SIKANDAR MIAN Vs. EMPEROR

JUDGEMENT

(1.) This is the appeal of one Sikandar Mian who was convicted by a majority verdict of a jury sitting with the Additional Sessions Judge at Alipore of an offence against a small girl under Section 376, I.P.C. The learned Judge took a very grave view of the appellant's crime. He sentenced him to ten years rigorous imprisonment. The appeal was admitted on the question of the possible misdirection on the part of the learned Judge in his charge to the jury and also on the question of the sentence imposed. It was a very unpleasant case indeed. The prosecution story was that the little victim of the criminal assault was a child of about nine years. She had no mother but lived with her sister and brother, both younger than herself and with her father who was a widower and it is said that he kept a shop and attended to his duties there during a greater part of the day. The child whose name was Taramoni was an attendant at a school and the evidence was that the school authorities usually provided a maidservant to take certain of the girl day-scholars backwards and forwards from the schools to their houses, but on this particular occasion the little girl was walking back from the school by herself. She knew the appellant; he used to come to her father's house, he sometimes helped her with her home lessons and she used to call him by a name which is the equivalent of master . Before he committed the crime, the inducement which he held out to the little girl was that if she came to his house, he would give her some guavas and on this pretext he got her into his house and committed criminal assault upon her inside his room. Then he gave her, according to her story, some guavas, told her to go home and warned her not to tell anyone about what had happened. Before he committed the assault, she said, he took off the frock which she was wearing and he threatened her saying that if she made any resistance or cried out, he would use a dagger.

(2.) When the little girl got home, she did not tell anybody about this until about two days later, when feeling acute pain she told her father everything, who took her to a doctor. The doctor discovered that she had been violated and also found out that she was suffering from gonorrheal infection; she named the appellant as her assailant. He was arrested and on being examined, the same doctor discovered that he was suffering from gonorrhea also. The examination of the child and the appellant took place five days after the date on which the prosecution said the assault took place. No one was called before the Court who witnessed the appellant and the child together on this particular day.

(3.) It has been often laid down by criminal Judges that charges brought against a man by one of the opposite sex accusing the male of having committed a sexual offence should be very carefully presented to the jury and as it has been pointed out both in England and in India, a rule has grown up that Judges when they charge juries in cases of this kind ought never to omit delivering a serious caution to the jury with regard to accepting the uncorroborated evidence of a woman to support a sexual charge against an accused person. The way the rule has developed now is that the presiding Judge should tell the jury that they ought to scrutinise the uncorroborated evidence of a woman or girl with the greatest possible care, because it has been found by experience extending over many years that it is often dangerous that a man should be convicted on such uncorroborated testimony. At the same time, it is not for the Judge to substitute his view of the facts entirely and take away from the jury their privilege of being the judges of facts alone; so that nowadays after giving the warning which I have described, the Judge generally adds a rider to the effect that nevertheless if after proper scrutiny and considering the caution delivered by the Judge they are satisfied with the uncorroborated evidence, they may accept it. In this case, the learned Judge did not deal with this question of warning the jury with regard to the child's evidence, because I think he took the view that there was corroboration of some kind. What exactly amounts to corroboration of the main evidence in cases of this kind is always a difficult question. It need not be the direct oral evidence of another person. It may be only independent evidence of such a character that it connects the accused directly or indirectly with the crime that he was said to have committed. That was, I think, the view which was taken by the Court of Criminal Appeal in England in the well-known decision in Rex V/s. Baskerville (1916) 2 K B 658, a case which is often cited in the Indian Courts and is looked upon in England as the leading case upon the point now, and it is relied upon in Archbold's Text-Book. Now, applying that test here, there was certain independent evidence not of a very direct character which the jury could well have considered carefully with regard to the question whether the accused was guilty or not.