P.B.Mukharji, J. - (1.) The appellant was tried on a charge of rape under Section 376 of the Indian Penal Code. There were three charges of rape against the appellant. One was in respect of rape committed on the girl Havatunnessa alias Hayatun on the 18th of March, 1960 at 10/1, Gurusaday Dutta Road, Calcutta. The second was in respect of rape on a girl called Kutchnur on the 17th of March, 1960 at the same place. The third charge was in respect of rape on another girl Arisha on the 14th of March, 1960 at the same place. The jury unanimously found the appellant not guilty in respect of the charge of rape against the two girls Kutchnur and Arisha. But the jury by a unanimous verdict found the appellant guilty of rape under Section 376 of the Indian Penal Code for committing rape on the girl Hayatunnessa alias Hayatun. It is against this unanimous verdict of the jury finding the appellant guilty of rape on Hayatunnessa that the present appeal is directed. The learned Assistant Sessions Judge accepted this unanimous verdict of the jury and convicted the appellant and sentenced him to rigorous imprisonment for five years.
(2.) The first task of Mr. Mitter, learned Counsel for the appellant, in challenging this unanimous verdict of the jury was to find misdirections in the learned Judge's charge to the jury. On this point of misdirection he confined himself to two main points. One is the First Information Report; it is submitted by Mr. Mitter that what the learned Judge treated as the First Information Report was not a first information report at all. The other is the learned Judge's charge on the nature of evidence of Hayatun who, it was contended, should have been regarded as an accomplice.
(3.) Taking the second point of Mr. Mitter first on the question of the evidence of the prosecutrix as an accomplice, it is necessary to say that this point is now concluded by the decision of the Supreme Court in Sidheswar Ganguly v. State of West Bengal. At page 759 (of SCR): (at p. 147 of AIR) the learned Judge observed: "It will he noticed that if the learned Judge has made any mistake, the mistake is in favour of the accused and not against him in so far as the learned Judge refers to the evidence of the two girl victims as that of accomplices. A girl who is a victim of an outrageous act is, generally speaking, not an accomplice though the rule of prudence requires that the evidence of a prosecutrix should be corroborated before a conviction can be based upon it." Here also the learned Judge very properly in the charge to the jury said: "I may tell you here that in considering her evidence (Hayatunnessa's evidence) you will remember that the law is that sexual offence like rape as in the present case corroboration of the victim girl is not essential before conviction but being a matter of prudence, you must consider advisability of corroboration. I should tell you here although the law does not require corroboration of the victim girl in order to substantiate the charge of rape, you should not readily accept her testimony for it is not wise to do so in the absence of some corroboration of her testimony. In this case, specially the defence has suggested that the case has been fabricated against the accused by some designing persons in collusion with Idris (father of Hayatunnessa) who could not get back his girls at his desire or the money which he demanded of the accused." Again the learned Judge before concluding his charge to the jury warned them by saying. "You will also remember that there is hardly any corroboration of the story of the three victim girls. I must caution you once again that the conviction on uncorroborated testimony of the alleged victim girls in cases of sexual intercourse as in the present case is dangerous. You must therefore look for corroboration of their story. Of course, the law is that corroboration is not essential before conviction and you may do without it in the particular circumstances, if you are satisfied that it is safe to do so. But it is wise and prudent to find some corroboration at least specially in the facts and circumstances of the present case as discussed above". We think that in these circumstances and having regard to the charge as a whole there is no misdirection by the learned Judge to the jury on the question as to how the evidence of Hayatunnessa should be treated. The caution was given at innumerable places. A girl who is the victim of a rape is not necessarily nor always an accomplice. The rule of prudence that requires corroboration of the evidence of a prosecutrix is satisfied in the facts of this case, from the circumstances which I shall presently discuss.;