committed rape.

The prosecution evidence, so far as it is concerned with the actual occurrence, consists in the statement of a boy Budhoo Khan, aged 6 years, who deposes that he had been playing with Sanichwa and that he saw her carried off by the accused into the latrine, anil saw her come out and go horns with blood upon her clothes; in the depositions of Sanichwa''s brother Sukwa, brother''s wife, Mularwa and father Akkal, who described the child''s condition when she got horns and the account that she gave of what had happened; and in the deposition of Imam Ali who states that Sukwa came to him and told him what had happened and showed him Sanichwa lying unconscious at homo, whereupon ha want and arrested the accused and brought him before the landlord, Warasat.

In the face of the medical evidence, if; is only possible to conclude that the child Sanichwa was subjected to the lustful violence of one or more mala adults. Her back, shoulders, and neck bore injuries which, taken with the rupture of the vagina most infallibly point to a rape. It is peculiar that no blood was found in the latrine. This latrine is in itself hardly a likely place for a man to effect a rape, it being directly in front of the house of Miran Khan. Its walls are dilapidated and there is only one corner where the interior is not visible from outside. The learned Sessions Judge contends that if there was a rape there would be no need to change the place of occurrence; but it is obvious that if a guilty person is to be shielded, it might be necessary to change the place of occurrence. Miran Khan''s two sons, Imam Ali and Budhoo Khan, have given most important evidence in the case.

It is noticeable that Imam Ali did not come into the investigation as a witness until 11th May, that is, the fourth day of the investigation. The learned Sessions Judge found Imam Ali to be a slow and stupid witness and ascribes the fact that he was not examined on the first day of the investigation, to his slowness and stupidity. Then he makes the remark, which I find absolutely unconvincing, that supposing a false case was being manufactured a witness like Imam Ali would have been pushed forward at the first opportunity. Now Imam Ali deposes that he took the accused to Warasat Mian, one of the maliks of the village. Warasat has not been produced as a prosecution witness. The learned Sessions Judge is firmly of opinion that the prosecution had no mala fide intention in not examining Warasat, and he calls attention to the fact that when it was realized in the Sessions Court that his evidence was necessary every effort was made to produce him. It appears to me to be of secondary importance, to consider whether the prosecution (which is the Crown in this case) was in good faith or otherwise. The important facts are that Warasat Mian has, on two occasions at least, done something which has materially affected the course of this case. Imam Ali deposes that when he took the accused to Warasat, Warasat made the accused wash his loin cloth. This was represented to the Sub-Inspector to be the reason why the accused''s loin cloth had no stains of blood. Again, Warasat Mian has abstained from coming to Court to give evidence of what he knows about the case. As to one other way in which he has possibly affected the course of the investigation, namely, his assault upon the accused, I shall have more to say later.

The learned Sessions Judge has summarised the evidence in the case under six headings: (1) the statement of the girl herself, (2) the evidence of Budhoo Khan,

(3) the evidence of Sanichwa''s relatives,

(4) the medical evidence, (5) the evidence of Imam Ali as to having seen blood on the accused''s dhoti, and (6) the accused''s confession. I proceed to deal with these, with the exception of the medical evidence, in their order. Sanichwa''s statement made in the Court of the inquiring Magistrate was not read over in the manner required by Section 360, Criminal P.C. In Section 354 it is prescribed that the evidence of witnesses must be recorded "in the following manner," and that includes provisions of Section 360. Now, u/s 208, Criminal P.C., the in inquiring Magistrate must take "in manner hereinafter provided" (this refers to Ch. 25 of the Code) "all such evidence as may be produced in support of the prosecution or in behalf of the accused, or as may be called for by the Magistrate" and "the accused shall be at liberty to cross-examine the witnesses for the prosecution." Now, until the evidence is taken in the manner provided in Ch. 25. it is obvious that there is no occasion for cross-examination by the defence. Till the evidence has bean properly verified, the defence cannot be considered to have an opportunity to cross-examine; so in my opinion Section 33, Evidence Act was not applicable to Sanichwa''s deposition of the 21st May. The learned Assistant Government Advocate has frankly conceded that Sanichwa''s evidence may go out of the case.

Now I come to the evidence of Budhoo Khan. In the first place, Sanichwa in her First Information and in her deposition in Court denied that any one was with her. In the First Information she states that she was playing alone. In her deposition she states that none was present when the accused took her to the paikhana. In the second place, when I read this deposition of Budhoo Khan it strikes me as having the appearance of a mere mechanical statement. He saw the child picked up, taken into the paikhana and then saw her coma out and he accompanied her to her house. He does not describe what the accused said to the girl, or what the girl did or what her condition was when she came out of the latrine and went home. He only describes the condition of her clothes. When questions were put outside the bare narrative of the occurrence, he appears to have answered at random: "This happened in the afternoon. My father had gone out to the fields. My mother was at home, and sister, and no one else. We began playing early. I went home and had a meal, she did not come to play again after that. Phagunia was collecting cowdung. He abused me.

Q. Why?

No answer. After collecting cow-dung he fled. I told my brother.

Q. What did you say? No answer. This Budhoo Khan is, as I have stated, the younger brother of Imam Ali.

As to the evidence of Sanichwa''s relatives to the effect that Sanichwa accused Phagunia of rape, if Sanichwa''s evidence is to be excluded from the case, this evidence cannot be employed as corroboration u/s 157, Evidence Act. As to whether it is evidence u/s 8, Evidence Act [(vide illustration (j)], the question is a debateable one whether Sanichwa''s statements were complaints. If the girl went to her relatives straight after the occurrence and complained on her own initiative, there is no doubt that her conduct would have a direct bearing upon and connection with the occurrence itself: but if she only answered questions, her statement would be made hearsay.

Coming to the evidence of Imam Ali that he saw blood on the accused''s dhoti I would first suggest that the evidence can only amount to this, that Imam Ali saw marks "as of blood" on the accused''s dhoti. This witness arouses my suspicions not only because he came at a late date into the case, but also because I find it hard to believe his story. He arrested the accused and took him to Warasat who forthwith began to beat the accused without questioning him expecting to say why have you done this? Then Warasat told the accused to wash his dhoti. All this is an extraordinary narrative. It is not clear why Warasat was so suddenly violent, nor can I understand for a moment why it came into Warasat''s head to tell Phagunia to wash his dhoti, if there was blood upon it. If there was no blood, the washing of the dhoti might be a useful step in the preparation of a false charge against Phagunia.

Lastly, I come to the confession made on 9th May. The evidence of Imam Ali shows that Warasat beat the accused and told him that it would be better for him to confess. This was on 8th May, the Police Officers noticed injuries on Phagunia''s head, arms and legs, and on 14th May, the Jail Sub-Assistant Surgeon found 8 marks of violence on Phagunia''s person. Now, Phagunia was produced before the Deputy Magistrate to be examined u/s 164, Criminal P.C., on 9th May. The Deputy Magistrate made some show of careful inquiry as to the voluntary nature of the accused''s confession, but he never asked the accused whether he had been beaten and he did not notice any of the marks on his person.

In this criticism of the evidence my main object has been to show that at every turn through the evidence one''s path is beset with warning signals. The verdict of the Jury was "not guilty" "giving the accused the benefit of the doubt". The Jury were immediately questioned as to the principal points on which they were doubtful. The questions could hardly have been foreseen, and some of the reasons given by the Jurors are not complete or convincing, but in my opinion they did not act unreasonably or insincerely in arriving at their verdict of "not guilty."

For these reasons I decline to accept the reference of the learned Sessions Judge. I acquit Phagunia Bhuian and direct that the accused be discharged from custody or bail as the case may be.